Letter written to
Dear Committee Members:
The divorce rate, the percentage of children living in single-parent households, and the percentage in stepfamiliesall have tripled since the 1960s. Most family break-ups are initiated by mothers. In about 90 percent of divorce cases, the mother is awarded sole or primary custody. In 1996, of the 71 million American children under 18, 20 million lived apart from their father, and 17 million of thesenearly a quarter of all childrenlived with their mother. (48 million children lived with both parents, 17 million with their mother only, less than 3 million with their father only, and nearly 3 million with neither parent).
Existing divorce procedures have not upheld the legal principal of acting "in the best interests of the child." Fatherlessness is so prevalent, and so devastating to children, that urgent and strong legislative action is required to address the gender bias in divorce courts. Many states are now moving toward joint physical custody, as they have determined this to be the best option for improving childrens well-being. Anything but broad-sweeping changes in divorce law, specifying mandatory measures, will mean that in the future yet another committee will be studying a worse situation.
Many divorced or separated fathers would be living with and raising their children if the divorce courts would not deprive them of the opportunity. Walking into courtrooms in which child custody cases are being heard feels like traveling back in time. The father is treated as a visitor to his own child or children, for whom his ability to nurture them is expendable. He is primarily looked upon as someone to be financially exploited. Fathers ask only for justicenot special treatment. They want rights and opportunities equal to that of mothers. They recognize that a visitor cannot be an effective parent. The consequences are devastating for both fathers and their children. Statistically, sole or primary maternal custody strongly correlates to ultimate father absence: almost 40 percent of children who live with their custodial mother have not seen their father in over a year. For 1996, this percentage works out to have been 7 million children.
A father whose contact with his child or children is primarily through visitation becomes a "visiting father." However, visiting fatherhood is a contradiction in terms. Visiting fathers cannot raise their children: they are detached from the daily life of their children and denied parental empowerment. Many visiting fathers, feeling angered and ultimately defeated by the realization that they are becoming impostor-fathers, give up the effort under the circumstances, and withdraw completely from their childrens lives. Visitation unfathers men. Furthermore, visitation feeds the false, anecdotal perception that fathers do not really desire to be part of their childrens lives.
Divorce rulings that show little regard for fatherhood have given rise to the many fathers rights groups around the country. Fathers rights are ultimately about childrens rights and childrens well-being. Children are born with two parents; they want, love, and need two parents. Children are not personal property; they do not belong to any one parent.
THE NEED TO REFORM DIVORCE LAWS
Let me briefly express my own understanding of what is wrong with the divorce courts. Overwhelmingly, research indicates that, after separation and divorce, children do best when they have an ongoing and continuous relationship with both of their parents. It has been extensively documented that removing the father from the childs life does great long-term harm to the well-being of that child, and disadvantages the subsequent adulthood of that child. A child who does not have two actively involved parents is at a substantially greater risk for any of the social ills: becoming a victim of sexual abuse, abusing drugs and alcohol, performing poorly in school, becoming a victim of suicide, committing juvenile delinquency, becoming pregnant as a teenager, and divorcing in his or her own marriage. The broader social consequences are all too apparent. FBI statistics indicate that a missing father is a more reliable predictor of criminal activity than race, environment, or poverty.
Prudence, common sense, and fairness would seem to prescribe that both parents participate in their childs life. Yet divorce courts will typically severely restrict the father-child relationship and deny the father a meaningful parental roleviolating the fundamental right of fathers and their children to casually spend time together. Divorce courts rule in this way despite a Constitutionally protected right of freedom to associate, encompassed under the First Amendment. What is more, even as there exists strong interest in public policy for encouraging fathers to participate in the development of their children, divorce courts are discouraging fathers. Divorce courts successfully alienated eager and able fathers, while society adds insult to injury by accusing fathers of being indifferent toward their own children.
Gender-neutral language is now the norm in divorce law, but this has changed the formalities more than the realities. By training and by personal experience, judges have a strong bias in favor of the mother in child custody cases. Judges tend to rationalize their decisions with such insubstantial arguments as maintaining the callous "status quo" established by the mother, who by then has the child or children under her control, while they tacitly adhere to the discredited "tender years" doctrine.
A father seeking to become anything more than a visitor in his childs life or childrens lives is promptly told by his attorney that such a quest is hopeless. The father is advised to ask for less; the mother asks for what she wants.
A father with joint legal custody, in addition to visitation rights, only has a token say, for he is still essentially restricted to the role of a visitor to his own child or children. Yet, even joint legal custody becomes an issue in court, and is frequently denied. Fathers must fight an uphill battle just to remain involved in their childrens lives. Meanwhile, the mother can count on being awarded a substantial part of the fathers income (to spend as she pleases) and effective control over their child or children. Fathers are foisted with this most sinister form of "taxation without representation." Fathers are forced to pay for the raising of their children, but they are not in fact permitted to exercise this fundamental parental right themselves.
Tragically for children, the gender bias is widespread among the professionals of the divorce industry:
Lawyers, mediators, and mental health professionals . . . hold [the inner suspicion] that fathers cannot be as committed to parenting their children as can mothers, or that men must prove their parenting skills to us whereas we assume that with women those same skills are already in place and need not be challenged or examined. The result of such thinking in making decisions about divorcing families may be to deny many children the opportunity of a continuing and meaningful relationship with both parents.
Children themselves share a very different attitude about fatherhood:
Children do not dismiss their fathers just because there has been a divorce. Indeed, it is the children of divorce who taught us very early that to be separated from their father was intolerable. The poignancy of their reactions is astounding, especially among the six-, seven-, and eight-year-olds. They cry for their daddiesbe they good, bad, or indifferent daddies. I have been deeply struck by the distress children of every age suffer at losing their fathers.
In 1994, the American Academy of Pediatrics reported that childrens "sense of loss is ongoing and may reemerge especially on holidays, birthdays, special school events, and when attempting to integrate multiple new family relationships."
Divorce is not a morally neutral act: it has enormous consequences for children. Divorce involves a radical redistribution of hardship from adults to children. While liberation is the dominant theme in the adult literature on divorce, loss is the common theme in the childrens literature on divorce.
Divorce laws have been skewed by debates framed by anecdotes about those least fortunate, while dismissing the far more common plight of other people. As a result, the needs of both fathers and their children are placed secondary to the desires of the mothers.
Interestingly, society has only assimilated half of feminisms message. Women have the right to pursue success in the workplace, but divorce courts deny men the opportunity to engage in child rearing. Karen DeCrow, President of the National Organization of Women (N.O.W.) from 1974 to 1977, has written in support of joint physical custody:
If there is a divorce in the family, I urge the presumption of joint custody of the children. . . . Part of ending sexism involves eliminating the inhuman practice of awarding a parent "visitation" to his or her own child. . . . Shared parenting is not only fair to men and to children, it is the best option for women. . . . Most of us have acknowledged that women can do everything that men can do. It is now time to acknowledge that men can do everything that women can do.
In determining primary custody, one of the factors that the courts are supposed to be considering is whether the prospective preferred parent would encourage a continuous and ongoing relationship between the child or children and the other parent. In a landmark study, it was found that, after separation and divorce, 20 percent of the custodial mothers saw no value in the fathers continued contact with his child or children, and actively tried to sabotage the meetings. Another 30 percent of the custodial mothers had mixed feelings about the fathers visits and interfered in order to make these difficult, to humiliate the visiting parent, and to deprecate him in the eyes of his child or children.
The courts will incarcerate a father for not fulfilling his child support obligationeven if he has been unemployedbut there is next to no enforcement when a mother is denying visitation. Of course, the most effective means for curtailing visitation is to seek the backing of the divorce courts:
Sometimes the childs anxiety at crossing the no-childs land between father and mother spilled into the childs behavior. Exhausted by the ordeal of the crossing or saddened anew at the farewell to the father, children were cranky or poorly behaved after the visit, or they developed symptomatic behaviors in response to the anxiety and fear of angering one or the other parent. They felt that they were in jeopardy between two warring giants and they reacted accordingly.
Unfortunately, some angry women attempted to use the childs symptomatic behaviors as proof that the visits were detrimental to the childs welfare and should, therefore, be discontinued. Attorneys were called by aggrieved mothers who blamed their husband for the childs lapses, thus distressing the unhappy children even more.
The custodial parents continued presence alone made her an available target for the childs unhappiness and resentment around the visit. . . . Their [The childrens] behavior often reflected their greater concern that their father might abandon them.
It is amazing that fathers separated from the mother are subject to any self-serving accusation leveled by the mother. The most effective ploy in court is to make far-fetched and inevitably groundless claims of child abuse against the father. Divorce courts view the father from a presumption of pathological behavior, but the mothers behavior remains above reproach. It is undisputed that the vast majority of child abuse allegations in divorce and custody proceedings are untrue. But even blatantly frivolous allegations of child abuse against the father are effective in court.
A lucrative industry has sprung up in response to family discord. The most damaging and dangerous of these professionals are the unscrupulous therapists whose conclusions exceed the possible scope of their inquiries. Presenting subjective reports is not difficult:
It should be absolutely clear to everyone that whatever the claims of highly paid professionals with impressive credentials and fancy-sounding titles, there is not, there cannot be, and there never will be any sound scientific research on the specific types of knowledge, skills, and abilities that one must have to be the psychologically "superior" parent, to be the parent who should have custody of the children of a marriage. . . .
When hired psychological experts pretend that their evaluation of respective parental values is a scientific endeavor rather than a strictly personal echoing of their own values hierarchy, they will see every aspect of the custody evaluation through lenses ground by that delusion. Having decided which parent they most respect or admire, they then find evidence everywhere to support that bias and distort every pierce of the report to make the preferred parent look better to the judge. . . .
Where there is no solid foundation for an experts opinion for the determination of custody and visitation, it is inevitable that bias fills the void. One must, after all, write something on the evaluation for which one is being so handsomely paid.
Therapists are in a position to advance their own personal agenda without peer review or penalty. By supporting false accusations of child abuse against the father, a therapist can be used by the mother as an effective weapon in a divorce case.
The sad irony is that children highly at risk for abuse are those separated from their biological father, who is no longer available to protect them. Most male perpetrators of child abuse are the male companions of single or divorced mothers: boyfriends, family members, and stepfathers. A Canadian study found that children under five years of age, who are in stepfamilies, are forty times as likely to suffer physical or sexual abuse as those in intact families.
All this imbalance of power actually encourages mothers to divorce, as well as to negotiate only through an attorney. States that financially reward divorce with high child-support awards are ranked low in the proportion of two-parent, intact familiesand low in the quality of child wellness. States with low child-support awards are ranked high in the degree of two-parent, intact familiesand high in the quality of child wellness. Furthermore, states with high levels of joint physical custody have lower divorce rates than other states, and states that favor sole custody have more divorces involving children.
Only about 10 to 15 percent of marriages ending
in divorce involve high-level conflict and violence. In the
remainder and great majority of cases, marital dissatisfaction
stems from causes for which the marriage is more potentially
salvageable: emotional estrangement, boredom, another romantic or
sexual interest, and changes in one spouses priorities or
values. Researchers have argued that in these circumstances,
the children would probably be better off if the parents resolve
their differences and the family stays together, even if the
long-term relationship between the parents is less than perfect.
Divorce itself provokes new hostilities between the parents,
during and after the divorce.
We live in an age which treats "unhappiness" as a psychological concern attributable to personal dissatisfaction, rather than as a situational occurrence resulting from personal circumstances. In this psychological age, the personal unhappiness of a marital partner is often blamed upon the marriage itself. Meanwhile, especially for women, the pressures on the marital partnership as the source of deep emotional fulfillment are high. Where expectations are high, so too is the potential for disappointment. It is not surprising then that marital dissatisfaction in this psychological age is a fairly common experience.
Divorce courts offer an easy and a tempting way out of a troubled marriage. About half of all marriages end in divorce, and in families with children present, two-thirds to three-quarters of divorces are initiated by wives. The post-divorce winner-loser outcome imposed by the courts leads to greater parental conflict, and the child who started off with two parents is now down to just onealmost always the mother.
Promoting fatherlessness for children cannot be promoting their best interest. Current divorce law has that effect. It should instead be the policy of every state that divorced parents are presumed to have shared-parenting status. Specifically, capable parents who wish for a full parental role should have joint physical custody of their children (jointly providing for their childrens day-to-day care), with the children spending approximately half the time in each parents household. Under joint physical custody rather than mere visitation-type arrangements, there is much less relitigation; children enjoy more financial support; children have higher self-esteem and display superior adjustment. What is more, joint physical custody protects children by assuring that both parents have substantial access to their child, and so each parent can observe and report abuse. Finally, joint physical custody discourages divorce. On the other hand, imposing discriminatory sole or primary maternal custody has a detrimental effect on the childs paternal relationship, often leading to the complete absence of the father from the childs life.
The legal system lacks an effective remedy against biased rulings in divorce matters. Appeals courts use the ambiguous and extremely broad "abuse of discretion" test to avoid having to make reversals. The high cost and unlikelihood of success together serve as an effective deterrent against appealing. Attorneys are reluctant to criticize their local judges because they depend upon them for their success rate, and so for their financial livelihood.
OPPOSITION TO JOINT PHYSICAL CUSTODY
There exist vested interests that propound mean-spirited arguments against joint physical custody. Yet, the traditional post-divorce parenting arrangementsole or primary maternal custodyhas not been subjected to the same level of intense scrutiny. The lucrative divorce industry thrives under the contest of the winner-take-all custodial system. If parents are mindful of the courts presuming equality of parenting privileges, then the parents are likely to be far more cooperative in mediation. The parents may avoid much litigation and have no desire for a trial with multi-day court hearings. (A balance of power not only facilitates mediation, but it may on occasion discourage divorce.)
Defiantly, some have come to regard child support as an entitlement for the mother. (After all, there is no accountability on how child support is actually spent.) The father is almost always the supplicant in seeking a greater parental role. Under joint physical custody, the child gains more financial support, but the misplaced concern is that the mother can expect to receive less of the fathers income. Also, there are mothers who feel that they own their children.
Opponents of joint physical custody use the subterfuge of parental conflict to argue against it. When is there not conflict during divorce? Even under sole custody, the parents must still deal with each other, but they do so under a great inequity that works against cooperation or conflict resolution.
Particularly if litigation is complete, intense anger between parents diminishes within the first year after the divorce. There is no evidence that children under joint physical custody arrangements would on a daily basis experience more parental conflict. More importantly, children would have the opportunity to continue a meaningful relationship with both of their parents.
Another subterfuge is to argue against joint physical custody for the population at large because of the risk of domestic violence among some families. Where domestic violence occurs, it should be properly handled as a deviation from the norm. Policy cannot be made by anecdote, and the law should not be based upon a presumption of pathological behavior when it is to be applied to the norm.
The childs need for stability in daily life is important in the ongoing development of the child. Within an intact family, stability implies care and routine with consistent caretakers. Yet in divorce, stability has been thought of as one house with one primary custodial parent. This allows a geographic definition of stability to take precedence over the stability that can be provided by a full relationship with the other parent.
Maintaining a full relationship with each parent is particularly useful in serving the childs need for stability because of the many disruptive events that typically accompany divorce:
Divorce commonly initiates a string of disruptive events in childrens family lives, which may include one or more of the following: life in a single-parent household or cohabiting-parent household combined with partial residency or visits to a non-residential parents household; entry into a stepfamily household and possible membership in a second; dissolution of one or both cohabiting or stepfamily arrangements; and so on.
Unconscious attitudes among divorce professionals serve to resist joint physical custody:
Women in the legal and mental health fields are particularly vulnerable to unconscious, dimly understood reactions if they have children of their own. When a father seeks assistance in obtaining frequent visiting, joint custody, or sole custody, professional women may feel profoundly threatened by what this represents to the security or stability of their own mothering role. If so, a likely response is one of hostility which may have nothing to do with the merits of the particular case. Further, if professional women are themselves divorced with sole custody of their children, they are potentially more vulnerable to the hostility aroused by such requests. . . .
For men, there are comparable hazards. When a father seeks a rich and continuing relationship with his children after divorce, male lawyers, judges, and psychotherapists may react with suspicion, derision, or hostility. The fathers request for considerable parental involvement may bring to the surface doubts or regrets about the quality of fathering the professional male is providing, or has provided, to his own children. The potential for rejecting, or treating lightly, the fathers attempts to seek a shared parenting arrangement is especially great if the attorney or mental health evaluator has failed to maintain a gratifying relationship with his own children after divorce.
There also exists cultural discrimination against fathers, which has an insidious influence on custody rulings. The culture has de-emphasized the uniqueness and importance of the father-child relationship. This discrimination is evident even in language. "Fathering" means procreating, but "mothering" refers to nurturing. A father must prove that he can "mother" in order to qualify for significant time with his child or children.
Custody statutes written in a manner ambivalent to joint physical custody are inherently problematic. Statutes that look upon short-term conflict as a reason against joint physical custody, disregard who is initiating the conflict, and serve as an incentive to promote conflict by those seeking to maintain sole custody. Asking for both parents to agree to joint physical custody is also badly misguided: it is obscene to allow the most obstructionist parent to unilaterally deprive the child of a full relationship with the other parent.
Finally, it is a mistake to use parental roles during the marriage as a precedent for post-divorce parental roles. During the marriage, the parents may fulfill traditional roles in order to provide complimentary, efficient child rearing. Traditional roles and the particular circumstances during the marriage are likely to be a poor guide for assessing the possible post-divorce involvement and performance in child rearing.
POLICY RECOMMENDATIONS: ACTIONS AGAINST FATHERLESSNESS
For further discussion, analysis, and recommendations, I refer you to the excellent articles that were prepared for various committee presentations by Travis Ballard, Cynthia L. Ewing, John Guidubaldi, Bill Harrington, and Ronald K. Henry. I also refer you to the monogram by Joan B. Kelly, in which she examines professional attitudes toward joint physical custody. These are enclosed along with other informative articles for your use. Below are some recommendations that I consider to be of utmost importance. To various degrees, some states have already enacted some measures similar to those below:
Legislation is necessary to overcome the gender bias in divorce courts. It cannot be expected that the vast and profitable divorce industry is going to correct itself. (Do not ask the fox to re-model the hen house.) The "Alabama Joint Custody Statute" is a step in the right direction, but it is only a small step, because it does not mandate its provisions, and so the spirit of this largely toothless statute is easily disregarded. Furthermore, for the purpose of making custody decisions, the statute requires consideration of whether the parents actually agree upon joint physical custody (a most unlikely prospect), and it requires consideration of the parents ability to cooperate with each othergiving an important legal advantage to a custodial parent who maintains conflict as a way to keep hegemony.
Respect the Constitutional rights of fathers who are divorced or separated. These are the same rights as for fathers in intact families. Do not prevent willing and able fathers from participating in their full parental role; do not award high child-support payments; do not expect child-support payments from a parent who has become involuntarily unemployed; do not impose college costs upon fathers disenfranchised from their children.
Mandate presumptive joint physical custody (shared parenting) when both parents seek to continue their parental roles. The country is slowly beginning to realize that this is the best solution: there is a growing trend in this direction. Simply put, two parents are better than one. If retreating from endemic fatherlessness is the goal, why not just let children keep their fathers? Do the minor inconveniences outweigh the positive contributions of another highly involved, caring parent? Any parent seeking sole custody should assume the burden of proof to establish the need for restricting the other parents access to the child. (As Ronald Henry argues, a custody decree is an injunction: it takes away rights or prohibits action that was previously unrestricted. In all other injunctions, the party seeking to impose the restriction has the burden of proof to establish the need for the restriction.)
Mandate a shared-parenting plan. This can be negotiated by intermediaries if necessary, and must be subject to final approval by the judge. Choice of schools, sponsoring out-of-school activities, holiday plans to accommodate everyone, budgeting for the childs needs, and other such matters and intentions can be drafted. This can allay mutual fear and suspicion, and facilitate cooperation.
Calculate child-support according to the actual expenditure needed for the child, taking into account the childs age and those particular circumstances that govern the childs cost of living. The present method of simply taking a percentage of gross income lacks relevance. Child support awards that exceed what would actually be spent in a marriage financially burden divorced or separated fathers, and reward the mothers for divorcing. Recognize that these fathers also maintain accommodation for their children, that they spend a disproportionate amount of money for the little time that they are allowed to be with their children, and thatwithout adequate discretionary income of their ownthey cannot afford to spend time with their children nor afford to travel in order to be with them.
Make child-support accountable. This will reduce the financial incentives to divorce, ensure that the support money is properly spent, and improve understanding of the childs actual costs. The accountability could be part of a joint-parenting plan.
Give the father the option of personally providing for child care whenever the other parent seeks coverage of child-care costs. A father should not be required to pay for child-care costs if he or a paternal family member is willing to personally care for the child; a father should have the first-right-of-refusal in providing child care. It is a gross miscarriage of justice to not only deny a father the caring and nurturing of his own child, but to force him to pay someone else to keep his child away from him too!
Restrict child relocation: stop move-aways. When a child enjoys bonds with both parents through close proximity to them, then allowing a parent to move the child a great distance from the other parent is harmful to the child. Move-aways are rarely in the best interest of the child. Upsetting or effectively severing the bonds between parents and their children should not be justified. Contrary to how some judges rule, a child is not the baggage or personal property of any parent. The parent who wants to move away can do so without taking the child whenever the other parent is willing and able to be the custodial parent. The parent who is not moving away should be favored for custody of the child.
Make violations of visitation grounds for a change of custody. Arbitrarily interfering with the other parents access is against the principle of being a responsible caretaker. Nurturing the relationship with the other parent is very important to children. A parent convicted for two violations of denying visitation should be grounds for a change of custody.
Impose penalties for false allegations of child abuse and spousal abuse. The lack of consequences for such unconscionable false claims has spurred abuse claims to epidemic proportions. The anticipated tactical advantage results from the "guilty until proven innocent" orientation of the divorce courts. False abuse claims should be seen as grounds against the moral fitness of the accuser when considering custody. (The State of Ohio has a criminal statute that prohibits false reporting of child abuse or neglect: Ohio Revised Code Section 2921.14. Moreover, enforcement of this criminal statute is possible by an alternative civil court proceeding: Ohio Revised Code Section 2151.421.)
Require that therapists supporting claims of child abuse demonstrate that they have exercised due diligence prior to having formed their opinions. This will mitigate their arbitrary destructiveness in court, subject their opinions to a higher review, and heighten responsibility among the profession of therapists. It will also curtail one of the more harmful and sinister aspects of the divorce industry.
Favor parents in custody evaluations who are not at fault for their divorces. A parent who readily instigates the break-up of the childs family without showing good cause should not be rewarded as is done now. That parents behavior imposes unnecessary, long-term, and severe hardship upon the child. Meanwhile, the other parentwho is not at faulthas therefore demonstrated higher moral responsibility toward their child. Mere expression of emotional dissatisfaction does not demonstrate good cause. (As Bill Harrington notices, other than for the marriage contract, there is no contract in civil law in which parties who break it can expect to be rewarded and to improve their legal positions, without risking sanctions.)
Provide statistical data on the custody rulings of local domestic court judges. This will show which judges are out-of-step with the urgent understanding against gender-biased court rulings. Judges are supposed to be fair and impartial, and not to rule according to their own subjective notions. (As John Guidubaldi states, domestic court judges are extremely powerful persons, controlling for many people issues about child rearing and asset distribution. These most important of all issues are being decided by the lowest status courts, whose rulings are largely impervious to modifications.) It would not be difficult to collect custody data along with the other statistical information that courts must typically submit each year.
Change the standard for setting rulings from allowing "broad judicial discretion" to requiring instead that rulings be based upon the "preponderance of established evidence." Such accountability should ensure that rulings are not predicated on hearsay or unfounded character assassination. Appeals courts can then review rulings to ensure that they are consistent with established evidence.
Thank you for this opportunity to contribute and to express my concerns. Without true justice and fairness in the divorce courts, the tragedy of fatherlessness will continue unabated.
Member, Alabama Fathers Rights Association
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