TOM JAMES: The Primary Caretaker Standard.

Prohibited from overtly deciding custody on the basis of sex, judges used this information to fashion a rule of decision that would seem gender-neutral on its face, but that would, in practice, continue to favor mothers: the primary caretaker standard.

The primary caretaker standard was simply a presumption that a child’s best interests are served by being placed in the sole custody of the person who historically has been the child’s primary caretaker. . . .

The problem with the primary caretaker standard, from a feminist point of view, was that it did not work to the advantage of working women. This became a significant concern during the last quarter of the century when the percentage of married women with children pursuing employment outside the home sharply increased. Less than one in four married women with children worked outside the home in the 1960′s. By 1980, nearly half did; and by the end of the century, a majority did. Feminists therefore complained that the rule penalized working women. (That it had always disadvantaged men in exactly the same way, and for exactly the same reason, apparently was not thought to have been of any great consequence.) Accordingly, those states that had adopted the primary caretaker presumption quickly scrapped it.