Dads in Divorce Court (by Taylor George)

The following post is by Taylor George, a regular reader and commenter on the Jesus Creed blog. This blog sometimes provides posts by readers and commenters. Taylor is touching on a sensitive but all-too-real topic: the impact of divorces on dads. No one at this blog wants to suggest that divorce is anything but tragic and messy, and sometimes the reasons for divorce are not entirely clear or forthright, but there is a concern that the courts do not treat fathers with equity. The big question here is whether or not there needs to be more equity in the divorce court. Here’s the post by Taylor:

Not often can you find two men at work hugging, crying, and sharing a story.  That’s the situation I found myself in a couple years back when a coworker of mine, Ted, told me his child custody story while I was trying to fix his computer.  It’s a story it seems I am hearing almost every other month from friends and family alike.

It goes something like this: we married seven years ago and grew apart.  Along the way we had a couple kids but now I hardly get to see them.  In Ted’s case it was four toddler aged boys and a bit older, and according to Ted when the fourth one turned out to be a boy his wife left him.  “You see,” said Ted. “She wanted a girl, and when that didn’t happen she became disinterested in the marriage.”

Now he’s left with a child support payment and little contact or influence with his kids.  He has a picture from their younger days sitting on his desk, and as he told me his story we both began to tear up.  I realize that Ted’s ex-wife has a side to this story.  The fact is this however, as a father it is possible to be nearly perfect and lose physical and legal custody of the kids.

Truth be told, there is no perfect way to split a family.  It is obviously a complex situation for a third party to figure out.  Once again though, we know how the courts usually rule.  Fathers get a couple weekends a month, a week or two in the summer, no decision making in the life of the children, and many times a crippling monthly payment.  In the state of California it can be as much as sixty percent of your income.

So here is the question:  Why does this have to be the de facto one size fits all solution?  Why must Dads be guilty until proven innocent? Why can’t we figure out how to share physical custody especially for children well beyond infancy?

One answer might be retribution.  For years men worked, came home plopped their feet up on the couch and watched on while mommy plugged away changing diapers.  I get that.  I get the parts of this debate that are related to women’s liberation and rewarding those who nurture.  I can remember my 80 year old grandmother at a Thanksgiving dinner two years ago unsuspectingly unloading on all of us about how our dead grandfather “wouldn’t do a damn thing with the kids after work.”  Strong words for a Southern Baptist.

To this line of thinking I’d like to say firstly that times have changed, and more importantly fathers have changed.  Dads today are more involved and more nurturing.   So let me state this: We need a change.  We need to draw Dads back into the equation.  Dads need their kids, and kids need their dads.  We need to treat Dads fairly in custody situations.  We need to quit pitting Moms against Dads, and quit giving Mom’s an incentive to seek a divorce unnecessarily.

To the people that disagree with my direction on this I have to ask, how would you want the courts to treat your sons as grown adult fathers?

About Scot McKnight

Scot McKnight is a recognized authority on the New Testament, early Christianity, and the historical Jesus. McKnight, author of more than fifty books, is the Professor of New Testament at Northern Seminary in Lombard, IL.

  • karen

    Great post covering a topic that I’ve been studying for the past three years. The folks I’ve interviewed — attorneys, cops, child welfare folks — agree that the system is designed to protect the mother’s interests over the father’s, even in cases where the mother is clearly more neglectful than the dad.

  • paul

    I imagine we would all agree that the courts should look at both parties equally before making any sort of determination.

    That being said, there are often reasons for things going negatively against the father (rightly or wrongly). I’m no divorce attorney, but I do know that the following issues are taken into account when determining custody in California and other states (and I’d love to hear from others who can add to a list like this)

    – Leaving the house. If one adult leaves the kids and the other adult at the house, this is seen as a big negative. If the dad leaves the mom & kids at home, this will be very negative for him (and it doesn’t matter if dad does it for noble reasons or if it is a mutual decision)

    – Combined with the above, if dad leaves the house, where is he now living? Most cannot afford another big place. So their new 1-2 bdrm apt is not looked on as being able to support a family half time

    My uncle was a highly involved parent and he almost lost custody of his kid based on the above two situations alone. Thankfully he was able to work out a half time situation, but when he did what he felt was right (allowing his wife to stay at home while they worked out differences or divorced) he almost lost custody

  • Alaina

    I’m with you until the last phrase, “quit giving moms an incentive to seek divorce unnecessarily.” It seems misplaced and beyond the reach of this post.
    As far as I last knew, divorce is a major indicator of female poverty primarily because they must now support their families completely on their own.
    It doesn’t seem fair to the nuance of each divorce situation to claim custody as an incentive to divorce.

  • :mic

    You are absolutely right . . . There is NO WAY to properly split a family. It was never supposed to happen that way.

    We’re watching one of these scenarios play out right now in our church. In this situation the mother is self-destructing in her own life, and still has the (quite young) children. It is still an ‘assumption’ among the discussion that they will stay with her, though nothing ‘officially final’ has happened.

    To illustrate your point: the father in this situation is going to make a move for his own children to live with him, yet has to make certain that he is more-than-ready to do so before even publicly mentioning his intentions.

    Culturally, we devalue fatherhood . . . and the trend needs to be equalized.

    Great post.

  • Diana Pintar

    Divorce Courts do not favor moms and devalue fathers. For the most part, they try to do what is “in the best interests of the child.” Sadly, in divorce, everyone loses – especially the child.

    What we most frequently see these days, is split custody. I am not sure why your friend’s divorce was not resolved in this manner. Perhaps he was ill-advised by his attorneys.

    In a split-custody situation, the parties live in close proximity and parenting time is divided on a nearly equal basis. The joint marital incomes of the parties are calculated and the party making the larger amount of income pays child support (sometimes that is the mother). The health care expenses of the child are divided. Vacation time and holiday time is divided. Sadly, when I say “divided” – these are often the new “battlegrounds” for the the formerly married couple.

    The down-side of this is that the child is shuttled back and forth between two households, has two sets of friends, two sets of toys, and is always saying goodbye.

    Fathers are not devalued. Marriage is devalued. If husbands and wives would take their vows seriously, “For richer and for poorer, in sickness and in health, forsaking all others, until death us do part…” fewer children would be the innocent victims of broken vows and broken homes.

  • faith

    I do not think divorce courts are always fair to dads. I have seen some really nasty stuff that dads did not deserve.

  • Rick


    “Culturally, we devalue fatherhood…”

    Unfortunately, with new scientific methods (artificial insemination), and various cultural icons commenting on families without men (ex. Jennifer Aniston), the current trend will probably continue.

  • MatthewS

    We have all seen powerful images of abusive fathers and I think many folks would rather err on the side of caution. I think it is a shame that so much of the portrayal of dads in our media is so negative.

    My heart really goes out to these decent dads hurt by divorce. Men and women both have complex emotions but men often have fewer socially acceptable ways to process and express that emotion. Once you have the eye of suspicion on you, any expression of anger makes you look even more guilty. It seems impossible. These guys pay a large portion of their money to child support, are under a lot of stress, and they aren’t allowed to be a dad. That would be horrible.

    Just to loop back around, though, my dad was helping a lady going through a divorce. Her estranged husband threatened to kill my dad. This was not admissible as evidence against him in the custody hearing because it “did not involve the children.” What a mess!

  • Brandon

    Nice to see this issue being addressed. Few things.

    Let’s also remember that one parent will intentionally alienate the child from another parent. This has been termed, “Parental Alienation Syndrome” (PAS). Don’t know if I would call it a syndrome, but essentially, the definition of PAS is the attempt by one parent (usually the primary care parent) to alienate the child/ren from the other parent. It is the systematic brainwashing of the child/ren over time, so that it seems as if the child is making their own decision to separate from the parent, rather than it being a biased decision based on cues they receive from their primary care parent.

    I really do think the laws in both the U.S. and Canada (where I’m from) are rather archaic. For instance, a friend of mine who was going through a divorce, in talking with a lawyer, was told by that lawyer, that in our city, 95% of all men who are suppose to pay child support do. That leaves 5% who don’t (for whatever reasons). The opposite of that is, 75% of all women who are suppose to pay child support DON’T while 25% do. I would think this is a reasonable assessment in most places. Some of this it seems is due to the fact that men don’t fight even though they are in the advantage of gaining child support.

    Radio host, Dr. Joy Brown told one caller that whether we like it or not, as a country, we are still very much embedded in the notion of the father who is the bread winner and the mother who stays at home, even though the reality is no longer case (that was soooo 1800’s). As a matter of fact it is arguable to say that that was never the case. That is a recent phenomenon from the insulated bubble created in the 1950’s because America was on the up and up. Even then, that was more of a caricature than a reality. Regardless, because the mother was at home with the children, (generally speaking) and the father disappeared 8hrs a day the mother is viewed as the nurturer and the father/breadwinner is viewed morally, as an impassionate ATM machine. This is then projected on to all fathers.

    When you combine these altogether, the totalizing effect puts men in the negative with regard to their children. I’ve been telling acquaintances for some time now that “it is not in a man’s best interest to get married these days.” Seriously, why should I get married if THIS is what I have to look forward to? I might as well shack up and give my girlfriend receipts that make it look like she paid to live at my place thus foregoing spousal support (chances are I’ll have to pay that too while she won’t). The broader ripple affect outside of that former ripple, when you add radical feminism into the mix, is that many men will not be committed to women who generally want commitment and security and marriage. So. Many of our laws on marriage (easy divorce), child support, and spousal support, it seem, actually undermine marriage itself.

    There are no easy answers to specific cases but the system also has to be reformed as well. You can’t change specific cases without looking at the bigger picture.

  • dopderbeck

    Taylor, interesting post. One reason the law has developed as it has is the recognition that men and women historically have been in positions of unequal power in marriage relationships. Men have historically, even in recent history, held most of the power, economically and otherwise. There is lots of debate about whether that imbalance of power has shifted enough so that the law now needs to make further adjustments. One question some feminist legal scholars would raise is whether it’s wise to dismantle legal protections for women in the family law context that have been partly responsible for the cultural shift towards equality between men and women. Is the battle for equality really over, or is there more building to be done on the existing framework? It’s in some ways a similar debate to questions about racial preferences.

  • Ben

    Every single divorce I’ve witnessed has involved the mother having a larger slice of time with the children than the father. In all of those cases, the father worked outside of the home and the mother did not (pre-divorce). Unfortunately, the increased cost of maintaining two living spaces forced the mothers back into working, so the children no longer had a full time parent (aside from the pain of having parents living apart).

    I wonder if the perceived favoritism towards women is due to their more frequent role as primary caregiver in a household where only one parent works. I know of some households where the father stays home and the mother works. I wonder if the statistics swing the other way in divorces that come from homes like that. I suppose that in the end, that is only partially relevant, as it is unlikely that one parent will remain full time with the children when the living situation becomes more expensive after divorce.

  • Taylor George

    @dopderbeck #9 excellent points (as always). Must we dismantle Dad’s physical time with kids to continue the path of equality? I say emphatically, no. Also, consider recent studies of kids from surrogate fathers who go to great lengths to find their dad’s. Kids long for and need that connection, and Dad’s need it every bit as much.

    @Alaina #3 That statement does reach a bit and should have been worded better. In cases of wealthy and moderately well to do families I think the point stands more true, albeit I am sure in the minority of divorces.

  • dopderbeck

    I also wonder to what extent “our” experience of divorce — i.e. the readers of this site — reflects the broader context of family law in the U.S. The divorces I’ve witnessed happening – always a sad sight – were of solidly middle class or upper middle class white couples in which both mother and father were both breadwinners and caregivers. Only a fraction of divorces nationwide fall into that demographic, however. I would suspect that in many other demographics, the wife is not as empowered as a college-educated working white woman.

  • Julie

    Taylor, thanks for inviting me to read your entry here. It is a tough subject. I have a couple thoughts having just gone through a divorce myself and therefore am in the company of many divorced women and men.

    1) Often for women seeking divorce, there is an abuse component. Unlike what this poster said: “If husbands and wives would take their vows seriously, “For richer and for poorer, in sickness and in health, forsaking all others, until death us do part…” fewer children would be the innocent victims of broken vows and broken homes,” I have yet to meet the wife or husband who didn’t take their vows seriously. It may be because I’m in the age bracket of long-term marriages (over 20 years). But from my experience, most have tried for so long to curb the ill-effects of abuse and by the time the break-up occurs, the women are worried about time between dad and kids unfiltered by mom.

    Not only that, there are numbers of kids who resist spending time with their dads because they don’t feel safe with them.

    Lastly, I don’t consider my home broken by divorce. I consider it in a state of healing after a broken marriage. (Jfyi, I’m also a child of divorce so I have some insight into both experiences.) Yes, there are repercussions, but the emotional safety and security my home now offers is far superior to the illusion of peace we pretended to have.

    2) The culture does still favor women with kids (and honestly, even in married couples, women – even those who work! – still do the majority of the childcare and involvement). The bias is one that will be overturned as dads in the culture generally take up more of that slack but it takes time and the 1960s are only forty years ago.

    3) I do know some men where the wives are the ones who are the “unsafe” parent and it is upsetting to see these decent men mistreated or overlooked by the courts. I don’t agree that more men are unfairly treated than women, though. Perhaps that is my female bias! But from what I see, women still come out with less money, less security, fewer assets and a bigger burden in raising the children alone.

    My biggest wish is that people would recognize that divorce is not only tragic. Sometimes divorce is a savior! Sometimes divorce is the difference between sanity and going over the edge. Sometimes it is the marriage that is tragic.

    Just a few of my thoughts.

  • Bill H

    I find it an oddity in some ways. With all the talk about equal rights, and such things, I see the bias if you will as harking back to an earlier time/cultural value. Mother was favored in custody situations more due to the nurturing aspect – usually involving children under the age of 10 – which gained almost a presumption to be overcome by the father – a most difficult proposition in court absent some pretty solid and horrendous conditions/habits. In my 28 years on the law side and last 10 in divorce ministry, this doesn’t seem to have changed much at all. The focus must be on repairing the relationship to a point of civility – in my situation the visitation became pretty open-ended – also a difficult proposition following the pain and bitterness engendered in divorces but much more easily accomplished than the time consuming and incredibly expensive custody battle.

  • Peggy

    Thoughtful post/comments on a very complex issue….

  • ~Kim

    Hi Taylor! I saw through Mark’s facebook that you wrote this article and was of course interested because as you know I am divorced. I have a few things to add from the personal experience of being a divorced mom…

    When Alison’s dad and I divorced she was 2 years old. We didn’t have much to our name except that we shared a precious daughter together. So the only thing we needed a lawyer for was to process the paperwork and figure out custody. Though the split was hard like any divorce is, we were determined not to go through the courts to figure out our custody arrangement. Though I had bad feelings towards Alison’s dad because of what happened between the 2 of us, I knew he was her dad and she needed him in her life. My relationship with him did not have anything to do with her relationship with him. They loved each other and because I loved my daughter I knew I had to do what it took to keep her dad in her life the best I could.

    When we divorced and opted out of a custody arrangement with the courts, we were required through our county to take a parenting class and the judge told everyone in our group that we were the best people to be making decisions for our child because obviously we knew our child better than they ever would. But my lawyer made sure to give me his card and contact info because he told me more than likely I would be back seeking his counsel in a custody agreement. But that was 12 years ago and he hasn’t seen me yet.

    We agreed between the 2 of us that she would go to his place one week, my place one week. After a while we found that very hard on all 3 of us so we went to a 3 days at one place, 4 days at the other, and vice versa. This worked for awhile while she was young, but pretty soon we had school to consider. And both of us knew she needed a permanent home. She needed the same place to lay her head every night and obviously it had to be with only one of us.

    Soon she started staying with me through the week and then she would go to his place every weekend. But as she got older this also got harder with her activities and friends. Right now we are doing a typical schedule that many other kids from divorced families have. He has her every other weekend and on holidays. But we do have a lot of flexibility with each other’s schedules. Any extra days she has off of school, she typically spends it with him. I feel we have gained trust with each other through the years in regards to us knowing that time with her in both of our hearts is important and a priority.

    I share all this only as an example that even in the best of situations, everyone suffers. Her dad has shared with me just recently that he feels like he is not a part of her life like he wants to be. That he struggles with feeling like I am taking her away from him because she spends most of her days here. Even though that is and never would be my intention. She needs her dad. He plays such a vital role in her life and she loves him. But divorce has taken her away from him and the time he would like to have with her.

    The greatest thing that has impacted and redeemed this situation is the Redeemer Himself. Shortly after our divorce I was saved and God my Father softened my heart to forgive and seek forgiveness from both Alison and her dad in deeper ways. But we now live with the consequences. All I can do now is remember the role her dad plays in her life and how that is very much an example of the role my heavenly Father plays in my life. I would never want to take that away from my child. Her earthly father, whether he knows it or not, will impact greatly how she sees her heavenly Father. So I want to do everything I can to cultivate that relationship. This is very hard to do in a fallen world that produces things like divorce. But it reminds me again why I need a Savior in the first place.

  • Taylor George

    Thanks for sharing Kim. I have long admired your relationship with your babies daddy. Wow, you are truely to be commended for resisting the urge to stick it to your ex, and to think instead of the bigger pictures. Seriously, way to go, and as a child of divorced parents I can tell you this is so huge in your child’s psyche and in her ability to relate to God as father.

    One other thing (for anyone still listening). Posting this topic on my facebook was difficult. I knew it would cost me some friendships from within a certain crowd. I began to think about that pretty hard. Then it dawned on me. The attack on dad’s in custody situations is really a cultural re-imaging of God. They want to take away ‘God as Father’ and replace it with something different. Maybe they had abusive dad’s or maybe the secular left just hates the created order. I’m not entirely sure why on all this but something is so very bizarre about ripping dad’s from their kids.

  • Denise

    Thanks for your interesting post. I have lots of thoughts on this–more than I can or should write about in a comments section.

    I am trained as an attorney and at one time my caseload was mostly domestic (divorce). I’m also a pastor. There is no question that children are the big losers in a divorce…even when a divorce is necessary. But I have just the opposite read as you on the issue you reference in your last comment about the “God as Father” question. (As an aside: the general push for inclusive language is about toppling the Father image idolatry…not about eliminating it…though there are some who argue for that just as there are some who argue for horrible, misogynistic reads of the Bible–which is to say…I think you’re painting with too broad a brush in your comments on the inclusive language issue).

    My experience as an attorney was that good judges were generally trying to do what was in the best interests of the child…and the best interests of the child usually involve least disruption…which usually involves the heavier weight of time with the primary caregiver for that child’s life…which in our country is generally women. That then shifts the discussion to workplace and societal norms and expectations. If I was a dad who wanted to make sure I had a long term relationship with my child and wanted to fare well custody-wise if I was ever in divorce court I would be pushing for governmental reform that makes it easier for BOTH parents to spend time with children in the earliest years of their lives. The New York Times recently had a powerful article about the effect of those policy changes in Sweden:

    To my mind, the push to decenter the “God as Father” image and to welcome wider images of God into the mix is a piece with this. When we absolutize anything we create a distorted idolatry. And when that happens with God we are trying to put God in a box. If we are created in the image of God then we also image who we are called to be in distorted ways…and that plays out in our cultural norms and expectations…and in our laws. The strength of the feminine and the nurturing aspect of the masculine will more easily be part of the mix if we widen our language and invite broader images/pictures of who God is and who we are called to be.

    Of course, things are shifting. In more and more homes in the U.S. the female earns more than a male–even with the reality of the continuing male/female wage gap. Unfortunately, in many cases this means that people are being hired to care for children rather than both parents sharing more. For the sharing to work there needs to be more workplace flexibility.

    And this all assumes a lot about economic strata, etc. Much of my work was in the area of poverty law. And when there is very little money it is not pretty for ANYONE. Hard to double the bills and keep the income the same for any family going through divorce…often impossible for people with very little money. So the end result is often mother and children living below the poverty guidelines, dad sometimes living with even less and behind the eight-ball because of growing interest/arrears on child support payments.

    Divorce is much more of systemic reality in our culture than we wish to admit.

  • Denise

    One other thing I intended to mention…

    Split custody was once seen as a panacea in divorce situations since kids really DO need time with both parents. And in some situations it works–though the downside as mentioned above is that in most cases it is the kids who get shuttled back and forth and don’t have one “home-base”. It is the rare set of parents who are willing to establish one space where the kids stay and then as parents shuttle in and out of that space since people who have gone through a divorce generally have a hard time sharing space.

    Which leads to the point I wanted to make. Joint custody is not the great panacea in most cases because it requires making decisions together in a way that does not increase stress/anxiety for the kids. And most people who are gettin a divorce are not high on the scale of good joint-decision-makers…even well-intentioned, “nice” people. In fact, well intentioned “nice” people are sometimes the worst at it because they are out of touch with their own anger and therefore are passive-aggressive (always late with the kids for pick-up and drop-off; “forgetting” agreements and appointments; late with support check, etc.). It is also a way for parents who have not emotionally divorced (even if they have legally divorced) to remain connected to one another–through conflict/disagreement over arrangements with the kids. When I was practicing law (which was awhile ago) judges were more and more leaning toward one decisionmaker (one person with legal custody) to protect the children from the stress and anxiety of all that–unless the parents could PROVE they could make good decisions together without stressing out the kids. The burden was on the parents–where it should be!

    When I was practicing the “Custody Bible” for the most thoughtful judges was Garrity and Burris which maps out suggested custody arrangements but children’s biological age, ability of parents to co-parent, and attachment/primary caretaking history:

    The book is no doubt dated now…but the principles behind it are still in play in good domestic relations practices.