See Pusey v. Pusey, 728 P.2d 117, 121 (Utah 1986):
ZIMMERMAN, Justice (concurring in the result):
[I] also believe it is time to discontinue any hint of support for the notion of gender-based preferences in child custody cases. However, I believe that such a result can be achieved without resort to constitutional analysis.
The maternal preference existed in one form or another as a matter of legislative policy in Utah from 1903 to 1977, when section 30–3–10 of the Code was repealed by the legislature.1 See Jorgensen v. Jorgensen, 599 P.2d 510, 511 (Utah 1979). Despite the repeal of this statute, this Court has stated in dicta that as a matter of judicial policy we will continue to recognize a maternal preference when all other factors are equal. Id.; Henderson v. Henderson, 576 P.2d 1289, 1290 (Utah 1978); Smith v. Smith, 564 P.2d 307, 309 (Utah 1977). To date, we have not been presented with a case where all other factors have been equal.
The original justification for the use of a maternal preference was that it would be in the best interest of the child to be with the mother. Steiger v. Steiger, 4 Utah 2d 273, 276, 293 P.2d 418, 420 (1956). This was probably based on two assumptions which were current in 1903 when the presumption was enacted: first, that the mother almost invariably served as a child’s primary caregiver prior to divorce; and second, that biologically a child was simply better off with a mother.
Concerning the first assumption, we can take judicial notice that today more women than ever before have entered the work force. Accordingly, it is much more likely today than when the presumption first arose that the mother will not have been the primary caregiver. As for the second assumption, it may represent the consensus of Victorian America, and today it may be a matter of individual opinion, but I am aware of no empirical evidence that supports the notion that females are superior caregivers, all other things being equal.
I see no need to perpetuate as judicial policy a preference that lacks any firm foundation in today’s world. This Court has maintained the preference in dicta despite legislative intent to the contrary, and it can and should abandon it without resort to constitutional analysis. Any legitimate interests served by the preference are equally well viewed by a gender-neutral primary caregiver preference.
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