In jurisdictions with the preference or presumption of awarding custody to the primary
caretaker, the rationale is that children should remain in the care and control of the parent who
was responsible for most of the children’s day-to-day tasks. 32 The preference toward the primary
caretaker would give a parent sole custody and the other parent visitation. 33 Though this
perspective may seem gender-neutral on the surface, it still continues the gender-biased view that
mothers are the dominant and more responsible parent. 34 Thus, it seems to simply be a
camouflaged version of the transparently discriminatory Tender Years Doctrine used in the
Jurisdictions that have a preference or presumption for joint custody argue that a child
who has the same or almost equal contact36 with each parent leads a healthier life. 37 In theory,
this may be true. However, in actuality, there are many concerns with this approach. California, 38
like many other states, uses a “Best Interest” test to determine custody; when deciding what is in
the child’s best interest, there remains a very strong preference for joint custody. 39
Under the “Best Interest” test in California, the judge is the ultimate authority and has
broad discretion to determine what custody arrangement would be best for the child given a
number of factors and circumstances. 40 These factors include considerations of the health, safety
and welfare of the child, any history of abuse by one parent, the nature and amount of contact
32 See Pikula v. Pikula, 274 N.W.2d 705, 711-12 (Minn. 1985).
33 See ELROD, supra note 12, at § 1: 9.
35 ABRAMS, supra note 9, at 686.
36 Many states, such as California, do not require an exactly equal 50/50 split to be considered joint custody. See
CAL. FAM. CODE § 3004 (West, Westlaw through 2016 Legis. Sess.). The requirement may be that each parent has
significant periods of physical custody of the child. Id.
37 See ELROD, supra note 12, at § 1: 7.
38 CAL. FAM. CODE § 3080 (West, Westlaw through 2016 Legis. Sess.).
39 See CAL. FAM. CODE § 3080 (West, Westlaw through 2016 Legis. Sess.); see CAL. FAM. CODE § 3020 (b) (West,
Westlaw through 2016 Legis. Sess.); see CAL. FAM. CODE § 3040 (West, Westlaw through 2016 Legis. Sess.) .