Pusey v. Pusey
40 Utah Adv. Rep. 3, 1986 Utah LEXIS 856, 728 P.2d 117 (1986)
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Rule of Law:
In child custody disputes, there is no gender-based preference for either parent; courts must instead apply a gender-neutral analysis based on function-related factors to determine the best interests of the child.
Facts:
- The parties were married for twelve years and had two sons, aged twelve and nine at the time of their divorce proceedings.
- Prior to the marriage, Defendant and his mother owned a corporation named Fun Fair, Inc.
- During the marriage, the parties jointly purchased a home and formed a new corporation, Load Alert, Inc., of which both were officers.
- Defendant claimed that his premarital corporation, Fun Fair, Inc., had loaned $69,000 to the marital corporation, Load Alert, Inc.
- Defendant could not produce any documentation, such as loan papers, repayment terms, or interest rates, to substantiate the existence of the purported $69,000 loan.
- The parties' older son expressed a marked preference for living with Defendant, while the younger son indicated equal attachment to both parents.
Procedural Posture:
- A divorce action was initiated in a Utah state trial court.
- The trial court issued a decree of divorce, dividing the marital property, awarding attorney fees to Plaintiff, and granting split custody of the two children.
- Specifically, the trial court awarded custody of the older son to Defendant and custody of the younger son to Plaintiff.
- Defendant appealed the property division and attorney fee award to the Supreme Court of Utah.
- Plaintiff cross-appealed the trial court's custody award, seeking custody of both children.
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Issue:
Does the judicial preference for awarding custody of a child to the mother, all other things being equal, violate the Utah Constitution and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution?
Opinions:
Majority - Durham, J.
Yes. The judicial preference for awarding custody to the mother, also known as the 'tender years doctrine,' is an unconstitutional gender-based preference and is formally discontinued. Child custody decisions must be based on a gender-neutral analysis of what is in the best interests of the child. The court held that both the Utah Constitution and the Fourteenth Amendment of the U.S. Constitution preclude relying on gender as a determining factor in custody cases. The majority reasoned that the maternal preference rule is an anachronistic stereotype from a time when mothers were typically not in the workforce and that it lacks validity in modern society. Instead of this preference, courts should base custody decisions on function-related factors, such as the identity of the primary caretaker during the marriage. The court affirmed the trial court's split custody award as within its discretion, given the older son's strong preference to live with his father. The court also affirmed the property division, holding that the Defendant failed to meet his burden of proof to show the alleged $69,000 loan was a real corporate debt.
Concurring - Zimmerman, J.
Justice Zimmerman agreed with the result to discontinue the maternal preference but would have done so without reaching the constitutional question. He argued that the maternal preference was a legislative policy that the Utah legislature repealed in 1977. Although the court had maintained the preference in dicta, it should now abandon it as judicial policy because its original justifications—that mothers are almost always primary caregivers and are biologically superior caregivers—are no longer valid in contemporary society. He concluded that the court can and should abandon the outdated preference without needing to conduct a constitutional analysis, as a gender-neutral primary caregiver preference serves the same legitimate interests.
Analysis:
This case is significant for formally abolishing the 'tender years doctrine' and the associated maternal preference in Utah child custody law. By declaring the preference unconstitutional, the court shifted the legal standard from a gender-biased tie-breaker to a modern, gender-neutral 'best interests of the child' analysis. The decision establishes a new precedential framework based on functional roles, prominently featuring the 'primary caretaker' standard, which guides all subsequent custody determinations in the state. This ruling brings Utah's family law into alignment with evolving constitutional equal protection principles and a growing national trend away from gender-based distinctions in domestic relations.
