Pusey v. Pusey
728 P.2d 117 (Utah 1986)

Facts:

  • The parties were married twelve years and had two sons, aged twelve and nine at the time of the divorce action in 1984.
  • The older boy expressed a marked preference for living with his father, whereas the younger boy indicated equal attachment to both parents.

History:
Despite contrary recommendations by a social worker and the mother’s brother, the trial court awarded custody of the older boy to the father (defendant) and custody of the younger to the mother (plaintiff), with reasonable visitation rights in both parties.

  • On appeal, the mother requested that both children be awarded to her.
  • She argued the tender years doctrine, which presumes that during a child’s “tender” years (i.e., under 6-8) the mother should have custody of the child.

Issue:
Whether the tender years doctrine – and gender-based preferences in general – are still appropriate in child custody cases.

Holding:
No. Affirmed, however – no abuse of discretion.

Reasoning:

  • Maternal preference raises constitutional issues (i.e., 14th Amendment), especially when used as a tiebreaker, because fathers are just as capable as mothers.
  • In addition, the preference perpetuates outdated stereotypes – “the development of the tender years doctrine was perhaps useful in a society in which fathers traditionally worked outside the home and mothers did not; however, since that pattern is no longer prevalent, particularly in post-separation single-parent households, the tender years doctrine is equally anachronistic.”
  • Instead, the choice in competing child custody claims should be based upon function-related factors, prominent among which is identity of primary caretaker during marriage; other factors include parent with greater flexibility to provide personal care for child, parent with whom child has spent most of his or her time pending custody determination if period has been lengthy, and stability of environment provided by each parent.
  • Here, there was no abuse of discretion because the older child clearly wanted to be with his father, which caused some friction and ill feelings towards his mother.

Rule: Gender CANNOT be relied upon as the determining factor in awarding custody of children. Instead, custody claims should be based upon function-related factors, most importantly the identity of primary caretaker during marriage.

  • Other factors include parent with greater flexibility to provide personal care for child, parent with whom child has spent most of his or her time pending custody determination if period has been lengthy, and stability of environment provided by each parent.

Note: Studies still show that women are overwhelmingly awarded custody.