Petition for Writ of Certiorari — Wheeler v. Wheeler
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644
@0-
No.
In The
Supreme Court of the United States
October Term, 1990
,%
7
THOMAS E. WHEELER, JR.,
Petitioner,
V.
VALERIE R. WHEELER,
Respondent.
.
Petition For A Writ Of Certiorari To The
Alabama Court Of Civil Appeals
sa.
. 4
PETITION FOR A WRIT OF CERTIORARI
WILBURN DONALD BOLTON, JR.
Post Office Box 259
307 South McKenzie St.
Foley, AL 36536
(205) 943-3860
Counsel for Petitioner
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTION PRESENTED
Will fathers of young children in the State of Ala-
bama, such as the Petitioner, continue to be denied due
process of law in custody cases by the de facto application
of the maternal preference presumption known as the
“tender years doctrine”, when such presumption has
been found to be an impermissible gender based bias
violative of the equal protection clause of the Fourteenth
Amendment of the Constitution?
il
RULE 28.1 LIST
The caption of the case in this court contains the
names of all parties.
ili
TABLE OF CONTENTS
Page
eg ee.) es Tenn i
Tas hoa ey 5 ah eho cee sa Kanes ees ii
ee kaa che Geka eK ese eae eat n ess 1
JURISDICTION......... RT ERiaay haved sabes san 1
CONSTITUTIONAL AMENDMENT INVOLVED.... 1
ple ayy er S| | Senne 2
REASON FOR GRANTING THE WRIT............. 11
The Alabama appellate courts’ refusal to recog-
nize and remedy a substantial and long stand-
ing de facto violation of the equal protection
clause of the Federal Constitution brings the
decision below in conflict with the applicable
decisions of this Court
Ay is Sass 5468456464 00 a 880 8850 28
a la
Wheeler v. Wheeler, 574 So.2d 832 (Ala.Civ.App.
SE ne a la
Santilli and Roberts, Custody Decisions in Alabama
Before and After the Abolition of the Tender Years
Doctrine, 14 Law and Behavior 123 (1990)........ 1b
iv
TABLE OF AUTHORITIES
Page
Cases
Arlington Heights v. Metropolitan Housing Corp., 429
a Ee WOOO ec be hakeedheacnesecieccerncs 19, 24, 25
Brown v. Board of Education of Topeka, Kansas, 347
a EE 065 bak coos ce Gee erwin ean 29
Caban v. Mohammed, 441 U.S. 380 (1979)......... passim
Castaneda v. Partida, 430 U.S. 482 (1977).......... 19, 22
Dayton Board of Education v. Brinkman, 443 U.S. 526
NUE Sas pa cn kies Wet ee aebaind cost ebaateonceue eos 20
Devine v. Devine, 398 So.2d 685 (Ala.Civ.App.
Se te SEER ERLE RET ETE TESTE Cees rae 11, 13, 19
Ex parte Devine, 398 So.2d 686 (Ala. 1981)....... passim
Fronterio v. Richardson, 411 U.S. 677 (1973)........ 14, 26
Hanson v. Hanson, 467 So.2d 961 (Ala.Civ.App.
PUES Feb 14455 0s band OR aKOREOS SEN ESARE ESAS‘ Oo c eas 12
Hazelwood School District v. United States, 429 US.
ee SROs hee wean cee he cee, 22
Hood v. Wilson, 496 So.2d 76 (Ala.Civ.App. 1986) .10, 16
Hovator v. Hovator, (Ms.Civ. 7618, August 29, 1990)
— + oo (Ala.Civ.App. 1990)...........0...... 23
International Brotherhood of Teamsters v. United
States, 431 U.S. 324 (1977) .. 2.0.0 19
Orr v. Orr, 440 U.S. 268 (1979)......00000 0000... passim
Pacific Mutual Life Insurance Company v. Haslip, 59
WU I 52 4x on sea saaeasuddvarscuieucscucens 28
Powers v. Ohio, 59 U.S.L.W. 4268 (1991)....... 24, 27, 29
V
TABLE OF AUTHORITIES - Continued
Page
Reed v. Reed, 402 U.S. 71 (1971).......-. .... 14, 17, 26
Stanley v. Illinois, 405 U.S. 645 1g | Sere eee 15, 17
Washington v. Davis, 426 U.S. 229 (1976).......--- 18, 19
Wheeler v. Wheeler, 574 So.2d 832 (Ala.Civ.App.
7,9, 10, 16, 23
CONSTITUTIONAL PROVISIONS AND STATUTES
U.S. Const., Art. XIV, Section 1 .......--+-++-- 1, 10, 11
22 11S.C. Section 1257US)... .... 5.665: a ere l
MISCELLANEOUS
Roth, The Tender Years Presumption Child Custody
Disputes, 15 J.Fam.L. 423 (1976).......-+++-s+255: 15
Santilli and Roberts, Custody Decisions in Alabama
Before and After the Abolition of the Tender Years
Doctrine, 14 Law and Behavior 123 (1990)
10, 11, 13, 15, 20, 21, 22
;-
Wright, Miller, Cooper and Gressman, Federal
Practice and Procedure: Jurisdiction § 4033 ..
hN
NJ]
The Petitioner, THOMAS E. WHEELER, JR.,
respectfully prays that a writ of certiorari issued to
review the judgment and opinion of the Alabama Court
of Civil Appeals, entered in the above titled proceeding
on September 12, 1990.
OPINIONS BELOW
The opinion of the Alabama Court of Civil Appeals is
reported at 574 So.2d 832 and is reprinted in the appendix
hereto, page 1a, infra.
The Supreme Court of Alabama denied the Peti-
tioner’s Petition for Writ of Certiorari and issued its
Certificate of Judgment by Order dated January 25, 1991.
JURISDICTION
The judgment of the Alabama Court of Civil Appeals
was entered on September 12, 1990, affirming the Respon-
dent’s award of the custody of the parties’ three children
which was contained in a judgment of divorce which was
entered in the Circuit Court of Baldwin County, Alabama,
on December 12, 1989. An application for rehearing was
filed on September 26, 1990, and overruled on October 24,
1990. Thereafter, on January 25, 1991, the Supreme Court
of Alabama denied a Petition for Writ of Certiorari to the
Alabama Court of Civil Appeals. Jurisdiction of this
Court is invoked under 28 U.S.C. Section 1257(3).
CONSTITUTIONAL AMENDMENT INVOLVED
Section 1, Article XIV of the Constitution of the
United States.
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the
United States and of the state wherein they reside. No
|
2
state shall make or enforce any law which shall abridge
the privileges or immunities of the citizens of the United
States; nor shall any state deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection
of the laws.
STATEMENT OF THE CASE
Petitioner, Tom Wheeler, is the father of three chil-
dren who are of “tender years” (i.e., less than seven years
of age). He has been a practicing attorney in Pensacola,
Florida, since 1977. In June, 1983, he was introduced to
the Respondent, Valerie Wheeler, on a “blind date”. At
that time, the Respondent had just completed her second
year of medical school. Approximately two weeks later,
the Respondent herself proposed and several months
later the parties were married at Mr. Wheeler’s home in
Gulf Breeze, a suburb of Pensacola, Florida.
At the at time of the marriage, Valerie Wheeler was
25 years of age. She stated it was her express desire to
have three children by the time she was 30. Tom Wheeler
did not oppose this. The parties further agreed that the
children would be raised in the Pensacola area. This is
where both Valerie Wheeler’s mother and stepfather and
family reside, and where Tom Wheeler’s parents and
most of his immediate family reside.
Also at the time of the marriage, Valerie Wheeler was
faced with a severe debt situation arising from her
mounting college and medical school loans.
On July 10, 1984, approximately nine months after
the marriage, the parties’ first child, daughter Casey was
born. She was described as a “daddy’s girl”. In the fall of
1984, Tom Wheeler moved his family from Florida to
Daphne, Alabama, which is a suburb of Mobile. This
move was to facilitate Valerie Wheeler’s finishing her
inten
3
medical school education at the University of South Ala-
bama (USA) School of Medicine in Mobile. Tom Wheeler
continued to commute to his practice in Pensacola. In
July, 1985, Valerie Wheeler began a five year residency
training program in the specialty of pathology at USA in
Mobile. Soon thereafter, the parties’ oldest son, Thomas,
III, was born on February 26, 1986. Subsequent to the
birth of Tommy, Valerie Wheeler hired a day-time nanny
to care for the children and to perform her home chores
and to cook.
Beside the obligatory call schedule and rigorous
work requirements of her residency training, Valerie
Wheeler published numerous articles and reports begin-
ning in her first year of the residency and continuing
throughout the residency until shortly before the separa-
tion.
Ultimately, because of her numerous publications
and extensive efforts in the residency program, Valerie
Wheeler was described as a “good to excellent” resident
by the head of her residency program. He appointed her
administrative chief resident during her fifth and final
year of residency.
In the summer of 1986, Valerie Wheeler brought an
additional child into the home, her five year old niece,
Nancy. Shortly thereafter, Valerie Wheeler became preg-
nant with the parties’ third child, Brennan. This imme-
diately became a difficult and trying pregnancy. Valerie
Wheeler was so physically limited she could not fulfill
her responsibilities as a resident and the head of the
residency program required her to take a leave of absence
over her protest.
During this difficult last pregnancy, in 1986 and 1987,
there were three children in the home for Mr. Wheeler’s
care: Nancy, age 5; Casey, age 2; and Tommy, the new-
born. There was no live-in nanny or close family support
aa aaa nian aie ean
4
to assist him in the daily care of the children. During this
time, even Valerie Wheeler testified that Tom Wheeler
cared for the children in the evenings from the time he
got home until he put them to bed, told them stories at
bedtime, and taught the children their evening prayers.
Additionally, Valerie Wheeler described Tom Wheeler
asa “great playmate” for the children. On appeal, Valerie
Wheeler conceded “Tom Wheeler could care for the needs
of the children in a recreational setting, or that he was a
great playmate with the children was not contested by
Valerie Wheeler”.
With all this going on and not even halfway through
her residency training, Valerie Wheeler began insisting on
doing specialty training at another institution, perhaps
Johns Hopkins. She was indignant that Tom Wheeler
would not permit her, the children and the nanny to
move off and leave him behind for a year or that he
would not follow her and give up his job, the primary
support of the family.
Subsequently, she decided to do a year of training at
another institution by herself and “told everybody” that
the children were going to stay with their father in the
family home and she would commute home on the week-
ends as she was able. In March, 1988, she in fact applied
and interviewed to do the fifth year of her residency at
the University of Alabama at Birmingham which was
approximately 250 miles away. This would have been
effective July, 1989.
Brennan Andrew Wheeler was born June 3,-1987. In
the fall of 1987, Valerie Wheeler returned to the residency
program from her forced leave of absence and maternity
leave. The following summer (1988) she announced the
end of the marriage.
She precipiated the immediate divorce action by
removing the children from the home of the parties on
aaa
5
November 23, 1988, the evening before Thanksgiving. She
was on call that evening and arrived home late. As usual,
Mr. Wheeler had the care of the children. He then
informed her that he would not sign her agreement giv-
| ing her custody. She then removed the children from the
home. For eight days she hid them. She called home and
informed Mr. Wheeler that he would never see the chil-
dren again if he did not sign her document.
At all hearings and at the trial on the merits, Tom
Wheeler presented evidence that he had an extremely
close bond with his children, that he was actively
involved with the daily caring of the children, that he
modified his work schedule to be available for the needs
of the children and the training schedule of his wife, that
he was committed to the daily raising of the children and
that he had always been the “nurturing parent”. It was
undisputed that it was he who usually got up in the
middle of the night when the children needed attention.
Valerie Wheeler was asked about her qualifications
for custody, and she replied “I’m the mother... and Tom
can’t care for the children”. The only examples she could
give as to the latter point were complaints of Tom’s care
after her filing the divorce. She produced no witnesses to
substantiate these complaints. Her witnesses at trial con-
sisted primarily of only a few members of her family and
the nanny.
Tom Wheeler, on the other hand, presented a compre-
hensive case for custody, including testimony of the par-
ties’ treating psychologist, the parties’ next door
neighbor, his best friend, the wife of his associate, his
senior law partner, his former legal secretary, both of his
sisters, and his parents. Each of these witnesses con-
firmed that Tom Wheeler was capable of totally caring for
the daily needs of the children and that he, in fact, did so.
Tom Wheeler was shown to have “tremendous rapport
6
with the children”, he had modified his work schedule to be
supportive and contribute to the needs of his family, and that
all of this was done “quite cheerfully and happily”.
The witnesses not only showed Tom Wheeler’s care
of the children prior to the separation, but also Valerie
Wheeler’s absence from their care. For example, their
next door neighbor testified that for the two years before
separation (1987 and 1988) the Wheeler children spent
their time at home with their father. He disciplined them
and they listened to him very well. Valerie Wheeler was
never seen. Also, the wife of Tom Wheeler’s law associ-
ate, a professional woman herself, noted that she and her
husband tried during the year of 1988 to develop a rela-
tionship with the Wheelers, but were frustrated because
“Valerie was working most weekends”. She then noted
that she had several occasions to observe Tom Wheeler
care for his children and he “was obviously very able to
care for the children on his own”. Valerie Wheeler, on the
other hand, was unable to produce a single non-family
witness to substantiate her care of the children pre-sep-
aration under any circumstances.
Another of Tom Wheeler’s witnesses was Dr. Ron
Yarbrough, a clinical psychologist. He was the only
expert witness to testify during these proceedings. He
testified that he met with both Tom and Valerie Wheeler,
administered the Minnesota Multiphasic Personality
Inventory (MMPI) test to both of them, and met with
them during a period of seven months, both before and
after the separation. He testified that Tom Wheeler had
positive child-rearing attributes (nurturing, trustworthy,
conciliatory, and more likely to facilitate visitation). |
On the other hand, Dr. Yarbrough testified Valerie
Wheeler has difficulty accepting fault, has difficulty with
criticism, sees herself in an overly idealized manner, and
finally stated his opinion that Valerie Wheeler was more
Se
7
interested in “winning” than in acting in the best interest
of the children. The trial judge then asked Dr. Yarbrough
several questions clearly intended to rehabilitate Valerie
Wheeler’s case. In particular, he asked if it was “possible”
(not probable) that Valerie Wheeler could begin acting in
the best interest of the children at some time in the future.
Dr. Yarbrough also testified that the children should
be raised in Pensacola where all family support groups
resided. He strongly emphasized the positive benefits of
these groups to the children in a post-divorce setting.
This is consistent with Valerie Wheeler’s acknowledge-
ment that a pre-condition of the marriage was her prom-
ise to raise the children there and that all family support
groups resided in that area. Yet even during the resi-
dency, as noted above, Valerie Wheeler was making plans
to leave the area. Post-separation, she told Tom Wheeler’s
mother of her plans to leave the area and that she would
send Mr. Wheeler “a plane ticket” for his visitation.
Perhaps the most compelling evidence of the true
nature of the litigants and their respective cases is that
Valerie Wheeler’s testimony was one of continually
impeached fabrications. Although these serious misrepre-
sentations by Valerie Wheeler were fully presented at
trial and several were presented in the initial Appellant’s
brief below, she never attempted to explain or justify
these misrepresentations. Even the Alabama Court of
Civil Appeals found that Valerie Wheeler’s testimony had
indeed been “contradicted” (574 So.2d at 834).
For example, Valerie Wheeler was repeatedly asked
at the February, 1989, temporary hearing to explain her
long distance telephone expenses of $200 per month. She
insisted that these charges were her calls from work to
her home, a distance of about thirty miles, to talk to her
children. When cross-examined from the actual itemized
statements at the June, 1989, final hearing, she then
8
admitted that the calls were made to a male plastic sur-
geon “friend”. These itemized long distance statements
document heavy telephone traffic with this young sur-
geon, beginning over three months prior to the separation
of the parties and continuing another two months post-
separation, until just a few weeks before the February,
1989, temporary hearing.
Valerie Wheeler then explained that this young sur-
geon was a crack cocaine addict whom she was “counsel-
ing”. During this sensitive examination, she stated that
she failed to properly report the true facts concerning her
“friend” to the head of the USA Department of Surgery
for fear “it would ruin his career”. This is in spite of
medical ethics and an Alabama statute which would
require specific disclosure.
Valerie Wheeler, the physician, also misrepresented
the specific medical findings of the parties’ psychologist,
Dr. Yarbrough. At the first temporary hearing of Novem
ber 29, 1988, when Dr. Yarbrough was not present to
testify, Valerie Wheeler indicated that the clinical test
results of the MMPI test showed that Tom Wheeler was
“over the danger zone in the anger scale”. She also” ~—
reported to Tom Wheeler’s father that Dr. Yarbrough had
found his son to be “dangerous”. Yet when Dr. Yarbrough
testified at the final hearing in June, 1989, he specifically
denied even suggesting to anyone that Tom Wheeler was
dangerous or “over the danger zone in the anger scale”.
Even as to financial matters, Valerie Wheeler’s con-
tinuous and often senseless misrepresentations were
exposed. For example, she volunteered that, until the
divorce proceedings began, she did not know that Tom
Wheeler’s parents had bought the parties’ home in Gulf
Breeze, Florida, even though this sale generated a $23,000
profit which was used solely to pay off her medical
school student loans. But then the actual deed bearing her
OL ——
9
notarized signature was introduced showing the transfer
to Tom Wheeler’s parents.
The final hearing took four days of presentation. Mr.
Wheeler presented the majority of his case on June 12 and
13, 1989, and due to the Court docket, Mrs. Wheeler
concluded her testimony on September 12, 1989. The
Court then took the matter under advisement for 93 days
and a Final Judgment of Divorce was entered on Decem-
ber 12, 1989, awarding custody of the minor children to
Valerie Wheeler. The trial court gave no explanation or
justification of this award.
Tom Wheeler filed a Notice of Appeal to the Alabama
Court of Civil Appeals on January 17, 1990. The Court
affirmed the judgment of the trial court on September 12,
1990. An application for rehearing was timely filed on
September 26, 1990, and overruled on October 24, 1990. A
timely filed Petition for Writ of Certiorari was filed with
the Alabama Supreme Court and it was denied by Order
dated January 25, 1991.
As noted above, the Court of Civil Appeals’ opinion
acknowledged the contradiction of Valerie Wheeler’s tes-
timony but refused to review its significance, deferring
that matter to the trial court. It stated its deference to the
trial court as follows:
Because the evidence conflicted, it is well within
the prerogative of the trial court to determine what
custody arrangement was in the best interest of
the minor children (574 So.2d at 833). (emphasis
added)
The court acknowledged that it would not compare
the relative merits of the evidence and would provide no
real review of the custody award when, at 574 So.2d 833,
it stated:
We find that there is ample evidence that both
parties are fit persons to be awarded custody.
10
We have stated heretofore that in such a case,
“the trial court would not have been in error regard-
less of whom was awarded custody of the children”.
Hood v. Wilson, 496 So.2d 76, 77 (Ala.Civ.App.
1986). (emphasis added)
The opinion acknowledged that the father had raised
the “de facto application of the now abolished tender
years doctrine” (574 So.2d 832). The father presented to
the Court of Civil Appeals the recent publication from the
University of Alabama to establish the statistical dis-
parity in custody awards between fathers and mothers in
contested cases in the State of Alabama. At page 1b in the
appendix attached hereto is the April, 1990, publication,
Law and Human Behavior, Volume XIV, No. 2, 1990, which
published the research and analysis of Laura E. Santilli
and Michael C. Roberts, entitled “Custody Decisions in
Alabama Before and After the Abolition of the Tender
Years Doctrine” (hereinafter Santilli and Roberts). The
difficulties of obtaining the results of actual contested
cases in Alabama are highlighted in the article. The court
system of Alabama does not maintain statistics pertinent
to the results of contested cases nor does the National
Center for State Courts in Williamsburg, Virginia.
The Alabama Supreme Court in 1981, in analyzing a
series of cases in the 1970s from this Court, culminating
in Orr v. Orr, 440 U.S. 268 (1979), and Caban v. Mohammed,
441 U.S. 380 (1979), had found the long entrenched mater-
nal preference rule, also known as the “tender years
doctrine”, to be violative of the Federal Constitution’s
Fourteenth Amendment’s Equal Protection Clause, Ex
parte Devine, 398 So.2d 686 (Ala. 1981). However, that case
did not establish any remedies which would discourage
the continuation of a de facto application of this presump-
tion.
re
11
REASON FOR GRANTING THE WRIT
The Alabama appellate courts’ refusal to recognize and
remedy a substantial and long standing de facto viola-
tion of the equal protection clause of the Federal Con-
stitution brings the decision below in conflict with the
applicable decisions of this Court.
In divorce cases in the State of Alabama, the father
continues to be awarded custody of the parties’ children
in only one out of every ten contested cases. This statistic
is from the above referenced article by Santilli and
Roberts (attached at page 1b to the appendix hereto). This
article only confirms a fact which every competent law-
yer in Alabama knows well.
The conclusions and observations of the research are
still shocking. The appellate courts of Alabama refuse to
recognize invidious gender based de facto discrimination.
This is despite the fact that the Alabama Supreme Court
in 1981, found that the long entrenched maternal prefer-
ence rule, also known as the “tender years doctrine”, to
be violative of the Federal Constitution’s Fourteenth
Amendment’s Equal Protection Clause, Ex parte Devine,
398 So.2d 686 (Ala. 1981).
The “tender years” doctrine allows that a mother has
a prima facia right to custody unless she is shown to be
clearly or peculiarly unfit. For instance, the year after Orr
v. Orr and Caban v. Mohammed, supra, the Alabama Civil
Court of Appeals, the appellate court of general jurisdic-
tion in the state, in Devine v. Devine, 398 So.2d 685
(Ala.Civ.App. 1980), would still declare:
Though stated in different ways, the “tender
years” doctrine is: where a child is of such ten-
der age as to require the care and attention that
a mother is specially fitted to bestow upon it, the
12
mother, rather than the father, is presumed to be the
proper custodian, unless for some reason she is unfit
for the trust. (emphasis added)
Tender years is typically defined as children under
the age of seven. At the time of the entry of the decree
(December 12, 1989) all three Wheeler children were of
tender years.
In 1981, the Alabama Supreme Court knew the con-
tinued blatant use of this prejudice would not pass consti-
tutional muster in this Court. In 1979, in Caban, this Court
had sounded the death knell of the tender years doctrine
when it declared: |
Maternal and paternal roles are not invariably
different (411 U.S. 389).
The handwriting was on the wall. There was no
rational or scientific basis for this presumption. Further,
the Alabama Court was aware that in Orr v. Orr, this
Court had only recently reviewed another sexually biased
domestic practice of the state of Alabama, the Alabama
alimony statute which afforded women, but not men, a
right to alimony, and had declared that statute to be
violative of the equal protection clause’. The Alabama
' It is arguable that the constitutional violations found in
Orr v. Orr also live on in Alabama and in particular in this case
de facto. The trial court refused to allow Mr. Wheeler to fully
enumerate his financial contributions to his wife in paying off
her extensive medical school loans. If this had been a wife
making these contributions to her husband’s professional
career, she would have been allowed to present this evidence
in furtherance of an award of alimony or repayment of these
funds with interest. See e.g. Hanson v. Hanson, 467 So.2d 961
(Continued on following page)
13
court headed off an immediate review by this Court of
Alabama’s tender years presumption by its Ex parte
Devine decision. However, the glaring deficiency of Ex
parte Devine is its failure to implement an adequate rem-
edy to ensure fathers their rights to fully and fairly
participate in custody determinations. This has allowed
the practice to continue. This lack of an adequate appel-
late remedy to discourage this “administratively easy”
presumption from silently (i.e. de facto) recurring only
postponed the inevitable. Its recent refusal to even con-
sider the above University of Alabama statistics only
confirms the Alabama courts’ real insensitivity to gender
based constitutional issues as previously demonstrated in
Orr v. Orr.
In Alabama, it is clear from the Santilli and Roberts
study-(see in particular Table 2, at page 130 (p. 17b of
appendix), discussed below) that fathers prior to 1981
had little or no chance (a one in ten chance, per Table 2,
hereinafter denoted as “9:1”) of obtaining custody in a
contested proceeding. These statistics should not have
been surprising in light of the clear legal philosophy
noted above from Devine v. Devine espousing the de jure
—
(Continued from previous page)
(Ala.Civ.App. 1985). The evidence that was permitted did show
that the Gulf Breeze home which Mr. Wheeler brought into the
marriage was sold and the $23,000 profit was used to pay off
medical school loans for Mrs. Wheeler.
There can be no question that this direct question was not
presented to the lower appellate courts. Obviously the monu-
mental task of addressing the constitutional violations con-
cerning Mr. Wheeler’s rights to child custody has been the
crucial issue presented. However, in reversing custody after a
strict scrutiny review of this record, it would be appropriate
for this Court to remand this portion of the case for consider-
ation of an award of compensation for this contribution in light
of Valerie Wheeler’s current enormous earning capacity as a
medical specialist.
14
applicability of the tender years doctrine which had been
in place for generations in that state.
In Ex parte Devine, the Alabama Supreme Court
analyzed the tender years doctrine in light of the more
modern interpretations of the equal protection clause as it
applies to gender biased cases. These cases included Reed
v. Reed, 402 U.S. 71 (1971), Frontierio v. Richardson, 411
U.S. 677 (1973), Orr v. Orr, 440 U.S. 268 (1979), and Caban
v. Mohammed, 441 U.S. 380 (1979).
The court acknowledged that fathers of tender years
children are members of historical sexual classifications
which were inherently suspect and therefore entitled to
close judicial scrutiny (398 So.2d at 693).
It then concluded at pages 695-696 as follows:
Having reviewed the historical development of
the presumption as well as the modern status,
and having examined the presumption in view
of the holdings in Reed, Frontierio, Orr and
Caban, we conclude that the tender years pre-
sumption represents an unconstitutional gender
based classification which discriminates
between fathers and mothers in child custody
proceedings solely on the basis of sex. Like the
statutory presumption in Reed, the tender years
doctrine creates a presumption of fitness and
suitability of one parent without any consider-
ation of the actual capabilities of the parties. The
tender years presumption, like the statutory
schemes in Frontierio and Orr, imposes legal
burdens upon individuals according to the
“immutable characteristic” of sex. By requiring
fathers to carry the difficult burden of affirma-
tively proving the unfitness of the mother, the
presumption may have the effect of depriving
some loving fathers of the custody of their chil-
dren, while enabling some alienated mothers to
arbitrarily obtain temporary custody ... We are
convinced that the tender years presumption
15
rejects the fundamental proposition asserted in
Caban that “maternal and paternal roles are not
invariably different in importance.” Caban, supra, at
441 U.S. 389. (emphasis added)
With some insight, the court noted, at page 696:
Courts have come to rely upon the presumption
as a substitute for a searching factual analysis of
the relative parental capabilities of the parties,
and the psychological and physical necessities
of the children. The presumption has thus
become what one writer refers to as an
“anodyne” for the difficult decisions confront-
ing the court. Roth, The Tender Years Presump-
tion in Child Custody Desputes, 15 J.Fam.L. 423,
438 (1976) . . . However, as Justice White cor-
rectly observed in Stanley v. Illinois, 405 U.S. 645,
92 S.C. 1208, 31 L.Ed.2d 551 (1972), “(P)rocedure
by presumption is always cheaper and easier
than individualized determination.” In view of
the fact that the welfare of children and compet-
ing claims of parents are at stake, such a means
of determination cannot be justified.
The court then reversed the explicit use of the tender
years doctrine by the trial court and remanded it with
directions that the trial court instead consider the indi-
vidual facts of the case. The court then highlighted a
series of some sixteen factors to be used in this new
individualized analysis which was replacing the tender
years presumption. However, the court did not require
any specific findings of fact by the trial court and has not
required strict scrutiny of the record by the appellate
courts of Alabama. In fact, as noted above, there is now
an almost total deference by the appellate courts of the
State of Alabama to the trial judges despite this strong,
entrenched history of the use of the tender years doctrine
and the undenied statistics on this matter.
Returning to the Santilli and Roberts article, it found
that since Ex parte Devine the statistics of fathers (1)
receiving custody (9:1 against the father) and (2) even
16
requesting custody have not changed one iota from the
statistics obtained from cases before Ex parte Devine! The
study demonstrates that the previously sanctioned de jure
philosophy of the tender years doctrine, so clearly out-
lawed by Ex parte Devine, still controls the disposition of
almost all custody disputes in Alabama. Over the ten year
span of the statistical review, this grossly disproportio-
nate ratio of 9:1 could not have been the result of accident
or chance. Apparently the only lesson truly learned by
the trial courts of the State of Alabama is that the tender
years doctrine is simply not to be mentioned in the record
or in the final judgment as it was in Ex parte Devine. The
Statistics, however, reveal that in fact the presumption
continues to be applied unabated.
What is additionally discouraging is that the appel-
late courts of the State have done the very opposite of
what is needed to remedy traditional constitutional viola-
tion cases. Instead of strict scrutiny of the record, it has
refused to adopt any type of review of the custody
record! In this case in particular, the Court notes that
Valerie Wheeler was impeached when it indicates that her
testimony was “contradicted”. Nevertheless, the Court
completely defers to the trial court when it states after
that observation that:
Because the evidence conflicted, it is well within
the prerogative of the trial court to determine
what custody arrangement was in the best inter-
est of the minor children. 574 So.2d at 833.
Thus, the appellate court is not going to review the
fact that the testimony of the mother was both incredu-
lous and untrustworthy. That was not going to be a
concern of the appellate court.
But the Court does not stop there. It then went on to
state, 574 So.2d at 833, that where there is evidence that
both parties are fit persons to be awarded custody, “the
trial court would not have been in error regardless of
whom was awarded custody of the children”. Citing Hood
17
v. Wilson, 496 So.2d 76, 77 (Ala.Civ. App. 1986). Thus, as
soon as Valerie Wheeler took the stand and stated her
prima facia case for custody, that “I’m the mother and |
am fit”, the Petitioner/father was absolutely without
appellate recourse to have his substantial case for cus-
tody reviewed unless he proposed to show the absolute
unfitness of the mother. This lack of review confirms that
as long as an Alabama mother is “not unfit”, i.e., as long
as she is minimally fit, she will obtain custody no matter
how much “fitter” the father may be.
Caban’s basic constitutional premise that the roles of
mother and father are not invariably different requires
and expects that contested custody cases should result in
a 50/50 (i.e., 1:1) split of decisions between mothers and
fathers. A contrary 9:1 ratio should immediately trigger a
recognition of potential constitutional violation and a
strict review of such cases. It appears that the Alabama
appellate courts have fallen into their own trap of admin-
istrative ease condemned by this Court in Stanley, Reed
and Caban, supra.
There is always a strong desire by an appellate court
to give deference to the judgment of the trier of fact. But
where a trier of fact is the source of a constitutional
violation it does not deserve or warrant such a blind
deference.
This is especially true where the constitutional viola-
tion is a judicial presumption. The operation of this pre-
sumption requires only that a party be identified as the
mother. The mother does not have to put on any real
evidence after that point. Actually, as is evident in the
record, below she is then free to repeatedly perjure her-
self or to simply fill the record with incredulous, self-
serving testimony. Evidence of fitness as to either party
does not matter.
ia aia a a a
18
This case is a classic example. Valerie Wheeler was so
impeached, her testimony of supposedly carrying, deliv-
ering and raising three children during a medical resi-
dency by herself was so incredulous, that even the non-
reviewing appellate court had to find that her testimony
was “contradicted”. But if one party (the father) presents
a competent and substantial case for custody (and was
found fit) and is “uncontradicted”, how did the mother
prevail when her case was “contradicted”?
Valerie Wheeler was basically only able to present
her nanny and a few family members in support of her
case. She presented no expert testimony. Unlike Tom
Wheeler, no neighbor, no family friend, no colleague, no
sibling testified for her. For the five years prior to the
separation, the only unimpeached testimony that Valerie
Wheeler could present was that she “carried each child
during pregnancy” and that she “breast fed” the children.
She simply presented those two facts over and over. In
one series of questions by Valerie Wheeler’s attorney,
fourteen of twenty consecutive questions used the term
“breast fed” when questioning her about her care of the
children. She presented only the most fundamental case
possible: “I’m the mother”. But the reason for this type
presentation by Valerie Wheeler is as simple as it is
obvious: she was fully confident of the operation of the
tender years doctrine in her case.
In light of this history and of the blatantly discrimi-
natory purposes of the tender years doctrine, the control-
ling legal principals in this case to establish a de facto
equal protection violation are relatively clear. The central
purpose of the Fourteenth Amendment's equal protection
clause is, of course, the prevention of official conduct
discriminating on the basis of race, (or other suspect
classification such as gender). Washington v. Davis, 426
U.S. 229, 239 (1976).
19
As in race cases, it is incumbent upon the appellant
to establish that a racially (or in this case sexually) dis-
proportionate impact was occasioned by a racially (sexu-
ally) motivated purpose. Arlington Heights v. Metropolitan
Housing Corp., 429 U.S. 252 (1977); Washington v. Davis,
supra, at 239.
An invidious discriminatory purpose may often be
inferred from the totality of the relevant facts, including
the fact that the challenged conduct bears more heavily
upon one race (or one sex) than another. Washington v.
Davis, supra, at 242. The determination ultimately
required demands a sensitive inquiry into such circum-
stantial and direct evidence of intent as may be available,
including the impact of the challenged action, its histori-
cal background, and its official history. Arlington Heights
v. Metropolitan Housing Corp., supra, at 266-268.
This Court has made it “unmistakably clear that ‘sta-
tistical analyses have served and will continue to serve an
important role’ in cases in which the existence of discrim-
ination is a disputed issue”. International Brotherhood of
Teamsters v. United States, 431 U.S. 324, 339 (1977). “Statis-
tics showing racial or ethnic (or in this case sexual) imbal-
ance are probative .. . because such imbalance is often a
telltale sign of purposeful discrimination”. Id. n.20 431 U.S. at
339, see Castaneda v. Partida, 430 U.S. 482 (1977).
Thus in initiating this “sensitive inquiry” of discrimi-
natory purpose we first recall the previous discussion of
the purpose, background and history of the tender years
doctrine. It must be acknowledged that this intentionally
discriminatory practice is deeply ingrained in Alabama
jurisprudence. It is ludicrous to deny this point when the
Alabama Court of Civil Appeal described in Devine v.
Devine, 398 So.2d 684, 685 (Ala.Civ.App. 1980), the pur-
pose and justification of the presumption in such glowing
terms as follows:
We consider that the “tender years” presump-
tion has never been one of law but rather one of
20
fact subject to rebuttal by evidence of miscon-
duct or unfitness of the mother. Hammac, supra.
It is not a classification based upon gender, but
merely a factual presumption based upon the historic
role of the mother in maintaining and keeping the
home, and succoring and caring for the children. Its
basis probably goes deeper and lies in the bio-
logical and thus primeval instinctual role of a
mother. It is nature’s way of propagation. It is
observable that a child reciprocates and flourishes in
response to the mother’s role. If this be a gender
classification, it was not made by the state. It is
no more than fact recognized by the courts of
this state after more than 150 years of experi-
ence (emphasis added).
The fact that the Alabama Supreme Court, in revers-
ing the very decision containing the above prose in Ex
parte Devine, failed to establish any remedy to eradicate
the efforts of the pervasive tender years presumption is
prima facie proof today of the forbidden purpose. An
inference from statistical proof to establish the necessary
intent or purpose is not really required in this case.
This follows from this Court’s holding in Dayton
Board of Education v. Brinkman, 443 U.S. 526 (1979). In that
case, this Court found that there is an affirmative duty to
eradicate the effects of historical discrimination. The fail-
ure to exercise such a duty will be prima facie proof that
currently existing discrimination was caused at least in
part by prior intentionally discriminatory official acts.
The next step of inquiry is to review the Santilli and
Roberts research in detail. This article is not some sort of
abstract analysis. It is a scientific examination of real
court decisions investigating whether or not the tender
years doctrine is in full force and effect in Alabama. The
Santilli and Roberts article starts with the observation (at
page 124, p. 3b of appendix hereto):
In 1977, the counsel of representatives of the
American Psychological Association stated that
21
the presumption against fathers in child custody
cases did not have a scientific or psychological basis
(Levy, 1985).
This statement is consistent with the literature listed in
foot note #1 in Ex parte Devine, supra.
Over three hundred cases from Tuscaloosa County,
Alabama, were studied from a time period of 1976
through 1980, and 1982 through 1986. The Ex parte Devine
decision was to serve as a marker of change affecting the
family courts in Alabama.
Tuscaloosa County was chosen in the first instance
because it comprised the population that is comparable to
the State of Alabama as a whole along many potentially
relevant dimensions (U.S. Department of Commerce and
Bureau of Census, 1982). These dimensions included per
capita income, percent of the population who have ever
been divorced, ratios of blacks to whites, and percent of
the population living in urban areas (page 127, p. 12b of
appendix). Tuscaloosa County was chosen as a reasonable
“sample” of the state. a
The authors described their study to be “an empirical
data analysis of specific outcome measures to ascertain
the impact of legal precedent”. At page 130 (p. 17b of
appendix), table 2, in contested cases it is shown that the
fathers were only granted custody 10.5% of the time.
During the period of the study, there was no change from
the five year period before Ex parte Devine and the five
year period afterwards. The study concludes, at page 133
(p. 23b of appendix), that “therefore, no significant
impact from the Ex parte Devine decision could be dis-
cerned from this data”.
It should also be noted that in a review of the files,
there were only three references which were made to the
child’s tender age and those were all before 1981 (page
133, p. 24b of appendix). Thus, although the vast majority
of cases were decided without specific reference to the
22
tender years doctrine, the final decisions were all consis-
tent with the application of that doctrine.
Especially noteworthy to the authors in their discus-
sion at page 134 (p. 25b of appendix) was the finding
“that requests by fathers have not increased, however,
lends itself to a stronger statement on the lack of change”.
The lawyers of this state are telling their father clients:
there is little hope of custody in an Alabama court unless
there can be proof of “absolute unfitness on the part of
the mother”.
In light of the clear historical discriminatory intent of
the tender years doctrine, the statistics as contained in
Table 2 of the Santilli and Roberts study are sufficient to
establish that fathers of tender years children are continu-
ing to be victims of the same constitutional violation
acknowledged in Ex parte Devine. It would appear that
any additional statistical analysis contained in this court’s
cases of Castaneda v. Partida, supra, and Hazelwood School
District v United States, 429 U.S. 299 (1977), would estab-
lish the results of at least three or more standard devia-
tions from the expected 1:1 ratio consistent with Caban.
Although this court has not in terms established a
two standard deviation “floor” for statistical significance,
Castaneda and Hazelwood certainly imply that a confident
showing of statistical significance begins to arise at that
level. These statistics exceed such a floor. Of course,
neither Castaneda and Hazelwood dealt with an admitted
historical practice of discrimination as acknowledged by
the Alabama judiciary in Ex parte Devine, supra.
Furthermore, this analysis and conclusion is only
buttressed by even a brief review of the record below,
much less by strict scrutiny. Why did the trial court ask
Dr. Yarbrough questions obviously biased in Valerie
Wheeler’s favor? Among several such questions why did
the trial court improperly inquire if it was possible for
Valerie Wheeler to begin acting in the best interest of the
23
children in the future? Why not award the children to the
father who was fit and was clearly acting in the best
interest of the children now?
How could the trial court turn its back on Valerie
Wheeler’s continuous perjuries and misrepresentations?
Was not Valerie Wheeler’s credibility an issue in this
proceeding? If both parents are supposedly fit (the only
actual finding in the Court of Civil Appeals opinion
below, 574 So.2d at 833), how could the court award
custody to the party whose testimony was “contra-
dicted”? Further, one of the sixteen factors of Ex parte
Devine supposedly applied in this case calls for an evalua-
tion of the parties’ “character”.
How could a court award custody to the mother
(when the father is fit) when she abused her own children
(to say nothing of her husband) by taking them from their
home for eight days and letting them cry over the phone
in an attempt to coerce the father’s execution of her
settlement agreement? What right does 2 mother have to
abuse her family? How can any such parent ever be fit to
have custody?
How could a court award custody to the mother
when it was plain that she intended to move far from the
parties’ established home forever separating the children
from their father and family support groups? Consider-
able, uncontradicted psychological expert testimony was
presented on this very point, yet it is disregarded. In fact,
a recent Alabama opinion clearly recognizes the need for
support groups. Hovator v. Hovator, (Ms. Civ. 7618, August
29,1990) _ So.2d ___ (Ala.Civ.App. 1990). But note the
continuing sexist context of this point, at page 11 of the
opinion.
In this day of the single, working mother, we
deem familial support to be important.
(emphasis added)
The Alabama court just cannot bring itself to acknowl-
edge even the existence of a “single, working father”
24
having custody and thus needing familial support. Let
Valerie Wheeler pursue her career wherever it may take
her, Johns Hopkins or otherwise. But leave the children to
the care of the fit father and family support groups in
Pensacola.
The list goes on and on. If both parties are fit, how
could a court award custody to the mother who blatantly
violates her professional oath as a physician by failing to
properly report the cocaine addiction of her male surgeon
“friend”? Did she not feel any compunction to protect the
patients of USA Medical Center? Is this total lack of
ethical concern really what we wish to impart to our
children?
This disregard of the record below only confirms the
obvious use of the tender years doctrine in the case at bar.
The judgment cannot be justified by the record.
The above analysis and conclusion, based in part on
the statistical study as a fair representative sample of the
state, clearly establishes the Petitioner as a member of the
suspect classification statewide which is entitled to the
constitutional remedy of strict scrutiny. But in light of
Petitioner’s significant injury-in-fact, any fair interpreta-
tion of this Court’s other broad rules of standing in
constitutional “underinclusion” cases would be fairly met
also. See e.g., Orr v. Orr, supra.
The Alabama Court of Civil Appeals’ reply to this
overwhelming evidence of constitutional impropriety is
both disturbing and saddening. Proof as here that the
challenged conduct was motivated even in part by a dis-
criminatory purpose shifts to the defendant the burden of
establishing that the same decision would have resulted
even had the impermissible purpose not been considered.
Arlington Heights v. Metropolitan Housing Corp., 429 U.S. at
270-71, n. 21.
Most recently this Court in Powers v. Ohio, 59 U.S.
L.W. 4268 (1991) found that white defendants are entitled
25
to new trials if convicted by juries from which blacks
were excluded because of their race. This Court found
that if most preemptory challenges are used against peo-
ple of one race, the prosecutor must prove the exclusions
were not racially motivated.
Similarly in this case, where most custody awards are
against people of one sex, the respondent must prove the
awards were not sexually motivated.
But no Alabama court in this case even suggested it
had tried to meet this burden. The trial court gave no
reason for its award of custody. The appellate court
plainly deferred to the trial court.
Instead, the Defendant/Respondent incredulously
suggested to the court that a simple question of the trial
court would avoid this burden. The Alabama Court of
Civil Appeals (at 574 So.2d at 833) adopted this sugges-
tion and stated:
Finally, regarding the husband’s contention that
the trial court reached its decision based on
improper concerns, especially the tender years
doctrine, we note that, while questioning an
expert witness, the trial court stated, “Simply
because the initial bond exists does not neces-
sarily in all cases make the mother the better
parent, does it?” We find this statement to be
indicative of the trial court’s recognition that an
award of custody based solely on the tender
years of the children is improper (emphasis
added).
To use this quote as some sort of substitute for a
detailed review of the record to meet the “burden of
establishing that the same decision would have resulted
even had the impermissible purpose not been consid-
ered” is incomprehensible. It only further demonstrates a
total lack of appreciation of constitutional law and evi-
dence. Disclaimers (if indeed this is such) are rarely of
any evidentiary value in countering allegations of dis-
crimination since such is so selfserving. Further, this
26
quote even misstates the degree of involvement of the
discriminatory motive needed to trigger this constitu-
tional burden shifting. Arlington Heights, supra, clearly
states that the trial court is forbidden to use this pre-
sumption even in part of its decision making, not just as
the sole basis as suggested by the opinion’s quote.
The Court of Civil Appeals does not deny or dispute
the statistics. It does not deny or dispute the historical
role of the tender years doctrine. It is interesting to note
that despite the extensive citation in Petitioner’s brief to
the Court of Civil Appeal to the constitutional cases of Ex
parte Devine, Reed, Frontiero, Orr and Caban, supra, neither
Respondent’s answer brief nor the Court of Civil
Appeal’s opinion ever once mentions, discusses, analyzes
or distinguishes any of these cases. The Alabama appel-
late court’s total lack of sensitivity to constitutional viola-
tions previously demonstrated in Orr v. Orr continues. At
the appellate level, as well as the trial level, silence is
golden in perpetuating this discrimination.
But the absurdity of the use of this “statement” only
grows as one looks closer at the “statement”. The “state-
ment” in the first place is not a statement but a question.
The statement within the question, however, clearly
expresses the trial court’s opinion (presumption) that
“the initial bond makes the mother the better parent”.
The trial court is asserting a general rule in asking the
expert witness to confirm that there are exceptions to the
judge’s rule. This “rule” is based on Valerie Wheeler’s
attorney's questions concerning “an initial bond”, the
product of the “birthing process and carrying the unborn
baby”. Obviously any characteristic associated solely
with the birthing process is an “immutable characteristic
of sex” attributable only to the female. Therefore, the trial
court's rule forever precludes fathers from custody except
in unusual circumstances. Of course, that scenario is
exactly consistent with the tender years doctrine when a
father must meet the “difficult burden” of “clear and
27
convincing evidence of the mother’s positive unfitness”.
Ex parte Devine, supra, at page 691. But if the father is just
“more fit” than a “minimally fit” mother, he will be for-
ever denied custody of his children! The trial court’s
general rule is certainly no disclaimer of sex bias. To the
contrary, it is totally inconsistent with this Court’s hold-
ing in Caban, as acknowledged in Ex parte Devine, that
“maternal and paternal roles are not invariably different
in importance”.
Only a strict scrutiny of this record at the appellate
level will remedy this violation. Even the Respondent has
acknowledged, in her Brief below, that this is the appro-
priate remedy if discrimination is found. Unlike the rem-
edy established in Powers when a constitutional violation
is established, a new trial is not a remedy because that
would only remand the case to the source of the discrimi-
nation, the Alabama judiciary.
In this case, it is respectfully submitted that the strict
scrutiny test must be done by this Court. A remand to the
Alabama appellate court would be a travesty. The Ala-
bama courts have an historical insensitivity to constitu-
tional issues. See Orr v. Orr. These courts certainly have
shown no sensitivity to this case. Further, it is obvious
these courts have no experience or any desire to have any
experience with the concept of strict scrutiny. A fair
review by this Court would assist the Alabama Courts in
applying strict scrutiny in the future.
This is consistent with the Court’s fact-finding efforts
in prior constitutional cases. Wright, Miller, Cooper and
Gressman, Federal Practice and Procedure: Jurisdiction
§ 4033 summarizes, in relevant part, as follows:
And so the Court has now asserted its power to
make an independent examination of the entire
state record in order to protect constitutional
rights in a wide variety of cases, at the same
time expressing various standards of deference
that would be equally appropriate as applied to
28
lower federal courts. And as with respect to
federal courts, deference may disappear if the
findings are adopted without thought from sug-
gestions of counsel, or the factfinding tribunal was
itself tainted.
Findings of historical fact also are subject to
review. A classic example is provided by Norris
v. State of Alabama . . . This undertaking was
fully justified by its statement that its respon-
sibility to safeguard constitutional rights
includes the duty to examine the evidence to
determine whether federal rights have been
denied “in substance and effect,” as well as
expressly. (emphasis added)
This is clearly required in the case at bar where the de
facto application of the tender years doctrine has denied
the Petitioner his equal protection of the law “in subs-
tance and effect” by the tainted courts below.
The difficulty with this case is not the specific resolu-
tion of the issue between these parties. The Petitioner will
prevail with a strict scrutiny review. Instead the difficulty
is the formulation of the remedy to be laid down for
future cases in Alabama to insure that a fair and full
compliance with the equal protection clause occurs at the
state level without continuing recourse to this Court. In
the area of custody, Alabama is devoid of the “panoply of
procedural protections” only recently approved by this
Court in Pacific Mutual Life Insurance Company v. Haslip, 59
U.S.L.W. 4157 (1991) in sustaining Alabama’s punitive
damages law against constitutional attack.
CONCLUSION
The Petitioner, as a practicing trial attorney, under-
stands the concerns and needs of this court to only
address cases of great import. This is such a case in that
the Alabama judiciary’s refusal to enforce the promise of
Caban injures not only the constitutional rights of Ala-
bama fathers, but also the welfare of Alabama’s children.
29
If the financial discrimination suffered by Alabama’s hus-
bands in Orr v. Orr is worthy of review by this Court,
then is not the welfare of Alabama’s children certainly
also worthy of review?
Further, this Court has recently commented on the
jury trial system in Powers, supra, as follows:
The purpose of the jury system is to impress
upon the criminal defendent and the community
as a whole that a verdict of conviction or acquit-
tal is given in accordance with the law by per-
sons who are fair. (59 U.S.L.W. at 4272).
By analogy, the issue of this case might be phrased:
Is not the purpose of the divorce trial system to
impress upon the parties and the community as
a whole that a judgment of custody is given in
accordance with the law by judges who are fair?
That inquiry must be answered in the affirmative.
When the community and the parties all know that a
father in Alabama is being systematically denied an
opportunity for custody of his children then both the
purpose and the integrity of the divorce trial system is
totally compromised and no one can ever accept such a
judgment as being fair.
Let there be no mistaking that this is a watershed
case. It is analogous to the civil rights movement some 30
to 35 years ago. Then segregation, separate but equal, had
been outlawed (Brown v. Board of Education of Topeka,
Kansas, 347 U.S. 483 (1954)). But then, why were all the
blacks still at the back of the bus? Today, why are all the
fathers in Alabama still being made to stand “at the back
of the bus” in custody cases?
Just as important, the children of the State of Ala-
bama have been promised that their custodial parent
would now be selected in accord with their “best inter-
ests”. They are entitled to the best parent. But Ex parte
Devine has been a false promise.
a
30
A child intuitively understands this Court’s holding
in Caban. To the child, the maternal and paternal roles are
not invariably different. The child does not distinguish
between mother and father. He only knows who is there
for him in the middle of the night, who is there to tell him
stories and thus teach him, who is there to play with him
and reassure and nurture him, who is there to care for
him every evening and every weekend. These things the
father did in this case, and yet his children are now
hundreds of miles from him at the whim of the mother.
The Petitioner is a father of the children of tender
years in the State of Alabama. As such he is a member of
a constitutionally protected “suspect classification”.
Without the intercession of this Court he, and the other
fathers in Alabama, will have no remedy or recourse to
the continued de facto application of the tender years
doctrine. Upon the grant of certiorari by the Court, a
strict scrutiny of the record by the Court, in light of the
sixteen factors enumerated in Ex parte Devine, will show
the father as the proper party for the custody of his
children.
Respectfully submitted,
WILBURN DONALD BOLTON, Jr.
Post Office Box 259
307 South McKenzie Street
Foley, AL 26535
(205) 943-3860
Attorney for Petitioner
la
Thomas E. WHEELER, Jr.
v.
Valerie R. WHEELER.
Civ. 7482-X.
Court of Civil Appeals of Alabama.
Sept. 12, 1990.
Rehearing Denied Oct. 24, 1990.
Certiorari Denied Jan. 25, 1991
Alabama Supreme Court 1900201.
Herndon Inge III, Mobile, for appellant
David A. Simon of Wills & Simon, Bay Minette, for
appellee.
RUSSELL, Judge.
This is an appeal from a divorce decree which
awarded custody of the parties’ three minor children to
the mother.
Thomas E. Wheeler, Ir. (father), and Valerie R
Wheeler (mother) were married on October 22, 1983.
Three children were born to the marriage. Following an
ore tenus hearing, the parties were divorced by order of
the court dated December 12, 1989. Custody of the three
minor children was awarded to the mother.
The father appeals. The mother cross-appeals. We
affirm.
As regards the mother’s cross-appeal, we note that
she raises no contentions of error by the trial court
Therefore, her appeal is dismissed.
2a
The father contends that the evidence demonstrated
that the best interests of the children would be served by
awarding him custody and that the trial court’s refusal to
do so was the result of its de facto application of the now
abolished tender years doctrine.
Initially, we note that, when testimony is presented
ore tenus, there is a strong presumption that the trial
court’s ruling with regard to child custody is correct.
Turquitt v. Turquitt, 506 So.2d 1014 (Ala.Civ.App.1987).
Because the trial judge is in a unique position to observe
and to hear the evidence, this court will not reverse on
appeal unless the ruling is so unsupported by the evi-
dence that it constitutes an abuse of discretion and, there-
‘fore, is clearly and palpably wrong. Flowers v. Flowers, 479
So.2d 1257 (Ala.Civ.App.1985).
Furthermore, the controlling consideration in the
award of custody is the welfare and best interests of the
children. Shepherd v. Shepherd, 531 So.2d 668 (Ala.Civ.
App.1988). In making such a determination, the trial
court may take into consideration a number of factors,
including the age and sex of the children, as well as each
parent’s ability to provide for the children’s educational,
emotional, material, moral, and social needs. Santmier v.
Santmier, 494 So.2d 95 (Ala.Civ.App.1986).
In light of the vast case law addressing the issue of
child custody, we pretermit a detailed recitation of the
facts. Suffice it to say that, after carefully reviewing the
record, we find that there is ample evidence that both
parties are fit persons to be awarded custody. We have
stated heretofore that in such a case, “the trial court
would not have been in error regardless of whom was
sethantes
3a
awarded custody of the child[ren].” Hood v. Wilson 496
So.2d 76, 77 (Ala.Civ.App.1986).
Both parents are loving and nurturing and appear
well suited to provide for the material and emotional
needs of their children. Furthermore, there was testimony
that the father actively participated in the daily care of
the children. However, there was also before the court,
albeit contradicted, testimony that the mother had pri-
mary responsibility for the daily care of the children
during the parties’ marriage, as well as subsequent to
their separation.
Because the evidence conflicted, it is well within the
prerogative of the trial court to determine what custody
arrangement was in the best interests of the minor chil-
dren. Myers v. Myers, 523 So.2d 413 (Ala.Civ.App.1987).
Finally, regarding the husband’s contention that the
trial court reached its decision based on improper con-
cerns, expressly the tender years doctrine, we note that,
while questioning an expert witness, the trial court
stated, “Simply because that initial bonding exists does
not necessarily in all cases make the mother the better
parent, does it?” We find this statement to be indicative
of the trial court’s recognition that an award of custody
based solely on the tender years of the children is
improper.
Therefore, there was evidence to support the grant of
custody to the mother, and we cannot say that the trial
court was palpably wrong in doing so. This case is due to
be affirmed.
4a
The mother’s request for an attorney’s fee is hereby
granted in the amount of $650.
CROSS-APPEAL DISMISSED; AFFIRMED.
INGRAM, P.J., and ROBERTSON J., concur.
1b
Law and Human Behavior, Vol. 14, No. 2, 1990
Custody Decisions in Alabama Before and
After the Abolition of the Tender
Years Doctrine*
Laura E. Santillit and Michael C. Robertst
This study investigated the impact of the abolition of the
tender years doctrine on custody decisions in divorce
cases. This doctrine supported the presumption that the
mother is the more suitable parent for young children. In
March of 1981, the Supreme Court of the State of Ala-
bama found this doctrine to be unconstitutional. To assess
the hypothesis that this ruling had a significant effect on
custody-related decisions, a sample of court records for
divorce cases in an Alabama county was examined as
representative of the state on a number of key variables.
Overall, no significant differences were found on indica-
tor variables for the comparisons before and after the
ruling. There was neither an increase in custody grants to
fathers nor an increase in custody requests by fathers.
The impact of parental divorce on children has been
extensively researched, and it has been well documented
* This paper is based on the thesis submitted by the first
author, under the supervision of the second author, in partial
fulfillment of the master’s degree at the University cf Ala-
bama. The authors wish to thank Robert D. Lyman, Steven
Prentice-Dunn, Mariella Maieron, and Doris Turner for their
assistance during various phases of the project. Address
reprint requests to Michael C. Roberts, Department of Psychol-
ogy, Box 870348, The University of Alabama, Tuscaloosa, AL
35487-0348.
+ The University of Alabama.
2b
that these children are at risk for mental health problems
(e.g., Hetherington, Cox, & Cox, 1982; Wallerstein &
Kelly, 1980). Lyman and Roberts (1985) called for efforts
to minimize the impact of the divorce process on chil-
dren, including careful consideration of custody deci-
sions. Consequently, examination of the type of custody
arrangements currently being granted in the court system
is of crucial importance.
Hetherington and Martin (1986) predicted that 40%
of the children in the United States will be exposed to a
parental divorce before they reach the age of majority.
Trends in custody decisions have evolved through the
ages of human history. Until the beginning of the twen-
tieth century, paternal custody enjoyed a clear preference
(Derdeyn, 1978; Marafiote, 1985). By 1978 it was esti-
mated that 80% of all contested custody decisions were
awarded to the mother and that maternal custody charac-
terizes the situation for about 90% of the children
(Hetherington & Martin, 1986). This shift to maternal
from paternal custody has been attributed to a separation
of the issue of custody from the ideas of property and
ownership, an increase in the status of women, and an
increased interest in the development and rights of chil-
dren (Marafiote, 1985). More specifically, public educa-
tion, child labor laws, and children’s aid societies
contributed to changed views about children. The tender
years and best interests of the child doctrines have been
considered the two primary means by which these
changed views impacted on custody decisions (Derdeyn,
1978).
3b
In short, the tender years doctrine was derived from
the presumption, which emerged in the nineteenth cen-
tury, that the mother was the parent ideally and inher-
ently suited to care for children of a “tender age”
(McCahey, Kaufman, Kraut, Gaffner, Silverman, & Zett,
1986). The presumption would be proceeded upon unless
the mother was proven to be unfit. The age of the chil-
dren then began to be cited more frequently in decisions
and the phrase tender years was often used by courts,
though rarely well defined (Little, 1982).
During the last two decades, the tender years doc-
trine has been abolished or abandoned in a growing
number of states, both through landmark court decisions
and state statutes. Radcliff (1977) succinctly outlined
three major areas of challenges to the tender years doc-
trine: (a) as a violation of the equal protection in pro-
cedure granted under the Fourteenth Amendment, (b) as
a violation of equal rights amendments of many state
constitutions, and (c) as a psychologically questionable
doctrine. The first two challenges point to the doctrine’s
invalidity as a legal presumption. The last of these three
challenges highlights the possible invalidity for the fac-
tual basis of the presumption in the tender years doctrine.
In 1977, the Council of Representatives of the American
Psychological Association stated that the presumption
against fathers in child custody cases did not have a
scientific or psychological basis (Levy, 1985). Many ques-
tions remain unanswered, but the research has demon-
strated the importance of the father’s role (Berry, 1981).
The best interests of the child standard has now
become the overwhelming criterion in custody decisions.
However, the implications of this phrase are rather broad
4b
and have generally been vaguely defined (Marafiote,
1985). Weiner, Simons, and Cavanaugh (1985) contend
that this standard should call for consideration of factors
including the child’s relationship with each parent, the
adjustment of the child and each parent, and the prefer-
ences of the child and the parents. Thus, the tender years
doctrine could stand, in spite of the cited legal issues, if it
served the best interest of the child.
In Alabama, the 1981 case of Devine v. Devine was a
ruling at the state supreme court level that challenged the
tender years doctrine (Lyman & Roberts, 1985). In his
decision, Justice Maddox pointed to rulings by the United
States Supreme Court that gender-based classifications
were in violation of the Fourteenth Amendment and
stated the Alabama court’s conclusion that the tender
years presumption resulted in such a classification. Fur-
thermore, he commented on the lack of evidence support-
ing the claim that the tender years doctrine serves the
best interests of the child. The Devine case serves as a
marker of change affecting family courts in Alabama and
its numerous divorce and custody cases per year. How-
ever, it is unclear if this state supreme court ruling has
had an effect on cases handled by judges at the lower
levels.
There are a variety of ways in which the impact of
court rulings or new laws may be analyzed. In the legal
approach, the qualitative descriptions of selected cases,
quite often Supreme Court rulings, are considered in a
logico-deductive analysis. Case precedents are analyzed
for “how legal rules play out in particular fact situations”
(Hegland, 1983, p. 16). For example, Gardner (1987)
“assessed the reasons for and implications of the recent
5b
movement towards punitive juvenile justice” (p. 151) by
reviewing state statutes and case law.
In a more process-oriented exposition, or what
Melton (1986) called more sociological than legal case
studies, Mnookin’s (1985) authors focused on five
Supreme Court rulings (e.g., adolescent abortion, child
support enforcement) as case studies for evidence of test-
case litigation. As another approach to assessing impact,
surveys are sometimes conducted of those affected by a
statute or ruling. For example, Lowery (1981) surveyed
state circuit court judges to ascertain the importance of
factors used in child custody decisions (e.g., age of the
child, keeping child with mother). Melton (1981) sur-
veyed community mental health centers to find that 40%
were unaware Of a state law permitting minors to consent
to psychotherapy. Similarly, wise (1978) surveyed mental
health professionals to assess the-impact of the “duty to
warn” in the Tarasoff decision. Only rarely have actual
court case outcomes been evaluated. For example, Gard-
ner (1987) did not collect outcome data of decisions by
juvenile courts, and in the Mnookin (1985) analyses, data
were not reported on actual case outcome at the “front
lines” of law in the lower level courts. As one example of
impact analysis by using court actions, Ilfeld, Ilfeld, and
Alexander (1982) analyzed consecutive custody cases in
Los Angeles and found that relitigation rates were not
greater after California’s state law giving preference to
joint custody.
To test the hypothesis that abolishment of a doctrine
that presumed the mother to be the superior parent for
young children has had significant impact on custody
decisions, it is necessary to examine the type of decisions
a
6b
made since the abolition and compare them to those
made while the doctrine was still in effect. The Devine
case in March of 1981 serves as a marker in Alabama and
was used to explore the impact of such decisions. It was
proposed that cases from the 5 years prior to the Devine
decision and the 5 years subsequent be examined on a
number of pertinent variables.
The present study is an empirical data analysis of
specific outcome measures to ascertain the impact of legal
precedent. Trends emerging prior to the Devine decision
were considered, and hypothesized differences were pre-
dicted to be greater than those that would result merely
from a continuation of such trends (e.g., the number of
sole custody awards to fathers was expected to be ever-
increasing throughout the 10-year period, but increase at
a greater rate after 1981).
“
The underlying notion in the following study was
that the Devine decision had an impact on all major
custody variables relating to the role of the father. Such
an impact, if present, would result from the fact that,
after the Devine decision, each party had an equal chance
of winning an award and the burden of proof would no
longer have been on the father to prove the mother to be
unfit. Therefore, the only presumption would be that
both parental roles were equally important.
Based on this underlying notion, it was hypothesized
that, if the Devine ruling had an impact on family court
decisions, it would be reflected in the following out-
comes, as compared to the period prior to the decision:
1. There would be a greater number of custody
awards to fathers.
7b
2. There would bea greater number of custody
requests by fathers.
3. There would be a greater number of con-
tested cases.
4. There would be a greater amount of specific
visitation time for noncustodial fathers.
Additional outcome variables would similarly reflect
an impact of the decision including (a) numbers of joint
custody awards, (b) numbers of qualifications to awards
for sole-to-mother custody, (c) calling of witnesses for
court proceedings, (d) child support payments by
mothers, and (e) age of children as a determining factor.
METHOD
Data Base
Court records of divorce cases filed from 1976
through 1980 and 1982 through 1986 in Tuscaloosa
County, Alabama, constituted the data base from which
the study data were obtained. Cases were classified by
the month and year in which they were initially filed,
with every other month being sampled (viz., January,
March, May, July, September, and November). Records
were sampled for a given month and examined to ascer-
tain whether they met the initial criterion of involving a
couple with at least one minor child.
Those that met this criterion were examined to deter-
mine whether the record contained a final decree that
was dated before or after the Devine decision. Those that
were filed and decided before March of 1981 were consid-
ered to be before the Devine decision. Those that were
——
8b
filed and decided after December of 1981 were consid-
ered to be after the Devine decision. Those not falling in
either of these categories were not included in the study.
This procedure was done to eliminate any case within a
time frame where the impact of the Devine decision might
be ambiguous.
Sampled cases were included until five in a given
month met the criteria and sampling recommenced at the
beginning of the next appropriate month. This procedure
resulted in a total sample of 300 cases, 30 in each of the 5
years before the Devine decision and 30 in each of the 5
years after the decision. Based on Tuscaloosa County data
of the number of divorces granted per year and Alabama
state data on the percentage of divorce cases that involve
minor children, it was estimated that this number of cases
represented a 10%-20% sample of the defined population
(Alabama Bureau of Vital Statistics, 1983-1986, inclusive).
Tuscaloosa County comprised the population from
which the sample was drawn. This county is comparable
to the state of Alabama as a whole along many potentially
relevant dimensions (U.S. Department of Commerce &
Bureau of the Census, 1982). These dimensions include
per capita income, percent of the population who have
ever been divorced, ratio of blacks to whites, and percent
of the population living in urban area.
Procedure
Each divorce record to be included was reviewed and
the relevant information recorded based on operational
definitions for each of the variables. Categories were
9b
developed as the data were gathered. When any adjust-
ments were made in categories as the study progressed,
all earlier records were recoded appropriately. Whether
or not custody was contested was a crucial variable and
contested cases were examined separately, as well as
included in the complete data base. The other variables
included (a) number of children, (b) sexes and ages of the
children, (c) length of the marriage, (d) which party was
the initial filer for divorce, (e) presence or absence of a
counterclaim, (f) which party was the petitioner for cus-
tody initially, (g) whether a visitation request was made,
(h) which party petitioned for visitation, (i) existence of a
visitation contest, (j) grounds for the divorce decree, (k)
- sex Of each lawyer and of the judge, (1) types of custody
and visitation requested and contested for and granted,
(m) inclusion of a request for child support, (n) amount of
support requested and granted, (0) arrangements for
insurance, education, health care, and other expenses, (p)
relocation provisions, (q) whether expert witnesses were
called, (r) which party called the expert witnesses, (s)
legal case precedents cited in decisions, (t) psychosocial
needs noted or considered in custody decrees, and (u)
other actions included and any additional information.
These court files are public records and, therefore,
are available for scrutiny. However, because they do con-
tain sensitive information that the individuals involved
might prefer not to be widely circulated, the following
precautions were taken. The data from each record were
maintained on a sheet identified only by a subject
number assigned by the investigator. A separate list of
subject numbers matched with court case numbers was
ee
10b
kept secured. Furthermore, in reporting the data, no indi-
vidual situation was identified and only composite infor-
mation was included. These protection procedures were
reviewed and approved by the University’s Institutional
Review Board. Access to the files was facilitated by the
Circuit Clerk’s office.
Design
A simple interrupted time series design was used to
assess the impact of the Devine decision on father custody
requests, contests, father custody grants, and noncus-
todial-father visitation. This approach allows for the con-
sideration of trends over time before and after the
decision (Cook & Campbell, 1979). Each month sampled
was regarded as one observation point and a separate
time series analysis was used for each variable. Thus, the
Devine decision in March of 1981 was considered to be the
interrupting “treatment.”
Data Analysis
Frequencies, percentages, and means were computed
for all of the variables, as appropriate. Descriptive infor-
mation on the family situations, divorce-related actions,
and arrangements affecting the children, as stated in the
final divorce decrees, are provided below.
The Box-Jenkins Time series analysis (Liu, 1985) was
conducted on frequency observations for three of the key
variables to assess the appropriateness of an Autoregres-
sive-Integrated Moving Average (ARIMA) model and to
test for seasonality. ARIMA models essentially provide
11b
means of examining systematic changes in time series
while estimating error in an unbiased fashion. This
approach allows for the assessment of seasonality — that
is, any systematic fluctuations in these frequencies that
may have been a function of the month in which the
petition was filed (McCain & McCleary, 1979). Because of
the extremely low frequencies of custody requests by
fathers, contested custodies, and custody awards to
fathers, the C statistic (Tryon, 1982) was used to evaluate
the probability that the time series were random and,
thus, test for any trends in the data. This assessment was
made for the 30 sampling points prior to the Devine
decision in 1981, as well as the time series as a whole for
each of the three variables.
As a result of the number of cases where a quantita-
tive estimate could not be made of visitation time, this
variable could not be examined in time series. Because
this variable was reasonably normally distributed, a ¢ test
was employed to compare the mean number of visitation
days per year for noncustodial fathers before 1981 with
that after. An F ratio was first computed to assess the
equality of the variances.
Reliability
A randomly drawn sample of 5% of all files was
coded independently on five key variables by a second
investigator in order to establish the reliability of the
primary coding. This second investigator was blind to
any stated hypotheses of the study. This percent of sam-
pling was deemed appropriate because of the minimal
amount of coder discretion involved in this study for the
12b
dependent variables. The five key variables for reliability
coding included (a) the type of custody initially
requested, (b) whether or not a contest to the initial
custody request was filed, (c) the amount of child support
ordered, (d) the visitation granted, and (e) the type of
custody ordered in the final divorce decree. The
reliability index was computed by dividing the number of
agreements by the total number of coding decisions
(agreements plus disagreements) and multiplying the
quotient by 100. The overall agreement was 98.7%.
RESULTS
Demographics
The 300 families considered in the study accounted
for a total of 510 minor children, including those of
pregnancies in progress at the time the divorce petition
was initially filed. Thus, there was an overall mean of 1.7
children per family, ranging from means per filing year of
1.5 to 2.0. Over half of the families (152) included only
one child. The average age of the eldest child at the time
of the initial petition was 7.6 years, while the average age
of the youngest child was 4.6 years. These couples were
married an average of 8.4 years, and the mean length of
time between the filing of the initial petition and that of
the final decree was 9.8 weeks. The court records
included no useful socioeconomic indices, and informa-
tion on employment was generally not available. Data on
the division of marital assets could not be meaningfully
coded.
’
13b
Court Process
The mother was listed as plaintiff and, therefore,
formally initiated the divorce process in 73.3% of the
cases.! In 27 cases (9%), counterclaims to the initial peti-
tions were filed, and of these, 70.4% included a contest to
the custody arrangement requested in the initial petition.
In 296 cases, the identity of the judge could be deter-
mined. A total of nine judges heard these 296 cases, with
two of these judges hearing 253 or 85.5% of them. Of the
296 cases, 295 were decided by male judges. In 82.5% of
the 212 cases where it could be determined, the lawyer
representing the mother was male and in 96.2% of the 106
cases where it could be determined, the lawyer represent-
ing the father was male.
Custody
Table 1 summarizes the relationship between the type
of custody requested by the initial petitioner and the type
of custody granted. The category “Mother” denotes a
situation where sole custody for all the children in a
family was granted to the mother and, similarly, “Father”
denotes sole custody to the father. Included in the “Joint”
category are situations described as joint legal custody
and as joint legal and joint physical custody. Of the joint
' Summaries are available from the second author describ-
ing additional analysis including: predecree petitions, grounds
for divorce manifested on final decree, type of visitation
requested and granted, types of child support arrangements
ordered, types of petitions filed after final divorce decree
(relitigation), and type of custody granted by age of children.
14b
custody requests, three were for joint legal custody and
two were for joint legal and joint physical custody. Of the
joint custody grants, five were for joint legal custody and
two were for joint legal and joint physical custody. The
“Split” category refers to those situations where the
mother is granted the sole custody of one or more of the
children and the father is granted the sole custody of
another one or more of the children. The “Other” cate-
gory includes requests for the court to decide and tempo-
rary-only custody grants.
15b
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16b
Sole custody was initially requested on behalf of the
mother in 89.3% of the cases and of the father in 5% of the
“cases. In 1.7% of the cases, joint custody was requested,
and in 3% of the cases some form of split custody was
requested. The most common scenario of the mother
requesting and being granted sole custody occurred in
88% of the cases. Overall, 94.7% of all initial requests
were granted.
Reasons for custody requests or contests were exam-
ined in the cases where the father requested and/or was
granted custody. In one of the eight cases requested by
and granted to a father, the father stated that he felt he
should be granted custody because the child was a male.
In one of the cases where the father initially requested
custody and later apparently changed his mind and in
two of the cases where the mother contested the father’s
request and won the case, the father alleged that the
mother was unfit. In one of the two cases where the
father won a contested case, the father stated that it was
the children’s wish to live with him.
Table 2 includes only the contested cases (n = 19)
depicting which parent initially requested sole custody
and what outcome resulted. As can be seen, sole father
custody was granted in none of the cases where the father
initially requested custody and the mother contested this
arrangement. In both cases where the father asked the
court to decide, sole custody to the mother was granted.
Of the contested cases, about half were granted as ini-
tially requested. It was in two of these contested cases
where the only two citations of case precedents were
found. One of the contests was before 1981 and the
17b
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18b
father’s lawyer cited cases where the best interests of the
child standard predominated over the tender years doc-
trine. In the contest after 1981, the Devine case was cited
by the father’s lawyer.
Child-Related Content of Decree
The type of visitation arrangements requested and
granted was also analyzed. Overall, the type of visitation
requested exactly matched the type of visitation granted
in 78% of the cases. In 264 of the granted situations, these
arrangements described the visitation of the father. In 12
cases, arrangements were specified for mothers, and in
three cases, visitation was referred to for both parents.
Visitation was addressed in 93.7% of the cases. Of the
granted visitations, 62.7% were described as reasonable,
liberal, or unlimited, and not specified further. In cases
where it was possible to estimate the days per year spent
with the noncustodial parent, the mean visitation was
60.3 days per year, ranging from 0 to 142 days per year.
Restrictions were ordered on visitation in 10.3% of all
cases (including sobriety and limitation of setting or city).
The types of child support and other financial
arrangements ordered were considered. In 93% of the
cases, some reference to child support was made in the
final decree. Fathers were ordered to pay the child sup-
port in 99.2% of these cases. Arrangements included
heath insurance, medical, dental, and eye care costs, and
educational costs. The mean amount of child support,
when an amount was specified, averaged $134.14 per
child per month across the 10-year period.
19b
Relitigation
In 73 of the 300 cases (24.3%), a child-related, post-
divorce petition was filed by at least one of the parties. In
17.3% of all the cases, the custodial parent filed at least
one petition. In 9% of the cases, the noncustodial parent
filed at least one petition. In 2.7% of the cases, at least one
petition was brought jointly by both parties. The most
frequent petitions were for a rule to show cause regard-
ing nonpayment of child support, filed by custodial
mothers. The court ordered modifications in child sup-
port in 7.7% of the total sample, in visitation in 4.7% of
the total sample, and in custody in 2% of the total sample.
The majority of support and visitation modifications
entailed specifying arrangements that were left ambig-
uous in the final decree.
Impact of the Devine Decision
Table 3 provides the distribution of the types of cus-
tody requested and granted, summarized for each of the 5
years before the Devine decision and the 5 years after the
decision.
Figure 1 depicts the comparison of percentages of
sole mother custody grants with the percentage of all the
other types of custody grants combined, before and after
the Devine decision.
20b
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22b
A Box-Jenkins Time Series analysis was conducted to
assess the appropriateness of ARIMA models for the fre-
quencies of (a) requested sole father custodies, (b)
granted sole father custodies, and (c) contested custodies.
The analyses indicated no seasonal component in any of
the three series. All of the autocorrelations and partial
autocorrelations were effectively zero with no systematic
variations. Thus, custody requests, contests, and grants
did not fluctuate in any predictable pattern according to
the month in which the initial divorce petition was filed.
Therefore, it was not necessary to seasonally adjust any
of these time series (McCain & McCleary, 1979). -
During the period from January 1976 through
November 1980, there were no significant changes (p >
.05) noted in the number of fathers requesting custody,
the number of custody cases being contested, or the
number of fathers being granted custody, Z = 1.05, Z =
1.23, and Z = 0.23. Thus, no trends were observed to have
occurred prior to the Devine decision, and the postinter-
vention series could be simply appended to the preinter-
vention series, while maintaining statistical power
(Tryon, 1982). Analysis of the entire time series again
revealed no significant deviations from randomness, Z =
0.13, Z = 1.15, Z = -0.51.
23b
TYPE OF CUSTODY GRANTED
' AFTER 1981
— BEFORE 198
80 f+
60 +
40 -
20 -
0 . 1 ; ¢
SOLE ALL OTHER SOLE ALL OTHER
PERCENT MOTHER MOTHER
Fig. 1. Custody granted before and after Devine decision.
Therefore, no significant impact of the Devine decision
could be discerned from this data.
Although in the expected direction, the difference
between the mean days per year of visitation with non-
custodial fathers before (M = 58.5, n = 36) and after (M =
63.4, n = 47) the Devine decision was not found to be
significant (p > .2). Visual inspection suggested somewhat
greater variations in visitation time before 1981, but this
difference was also found to be statistically nonsignifi-
cant (p > .4). It should be noted that only the data from
cases where visitation days were specified could be
included in this analysis.
rn
24b rn
Of the other hypothesized differences, frequencies
were too small to make meaningful statistical compari-
sons. All seven of the joint custody decisions were after
1981. It was, therefore, impossible to compare the
amounts of child support in these situations. No quali-
fications at all were made to sole mother custody awards.
Only two of the sampled cases contained references to
evaluations by experts, one before the Devine decision
and one after the decision. Both were ordered by the
court and completed by psychologists. Only one mother
was ordered to pay child support, and this followed the
Devine decision. But, in one case prior to 1981, the issue of
the mother paying child support was deferred until the
mother became employed. Additionally, three references
were made to a child’s tender age. All were before 1981.
In two was the statement that the decision of custody to
mother was made “because of” the child’s tender age,
and in one was the statement that the decision of custody
to the father was made “in spite” of the child’s tender
age.
DISCUSSION
This empirical analysis provides a means Of assessing
the impact of a precedent-setting decision by the State
Supreme Court of Alabama. Overall, the results suggest
that the impact of this decision, in which the tender years
doctrine was ruled unconstitutional, was not significantly
reflected in the custody orders following the decision
through 1986. Not only did the number of fathers being
granted sole custody remain relatively small and constant
through the 10-year period sampled, but also the number
of fathers requesting sole custody did not increase.
25b
Although the utilization of joint legal and joint physical
custody arrangements did occur only after 1981, this
group of cases is also small and not sufficient to suggest a
significantly expanded role for fathers. Perhaps most sur-
prising is the finding that an increased recognition of the
role of the father was not reflected in an increased
amount of visitation with noncustodial fathers.
The number of cases where the custody decision was
truly made by the court is too small to make the state-
ment that the court itself has not changed. In this sample,
an even greater number of custody arrangements than
expected were agreed upon before the judge ever heard
the case. In the majority of such cases, the court simply
orders what the parties have agreed on, incorporating it
into the final divorce decree. However, the court is not
bound to rule in accordance with such agreements
(McCurley & Davis, 1988). The finding that requests by
fathers have not increased, however, lends itself to a
stronger statement on the lack of change. Whether this is
a result of fathers’ or lawyers’ perceptions of the court's
thinking or a continuing lack of confidence or interest by
‘ fathers in primary parenting is open to debate. It may be
argued that the impact of such a legal precedent will be
evident only after a period of time that may be longer
than it was possible to include in this study. Certainly,
with fe-y major relevant decisions made in family court
annually in the state of Alabama, the lack of impact
cannot likely be attributed to a delay in the transmission
of information. However, further research, perhaps 5
years or longer from this study, may be able to determine
what length of a time lag is associated with the transla-
tion of such information into court decisions, if any.
j
26b
Apart from the apparent insignificance of the impact
of the Devine decision in the current study, the results do
not support the hypothesis that the key variables would
reflect a gradually increasing role for fathers throughout
the 10-year period. This had been predicted because it
was assumed that the same ideological forces that were
operating within the court system and led up to the
Devine decision were operating in society at large. Owing
to the relatively small sample size, we must be cautious
in generalizing the results of this study to a similar situa-
tion in other states where the tender years doctrine has
been abolished. However, Berry (1981) indicates that high
mother custody rates continue in a number of states that
have statutes eliminating the tender years doctrine. Per-
haps the beliefs that females are more ideally suited to be
parents or that the role of the mother is more essential to
~ the adjustment of a child, except in extremely rare
instances, have become so deeply ingrained in our society
that court decisions or legislated statutes have not begun
to make a significant impact on that belief system.
It is undoubtedly important to keep in mind that the
decision in the Devine case provided that the gender of
the parent may not be the primary consideration in cus-
tody decision; that is, it may not be presented as such.
The presumption against fathers likely remains unex-
pressed in the minds of some lawyers and possibly
judges. In the present study, there was some concern
about ruling out the effect of the different judges hearing
the cases. Of the two judges hearing the vast majority of
the cases, one was in office primarily before the decision
and one only after. Had an impact of the Devine decision
been found, it would have been necessary to rule out this
’
27b
history factor. However, the consistency in the rulings of
all the judges adds further support to the lack of change,
one that is broader than a single judge or even the court
system.
Perhaps the unchanging patterns demonstrated in
this study reflect most the socialization processes of the
adults considered in the study. Individuals of a parenting
age, such as the parties seeking divorces in the sampled
cases, were likely exposed to traditional ideas of the
mother as the more nurturing parent (Chilman, 1983).
Perhaps, the gradual breakdown of sex role stereotypes
will be more reflected in the parenting decisions by the
next generation of parents. If divorce must be a reality for
a number of these parents, then custody arrangements
may also reflect this changing perspective.
In discussing custody arrangements, it is paramount
to keep in mind that the parents’ legal rights are, at least
theoretically, always secondary to what is best for the
child (McCurley & Davis, 1988). In the past it has
appeared that the psychological community has not ade-
quately disseminated the research findings that suggest
the potential fitness of fathers as single parents
(Bradbrook, 1971). Specifically, the mental health profes-
sional’s potential role in custody cases, as described by
Lyman and Roberts (1985), might expand when the court
can no longer rely on presumption such as the tender
years doctrine. However, this was not evidenced in this
study.
The sort of methodology employed in the current
study may be applicable for analyzing the impact of other
state or federal supreme court rulings or statutes in a
- a 28b
variety of areas. In general, examples of simply citing
rulings as a means of showing change following a legal
act abound in legal research, without regard for quan-
tification (e.g., for child custody: Bodenheimer, 1977).
Examination of actual court decisions may reveal impact
or no effect of significant rulings or laws. The research
methodology and skills of the social sciences, thus, may
be of some assistance in the legal analysis.
These results suggest the importance of keeping com-
prehensive statistics on key custody variables. In the state
of Alabama, as in many states, the only child-related data
collected on divorces include the number of children ever
born to the marriage and the number of minor children at
the time of the divorce (Alabama Bureau of Vital Statis-
tics, 1983-1986). Additionally, if judges were required to
justify their rulings and inclusion of these justifications in
the court files was mandatory, data could be extracted
more completely. Only with comprehensive empirical
data will it be possible to know what is occurring and to
assess whether underlying presumptions may be operat-
ing (Phear, Beck, Hauser, Clark, & Whitney, 1984). Emery,
Hetherington, and DiLalla (1984) have asserted that “it
seems reasonable to have courts provide the public with
information on the yearly group statistics on custody
decisfons as a means of informing the public and protect-
ing against systematic bias in the exercises of judicial
discretion” (p. 255).
29b
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.