Maternal yearning has its day in court

In early April Texas state authorities entered the compound of a polygamous sect and took as many as 468 children into custody for their own protection, following an anonymous phone call accusing the sect of promoting sex between grown men and girls as young as thirteen.

I wrote about this at the time, trying to contextualize it against the cross-cultural range of marriage forms and the vast evolutionary panorama of mating patterns. I pointed out that while anthropologists condemn sex with minors, we tend to be a little more flexible than the average American when it comes to polygamy among consenting adults. We respect cultural differences. (As one of the women said, It’s not compound, it’s a community.)

Many of us have seen televised interviews with the mothers-modestly dressed, eyes mainly downcast, largely a picture of submissiveness–except when it came to the subject of their children, most of whom were already dispersed into foster homes. Here they were obviously and deeply bereft, not angry exactly, but filled with a passionate intensity around one goal: Give us our children back.

It looks now as if they will get what they are yearning for. Friday’s New York Times ran a front-page photo of four of them striding out of a courthouse in San Angelo, Texas. They wore ankle-length, heavy-cotton dresses in solid blues, with puffed-out shoulders and wide, flowing skirts, straight out of a frontier town church service. They also wore great smiles on their faces.

The appeals court found that Texas had no basis for its raid and even now cannot prove that children living on the polygamist ranch were at risk for abuse. This seems hard to reconcile with reports that young pregnant teenagers were among the children taken into custody, but the court ruled that the state had not made a “reasonable effort” to determine whether “some measure short of removal and/or separation would have eliminated the risk.”

There is a presumption here: until proven otherwise, children are best off with their parents, especially mothers. This presumption governs custody law, and in many states specifically favors mothers, although in the interest of equal treatment some states replaced that with a presumption of joint parental custody.

This enhanced fathers’ rights but not necessarily children’s welfare. In ugly divorces some men use custody as a pawn to avoid alimony; they understand that most mothers will give up practically anything to keep their children. This system turns the wisdom of Solomon on its head: to keep her child, the real parent-usually the mother–must pay a heavy price.

I’m not saying men can’t be great parents, even single ones; in many divorces the children would be better off with the father. (I became a mother after my wife’s death, and a pretty good one, which was a lot harder than being a great dad.) I’m just saying that these will be a minority of cases, because biology is pushing the other way.

Motherhood evolved with mammals some two hundred million years ago, and much of what we think of as distinguishing us from reptiles-warmth, sociability, elaboration of the limbic system or emotional brain-is owed to that relationship–first in evolution, first in development, and probably first in intensity and importance.

Our human brains have elaborated far beyond that, in the realm of learning, thought and, finally, culture. But imaging studies show that the emotional brain structures left to us by the early mammals light up strongly in a mother’s brain when she hears her child crying. Perhaps fathers’ limbic systems, under the right conditions, would light up in a similar way.

But we know that women’s bodies are physiologically adapted for motherhood, and it seems likely that their brains are too. So the mothers of the hundreds of children who were taken away undoubtedly suffered greatly from the separation. What the children suffered remains to be seen.

For now, the impending reunion is paramount for the mothers. One said, “Everyone is totally overjoyed to tears.” Susan Hayes, Cynthia Martinez, and Laura Nugent, all lawyers for either the mothers or the children, were also happy with the outcome. Does that mean these victorious female attorneys favor polygamy? Of course not. In fact, it would be a delicious irony if the polygamous wives are emboldened by this victory to assert themselves more at home.

But it does mean that they favor the presumption, long enshrined in common law, that children almost always belong with their parents, especially their mothers. The abolition of polygamy is a triumph of culture over biology, and I’m basically for it. But mother love is a biological imperative that should-and in this case, apparently will-take precedence.

Someone from the Texas Department of Family and Protective Services must still watch to make sure that young teenage girls do not become rape victims. But this goal, the court has ruled, does not require severing hundreds of mother-child bonds.