See Pusey v. Pusey, 728 P.2d 119-121 (Utah 1986):
Opinion
DURHAM, Justice:
Plaintiff cross-appeals from that portion of the divorce decree awarding custody of the older son of the marriage to defendant and requests that both children be awarded to her. This Court’s judicial preference for the mother, reaffirmed in Nilson v. Nilson, 652 P.2d 1323 (Utah 1982), and Lembach v. Cox, 639 P.2d 197 (Utah 1981), is cited in support. We acknowledged in dictum the continued vitality of that preference in Jorgensen v. Jorgensen, 599 P.2d 510, 511 (Utah 1979), “all other things being equal.” We believe the time has come to discontinue our support, even in dictum, for the notion of gender-based preferences in child custody cases. A review of the cases cited by plaintiff shows that “all other things” are rarely equal, and therefore this Court has not treated a direct challenge to the maternal preference rule in over five years. In the unlikely event that a case with absolute equality “of all things” concerning custody is presented to us, the provisions of article IV, section 1 of the Utah Constitution and of the fourteenth amendment of the United States Constitution would preclude us from relying on gender as a determining factor.
Several courts have declared the maternal preference, or “tender years presumption,” unconstitutional. As early as 1973, the New York Family Court, Kooper, J., held that “application of the ‘tender years presumption’ would deprive [the father] of his right to equal protection of the law under the Fourteenth Amendment to the United States Constitution.” State ex rel. Watts v. Watts, 77 Misc.2d 285, 350 N.Y.S.2d 285, 290 (1973). Citing several studies which determined that a child needs “mothering” rather than a mother, id., the court determined that the presumption does not serve a compelling state interest. Id., 350 N.Y.S.2d at 291. Although Watts used a strict scrutiny test, it is equally doubtful that the maternal preference can be sustained on an intermediate level of review. See Hyde, Child Custody in Divorce, 35 Juv. & Fam.Ct.J. 1 at 10 (Spring 1984). This is particularly true when the tender years doctrine is used as a “tie-breaker,” as it is in Utah, because in that situation the Court is “denying custody to all fathers who … are as capable as the mother…. [W]hile over inclusiveness [sic] is tolerable at the rational basis level of review, it becomes problematic at the heightened level of scrutiny recognized in gender discrimination cases.” Id. at 11 (emphasis added; footnotes omitted).
Even ignoring the constitutional infirmities of the maternal preference, the rule lacks validity because it is unnecessary and 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. See Hyde, supra, at 6. Further, “[b]y arbitrarily applying a presumption in favor of the mother and awarding custody to her on that basis, a court is not truly evaluating what is in the child’s best interests.” Id. at 10.
We believe that the choice in competing child custody claims should instead be based on function-related factors. Prominent among these, though not exclusive, is the identity of the primary caretaker during the marriage. Other factors should include the identity of the parent with greater flexibility to provide personal care for the child and the identity of the parent with whom the child has spent most of his or her time pending custody determination if that period has been lengthy. Another important factor should be the stability of the environment provided by each parent. See generally Atkinson, Criteria for Deciding Child Custody in the Trial and Appellate Courts, 18 Fam.L.Q. 1 (Spring 1984).
In accord with those guidelines, we disavow today those cases that continue to approve, even indirectly, an arbitrary maternal preference, thereby encouraging arguments such as those made by the cross-appellant in this case.
In Jorgensen, 599 P.2d 510 (Utah 1979), we affirmed a split custody award made by the trial court. “While it is true that a child custody award which keeps all the children of the marriage united is generally preferred to one which divides them between the parents, that preference is not binding in the face of considerations dictating a contrary course of action.” Id. at 512.
Although the trial court in this case found both parties to be fit custodial parents, its ultimate judgement on custody required an assessment of the complex situation before it. The court did not follow the recommendations made by the social worker or the plaintiff’s brother. As child custody determination turns on numerous factors, however, that choice was within its discretion. See Fletcher v. Fletcher, 615 P.2d 1218, 1224 (Utah 1980). The evidence indicated that the twelve-year-old son manifested a strong preference for his father, which had caused friction and ill feelings between him and his mother. The father also appeared to show a preference for the older son, which fact supports the trial court’s decision to split the custody of the children between the parents. Certainly these were factors dictating the course of action taken by the trial court. We find no abuse of discretion in the custody award.
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