State ex rel. Watts v. Watts

Decision Date08 August 1973
Citation350 N.Y.S.2d 285,77 Misc.2d 178,70 A.L.R.3d 300
PartiesSTATE of New York On relation of Susan WATTS, On behalf of Marcy and Barbara Watts, Petitioner, v. Daniel WATTS * , Respondent. Family Court, City of New York, New York County
CourtNew York Family Court

Jay A. Wallman, New York City, for petitioner.

Judith L. Carlin, New York City, for respondent.


The Family Court is now vested with original jurisdiction to determine custody of children (Chapter 535 of the Laws of 1972 amending section 651 of the Family Court Act). This is such an action between the mother and father of three infant children who are each suing for custody.

Although in theory, a father has an equal right with the mother to the custody of his children, in well over ninety percent of the cases adjudicated, the mother is awarded custody. (The Right of Children in Modern American Family, Law, Drinan)

Yet, sound application of the 'best interests of the child' criteria requires that the court not place a greater burden on the father in proving suitability for custody than on the mother.

Application of a presumption favoring the mother violates the law of New York State. Both section 240 of the Domestic Relations Law, dealing with custody of children in matrimonial actions and section 70 of the Domestic Relations Law, dealing with habeas corpus for a child detained by a parent provides in relevant part:

'In 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 . . .'

The Appellate Division in (FF v. FF, 37 A.D.2d 893, 325 N.Y.S.2d 291, 1971), held that this language means exactly what it says:

'The thrust of petitioner's (the mother's) argument is that the . . . record is devoid of those overriding considerations which would warrant the denial of the general principle of the propriety of committing children of tender years to their mother (citations omitted). In several instances in the brief submitted to this court, petitioner reiterates the failure of the Family Court to make a finding of 'neglect' on petitioner's part in a context which suggests that the absence of such a specific finding necessitates an award of custody to the children's mother. However, the rules applicable in cases of this type are clear and well established: there is no prima facie right to custody in either parent and the ultimate and controlling consideration is the welfare of the children.' (Matter of Wout v. Wout, 32 A.D.2d 709, 300 N.Y.S.2d 24, DRL 70; Lockwood v. Jagiello, 24 A.D.2d 544, 261 N.Y.S.2d 420; see also Cornell v. Hartley, 54 Misc.2d 732, 283 N.Y.S.2d 318 dictum, 1967.)

Until recently, however, there has been a pattern of at least cursory invocation by the courts in New York and elsewhere, of the presumption that children of tender years, all other things being equal, should be given into the custody of their mother. In fact, this approach to deciding custody cases, since the Domestic Relations Law was amended to forbid such preference, constitutes judicial error--error, moreover, which does not promote the best interests of the children involved. As Foster and Freed, authors of the comprehensive treatise Law and the Family, New York, Vol. 2 (1967) stated:

'The statutory mandate in practice is ignored and instead of equality as between the parents, the mother's claim to the child is paramount. In reality instead of 'best interests of the child' serving as the test, the 'unfitness' rule which was designed to serve in all custody contests between parents and non-parents is being applied . . .'

The 'tender years presumption' is actually a blanket judicial finding of fact, a statement by a court that, until proven otherwise by the weight of substantial evidence, mothers are always better suited to care for young children than fathers. This flies in the face of the legislative finding of fact underlying the explicit command of section 240 and section 70 of the Domestic Relations Law, that the best interests of the child are served by the court's approaching the facts of the particular case before it without sex preconceptions of any kind.

However, the trend in legislation, legal commentary, and judicial decisions is away from the 'tender years presumption'.

Recent amendments of the Domestic Relations Law of several other states have codified as explicitly as New York the view that the child's best interest requires that neither parent have preference. In Florida, for example, the relevant provision, effective July 1, 1971, states:

'The court shall award custody and visitation rights of minor children of the parties as a part of proceeding for dissolution of marriage in accordance with the best interests of the child. Upon considering all relevant factors, the father of the child shall be given the same consideration as the mother in determining custody.' Fla.Stat. 61.13(2), F.S.A. (1971).

Wisconsin's law also revised in 1971, provides in relevant part:

'In determining the parent with whom a child shall remain, the court shall consider all facts in the best interest of the child and shall not prefer one parent over the other solely on the basis of the sex of the parent.' (Wis.Stat. 247.24(3) (1971).

Colorado Rev.Stats. 46--1--5(7) provides:

'No party shall be presumed to be able to serve the best interests of the child better than any other party because of sex.'

Legal scholars advocate this evenhanded approach with near virtual unanimity. See e.g., Podell, Peck and First, Custody to Which Parent? 56 Marquette Univ.L.Rev. Fall 1972; Foster and Freed, Child Custody, 39 N.Y.U.L.Rev. 422, 411, 1964; Polow, Child Custody--The Custody, 39 N.Y.U.L.Rev. 422, 411, 1964; Polow, Child Custody--The Law and Changing Social Attitudes; ABA Family Law Newsletter, November 1972. Evidence that the courts are taking long strides toward abandoning the 'tender years presumption' in favor of an unbiased consideration of the best interests of the children solely on the basis of the individual characteristics and relationships of the parents and children involved is found in the large number of recent custody cases in which the parents were treated equally and the father prevailed. (See the 48 cases collected in Footnote 23, Podell, Peck and First, supra.)

Apart from the question of legality, the 'tender years presumption' should be discarded because it is based on outdated social stereotypes rather than on rational and up-to-date consideration of the welfare of the children involved.

The simple fact of being a mother does not, by itself, indicate a capacity or willingness to render a quality of care different from that which the father can provide. The traditional and romantic view, at least since the turn of the century, has been that nothing can be an adequate substitute for mother love.

'For a boy of such tender years nothing can be an adequate substitute for mother love--for that constant ministration required during the period of nurture (she) can give because . . . in her alone is service expressed in terms of love. She alone has the patience and sympathy required to mold and soothe the infant mind in its adjustment to its environment. The difference between fatherhood and motherhood in this respect is fundamental, and the law should recognize it unless offset by undesirable traits in the mother.' (Jenkins v. Jenkins, 173 Wis. 592, 181 N.W. 826, 827, 1921).

Later decisions have recognized that this view is inconsistent with informed application of the best interests of the child doctrine and out of touch with contemporary thought about child development and male and female stereotypes.

In Garrett v. Garrett (464 S.W.2d 740, 742, Mo.App., 1971), the court stated:

'The rule giving the mother preferential right to custody is considerably softened by the realization that 'all things never are exactly equal' and is predicated upon the acts of motherhood--not The fact of motherhood. Likewise, the rule will yield if the welfare of the children demands it, because this is not a presumption of law but a simple fact of life gleaned from human experience, and the courts are...

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