Last Saturday I was at Shabbat services at my synagogue. Also there was a handicapped little boy who was struggling to get around. Virtually every little girl at the service was coming to his aid, without any prompting by their parents. The other little boys seemed oblivious and generally unconcerned. My observations made me question whether there is some innate (or culturally developed) nurturing skill in little girls, seemingly lacking in boys. My generation grew up in a gender neutral political environment that emphasized the equality of the sexes in all respects. However, from my observation, it does seem that girls are wired differently, and have a tendency of care that boys rarely possess.
Perhaps there may be something to the “tender years doctrine,” long rejected as being a relic of the past. The “tender years doctrine” arose early in the twentieth century, as a judicial presumption that children of divorce should ordinarily be placed with their mothers. It arose from Victorian views of the superiority of women morally and with regard to the rearing of children. This maternal preference replaced an earlier paternal preference in custody cases, long observed by American culture, which made women’s rights to their children secondary to the interests of their husbands.
In the 1960s the tender years doctrine, employed by virtually all states in resolving custody disputes, came under attack due to a variety of societal reasons that included challenges to women’s traditional roles in the home, and men’s claims of sexual discrimination in contested custody cases. To be sure, these concerns were valid and deserved redress. On the other hand, the lack of any presumption in determining custody has created problems that may well exceed the progressive benefits of a gender neutral “best interest” standard.
Custody litigation is the most toxic of all litigation. Undeniably, the litigation itself doesn’t serve a child’s best interest. The best interest standard, relied on by virtually all states in adjudicating custody, is an indeterminate standard that invites both parents to take their best shots, thus increasing custody litigation. If a rebuttable maternal presumption existed, courts still could award custody to worthy fathers and dispossess unworthy mothers; but much litigation caused by the leveling of the custody playing field would be avoided.
The maternal presumption reflects the politically incorrect reality that nature or society has equipped women with certain definite skills, equipping them to care for young children. While little boys are playing with cars and trucks, little girls for the most part are dragging around baby dolls. From my observation, most women have a caretaking instinct that the law currently ignores. When the law disregards principles of nature, unforeseen consequences occur–including more people competing to “win” the prize of custody. Perhaps it is time for legislatures and courts to rethink the notion of gender neutrality.