Robert Gougaloff ‘s Parent Alienation Blog

A blog about Parent Alienation

The Tender Years Presumption

Divorcing spouses today contest few issues more bitterly than child custody. This was not always the case. When a married couple petitioned the courts of ancient Rome for a divorce, any disputes over which parent would retain primary physical custody of the children were easily settled, because there were no disputes. In the eyes of Caesar’s jurists, children were property owned solely by their fathers. The legal rights of mothers were limited since the courts also considered them to be the property of their husbands.

This custom eventually spread around the world and continued well into the 19th century. Under English common law in the 180Os, this practice became virtually self-perpetuating. English property laws decreed that once a man lost title to his assets, in this case his children, his financial responsibility for them also ended. Since few women of that time possessed the resources to support a family on their own, the courts remained averse to awarding custody to the mother even if the children stated a strong preference for living with her.

A gradual shift in custody decisions occurred as the courts entered the 20th century. Historical trends forced a division of family responsibilities, leading fathers away from the family home and into roles as wage earners, while mothers stayed behind as caretakers to the children. This division of roles, as well as an increasing interest in children’s welfare, led to a shift from paternal preference to maternal preference in custody decisions. The Tender Years Presumption suggested that children under the age of 10 could not attain normal emotional development without the continual influence of a maternal presence. By the 1920s, tender years became the standard in 48 states. Over time, it became the father who seldom retained custody of the children, even if the children were adolescents and presumably beyond the consideration of any tender years’ standard.

As time went on and men demonstrated parenting skills comparable to women, judges became less reluctant to award custodial rights to fathers. Fathers began to seek primary custody more often, at times even claiming sex discrimination in custody proceedings. Gradually, court rulings and statutory guidelines awarded more rights to fathers. In a landmark decision in 1981 in the case of Devine vs. Devine, the Alabama court asserted that the tender years presumption represented a form of gender bias against men and violated the Fourteenth Amendment by denying fathers “the equal protection of the law.”

By the 1970s, most states had substituted the tender years doctrine with the “best interests of the child” standard. This standard compelled jurists to award custody based on what is best for the child considering the particular circumstances, rather than simply the gender of the parent. The acceptance of the best interests standard led the way to the development of joint custody in divorce proceedings. Parents argued that it was in the best interest of the children to have access to and rearing from both parents. Child welfare experts began to uncover evidence that access to both parents is critical to a child’s self-esteem and coping (Lewis, 1978; Derdeyn and Scott, 1984; American Psychological Association, 1994; Ackerman and Ackerman, 1997; Herman, 1997). In 1979, California became the first state to enact a joint custody statute. At this time, nearly all states have adopted joint custody statutes or recognize the concept of joint custody in case law. To this date, virtually all states will take the “best interests of the child” standard as the base of their decision making, and rarely will a state cite the Tender Years Presumption as a basis for awarding custody to the maternal side.

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October 2, 2008 Posted by | General Information | , , , , | 2 Comments

Custody (730) Evaluation – What is it and how do I prepare for it?


If there is a dispute about the physical (and sometimes legal) custody more often than not the judge will order a Custody Evaluation, a.k.a. 730 evaluation (as in Family Code Section 730). The reason for this is that judges don’t usually want to make decisions over custody without the input and report from a qualified psychologist who can examine the situation based on his or her expertise. During the trial, judges will usually give a lot of weight to the report of a custody evaluator, especially when the evaluator has a good and long standing relationship with the court system. Now that being said it is of vital importance to be very (no, let me actually emphasize this a little more: VERY) prepared for this evaluation appointment. This is an important point, since a private evaluation can cost in the vicinity of $10K and is your one-time shot at present yourself as a good parent. Here are a few tips on how to prepare:

Enroll in a great Parenting Class if you can. This will give you great insight in modern parenting concepts and might actually make you a better parent. What this will do for sure is tell the evaluator that you are approaching parenting with the necessary dedication.

Learn everything there is to know about child development (their stages) and maybe even a little bit of developmental psychology. Much of the information you will be getting is derived from Piaget’s original work, but there are also some newer classifications which are worth exploring.

Make your home child friendly. This is a very important step. After all, you want to offer your children a home they can call their own. This includes furnishing them a nice and functional room, and definitely childproofing for the appropriate age category. Custody evaluators will look at your home very critically and take pictures. Make sure that you present yourself as a clean and organized parent.

Prepare your moving papers for the evaluator. This step cannot be underestimated! Don’t let your attorney do this step. Make sure you put this together and let your attorney proof it. This is your chance to tell the evaluator why you think your proposal is in the best interest of the children (notice how I did NOT say “in your best interest”). You need to present everything as an advocate for your children. Be factual – in other words only present evidence that can be substantiated. Finally, do not “sling mud” – even when the other side does it. Custody evaluators generally don’t like that. They would rather see that both sides come to an agreement, but if this is not possible, be respectful towards the other parent. This shows the evaluator that you have accepted the other parent as a functional part of a “reorganized family”.

ATTACH A THOROUGH PARENTING PLAN !! This step is very important.   The parenting plan is the unequivocal “rule book” when it comes to custodial sharing of children. It needs to include everything, from visitation and holiday schedules to the toy distribution of the children. Judges and attorneys can’t think of every little parameter which may come up between the parents in the future, but you can, so it is important that this parenting plan becomes part of the judgment in the end. It is a living document, which will have to be updated at least on a yearly basis or as the circumstances demand. Hope this helps a little. Please feel free to post a comment or question if you feel like it.

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September 19, 2008 Posted by | General Information | , , , , , , | 1 Comment

Legal vs. Physical Custody

I spent another day in family court yesterday and as I was waiting for my case to be called it became very transparent to me that many people are confused about the definition and ramifications of legal and physical custody.  So here is the Judge’s input on this (which I think makes it very clear):

Physical Custody – is the percentage distribution of time a child spends with either of the parents.  In other words, it is a predetermined measure of how much time a child will spend with one parent in comparison to the other parent.  It is often being used as a fractional multiplier to calculate child support.

Legal Custody – is different.  There is usually not a sliding percentage scale.  There is either shared legal custody, full legal custody or no legal custody.  Legal custody is all about making major decisions for a child or children.  Major decisions include (but are not exclusive):

  • Medical and dental care that is not emergency care
  • Psychological evaluation and treatment
  • Issuance of a driver’s license
  • Issuance of a passport
  • Schooling
  • Religious education
  • Name changes
  • Change of the children’s residency
  • Body piercings (including ear piercings)
  • Tattoos

Shared legal custody means that NONE of the above mentioned areas can be decided upon without the consent of the other parent.  I have seen judges overrule such decisions when made without the consent of the other parent.

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September 16, 2008 Posted by | General Information | , , , , , , | 1 Comment