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The Divorce Encyclopedia
Fatherís Rights


Term Definition Fatherís Rights - legal principles and concepts used to further the notion that custody decisions should not discriminate against fathers.
Application in Divorce The movie Kramer v. Kramer poignantly depicts the heartbreak of a father trying to retain custody of his young son. Despite his superior competence as a parent, young Kramer loses custody to his wife (who, having won, backs off because she feels unequal to the demands of parenthood although the court awarded her the boy).

Despite the emancipation of women in the last thirty years, courts generally award children to mothers. In fact, unless a woman is grossly incompetent as a parent, she will be awarded physical custody in most jurisdictions. And there are cases where mothers, with the approval of the courts, move children beyond easy visitation of the noncustodial father. (For example, courts permit a custodial mother to relocate when the move results in what is called a "real advantage" to her because, the thinking goes, what is good for her is good for the child.) The relocation often sets in motion a parental drift by the noncustodial father, which can become even more pronounced when he remarries and has a second family.

It is easy to see why fathers, who so often are noncustodial parents, come to believe they are victims of divorce in regard to custody and support of children.

Judges do not set out to deny fathers their rights in child custody cases, but noncustodial fathers very often come to believe they are unfairly treated.

The preference for awarding children to women is complete reversal of earlier child custody practice. In the 19th century, children routinely were awarded to the father in the event of divorce. In awarding children to the mother, courts appear to be guided by various readings of theories of attachment that maintain that infants and small children should not spend time away from their primary caregiver or they may never be able to develop appropriate trust in another person. The application of this theory in custody disputes favors the custodial parent, who is usually the mother.

Even when the noncustodial father makes good his child support payments, the financial strain on the custodial mother is often very great, and the sing-parent families headed by a mother are often a pocket of poverty within American society.

Nothing more clearly demonstrates the sadness and sorrow of divorce than battles over child custody, legal and physical.

See also Attachment Theory; Removal (of a Minor Child).

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