[15] See, e.g., Michael Stephens, Joint Custody, THE IRISH TIMES, July 25, 1996, at 13:

It is morally wrong that when . . . marriages end, the father's role in the lives of his children is reduced to such an extent that he becomes, at best, an avuncular figure on the periphery of his family. The destruction of the father/children relationship does not only apply in exceptional circumstances, but is standard practice when custody disputes are referred to courts for settlement.

[16] See THE NATIONAL FATHERHOOD INITIATIVE, FATHER FACTS (1995) [hereinafter FATHER FACTS]; infra Part III.F. Return to text.

[17] See FALUDI, supra note 7, at 26 ("[I]n national surveys, less than a third of divorced men say [they sought] divorce, while women report they . . . actively [sought] divorce 55 to 66 percent of the time."). Return to text.

[18] See Mitchell Speech, supra note 14. Return to text.

[19] See Mitchell Testimony, supra note 14; Testimony of Cynthia L. Ewing, Senior Policy Analyst, Children's Rights Council, Before the U.S. House of Representatives Committee on Ways and Means Subcommittee on Human Resources (Feb. 6, 1995), [hereinafter Ewing Testimony]:

First, as a direct result of our country's archaic child custody laws, judicial practices and bureaucratic policies, millions of fit, loving, and dedicated parents have been literally pushed away from their children. The misguided notion that upon divorce or separation of their parents, children need only ONE parent, permeates our country's judiciary, legislative bodies and social service agencies. Because of this attitude, we typically assign complete ownership and control of these children to ONE parent - the custodial parent. We relegate the OTHER parent, regardless of his/her fitness or demonstrated history of responsibility, to the status of "visitor" and "non-custodian," whose primary function is to send money. The first disincentive to being a financially responsible parent is provided at the onset of this process. Stripping a parent of his/her parental rights, referring to him/her in denigrating terms, and treating him/her as only a financial resource is a highly effective DEMOTIVATOR! Congress must recognize that parental rights and responsibilities go hand in hand and that any policy it formulates or supports which diminishes the role of either parent will be counterproductive to its child support and child welfare initiatives. Return to text.

[20] See Mitchell Testimony, supra note 14. Return to text.

[21] See Beard, supra note 2. Return to text.

[22] BLANKENHORN, supra note 3, at 17. Return to text.

[23] JEAN R. STERNLIGHT, A BRIEF HISTORY OF FAMILY LAW IN FLORIDA AND THE UNITED STATES: INSIGHTS REGARDING AN ATTEMPT TO SIMPLIFY DIVORCE PROCEDURES 60 (1995) (on file with author). Return to text.

[24] See Katherine M. Schelong, Domestic Violence and the State: Responses to and Rationales for Spousal Battering, Marital Rape & Stalking, 78 MARQ. L. REV. 79, 86 (1994). Return to text.

[25] STERNLIGHT, supra note 23, at 59 (citations omitted). Return to text.

[26] See WARSHAK, supra note 6, at 28-29. Return to text.

[27] See id. Return to text.

[28] See id. Return to text.

[29] See BLANKENHORN, supra note 3, at 13. Return to text.

[30] See WARSHAK, supra note 6, at 29; Dorothy Miller, Women and Social Welfare, in POVERTY LAW: THEORY AND PRACTICE 358, 359 (Julie A. Nice & Louise G. Trubek eds., 1994). Return to text.

[31] See WARSHAK, supra note 6, at 29. Return to text.

[32] See Carol Sanger, Separating From Children, 96 COLUM. L. REV. 375, 402-04 (1996); WARSHAK, supra note 6, at 29. Return to text.

[33] 2 & 3 Vict. Stat., ch. 54 (1839). Return to text.

[34] See WARSHAK, supra note 6, at 29. Return to text.

[35] See id. Return to text.

[36] See id. Return to text.

[37] See id. at 31 ("Fathers were increasingly employed away from home. And mothers could no longer participate in the material support of the family while staying at home, as in preindustrial times."); see also Abramovitz, supra note 4, at 28-29. Return to text.

[38] BLANKENHORN, supra note 3, at 14 (noting that child rearing manuals, which had previously been addressed primarily to fathers, now addressed mothers and lamented the decreasing role of the father in the family unit). Return to text.

[39] See Abramovitz, supra note 4, at 29. Return to text.

[40] Sanger, supra note 32, at 401 (footnote omitted). Return to text.

[41] Id. Return to text.

[42] Abramovitz, supra note 4, at 31 (noting that this expectation applied only to upper and middle class women; poor and minority women were not expected to remain in the home, but instead worked due to necessity, many as domestics in the homes of more financially secure white women); see also Sanger, supra note 32, at 389. Return to text.

[43] See WARSHAK, supra note 6, at 30. Return to text.

[44] See id. at 31. Return to text.

[45] See id. Return to text.

[46] Id. Return to text.

[47] Id. Return to text.

[48] Freeland v. Freeland, 159 P. 698, 699 (Wash. 1916). Return to text.

[49] Random v. Random, 170 N.W. 313, 314 (N.D. 1918). Return to text.

[50] Duncan v. Duncan, 80 So. 697, 703 (Miss. 1919) (Holden, J., dissenting). Return to text.

[51] See WARSHAK, supra note 6, at 32. Return to text.

[52] See id. at 30. Return to text.

[53] See BLANKENHORN, supra note 3, at 15. Return to text.

[54] See id. Return to text.

[55] See id. Return to text.

[56] See id. Return to text.

[57] See id. Return to text.

[58] See id. Return to text.

[59] See FALUDI, supra note 7, at 52. The only period prior to the 1970s during which women were told by society that they could work while simultaneously having a family occurred during World War II, when women were needed in the workplace. See id. After the war, the media bombarded women with the message that careers were "unattractive" and good mothers remained at home. See id. Society ensured that women chose childrearing over work by valuing female-identified employment (e.g., teaching, secretarial, nursing, and child care positions) less than male-identified jobs through the assignment of lower wages. See Teresa L. Amott & Julie A. Matthaei, The Transformation of Women's Wage Work, in POVERTY LAW: THEORY AND PRACTICE 304, 306-09, 322-24 (Julie A. Nice & Louise G. Trubek eds., 1994). Return to text.

[60] See Abramovitz, supra note 4, at 31. Return to text.

[61] See WARREN FARRELL, THE MYTH OF MALE POWER 46 (1993) (noting that "discrimination in favor of men at work meant discrimination in favor of their wives at home"). Return to text.

[62] Significantly, however, effective maternity was seen as less valuable than material-based successes such as those obtainable only through access to the workplace, and therefore only available to males. See id. Return to text.

[63] See Abramovitz, supra note 4, at 31. Return to text.

[64] See id. The contemporary cultural subjugation of women as home-bound childrearers—whether or not they want that role—is illustrated by the deliberate closure of a church-run child care facility in Berryville, Arkansas:

In a letter that followed [the announcement of the closure], the church said that while it was sensitive to the plight of single parents, it could not continue the center because its existence encouraged mothers to work outside the home.

"God intended for the home to be the center of a mother's world," the church said. "In Titus 2:5, women are instructed to be 'discreet, chaste, keepers at home, good and obedient to their own husbands . . . .'"

Paisley Dodds, Day Care Closes to Keep Moms at Home, TALL. DEM., Apr. 5, 1997, at A3. Return to text.

[65] See, e.g., Muller v. Oregon, 208 U.S. 412, 417 (1908) (challenging an Oregon statute that forbid the employment of women in any mechanical establishment, factory, or laundry for more than 10 hours per day). The Court stated:

[t]hat woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.

Id. at 421. During the same era, the Supreme Court struck down similar legislation designed primarily to protect men. See Lochner v. New York, 198 U.S. 45, 64 (1905) (striking down a New York law capping bakery employee work hours at 60 per week as inconsistent with the liberty to contract). Return to text.

[66] Hines v. Hines, 185 N.W. 91, 92 (Iowa 1921). Return to text.

[67] Jenkins v. Jenkins, 181 N.W. 826, 827 (Wis. 1921). Return to text.

[68] Tuter v. Tuter, 120 S.W.2d 203, 205 (Mo. Ct. App. 1938). Return to text.

[69] Frontiero v. Richardson, 411 U.S. 677, 684 (1973) ("[Sex discrimination] was rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage."). Return to text.

[70] WARSHAK, supra note 6, at 36 (defining the mystique in terms similar to romantic paternalism). Return to text.

[71] See BLANKENHORN, supra note 3, at 68. Return to text.

[72] See id. at 19. A prime example is a 1951 study commissioned by the World Health Organization and conducted by John Bowlby, a preeminent psychoanalyst. Bowlby set up a study to follow the effects of maternal deprivation. Paternal deprivation was not studied. Yet, Bowlby felt confident enough to report that "the child's relation to his mother . . . is without doubt in ordinary circumstances, by far his most important relationship." Bowlby's findings were widely implemented by child care institutions and reinforced court findings that children should be kept with mothers at all costs. Consequently, to reduce the toddler-mother "separation anxiety" as reported by Bowlby, psychologists recommended that fathers be denied overnight visitation. Studies such as these have been incorporated into our family court system and have become unquestioned aspects of our family law. See WARSHAK, supra note 6, at 35-36; see also Martha J. Cox & Blair Paley, Families as Systems, 48 ANN. REV. PSYCHOL. 243, 244 (1997) (noting that child development studies have focused on the role of the mother-child relationship); infra text accompanying note 162 (noting that as late as 1996, the guidelines in Florida's Twelfth Judicial Circuit provided that a noncustodial parent—almost always the father—could not have overnight visitation with a child until the child turned two years old). Return to text.

[73] See LEONARD BENSON, FATHERHOOD: A SOCIOLOGICAL PERSPECTIVE 12 (1968) ("Father is not a very impressive figure in American life, and, in slighting him, American social theorists may simply confirm the fact that the behavioral sciences can be influenced by cultural predispositions."). Return to text.

[74] See BLANKENHORN, supra note 3, at 19. Return to text.

[75] See, e.g., Green v. Green, 137 Fla. 359, 361, 188 So. 355, 356 (1939) ("We are committed to the doctrine that the welfare of the child is the principal feature in determining custody, and that a very large discretion is allowed the chancellor in this respect."). The Green court added that "[n]ature has prepared a mother to bear and rear her young and to perform many services for them and to give them many attentions for which the father is not equipped." See id., 188 So. at 356. Return to text.

[76] See, e.g., Wendy A. Fitzgerald, Maturity, Difference, and Mystery: Children's Perspectives and the Law, 36 ARIZ. L. REV. 11, 56 (1994) ("Absent some empirical basis for a 'best interests' determination, after all, the court's decision must manifest little more than idiosyncratic and subjective conclusions about what living arrangements are 'best' for children."). Return to text.

[77] Jones v. Jones, 156 Fla. 524, 527, 23 So. 2d 623, 625 (1945) (citations omitted). This concept still exists in Florida's family court system today; Florida's Fifth District Court of Appeal recently noted that "there remains a temptation for many judges to consider the right to custody as the mother's to lose and unless her fitness is legitimately challenged, the father's right of equal consideration is often ignored." Ayyash v. Ayyash, 700 So. 2d 752, 754 n.3 (Fla. 5th DCA 1997). Return to text.

[78] Gayle v. Gayle, 125 So. 638, 639 (Ala. 1930). Note how the traits of "affection, care, companionship, and early training" were defined as "motherly." Return to text.

[79] See BLANKENHORN, supra note 3, at 51. Fathers with children born on or before the attack on Pearl Harbor on December 7, 1941, were not conscripted into military service. The ban lasted until October 1943, when the requirement for more troops carried the day over father deferments. Even then, however, fathers were treated special, as the director of the Selective Service promised to order local draft boards to "'first exhaust the pool of available unmarried men, and next the pool of married men without children, before fathers would be called.'" Id. at 50-52 (citation omitted). Return to text.

[80] Television programs such as The Adventures of Ozzie and Harriet, Father Knows Best, and Leave It to Beaver are prime examples. Return to text.

[81] For an excellent overview on the special custodial issues of unwed fathers, see Toni L. Craig, Establishing the Biological Rights Doctrine to Protect Unwed Fathers in Contested Adoptions, 25 FLA. ST. U. L. REV 391 (1998). Return to text.

[82] See FALUDI, supra note 7, at 55. Return to text.

[83] See id. at 53; ROBERT L. GRISWOLD, FATHERHOOD IN AMERICA 222 (1993). Return to text.

[84] GRISWOLD, supra note 83, at 222. Return to text.

[85] See id. at 237, 245 ("Changes in the household economy and the reemergence of feminism have been the two most critical forces changing fatherhood."). Return to text.

[86] See FALUDI, supra note 7, at 97. Return to text.

[87] Every other weekend visitation arrangements were—and remain—fairly common. See, e.g., Russenberger v. Russenberger, 654 So. 2d 207, 218 (Fla. 1st DCA 1995), aff'd 669 So. 2d 1044 (Fla. 1996) (upholding the imposition of a "liberal and reasonable" visitation schedule of every other weekend, noting that such arrangement was the lower court's "standard visitation schedule"). Return to text.

[88] See GRISWOLD, supra note 83, at 245. Return to text.

[89] See id. Return to text.

[90] See id. at 262. Return to text.

[91] Responding to visitation interference problems, the Florida Legislature enacted the Visitation Rights Enforcement Act of 1996, providing judges various discretionary options to enforce improperly denied court-ordered visitation and requiring them to order make-up visitation. See Visitation Rights Enforcement Act of 1996, ch. 96-183, § 5, 1996 Fla. Laws 454, 456 (codified at FLA. STAT. § 61.13(4)(c) (1997)). The Legislature intended that the law:

(b) Discourage custodial parents from improperly denying court-ordered visitation and . . . encourage such custodial parents to allow the noncustodial parent or grandparents to make up any visitation which has been denied, without court intervention.

(c) Indicate the clear intent that the Legislature does not support the power of a custodial parent to improperly deny court-ordered visitation.

Id. at § 2(1)(b)-(c), 1996 Fla. Laws at 454. Return to text.

[92] See GRISWOLD, supra note 83, at 268. Return to text.

[93] See id. at 261-62. Return to text.

[94] See LENORE J. WEITZMAN, THE DIVORCE REVOLUTION (1985). Return to text.

[95] See FALUDI, supra note 7, at 20. Return to text.

[96] See id. at 19-20; Associated Press, Huge Gap Reported in Post-Divorce Standard of Living a Mistake (May 16, 1996) nation2_5387.html> (noting references to the study in 175 news stories, 348 social science articles, 250 Law Review articles, 24 appeals courts and Supreme Court cases, and even in President Clinton's 1996 budget) [hereinafter Huge Gap Mistake]. Return to text.

[97] See FALUDI, supra note 7, at 21. Return to text.

[98] See id. Return to text.

[99] See id. Return to text.

[100] See id. Return to text.

[101] See id. at 22. Return to text.

[102] Id. Return to text.

[103] See Huge Gap Mistake, supra note 96. Return to text.

[104] See FALUDI, supra note 7, at 22. Return to text.

[105] See Huge Gap Mistake, supra note 96. Return to text.

[106] MASSACHUSETTS SUPREME JUDICIAL COURT, GENDER BIAS STUDY OF THE COURT SYSTEM IN MASSACHUSETTS (1989), reprinted in 24 NEW. ENG. L. REV. 745, 745 (1990) [hereinafter MASSACHUSETTS STUDY]. Return to text.

[107] See, e.g., id. at 746 (noting that "women face discriminatory attitudes and actions" regarding child custody, but failing to recognize that men face discriminatory attitudes and actions regarding child custody); id. at 748, 830 (reporting that "perceptions of gender bias may discourage fathers from seeking custody and stereotypes about fathers may sometimes affect case outcomes," but failing to examine either the perceptions or the stereotypes and how they affect fathers so that, by their own data, 93.4% of the time mothers receive primary residential custody); id. at 829 (suggesting that it is appropriate for mothers to overwhelmingly receive custody because of, in part, "the unequal sacrifice of earning potential these women make in order to be primary caretakers," yet failing to examine gender bias against men who are culturally forced into the "provider" role). Return to text.

[108] See, e.g., 134 CONG. REC. S10896-01 (daily ed. Aug. 4, 1988); DEBORAH L. RHODE, JUSTICE AND GENDER: SEX DISCRIMINATION AND THE LAW 155-56 (1989); Stephen J. Bahr et al., Trends in Child Custody Awards: Has the Removal of Maternal Preference Made a Difference?, 28 FAM. L.Q. 247, 255 (1994) ("Some have argued that the number of fathers gaining sole custody has increased in recent years but these data indicate that only a small percentage of fathers are awarded sole custody while mothers continue to be awarded sole custody in a large majority of custody cases." (footnote omitted)). Return to text.

[109] MASSACHUSETTS STUDY, supra note 106, at 830. Return to text.

[110] See Krista Carpenter, Comment, Why Are Mothers Still Losing: An Analysis of Gender Bias in Child Custody Determinations, 1996 DET. C. L. REV. 33, 41 (1996) (noting that fathers "are successful seventy percent of the time" when they seek custody); see also Joan Zorza, Protecting the Children in Custody Disputes: When One Parent Abuses the Other, CLEARINGHOUSE REV., Apr. 1996, at 1113, 1117 ("Despite men's claims that fathers are discriminated against in custody disputes, in actuality fathers who fight for custody in America win sole or at least joint custody in 70 percent of these contests." (Note how the receipt of joint custody is referred to as a "win" for fathers.)) Return to text.

[111] This conclusion of a flawed analysis should not be surprising, given the study=s statement of motivations on this issue: "Our work in the subcommittee studying family law issues was motivated in part by the growing statistical evidence that women suffer tremendous negative economic consequences following the dissolution of a marriage." MASSACHUSETTS STUDY, supra note 106, at 762 (citing, in part, the Weitzman study, discussed supra in Part III.A). From this premise sprang the following results-oriented examinations:

While committee members realize that the negative consequences of divorce are felt by both husband and wife, the task before the Committee was to examine whether the consequences of divorce have a disproportionately negative impact on either men or women. Members of the Subcommittee on Gender and Economics examined court practices regarding custody, child support, alimony, and property division to isolate patterns of behavior that disadvantage women and to examine the results of this behavior on the economic status of women.

Id. at 763 (first emphasis in original; others added).

Lacking from the study was any objective analysis to determine whether the fundamental premise of women suffering "tremendous negative economic consequences" from divorce was true. Also lacking was any objective analysis to isolate patterns of behavior that disadvantaged men regarding their roles with and access to their children. Return to text.

[112] The study reported sending surveys to family law attorneys, general attorneys, and probate judges. See id. at 826. The study also convened focus groups, took testimony, and interviewed attorneys. See id. In other words, in an effort to confirm or refute anecdotal evidence that fathers suffered gender bias in family courts regarding child custody determinations, the study sought and compiled only more anecdotal evidence. Return to text.

[113] Id. at 825. In a statement remarkable for its lack of objective or follow-up analysis, the study reported, in a footnote, that "[d]espite the absence of statutory or decisional authority for a maternal preference for children of tender years, it is possible that in practice, judges exercised such a preference (Pearson and Handler, 1987)." Id. at 827 n.47. Elsewhere, the study stated that nearly a quarter of family law attorneys reported that sometimes or often where custodial mothers worked outside of the home a change of custody was "granted to fathers who remarry women who are home full time." Id. at 833. This latter result was seen as gender bias against mothers by holding them to different and higher standards than fathers. See id. at 832. Incredibly, the result was not seen as gender bias against fathers who had to find and financially support another woman in their home before being awarded custody. Return to text.

[114] By contrast, it did not miss an opportunity to explore out-of-court gender biases that affected women in court, such as lack of employment opportunities. See id. at 784-85. Return to text.

[115] See id. at 747. The Commission dismissed the fact that "mothers more frequently get primary physical custody of children following divorce" as not reflecting bias, but due to "agreement of the parties and the fact that, in most families, mothers have been the primary caretakers of children." Id. at 747-48. This conclusion is in stark contrast to the tremendous increase in fathers' rights groups over the last decade. See Sally Kalson, Dad's in Charge, PITT. POST-GAZETTE, Mar. 16, 1998, at A1. If fathers were agreeing to mothers obtaining custody, then why would fathers form these groups to fight gender bias against fathers, and to seek change in the family court system? Return to text.

[116] MASSACHUSETTS STUDY, supra note 106, at 825. Return to text.

[117] The study reported that the survey of family law attorneys showed 12,000 divorces involving dependent children in two years, and 2100 cases in five years in which fathers sought custody. See id. at 831 n.54. It concluded, without elucidation or citation to authority, that the percentage of fathers seeking custody "increased recently" and that half, instead of two-fifths, of the cases in which fathers sought custody occurred in the most recent two years. See id. Accordingly, even accepting these unsupported assumptions, the total number of divorces in the five-year period studied would be 24,000, meaning fathers sought custody in 8.75% (2100) of them. See id. Of these 2100 cases, the study reported that fathers received primary custody in 29% (609) of the cases and joint physical custody in "an additional 65%" (969). Id. at 831. Thus, of 24,000 divorces in a five-year period involving dependent children, mothers received custody in 93.4% (22,422) of the cases, fathers received primary custody in 2.5% (609), and joint physical residency was awarded in 4% (969) of the cases. Return to text.

[118] See id. Return to text.

[119] See id. Return to text.

[120] See id. Return to text.

[121] Although not providing any cross-referencing of cases, the study noted that this same number (29%) of fathers seeking custody were also fathers who were primary caretakers. Perhaps the study could have also trumpeted a more obvious fact: Judges tend to side with pre-divorce primary caretakers in divorce-related child custody decisions. Then the study could have explored the gender-based myths behind the primary caretaker standard, and perhaps advanced, rather than set back, the cause of gender equality and neutrality in determining children's futures. See, e.g. WARSHAK, supra note 6, at 166. Return to text.

[122] See MASSACHUSETTS STUDY, supra note 106, at 825. Return to text.

[123] Id. at 763. Return to text.

[124] See Cathy Young, Do Fathers Have the Edge in Divorce?, DETROIT NEWS, Dec. 10, 1996, at A11:

[T]he high success rate of men in custody battles is yet another contender for the Phony Statistics Hall of Fame. The figures do not refer to contested cases. . . . The work from which the Gender Bias Study gathered its numbers did not separate contested and uncontested custody bids, but showed that mothers filing for sole custody received it 75 percent of the time . . . .

A Stanford study of more than 1,000 California couples divorced in the 1980s suggests conventional wisdom is right. If both parents requested sole custody when filing for divorce, it was awarded to mom in 45 percent and to dad in 11 percent of the cases, with joint physical custody for the rest. (When she asked for sole custody and he for joint custody, the odds were 2-1 in her favor.)

The Massachusetts Study also attempted to prop up its 70% figure with two other studies that purported to show "paternal success" in child custody matters. See Massachusetts Study, supra note 106, at 831-32. In reality, the studies confirmed both the flawed methodology and failure to examine potential gender bias that forced fathers not to seek custody. One study of 700 cases in Middlesex County, Massachusetts, between 1978 and 1984 "confirmed" that fathers received primary physical custody in two-thirds of the cases in which they sought it. See id. Put another way, the Middlesex study cited by the Massachusetts Study showed that mothers received primary residency 94.3% of the time; fathers received primary residency 5.4% of the time; and joint physical residency was awarded 0.3% of the time.

A third study cited by the Massachusetts Study involved 500 cases from Middlesex County from 1978 to 1981. See id. at 832. The study was referred to as concluding that when fathers sought sole custody they received it 41% of the time and joint custody (no definition of legal or physical custody was offered) in 38% of the cases. See id. Given that fathers in that study sought sole custody only 8% of the time—compared to 8.14% in the other Middlesex County study and an estimated 8.75% in the Massachusetts Study—another interpretation of the same data is that mothers received sole or primary custody in 93.8% of the cases, compared to fathers receiving sole custody in 3.2% or joint custody in 3%. Return to text.

[125] For example, a cursory search of the Florida State University's computerized library index lists 2182 publications on feminism and 236 on motherhood, compared to 19 on fathers' rights and 50 on fatherhood. Return to text.

[126] Leo Kanowitz, "Benign" Sex Discrimination: Its Troubles and Their Cure, 31 HASTINGS L.J. 1379, 1402 (1980). Return to text.

[127] BLANKENHORN, supra note 3, at 16. Return to text.

[128] Zorza, supra note 110, at 1123 (citing as an example David Scheff, If It's Tuesday, It Must Be Dad's House, N.Y. TIMES MAG., Mar. 26, 1995, at 64-65). Return to text.

[129] Id. at 1120. Return to text.

[130] See, e.g., Bahr et al., supra note 108, at 258 (noting that a recent Census Bureau study found that 90% of fathers with joint legal custody paid child support, compared to 79% of fathers with visitation privileges and 45% of fathers who had neither joint custody nor visitation privileges); JUDITH A. SELTZER, FATHER BY LAW: EFFECTS OF JOINT LEGAL CUSTODY ON NONRESIDENT FATHERS' INVOLVEMENT WITH CHILDREN 17 (Center for Demography and Ecology NSFH Working Paper No. 75, 1997) (finding that joint legal custody increased adherence to child support payments and contact with children, and concluding that "[a]t least on the dimension of increased contact between nonresident fathers and children, joint legal custody may, as advocates claim, make the lives of children after divorce more similar to their lives before divorce or to the lives of their peers in two-parent households"). Return to text.

[131] Zorza, supra note 110, at 1124. Return to text.

[132] See, e.g., Bahr et al., supra note 108; SELTZER, supra note 130, at 17; Mitchell Testimony, supra note 14 (noting that divorced fathers who are allowed to remain significantly involved with their children are more likely to pay child support); Madonna E. Bowman & Constance R. Ahrons, Impact of Legal Custody Status on Fathers' Parenting Postdivorce, 47 J. MARRIAGE AND FAM. 481, 481-88 (1985) (reporting that joint legal custody increased the amount of time fathers spent with children). Return to text.

[133] See, e.g., Joan Zorza, Recognizing and Protecting the Privacy and Confidentiality Needs of Battered Women, 29 FAM. L.Q. 273 (1995). Again, while purporting to address battered women, Zorza assailed fathers at large:

Joint custody awards do not improve the lot of the children. In fact, most children in court-imposed joint custody (not just those with abusive fathers) do poorly and are more depressed and disturbed than children in sole custody, even when the parents genuinely choose joint custody. Furthermore, joint custody results in lower child support awards, which fathers are no more likely to pay than awards made when the mother has sole custody. Joint custody does not even result in the father spending any more time with his children.

Id. at 279 (citations omitted). In addition to Zorza, other legal scholars have negatively generalized the role of fathers. For example, a University of Florida College of Law Professor began her article with the following language:

Fathers parent less than mothers. Both within and outside of marriage, they nurture their children (and step-children, and children in general) far less than mothers (and other women) do. Not only do fathers parent less, they abandon their children to a remarkable extent, again far exceeding such conduct by women.

Nancy E. Dowd, Rethinking Fatherhood, 48 FLA. L. REV. 523, 523 (1996) (citing NANCY E. DOWD, IN DEFENSE OF SINGLE PARENT FAMILIES (1997)). Imagine an article stating, for example, that "mothers are far less qualified to work in professional positions than fathers. They take off more time to have and care for children, and suffer from a lack of business acumen due to the fact that they are more emotional and prone to hysteria." Such writing would rightfully be labeled as inflammatory, stereotypical, gender-based discrimination. Why should Dowd's article be seen as anything less? Undoubtedly, our culture currently condones a double standard when it comes to evaluating female/male attributes: it is acceptable to communicate generalized, discriminatory comments about men, but in turn it is unacceptable—and in some cases, downright illegal—to communicate discriminatory comments toward women. Others have noted the trend toward disparaging men. See, e.g., Warren Farrell, Men as Success Objects, UTNE READER, May-June 1991, at 81-82 ("A visit to the bookstore turns up titles like No Good Men. Imagine No Good Women or No Good Jews.")

The first Zorza article cited in the above text was distributed to students participating in a Florida State University College of Law program that trains students to work with allegedly battered women. Many of these students will eventually practice in the area of family law. Such anti-father rhetoric will likely influence their perceptions of fathers, and thus the manner in which they respond to the role of the father in their future practices. Return to text.

[134] See BLANKENHORN, supra note 3, at 70-83. Return to text.

[135] WARSHAK, supra note 6, at 32. Return to text.

[136] See, e.g., 42 U.S.C. § 2000e-2(a)(1) (1994) ("It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex . . . ."). Title VII includes the Pregnancy Discrimination Act. See 42 U.S.C. § 2000e-(k) (1994) ("The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work . . . ." (emphasis added)). Return to text.

[137] See, e.g., FALUDI, supra note 7, at 388-93 (discussing Johnson v. Transportation Agency, 480 U.S. 616 (1987)). In Johnson, Diane Joyce, a widowed mother of four, was harassed by male co-workers, who claimed she was "taking a man's job away" because she was the first woman to seek and receive a road dispatcher position. See id. at 390. Return to text.

[138] See Affirmative Action for the Federal Government: Hearings on S. 1085, The Equal Opportunity Act, Before the Committee on Labor and Human Resources, 104 Cong. Rec. 63 (1996) (testimony of Marcia D. Greenberger, Co-President, National Women's Law Center), available in 1996 WL 10162842. Return to text.

[139] See id. Return to text.

[140] See Chavez, supra note 8, at 740. Return to text.

[141] Others might note that women are not necessarily "recognized and protected" as primary caregivers as much as they are forced into the role through culturally and state-instituted measures that assure women assume this position. See supra Part II. Return to text.

[142] See, e.g., supra note 108 and accompanying text. Return to text.

[143] See Chavez, supra note 8, at 741. Return to text.

[144] See id. Return to text.

[145] Id. This governmental oversight, which strictly regulates the role of non-custodial parents in the post-divorce state, contrasts quite significantly with government's oversight of intact families. Cynthia L. Ewing, Senior Policy Analyst with the Children's Rights Council, vividly describes what can happen when parents divorce and the state steps in to enforce prescribed parental responsibilities:

I have a husband and children and our family is intact. My husband becomes

involuntarily unemployed and may go many, many months without a job. He is not able to support our children and may not be able to for a long time. How would each of you characterize this situation? Unfortunate or sad? What will you call my husband? A dead-beat? How is my government going to interfere in our family relationships? Will my government interfere with his ability to find a new job by revoking his driver's license or trade license? Will he be thrown in jail for not supporting our kids? Of course not! But, if my husband and I legally

separate or divorce, everything is different. If he loses his job and cannot support our children, the government intrudes into our lives in a major way. I will likely be awarded custody of our children, he will be allowed to "visit" them per a schedule and he will be ordered to provide financial support. If he does not support our children, regardless of the fact that he has lost his job, he will be labeled a "deadbeat," have his trade license and driver's license revoked, and he

may even be thrown in jail.

Ewing Testimony, supra note 19. Return to text.

[146] See supra note 108 and accompanying text. Return to text.

[147] See, e.g., Kanowitz, supra note 126, at 1394. Professor Leo Kanowitz notes ways in which protections for women have caused discrimination against men:

[A] casual glance at the treatment males have received at the hands of the law solely because they are males suggests that they have paid an awesome price for other advantages they have presumably enjoyed over females in our society. Whether one talks of the male's unique obligation of compulsory military service, his primary duty for spousal and child support, his lack of the same kinds of protective labor legislation that have traditionally been enjoyed by women, or the statutory or judicial preference in child custody disputes that has long been accorded to mothers vis-a-vis fathers of minor children, sex discrimination against males in statutes and judicial decisions has been widespread and severe.

Moreover . . . it is clear that males have been subjected to massive social and economic discrimination. The general social expectation that men will perform the breadwinner's role, the equanimity with which men's exclusive liability for military service is regarded by the general population, even during times of violent combat, the philosophy that a man's life is less precious than that of a woman, as expressed in the tradition of "women and children first" when ships are about to go beneath the sea, and the raised eyebrows at the prospect of a male who, breaking the shackles of his traditional sex role, determines to expend most of his daily energies in caring for his children and doing what have traditionally been regarded as wifely chores within the home, all suggest that men at all ages have been victims of virulent sex discrimination comparable to the kinds of discrimination that women as a group have suffered.

Id. (footnotes omitted). Return to text.

[148] See, e.g., FLA. STAT. § 61.30 (1997) (failing to provide any requirement that child support recipients account for how the support is spent); Ewing Testimony, supra note 19:

[T]here is the issue of accountability for child support. The simple fact that financial resources are being transferred from one parent to the other without any accounting of how this money is being spent is a disincentive [to paying child support]. In many cases, it is blatantly obvious that so-called child support money is not being used for the benefit of the child. Just as there is a basic accountability requirement for anyone acting in a fiduciary capacity, there should be an accountability requirement placed on custodial parents for the use of the financial resources that are provided for the benefit of the child. Return to text.

[149] Frontiero v. Richardson, 411 U.S. 677, 684 (1973) ("There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage.") (citation omitted). Return to text.

[150] See GEOFFREY L. GREIF & MARY S. PABST, MOTHERS WITHOUT CUSTODY 147-49 (1988). Return to text.

[151] Sanger, supra note 32, at 377 ("Separating from one's child—even temporarily, even for sensible reasons—is now often viewed as the worst thing a mother can do. It is often taken as proof that she is not a good mother at all and should not be allowed to resume the status she has abandoned."). Return to text.

[152] See Chavez, supra note 8, at 740. Return to text.

[153] GREIF & PABST, supra note 150, at 2-3. Return to text.

[154] Sanger, supra note 32, at 384-85 (noting that the act of separating from children "threatens the welfare of those for whom the institution of motherhood provides an important sense of identity (many mothers) and an important source of comfort (everyone else)." Return to text.

[155] See Marsha Garrison, How Do Judges Decide Divorce Cases? An Empirical Analysis of Discretionary Decision Making, 74 N.C. L. REV. 401, 406-07, 433-37 (1996) (noting that the judges in the empirical study that she conducted in New York were overwhelmingly male and "sixtyish"); A. Yasmine Rassam, Note, "Mother," "Parent," and Bias, 69 IND. L.J. 1165, 1170-73 (1994) (noting that "a judge's background can influence the decision-making process"). Return to text.

[156] Act effective July 1, 1971, ch. 71-241, § 15, 1971 Fla. Laws 1319, 1325 (codified at FLA. STAT. § 61.13(2)(b)(1) (1997)). Return to text.

[157] See Anderson v. Anderson, 309 So. 2d 1, 3 (Fla. 1975) ("The district court apparently considered the general rule, still viable despite the 'equal consideration' set forth in F.S.A. s 61.13(2), that, other essential factors being equal, the mother of infants of tender years should receive prime consideration for custody. 'Equal consideration' to a father resulting in a finding of 'other factors being equal' still invokes the traditional rule for prime consideration being given the mother for custody of infants of tender years."). Return to text.

[158] See Act effective July 1, 1982, ch. 82-96, §§ 1, 4, 1982 Fla. Laws 233, 233 (codified at FLA. STAT. § 61.13(2)(b)(1) (1997)). Return to text.

[159] See, e.g., DeCamp v. Hein, 541 So. 2d 708, 709-10 (Fla. 4th DCA 1989):

[W]e note the provision in section 61.13(2)(b)(1) that "the father of the child shall be given the same consideration as the mother in determining the primary residence of the child irrespective of the age of the child." . . . This statutory language at first blush appears to abolish the tender years doctrine, as indeed the Fifth District believes it has. Yet, this very same section also provides that the equal rights provision only applies "after considering all relevant facts." . . . Relevant facts should obviously include, at least in part, some consideration of the tender years doctrine. It is true that the doctrine can no longer be dispositive because the 1983 amendment to the statute added the "irrespective of age" language; however, we do not believe the doctrine has been totally abolished. For example, a six-month-old baby being nursed by her mother should obviously be in her mother's custody, unless the judge found her unfit. In the case at bar, there is no mention of whether the one-year-old was being nursed by the mother. Nonetheless, our version of common sense suggests that, under the facts of this particular case, the one-year-old female infant and her three-year-old sister preferably should reside with the mother.

Id. (citing, but refusing to follow, Kerr v. Kerr, 486 So. 2d 708 (Fla. 5th DCA 1986), which found that section 61.13(2)(b)(1) unequivocally abolished the tender years doctrine). Return to text.

[160] See Act effective July 1, 1991, ch. 91-246, § 4, Fla. Laws 2408, 2411 (codified at FLA. STAT. § 61.13(2)(b)(1) (1997)). Return to text.

[161] Cherradi v. Lavoie, 662 So. 2d 751, 752 (Fla. 4th DCA 1995). Return to text.

[162] See FLORIDA S. JUDICIARY STAFF, A REPORT ON CIRCUIT COURT STANDARD VISITATION SCHEDULES 7 (1996). Return to text.

[163] See WARSHAK, supra note 6, at 35-50; infra Part III.F. Return to text.

[164] Act effective July 1, 1996, ch. 96-183, § 5, 1996 Fla. Laws 454, 457 (codified at FLA. STAT. § 61.13(8) (1997)). In 1997, the Florida Legislature amended chapter 61 to state that "[t]he court may order rotating custody if the court finds that rotating custody will be in the best interest of the child." Act effective July 1, 1997, ch. 97-242, § 2, 1997 Fla. Laws 4436, 4437 (codified at FLA. STAT. § 61.121 (1997) (emphasis added)). It is too early to tell whether this permissive amendment will have much effect on custody considerations. However, it is noteworthy that the Florida Legislature is actively moving in the direction of recognizing and promoting the role of both parents in raising their children through mutually significant and substantial involvement. Return to text.

[165] Nancy Levit, Feminism for Men: Legal Ideology and the Construction of Maleness, 43 UCLA L. REV. 1037, 1075-78 (1996) (footnotes omitted); see also WARSHAK, supra note 6, at 234. Regarding the primary caretaker standard, Warshak states:

I do not believe it makes any sense to equate the amount of time a person spends with a child with that person's importance in the child's life. Research indicates that we cannot even assume that, the more time a parent interacts with a child, the better their relationship will be. In fact, we all know of parents who are too involved with their children, so-called smothering parents, who squelch any signs of their child's independence. . . . Is the primary caretaker the parent who does the most to foster the child's sense of security, the person to whom the child turns in time of stress—the role most often associated with mothers? Or is it the parent who does the most to promote the child's ability to meet the demands of the world outside the family and to make independent judgments—the role most often associated with fathers? We really have no basis for preferring one contribution over the other. Both are necessary for healthy psychological functioning.

Id. Indeed, if many fathers are behaving according to their societally prescribed roles as primary familial breadwinners, then it is patently unfair to deprive them of a meaningful relationship with their children simply because they spend their day in the workplace to provide for their children, rather than in the home caring for their children in person. Both forms of caretaking are essential to raising children, and one should not be perceived as more worthy than the other. Moreover, it is important to note that in this age, frequently both parents work. See Kathleen A. DeLaney, Note, A Response to "Nannygate": Untangling U.S. Immigration Law to Enable American Parents to Hire Foreign Child Care Providers, 70 IND. L.J. 305, 327 (1993) (citing WOMEN'S BUREAU, U.S. DEP'T OF LABOR, EMPLOYERS AND CHILD CARE: BENEFITING WORK AND FAMILY 1 (1989) ("The typical family during the first half of the twentieth century included a father who was breadwinner and a mother who stayed home to care for the children and do the housework. Today both parents usually work outside the home.")). By necessity, when both parents work, both parents usually share "child care and household responsibilities." Phyllis T. Bookspan, A Delicate Imbalance—Family and Work, 5 TEX. J. WOMEN & L. 37, 77 (1995). Thus, the determination of exactly who is the "primary caretaker" is even more difficult. Furthermore, when parents divorce, frequently the number of mothers who work increases. See Nancy E. Dowd, Work and Family: Restructuring the Workplace, 32 ARIZ. L. REV. 431, 444 (1990) (noting that the percentage of divorced mothers in the workplace ranges from 69% to 83% depending upon the ages of their children). Therefore, when both parents work, the presumption that the mother is nearly always the primary caretaker is further weakened. Return to text.

[166] See FATHER FACTS, supra note 16, at 30 (citation omitted) (compiling statistics from a variety of governmental and private sources). Return to text.

[167] See id. Return to text.

[168] See id. at 31. Return to text.

[169] See id. at 32. Return to text.

[170] See id. at 33. Return to text.

[171] See id. at 36. Return to text.

[172] See id. Return to text.

[173] See id. at 24. Notably, Mitchell Johnson, the 13-year-old who allegedly participated in the March 1998 murders of four children and one adult in Jonesboro, Arkansas, had remarked in recent weeks that he had been missing his father, who remained in Minnesota after the boy and his mother moved to Arkansas one year earlier following his parents' divorce. See Ellen O'Brien, "A Sense of Innocence Was Lost," Jonesboro Buries Shooting Victims and Tries to Heal, BOSTON GLOBE, Mar. 28, 1998, at A1. Return to text.

[174] See FATHER FACTS, supra note 16, at 24. Return to text.

[175] See id. at 23. Return to text.

[176] See id. On the other hand, some feminist writers have claimed that the alleged correlation between fatherlessness and issues such as crime, violence, and teenage pregnancies are simply an attempt to degrade single mothers. For example:

We speak of the "broken" family, the "disintegration" of the family, the "crisis" in the family, the "unstable" family, the "decline" of the family, and, perhaps inevitably from some perspectives, the "death" of the family. Underlying such labels is the specter of single motherhood—statistically on the upswing—pathological and disease-like, contaminating society, contributing to its destruction and degeneration.

Single motherhood has been designated as the source of other social phenomena such as crime and poverty. Indeed, in the public's mind, and despite overwhelming evidence to the contrary, the face of poverty has increasingly become that of a single mother . . . .

Martha L. Fineman, Images of Mothers in Poverty Discourses, in POVERTY LAW: THEORY AND PRACTICE 351, 355 (Julie A. Nice & Louise G. Trubek eds., 1994) (citations omitted). While some may indeed blame single mothers for the wealth of social ills that plague our society, the focus should instead be on what is in the best interests of children. Children need, want, and are entitled to all of the love and support that they can get, and fathers should be encouraged to fully participate and care for their children, whom they have an equal right to parent. See infra Part IV. Return to text.

[177] For example, in 1996, the Florida Legislature created the 25-member Commission on Responsible Fatherhood, the first legislatively created commission on fatherhood issues in the nation. The Commission's purpose is:

to raise awareness of the problems created when a child grows up without the presence of a responsible father, to identify obstacles that impede or prevent the involvement of responsible fathers in the lives of their children, and to identify strategies that are successful in encouraging responsible fatherhood.

Act effective July 1, 1996, ch. 96-175, § 67, 1996 Fla. Laws 320, 398 (codified at FLA. STAT. § 383.0112 (1997)). Return to text.

[178] Willey v. Willey, 683 So. 2d 647, 651 (Fla. 4th DCA 1996). Return to text.

[179] U.S. CONST. amend. XIV, § 1. Return to text.

[180] See HERMINE HERTA MEYER, THE HISTORY AND MEANING OF THE FOURTEENTH AMENDMENT 150-51 (1977). The Civil Rights Act had been passed to empower the Thirteenth Amendment to address post-Civil War Black Codes, which were enacted by many southern states to forbid African Americans from such activities as appearing in public, owning property, or testifying in court against a white man. See STONE ET AL., CONSTITUTIONAL LAW 482 (1991). Return to text.

[181] See The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873) (stating that the Court doubted "very much whether any action of a State not directed by way of discrimination against the Negroes as a class, or on account of their race, will ever be held to come within the purview of this provision"); STONE ET AL., supra note 180, at 676-77. Return to text.

[182] 83 U.S. (16 Wall.) 36 (1873). Return to text.

[183] See Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 139 (1873). While Justice Bradley suggested in his dissent in the Slaughter-House Cases that a non-black class might be covered under the Equal Protection Clause, he made it clear in Bradwell that this possibility did not include women:

The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. . . .

It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of women are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

Id. at 141-42; see also STONE ET AL., supra note 180, at 676-77. Return to text.

[184] See Muller v. Oregon, 208 U.S. 412, 423 (1908) (stating that the "inherent difference between the two sexes" justified restricting a woman's right to contract). But see Lochner v. New York, 198 U.S. 45, 64 (1905) (holding that the statute prohibiting bakers, mostly men, from working more than 60 hours per week was forbidden by the liberty of contract implicit in the due process clause); see also STONE ET AL., supra note 180, at 677. Return to text.

[185] See, e.g., Goesaert v. Cleary, 335 U.S. 464, 467 (1948) (upholding a Michigan statute that required a woman bartender to be the wife or daughter of the male owner); Hoyt v. Florida, 368 U.S. 57, 69 (1961) (refusing to strike down a jury selection system that excluded women who did not proactively indicate a desire to serve). In Hoyt, Justice Harlan wrote that a "woman is still regarded as the center of home and family life. We cannot say that it is constitutionally impermissible for a State, acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities." Id. at 62. Return to text.

[186] The Court uses three standards of review. First, strict scrutiny is applied to any statute based on a suspect classification or fundamental right. See Korematsu v. United States, 323 U.S. 214, 216 (1944) ("[C]ourts must subject [all legal restrictions that curtail the civil rights of a single racial group] to the most rigid scrutiny.") Government must show a necessary and compelling reason for burdening a specific race, national origin, or alienage. See Gerald Gunther, The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 24 (1972).

Second, intermediate scrutiny is applied to any statute based on the quasi-suspect classes of gender. See Reed v. Reed, 404 U.S. 71, 75 (1971) ("A classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.'" (citation omitted)). The Court uses this level of review for invidious (intentionally harmful) or benign (intending to help women or redress past discrimination against them) discrimination. See STONE ET AL., supra note 180, at 679-82, 713-18. Government must show a substantially related interest to an important governmental objective. See Craig v. Boren, 429 U.S. 190, 197 (1976).

Third, the rational relation test is applied to any statute not based on a suspect or quasi-suspect class; the government action must bear a rational relationship to an acceptable goal sought by the government. See JOHN E. NOWAK ET AL., CONSTITUTIONAL LAW 524 (3rd ed. 1986). The statute will be upheld as long as it bears a rational relationship to a legitimate governmental objective, which is almost always the case. See id. Prior to 1971, the Supreme Court reviewed gender classifications using the rational relation test. See HERMA HILL KAY, SEX- BASED DISCRIMINATION 26-27 (2d ed. 1981). In 1971, the Court began to use a heightened level of scrutiny when reviewing gender-based statutes. See id.; Reed, 404 U.S. at 75. Return to text.

[187] See Reed, 404 U.S. at 77. Return to text.

[188] See id. at 74. Return to text.

[189] 411 U.S. 677 (1973). Return to text.

[190] See id. at 682 (stating that classifications based on sex are "inherently suspect and must therefore be subject to strict judicial scrutiny"). Notably, Justice Brennan wrote:

[S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate "the basic concept of our system that legal burdens should bear some relationship to individual responsibility." And what differentiates sex from such nonsuspect statutes as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that sex characteristic frequently bears no relation to ability to perform or contribute to society.

Id. at 686 (emphasis added). Return to text.

[191] See Craig v. Boren, 429 U.S. 190 (1976) (reviewing an Oklahoma statute that forbade the sale of 3.2% beer to males under the age of 21 while females over 18 could purchase the beer). Return to text.

[192] See STONE ET AL., supra note 180, at 680-82. Despite the heightened level of scrutiny, the Court has nonetheless continued to uphold some statutes that discriminate against either gender. See, e.g., Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 475 (1981) (upholding a statute subjecting men but not women to statutory rape charges when they engage in sex with a partner under the age of 18); Rostker v. Goldberg, 453 U.S. 57, 83 (1981) (upholding the male-only draft); Schlesinger v. Ballard, 419 U.S. 498, 510 (1975) (sustaining a federal statute that granted female navy members a longer time period in which to achieve a mandatory promotion); Kahn v. Shevin, 416 U.S. 351, 356 (1974) (upholding a Florida statute that provided a property tax exemption for widows but not widowers); Gedulig v. Aiello, 417 U.S. 484, 497 (1974) (upholding California's exclusion of pregnancy-related disabilities under the state's disability insurance program). Consequently, the Court has sent mixed messages as to exactly which level of scrutiny would be used when reviewing equal protection challenges to laws. See STONE ET AL., supra note 180, at 681-82. Return to text.

[193] See, e.g., Kahn, 416 U.S. at 354. Return to text.

[194] See STONE ET AL., supra note 180, at 713-18. Return to text.

[195] See Califano v. Webster, 430 U.S. 313, 317 (1977) (upholding a federal social security scheme that provided better benefits to women than men as an appropriate remedial statute designed to redress "'society's longstanding disparate treatment of women'" rather than one intending to restrict women to stereotypical female roles, or intentionally discriminatory toward men) (citation omitted). But see Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 733 (1982) (striking down a state university's policy of precluding men from its nursing school as unrelated to remedial goals). Notably, Justice O'Connor wrote that by restricting men the University perpetuated a stereotype that only women should be nurses. See id. at 736. Return to text.

[196] See Washington v. Davis, 426 U.S. 229, 236 (1976) (holding that while a test given to police officers may have had a discriminatory impact against African Americans, discriminatory impact alone does not prove a discriminatory intent). The Court compared the Equal Protection Clause to Title VII of the Civil Rights Act and noted that a Title VII plaintiff could prove an intent to discriminate by proving a disparate impact, from which an intent to discriminate would be inferred. See id. at 238. Thus, a plaintiff can more easily prove intent under Title VII than under the Equal Protection Clause. See id.; Rogers v. Lodge, 458 U.S. 613, 617 (1982) ("[I]n order for the Equal Protection Clause to be violated, 'the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.'") (citation omitted).

However, in Rogers, the Court noted that Washington and Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), "recognized that discriminatory intent need not be proved by direct evidence. 'Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.'" Rogers, 458 U.S. at 618 (quoting Washington, 426 U.S. at 242). "Thus determining the existence of a discriminatory purpose 'demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.'" Id. (quoting Arlington, 429 U.S. at 266). Note that these cases involved race-based rather than gender-based challenges, to which strict scrutiny rather than intermediate scrutiny is applied. See also Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (adding that the discrimination must be "'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group."). In Feeney the Court upheld a state statute awarding a hiring preference to veterans, a group that consisted of 98% men. See id. at 282. Return to text.

[197] See, e.g., Reed v. Reed, 404 U.S. 71, 76 (1971) (striking down a state law preferring men over women as estate administrators). Return to text.

[198] See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886) (holding that a facially neutral San Francisco ordinance violated the Equal Protection Clause where all members of a class were denied permission to operate a business and almost all non-class members were awarded a license). Since Feeney, however, proving discrimination through disparate administration of a facially neutral law requires a nearly 100% impact against a suspect class. Interview with Steve Gey, John W. & Ashley E. Frost Professor of Law, Florida State University College of Law, in Tallahassee, Fla. (Oct. 16, 1996). Consequently, impact alone will not usually determine intent to discriminate. The Court will look for other evidence that proves the intent to discriminate. See GERALD GUNTHER, INDIVIDUAL RIGHTS IN CONSTITUTIONAL LAW 365 (4th ed. 1986). Return to text.

[199] See Rogers, 458 U.S. at 627-28 (holding that a facially neutral at-large county election system violated the Equal Protection Clause because it had a discriminatory impact on African American citizens and had been maintained by the Legislature for a discriminatory purpose). In Rogers, the fact that no African American had ever been elected to the Board did not prove discrimination by itself. See id. at 627. However, a review of racial discrimination inherent in the local and state political process, as well as local elected officials' discriminatory behavior, allowed the Court to infer an intent to discriminate through maintenance of the election system. See id. It is important to note that besides race, this case involved the right to vote, which is recognized as a fundamental right that must be equitably distributed. See Reynolds v. Sims, 377 U.S. 533, 561-62 (1964) (stating that the right to vote "is a fundamental matter in a free and democratic society. . . . [A]ny alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized"). Return to text.

[200] See GUNTHER, supra note 198, at 354; NOWAK ET AL., supra note 186, at 528-29 (noting that statistical evidence is especially influential when a plaintiff claims that administrative officials are discriminating when engaging in an individual selection process). Additionally, courts are less likely to defer to the subjective decisions of officials than to legislative acts. See GUNTHER, supra note 198, at 529. When the selection process does not require officials to exercise discretion, however, statistical data is frequently insufficient to establish discrimination. See id. Return to text.

[201] U.S. CONST. amend. XIV, § 1. Return to text.

[202] See STONE ET AL., supra note 180, at 815. Return to text.

[203] 316 U.S. 535 (1942). Return to text.

[204] See id. at 536 (stating that "[t]his case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race—the right to have offspring"). Return to text.

[205] See Harper v. Virginia Bd. of Elections, 383 U.S. 663, 670 (1966) (striking down a poll tax because it interfered with the fundamental right to vote). Return to text.

[206] See Shapiro v. Thompson, 394 U.S. 618, 641 (1969) (striking down as a violation of the fundamental right to travel a state statute denying welfare benefits for one year to people entering a new jurisdiction). Return to text.

[207] See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399 (1923). The court held as follows:

[The liberty guaranteed by the Due Process Clause of the Fourteenth Amendment] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. . . . [This] liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.

Id. at 399-400 (emphasis added) (citations omitted). Return to text.

[208] See Griswold v. Connecticut, 381 U.S. 479, 483-84 (1965). Return to text.

[209] See, e.g., U.S. CONST. amend. I (assuring the right to freedom of religion, speech, the press, to peaceably assemble, and to petition the government for a redress of grievances). Return to text.

[210] See, e.g., Griswold, 381 U.S. at 484 (1965) (recognizing that in prior cases the Court determined that "specific guarantees in the Bill of Rights have penumbras, formed by emanation from those guarantees that help give them life and substance"). The Griswold court concluded that the First, Third, Fourth, Fifth, and Ninth Amendments thus guaranteed the plaintiffs the fundamental right to privacy, although the right to privacy is not specifically enumerated in the United States Constitution. See id. at 483-84. Return to text.

[211] See Mary M. Krupnow, Note, M.L.B. v. S.L.J.: Protecting Familial Bonds and Creating A New Right of Access in the Civil Courts, 76 N.C. L. Rev. 621, 631-32 (1998).

[T]he "Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Such rights are held to be "fundamental," and if a statute threatens a fundamental right, the Court allows it to stand only if the government can demonstrate a compelling interest. If a statute does not interfere with a fundamental right, then the Court is deferential, examining the statute only for a rational relationship between the statute and a legitimate state interest.

Id. (footnotes omitted). Return to text.

[212] See id. Return to text.

[213] See Dunn v. Blumstein, 405 U.S. 330, 342-43 (1972) ("[I]f there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose 'less drastic means.'" (citation omitted)). Return to text.

[214] See Santosky v. Kramer, 455 U.S. 745, 769 (1982) (striking down a state parental rights termination procedure as violative of the Fourteenth Amendment's right to due process). The Court further added that, even where parents have not been model parents or have lost temporary custody of their child to the state, the parental right protected by the Fourteenth Amendment does not evaporate. See id. at 753. Return to text.

[215] See Pierce v. Society of Sisters, 268 U.S. 510, 536 (1925) (striking down a state statute requiring children to attend only public schools because it interfered with the parents' right to determine their children's education). Return to text.

[216] Id. at 512. Return to text.

[217] See In re Adoption of Baby E.A.W., 658 So. 2d 961, 966 (Fla. 1995), cert. denied sub nom G.W.B. v. J.S.W., 116 S.Ct. 719 (1996) (noting that the Supreme Court has found that natural parents have a fundamental liberty interest in the care, custody, and management of their children, but that interest is limited regarding unwed fathers who do not "demonstrate[] a full commitment to the responsibilities of parenthood by coming forward to participate in raising [their] child"); In re E.H., 609 So. 2d 1289, 1290 (Fla. 1992) (recognizing that a "constitutionally protected interest exists in preserving the family unit and in raising one's children"); Padgett v. Department of HRS, 577 So. 2d 565, 570 (Fla. 1991) (affirming the "longstanding and fundamental liberty interest of parents in determining the care and upbringing of their children free from the heavy hand of government paternalism"). Return to text.

[218] In re EAW, 658 So. 2d at 983 (Anstead, J., dissenting) (citations omitted); see also Foster v. Sharpe, 114 So. 2d 373, 376 (Fla. 3d DCA 1959) (determining that the right to raise one's child is one of the most fundamental rights held by a parent and thus it must be protected). Return to text.

[219] Beagle v. Beagle, 678 So. 2d 1271, 1275 (Fla. 1996). Return to text.

[220] U.S. CONST. amend. XIV ("[N]o state shall make or enforce any law which shall . . . deprive any person of life, liberty, or property, without due process of law.") Return to text.

[221] Santosky v. Kramer, 455 U.S. 745, 753-54 (1982) (emphasis added) (footnote omitted). Although Santosky dealt with the termination of parental rights by the state, custody proceedings similarly involve state interference with a parent's right to determine the care, custody, and management of his or her child, particularly the right of the non-custodial parent. It is likewise essential that a custody determination provide both parents with a fundamentally fair procedure. The exercise of gender bias through subjective determinations is not a fundamentally fair procedure. The task thus centers on how to exorcise gender bias from the custody determination process. Return to text.

[222] Prudential Sec., Inc. v. Dalton, 929 F. Supp. 1411, 1416 (N.D. Okla. 1996) (citation omitted) (emphasis added). Return to text.

[223] 340 N.E.2d 68 (Ill. App. Ct. 1975). Return to text.

[224] See id. at 74-75. Return to text.

[225] See id. at 75, 78 (ordering that the mother's request for change of venue be granted due to the judge's bias); see also In re N.C., C.P., and C.P., 479 So. 2d 200, 202 (Fla. 1st DCA 1985) (noting that the trial court's refusal to consider evidence when determining custody of the children violated the mother's and the children's rights to a fundamentally fair hearing). Return to text.

[226] See FLA. STAT. § 61.13(2)(b)(1) (1997) ("The court shall determine all matters relating to custody of each minor child of the parties in accordance with the best interests of the child . . . ."). Return to text.

[227] Id. § 61.13(3). Return to text.

[228] Id. § 61.13(2)(b)(1) (emphasis added). Other states have similar statutes that require that both parents be considered equally when making a custody determination. See, e.g., ARIZ. REV. STAT. § 25-403(E) (1997) ("The court in determining custody shall not prefer a parent as custodian because of that parent's sex."); CAL. FAM. CODE § 3040(a)(1) (1997) ("[T]he court . . . shall not prefer a parent as custodian because of that parent's sex."); COLO. REV. STAT. § 14-10-124(3) (1997) ("In considering a proposed custodian, the court shall not presume that any person is better able to serve the best interests of the child because of that person's sex."); MO. REV. STAT. § 452.375(7) (1997) ("As between the parents of a child, no preference may be given to either parent in the awarding of custody because of that parent's age, sex, or financial status, nor because of the age or sex of the child."); NEB. REV. STAT. § 42-364(3) (1997) ("[T]he court shall not give preference to either parent based on the sex of the parent and no presumption shall exist that either parent is more fit or suitable than the other."); NEV. REV. STAT. § 125.480(2) (1997) ("Preference must not be given to either parent for the sole reason that the parent is the mother or the father of the child."); N.J. STAT. ANN. § 9:2-4 (West 1997) ("In any proceeding involving the custody of a minor child, the rights of both parents shall be equal."); N.C. GEN. STAT. § 50-13.2(a) (1997) ("Between the mother and father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child."); OKLA. STAT. tit. 43, § 112(3)(b) (1997) ("[T]he court shall not prefer a parent as a custodian of the child because of the gender of that parent."); OR. REV. STAT. § 107.137(4) (1997) ("No preference in custody shall be given to the mother over the father for the sole reason that she is the mother, nor shall any preference be given to the father over the mother for the sole reason that he is the father."); VA. CODE ANN. § 31-15 (Michie 1997) ("[A]s between the parents there shall be no presumption or inference of law in favor of either."); WIS. STAT. § 767.24(5) (1997) ("The court may not prefer one potential custodian over the other on the basis of the sex or race of the custodian."). Return to text.

[229] Telephone interview with Alene Miller, Statistics Consultant, Florida Office of the State Courts Administrator (Apr. 10, 1997). Return to text.

[230] See STEVE W. RAWLINGS, U.S. DEP'T OF COM., HOUSEHOLDS AND FAMILY CHARACTERISTICS MARCH 1993 XV: XVIII 5-7 (1994). Another report similarly notes that 87-88% of all children in single-parent families live with their mothers. See SELTZER, supra note 130, at 1. By inference, this indicates that Florida follows the national trend of overwhelmingly awarding primary residential custody to mothers. Return to text.

[231] See supra note 108 and accompanying text. Return to text.

[232] But see State ex rel. Watts v. Watts, 350 N.Y.S.2d 285, 287, 291 (Fam. Ct. 1973) (denying the mother's request for custody based on the tender years doctrine because the evidence in this trial court demonstrated that it was in the children's best interests for the father to receive custody, and following the "at least cursory invocation" of the tender years presumption would violate the father's right to equal protection of the law). The New York statute at issue stated that "[i]n all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness." Id. at 287. Research indicates that this is the only case that determined applying a mother-preference under a facially neutral custody statute violated the father's right to equal protection. No appellate level cases appear to have found a violation of a father's right to equal protection in response to a father's claim that the application of the tender years doctrine under a facially neutral custody statute violated that right. Return to text.

[233] See Cheri L. Wood, Comment, Childless Mothers?—The New Catch-22: You Can't Have Your Kids and Work for Them Too, 29 LOY. L.A. L. REV. 383, 392 (1995) ("Considering it violative of the Equal Protection Clause of the Fourteenth Amendment, courts no longer applied the maternal custody preference for children of tender years.") Wood also notes that because "ninety percent of children went to the custody of their mothers[,]" the maternal custody preference "was cited as statistical evidence of discrimination" and "'sexual stereotyping.'" Id. (emphasis added) (footnote omitted).

Interestingly, a recent, successful, equal protection challenge involved a Pennsylvania statute that required non-custodial parents to pay their children's college tuition. See Curtis v. Kline, 666 A.2d 265 (Pa. 1995). The court struck down the statute as a violation of the Equal Protection Clause because married parents were not likewise required to pay their children's college tuition. See id. at 269. Return to text.

[234] 886 F. Supp. 1356 (W.D. Mich. 1995). The court noted that the parties were in federal court due to "an action for deprivation of various civil rights under color of state law." Id. at 1359. Return to text.

[235] Id. at 1363. Return to text.

[236] See id. Return to text.

[237] Id. (citations omitted). Return to text.

[238] Id. (citations omitted). Return to text.

[239] See id. Return to text.

[240] 148 F.R.D. 670 (E.D.N.Y. 1993). Return to text.

[241] See id. at 677. Return to text.

[242] Id. Return to text.

[243] See id. at 678. Fariello tried to bring an equal protection claim again in Fariello v. Campbell, 860 F. Supp. 54 (E.D.N.Y. 1994), alleging that his rights and those of similarly situated divorced males had been violated. The court dismissed the claim with prejudice and sanctioned Fariello for bringing a frivolous suit. See id. at 71. Return to text.

[244] For example, in Florida, child custody issues arise generally under chapter 61, whereas adoptions are handled under chapter 63. Return to text.

[245] For a review of some interesting cases highlighting the differences in treatment between unwed fathers and unwed mothers, see Craig, supra note 81, Part II.B. Return to text.

[246] See In re the Adoption of BGH, 930 P.2d 371, 373 (Wyo. 1996). Return to text.

[247] Id. at 380. Return to text.

[248] Id. at 380-81. Return to text.

[249] Id. at 381. Return to text.

[250] Id. Return to text.

[251] See id. Return to text.

[252] Id. at 381-82 (citation omitted). Return to text.

[253] See ARIZ. REV. STAT. § 13-1302(4)(B) (1997). The statute states: "If a child is born out of wedlock, the mother is the legal custodian of the child for the purposes of this section until paternity is established and custody and access is determined by a court." Id. An unmarried father may initiate proceedings to establish his paternity by filing a verified complaint. In the alternative, the parents of a child born out of wedlock can voluntarily acknowledge paternity by filing with the clerk of the superior court either a birth certificate signed by the mother and father, or an affidavit signed by both parents acknowledging paternity. See id. § 25-812. The mother of the child does not have a similar affirmative duty to establish paternity, presumably because she gave birth to the child. It is important to note that once one parent has been deemed the legal custodian of a child, it is very difficult to change this designation. Florida has a similar "natural guardian" statute. See FLA. STAT. § 744.301(1) (1997) ("The mother of a child born out of wedlock is the natural guardian of the child."). Return to text.

[254] 851 P.2d 843 (Ariz. Ct. App. 1992). Return to text.

[255] The father submitted Lehr v. Robertson, 463 U.S. 248 (1983), in support of the premise that "the state may not subject men and women to disparate treatment when there is no substantial relation between the disparity and an important state interest." Bean, 851 P.2d. at 844. Return to text.

[256] See Bean, 851 P.2d. at 845. Return to text.

[257] Id. at 844-45. Return to text.

[258] See id. at 845 (referring to Stanley v. Illinois, 405 U.S. 645 (1972)). In Stanley, after the death of the children's natural mother, Illinois tried to remove the children from the unwed father. The father claimed that Illinois' failure to award him a fitness hearing because he was an unwed father violated the Due Process Clause of the Fourteenth Amendment. The Supreme Court held that the denial of the hearing violated the Fourteenth Amendment. See Stanley, 405 U.S. at 658. Return to text.

[259] Bean, 851 P.2d at 845. The court here is inferring that the protection of the child is best served by presuming that mothers are more fit than fathers to serve as legal custodians. This is gender discrimination. Return to text.

[260] Id. Bodenheimer's then 17-year-old Law Review article argued that despite Stanley, unmarried fathers should not receive custody rights equal to the mothers', because it "would have disastrous consequences for the child." Brigitte M. Bodenheimer, New Trends and Requirements in Adoption Law and Proposals for Legislative Change, 49 S. CAL. L. REV. 10, 58 (1975). Like many courts, Bodenheimer presumed de facto that it is in the best interests of all children for all mothers to have custody. Return to text.

[261] See Bean, 851 P.2d at 845. Return to text.

[262] Id. at 845-46. In Lehr v. Robertson, 463 U.S. 248 (1983), the Supreme Court had noted that:

the significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie.

Id. at 262. In essence, Arizona is forcing the parents into a wrestling match over the child if the parents cannot parent together. To obtain custody in most cases, the father would have to show that the mother is unfit to have custody of the child. Moreover, if a mother and child live with a relative who primarily cares for the child while the mother spends little or no time with the child, the mother would not likely lose custody of the child. Conversely, if a father does not proactively and significantly care for the child, he will likely never receive custody. Return to text.

[263] Id. at 846 (quoting Caban v. Mohammed, 441 U.S. 380, 397 (1979) (Stewart, J., dissenting). Arizona's statute, however, clearly provides the mother with a parental right because of her biological connection to the child. All that is required of her to become the legal guardian is to give birth to the child. See supra note 253. Return to text.

[264] Bean, 851 P.2d at 846. Return to text.

[265] Id. (quoting Lehr, 463 U.S. at 261). Return to text.

[266] See Bean, 851 P.2d at 847. Return to text.

[267] See Swayne v. L.D.S. Soc. Servs., 761 P.2d 932, 936 (Utah Ct. App. 1988). Return to text.

[268] Id. at 937. In reality, however, many fathers are not aware that they must file an acknowledgment of paternity. Many believe that simply being listed on the birth certificate is sufficient, but at least in Florida, it is not. See FLA. STAT. § 742.10(1) (1997). Return to text.

[269] Swayne, 761 P.2d at 937 (citation omitted). Return to text.

[270] Id. Return to text.

[271] Id. at 937-38. Return to text.

[272] See id. at 938. Return to text.

[273] See id. (citing Caban v. Mohammed, 441 U.S. 380, 394 (1979)). In Caban, the Supreme Court struck down a New York statute that allowed unmarried mothers to withhold their consent to an adoption but not unmarried fathers, even those who had established a "substantial relationship" with their children. The Court held the statute violated the Equal Protection Clause, and stated:

The facts of this case illustrate the harshness of classifying unwed fathers as being invariably less qualified and entitled than mothers to exercise a concerned judgment as to the fate of their children. [The statute] both excludes some loving fathers from full participation in the decision whether their children will be adopted and, at the same time, enables some alienated mothers arbitrarily to cut off the paternal rights of fathers. We conclude that this undifferentiated distinction between unwed mothers and unwed fathers, applicable in all circumstances where adoption of a child of theirs is at issue, does not bear a substantial relationship to the State's asserted interests.

Caban, 441 U.S. at 395. Return to text.

[274] See Swayne, 761 P.2d at 938. Return to text.

[275] Id. (quoting Wells v. Children's Aid Soc. of Utah, 681 P.2d 199, 203 (Utah 1984), Lehr v. Robertson, 463 U.S. 248, 261-62 (1983), and In re J.P., 648 P.2d 1364, 1375 (Utah 1982) (emphasis added)). Return to text.

[276] Id. (quoting Wells, 681 P.2d at 203). Return to text.

[277] See id. Return to text.

[278] See supra note 197 and accompanying text. Return to text.

[279] See FLA. STAT. § 61.13(2)(b)(1) (1997) ("After considering all relevant facts, the father of the child shall be given the same consideration as the mother in determining the primary residence of a child irrespective of the age or sex of the child."). Return to text.

[280] See supra note 196. Return to text.

[281] As noted above, the primary caretaker standard may be a thinly veiled mother-custody preference. See supra note 165 and accompanying text (discussing reasons why awarding custody based on a party's designation of "primary caretaker" will not necessarily meet the best interests of a child). Interestingly, a state task force examining whether gender bias exists in mother-preference custody presumptions found that despite the statutory eradication of this presumption, "some trial judges continue to enforce the presumption as before, automatically placing young children with their mothers irrespective of other facts and circumstances." THE MISSOURI TASK FORCE ON GENDER AND JUSTICE, REPORT OF THE MISSOURI TASK FORCE ON GENDER AND JUSTICE (1993), reprinted in 58 MO. L. REV. 485, 561 (1993). Despite confirming that "gender neutrality must be observed in all child custody cases, so that each case is decided on its objective merits," the task force nonetheless found that the primary caretaker presumption was an acceptable standard upon which to base custody determinations, even though "[t]he necessary result . . . will be placement with the mother in most cases where both parents seek custody and both are fit." Id. at 562-63. The task force found that this presumption "would not constitute gender bias against fathers; it would merely reflect a general societal pattern upon which people agree during the stability of marriage." Id. at 563. But see MINN. ST. § 518.17(13) (1997) ("The primary caretaker factor may not be used as a presumption in determining the best interests of the child. The court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child."). Return to text.

[282] See Garrison, supra note 155, at 401 ("Judges today have more discretion in divorce cases than in any other field of private law."). Return to text.

[283] COMMISSION ON GENDER BIAS IN THE JUD. SYS., GENDER & JUSTICE IN THE COURTS: A REPORT TO THE SUPREME COURT OF GEORGIA BY THE COMMISSION ON GENDER BIAS IN THE JUDICIAL SYSTEM (1991), reprinted in 8 GA. ST. U. L. REV. 539, 657 (1992) [hereinafter GEORGIA STUDY]. Return to text.

[284] Id. at 657-58 (noting that "American society has tended to assume that mothers, rather than fathers, should and do have primary responsibility for raising children"). Return to text.

[285] Id. at 659 (listing public commentary, including testimony from a father who noted that he had heard the judge ask an attorney in a custody matter, "How many times have you seen a judge award custody of a five-year-old to the father?" to confirm that "the 'tender years' presumption is alive and well in Georgia courts" (footnote omitted)).