Irony of History - The Tables Are Turned
Key Points
  • The presumption is that the custodial parent, the primary caregiver, is the best parent to continue taking care of the children after the divorce. This may not necessarily be the best option.
  • Divorce is devastating enough for children, fathers who are very active in the child’s life should still have access to the child, even if mother is the sole custodial parent. Father’s rights for custody are just as important as mother’s rights.
  • Child custody should not be about winning, it is about providing the most loving environment for the child; this environment may mean making sure dad has ample opportunity to not just visit with the child but parent as well.
  • False domestic abuse allegations should never be used as a tool to win child custody.

Fathers’ rights groups argue that the liberalization of divorce works unfairly against men who want to be good parents to the children. Men’s groups point to the 90 percent compliance with support orders for men with shared custody as evidence that most men act in good faith in dealing with former spouses about child support. Indeed, while nearly 80 percent of the custodial mothers receive child support, against 30 percent of the custodial fathers, nearly 48 percent of the noncustodial mothers "totally default" on support, against about 27 percent of noncustodial fathers, according to the U.S. Department of Health and Human Services.

The transmutation of child custody jurisprudence of the nineteenth century to the twentieth illustrates how cultural changes affect law but law responds slowly. Prior to the twentieth century, common law jurisdictions typically treated minor children as the property of the father. This holding, plus the fact that fault had to be alleged, gave a woman in an unhappy marriage a very steep climb to escape it. In the twentieth century, courts became guided by the so-called "Tender Years" doctrine, which held that "absent extraordinary circumstances" (which meant gross incompetence), "children should always be placed in the custody of their mothers."

Today judges work from a presumption that the parent who served as the primary caregiver during a marriage should in divorce be the primary caregiver - a presumption father’s rights activists claim puts them at a disadvantage. Moreover, the men point to avalanche of data and statistics that demonstrate "a wide variety of negative behavioral and education consequences" to children growing up in fatherless homes. Children from fatherless homes account for 63 percent of youth suicides, 71 percent of the pregnant teenagers, 90 percent of the homeless and runaway children, and 70 percent of the institutionalized juveniles. They account for 85 percent of the children with behavioral disorders, 80 percent of rapists, 71 percent of all high school dropouts, 75 percent of all adolescent patients in chemical abuse centers and 85 percent of all youths in prison.

Both father’s rights and feminists suspect each other of having hidden agendas about joint custody. Some feminists claim that men want to use joint custody as a way of coercing a more favorable financial settlement.

In any event, custody questions ramp up the amperage in divorce litigation. Today, some divorce lawyers specialize as counsel for men or counsel for women market themselves as "fathers’ rights" and "mothers’ rights" firms. Some lawyers caution that courts threw a very cold eye on the tactics used by father’s rights attorneys who set to "teach the wife a lesson." Judges can spot attorneys who come to court with a gender agenda, and the court may become reflexively skeptical about the good faith of an attack dog lawyer who wishes to punish the women.

Custody disputes often become textured, with subtleties that go beyond the letter of statutory law. The cultural inertia of tradition tends to work in favor of the mother because motherhood is deemed "a natural instinct and occurrence, while fatherhood is more participatory."

"For the father to succeed in winning child custody, his approach must concentrate on proving that his guardianship is the best option for the child’s growth and development. While a mother may be able to win a close case based solely on [traditional and cultural norms], the father typically has to provide substantial evidence." In practice, proving his case often means a father must disprove a mother’s fitness, with demonstrable evidence about drug and alcohol abuse, adulterous behavior, work performance, and parental alienation.

Fathers rights groups argue that women, prompted by lawyers who know the potency of claims of domestic violence, use the threat of such allegations to win custody or deprive men of visitation. Allegations of marital misbehavior by men -- domestic violence, child abuse - make custody cases inflammatory, yet they are often "he says-she says." The outcome, however, can be zero-sum –a win or lose proposition for the father who seeks a continuing relationship with his child.

Documented participation and intent by the father can be very important in building his case in a custody dispute. This means quality time, with an accurate log of dates, times and activities, as well as accurate records of the time visitation was denied. Good records include financial participation in the child’s life, even expenses paid as part of court-order support.

The center of gravity of the fathers’ rights movement is its push for shared custody and other considerations ancillary to parental custody, including reform of child support guidelines. In the United States, father’s rights actives press for guidelines based on the Cost Shares model, in which child support is based on the average income and cost incurred by both parents, rather than the Percentage of Income model, which is currently used in most jurisdictions.

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