Some Thoughts on Child Custody

Blogger Sheldon recently responded to my post on why my son Bobby needs feminism too, and while he praised the basic core of my post, he added this concern:

She talks about patriarchy being causing problems for men, but I notice this problem has been overlooked (whether intentionally or unintentionally, I don’t know).

The divorce/family court system in the US very rarely gives full custody to men, or at the very least a decent shared custody agreement, very likely because of this perception that it is not “normal” for men to raise children. (Some courts are trying to promote decent shared custody agreements that are good for the children, and fair to both parents, but these open minded judges/courts are hard to find). This creates major problems.

Not only is the child deprived of a proper relationship with one parent, but where the children go, the family’s income and financial assets go as well. Always giving the children to the mother (except for extreme cases where the mother can be considered a danger to herself, such as addiction or server mental instability/violent behavior, or abuse), leaves fathers without their children, and financially broke.

I am not against child support payments by any means, if someone has a child, they should be emotionally involved in their child’s life, as well as provide for them financially. The objection I have is the extreme the court systems in the US have in their gender bias. It don’t feel it is right for fathers to be treated the way they are by the current court system, it needs to change.

I notice the way Libby Anne uses the word “feminism” on her blog, from reading the article I referenced earlier, and previous posts by her, it’s clear she feels that feminism should mean gender equality, and she does seem to genuinely want gender equality. I congratulate her for supporting gender equality (though I feel she doesn’t often go far enough in support of it), and I agree with her on gender issues quite often. However, when it comes to problems such as the divorce court system, I rarely hear anything from feminists on this issue.

Why not? If feminism is supposed to be about gender equality, where is the outrage about this issue? Is it not gender discrimination?

Sheldon asks why I didn’t mention child custody in my piece, and suggests that the omission might have been intentional. It wasn’t. I wasn’t setting out to make a comprehensive list of the ways that feminism promises to make the world better for men as well as for women. I didn’t mention the draft either, for example.

So let’s talk for a moment about child custody and about how this issue fits in with my earlier post.

First, Sheldon says “Some courts are trying to promote decent shared custody agreements that are good for the children, and fair to both parents, but these open minded judges/courts are hard to find.” Sheldon does not provide any evidence for this assertion, so I did some digging. According to Cornell University Law School’s Legal Information Institute, custody law is carried out as follows:

In cases of divorce, the court of jurisdiction for the divorce proceedings also determines child custody arrangements. Under the common statutory provision, if the spouses have children together while married, the parents have joint guardianship over that child and the parental rights are equal. Each parent has an equal right to the custody of the child when they separate.

When determining the home in which to place the child, the court strives to reach a decision in “the best interests of the child.” A decision in “the best interests of the child” requires considering the wishes of the child’s parents, the wishes of the child, and the child’s relationship with each of the parents, siblings, other persons who may substantially impact the child’s best interests, the child’s comfort in his home, school, and community, and the mental and physical health of the involved individuals.

And here is what Nolo, which has as its goal making the law accessible to the common person, has to say on the issue:

Are courts more likely to award custody to mothers than to fathers?

In the past, most states provided that custody of children of “tender years” (about five and under) had to be awarded to the mother when parents divorced. In most states, this rule has either been rejected entirely or relegated to the role of tie-breaker if two otherwise fit parents request custody of their preschool children. No state now requires that a child be awarded to the mother without regard to the fitness of both parents. Most states require their courts to determine custody on the basis of what’s in the children’s best interests, without regard to the parent’s gender.

As it turns out, many divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because the parents agree that the mother has more time, a greater inclination, or a better understanding of the children’s daily needs. But it can also be because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody.

If you are a father and want to ask the court for physical custody, do not let gender stereotypes stop you. If both you and the mother work full-time, and the kids have after-school care, you may be on equal footing. In fact, if you have more flexible hours than the mother, you could have a leg up. In any event, the judge will look at what’s best for the children. So if you think that you should have primary custody and that you can persuade the judge that it’s in the kids’ best interests, you should go ahead and ask for custody. If you present yourself as willing and able to parent, it will go a long way towards challenging any lingering prejudice against you as a father.

In other words, when a couple gets a divorce, the presumption is that each parent has an equal right to the custody of any children they have. That’s the starting point. There is no longer a presumption in the custody law that the mother should get the child. Rather, the presumption is joint guardianship and equal parental rights. I can’t emphasize this enough, because I think there’s a lot of misinformation out there about it.

Why, then, do so many more women have primary custody than men?

Well first of all, women are much more likely than are men to ask for primary custody. There is a huge problem with arguing that because women get custody much more often than men do, there is something underhanded going on. The reality is that men are less likely than women to ask for, or want, primary custody of their children. There are all sorts of reasons for this, and one that I would point out is that if a woman doesn’t want primary custody, she is often portrayed as a bad mom, but if a dad opts instead to let the mother have the kids the majority of the time and simply ask for visitation rights, no one gets down on him for being a bad father. So there’s lots going on here. But back to the point regarding gender bias in the courts on the custody issue, the question has to be not “what percentage of men have primary custody?” but rather “what percentage of men who seek primary custody get it?” And the articles above suggest that they can and do.

Now, I tried to find statistics on who usually wins when custody is contested, and had some trouble finding good data. I found a study of Massachusetts back in 1990 that found that when custody was contested, men usually ended up with it, but I also read assertions to the contrary on other websites, though without evidence accompanying them. I read assertions that when custody was contested, women were disadvantaged because they generally were less able to afford a lawyer, and assertions that when custody was contested, women were more likely to get it because women were generally more involved in their children’s care prior to divorce. the reality is that custody disputes can quickly become really nasty, with each party fighting tooth and nail for the kids and not everyone playing fairly. Everyone has their anecdotes about people they knew. But even if I could find statistics showing that women do win custody battles more often than men, that still doesn’t prove there is foul play without taking into consideration the standards used to asses who should be awarded custody when it is dispute.

Rather than automatically giving each couple who divorces equal time with the kids (a week here, a week there, etc.), courts start with the assumption that both parents have an equal right to the custody of their children and then use what is called the “best interests of the child” standard, as mentioned above. Things like abuse or mental instability are taken into account, along with the desire to help children have as much continuity and security in their lives as possible. Was one parent a stay at home parent? Was one parent more involved in raising the children than the other? Those things are taken into account. The goal here is to move away from a contest between the parents and towards a conversation about what is best for the child.

Given that most mothers do more of the childcare than their husbands and that there are large numbers of women who are stay at home mothers and comparatively few who are stay at home fathers, well, mothers often have a leg up when arguing that awarding them primary custody is in the best interests of the child. But it’s not because of their biology. It’s because they’re the ones who are there, the ones who are most invested, the ones who have been doing the parenting. As the websites I quoted from above suggest, this doesn’t mean a man can’t win primary custody, it just means that if a man wants primary custody he has to show that he is an involved parent and that awarding him primary custody is in his children’s best interests.

In the end, whether it’s because men don’t ask for it or because they ask and aren’t awarded it , the reason women are more likely to have primary custody of their children than are men is that we still haven’t completely kicked the patriarchal assumption that women are uniquely suited to raise children, and that that’s their role. Today, women do more of the child rearing and men do less. Women are expected to do more of the child rearing and men are expected to do less. A woman who gives up primary custody of her children is treated as though she had rejected her very nature and every aspect of human decency, and far too many men walk away from their children and play no part in helping raise them. Sheldon hit on this when he mentioned “this perception that it is not “normal” for men to raise children.” But it’s more than just that presumption. It’s also the current reality that results from it, a reality in which women do more of the childcare and invest more in raising their children than do men.

Could we argue that the best interest of the child standard as currently implied is wrong, and that it shouldn’t matter how involved a parent is or whether one of the parents is a stay at home parent? I suppose we could, but this conversation shouldn’t be about gender discrimination but rather about what is best for the child. And if someone wants to argue that a father who comes home after his kids are in bed each evening and travels every other weekend should be given primary custody rather than his stay at home mom wife, we need to be willing to make the same argument when the genders are reversed and it’s a mother who comes home after the kids are in bed every day and is away every other weekend who wants primary custody over her stay at home dad husband. In other words, that conversation shouldn’t be about gender, it should be about what is, or is not, in the child’s best interests.

But in my view, the answer lies not in challenging the best interests of the child standard but rather in challenging our cultural ideas about gender and parenting. And quite simply, this sort of issue was the entire point of my post on why my son Bobby needs feminism too. The point was that we need to work toward a world where men are just as involved in child rearing as women are, a world where if a couple decides that one of them should stay at home, it’s not automatically the wife, a world where women are not asked “how do you have time to raise children and have a career” without men being asked the same. As I’ve said so very many times, we need to move away from motherhood and toward parenthood. I am firmly convinced that there is nothing about women that makes us automatically more necessary to our children than men are. And, I should add, children seem to be doing just fine in families with two mothers, or two fathers. Part of getting away from gender roles and towards individuality means not automatically assuming that people who identify as female are naturally more important to to the raising of children than are people who identify as male. Ideally, in a world where gender roles are finally laid to rest and and child rearing is truly shared, we would find that men are awarded primary custody after divorces just as often as women are. And I think we’re making progress: many men today are increasingly more involved in child rearing than in the past, for example, and stay at home fatherhood is becoming more accepted.

With the amount of time feminists spends emphasizing the importance of making child rearing into a gender neutral thing, something spouses share equally, and with the amount of time feminists spend arguing against the “double shift,” I am honestly not sure where the idea that feminists want the children to always go to their mothers comes from. For me, the two things are intimately tied – if we want to get rid of the idea that women are the ones supposed to do most of the childcare, that means getting rid of any lingering presumption that children need mothers more than they need fathers. Could you find an individual feminist out there who disagrees with me? Maybe, but if there’s someone out there arguing that women should automatically get the children because women are made for motherhood and that’s what children need, well, that person isn’t a feminist.

Finally, Sheldon asks why he doesn’t hear more from feminists on this issue. I would suggest that part of it is that the courts have already adopted a gender neutral standard and that the way to move toward more fathers being awarded primary custody is not make some new policy (for instance, setting up some sort of artificial standard where we award everyone 50/50 custody whether they want it or not and whether it’s best for the children or not), but rather to work toward breaking down patriarchal gender roles, including the idea that women’s primary role is as mother, nurturer, and caregiver. And, well, that’s something feminists talk about a lot. But I’m more than open to further thoughts on this!

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About Libby Anne

Libby Anne grew up in a large evangelical homeschool family highly involved in the Christian Right. College turned her world upside down, and she is today an atheist, a feminist, and a progressive. She blogs about leaving religion, her experience with the Christian Patriarchy and Quiverfull movements, the detrimental effects of the "purity culture," the contradictions of conservative politics, and the importance of feminism.

  • M

    I’ll try to find the studies/evidence later, but I remember going over this in one of my gender studies classes. Contrary to Sheldon’s assertion about men becoming broke through child care and/or alimony payments, when couples divorce the man’s standard of living generally goes up and the woman’s generally goes down. There’s a lot of factors going in to this- men tend to earn more than women, child support payments in no way offset half the cost of raising a child so the primary custodian (more often the mother) also gains a significant financial burden, and if the mother was a SAHM she often can’t find a good job. When men remarry, they can ask for (and sometimes receive) permission to reduce their child support payments so they can take care of their new spouses and upcoming children, placing even more financial burden on the primary custodian.

    • Lana

      If you find the link, let me know. I’ll try researching this on my own, too. Thanks for mentioning this.

    • Rachel Marcy (Bix)

      I saw a recent British study to that effect. There can definitely be financial advantages to being the non-custodial parent.

    • luckyducky

      Economic Inequities in Child Support: The Role of Gender, Journal of Divorce and Remarriage (who knew?). Kate Stirling & Thomas Aldrich

      Despite their increasing numbers, divorced families with a noncustodial mother and a custodial father have received scant research attention. Our study attempts to provide some initial insight into the economic status of these families. Examining the child support obligation, we find that noncustodial mothers face a much smaller award than noncustodial fathers, both in terms of the absolute dollar amount of the award and as a percentage of the obligor’s income. This potential inequity, however, is offset by the fact that—despite the relatively lower child support obligation—noncustodial mothers experience a larger decline in their standard of living than do custodial fathers and their children. Thus although previous research has found that custodial mothers bear the brunt of familial dissolution, this conclusion does not apply to custodial fathers. Rather, mothers—regardless of custodial status—fare more poorly than fathers.

      • Christine

        Ooooh, a study where they did real math on the numbers! *swoons* (Me, bitter at a lack of in-depth statistical analysis in supposedly scientific studies? Why yes.)

      • M

        Huzzah! I looked but since graduating, I’ve lost all my JSTOR access which makes it a lot harder to find anything.

  • saramaimon

    i have heard that child support is less likely to be demanded of women than men but dont know if thats accuraate. esp since ive heard it mostly from divorced fathers

    • Rosie

      This is anecdote, not data, but a friend of mine with two children by two different women had primary custody of one child. He paid child support to one ex, and received it from the other.

    • Basketcase

      My borthers ex has left him with their daughter, and pays no child support, and refuses to talk about finalising a custody agreement. Unfortunately, she is getting away with it. Sigh.

  • Serena

    Mine is a long story and I’m not sure I’m up to detailing it eloquently right now, but I’m a woman, I was legally married and had a baby. Shortly after the birth, CPS swooped into my life declaring “emotional neglect” and “bonding issues” and insinuations that I was not feeding my son. I have had lifetime bipolar disorder and depression, and was indeed in the throes of (both pre- and) postpartum depression. My son was certainly fed regularly but I was unable to breastfeed. After around 8 months of my son being shipped around town in foster homes, and me having to get my parents to drive me downtown twice a week (I had/have no car of my own) to have scheduled “visitation” with him, I decided I wanted him out of foster care immediately; everything had gone too far and I felt like we were just an excuse to have people ‘in the system’. And frankly I wanted out of their stupid ‘programs’ that never once addressed my depression and often chided me for not being organized enough. So one day I went to court ‘mediation’ and said basically “Look if I leave the family, will you return him to his father?” (We were still married and living together at the time -though I was obviously no longer happy.) To which the response was -not in so many words of course – yes, give him up for adoption and you’re out of the picture.
    So I did, and long story short, sometime later the next year I received the divorce papers (thankfully, as I was not smart enough to initiate the process myself) which included a condition that I must pay child support. Included as well was a letter from my ex-husband apologizing for it, acknowledging that he makes far more money than me and that he requested to the courts that I not be charged, but was told it was mandatory. So I ended up having to pay only $25 per month in child support. I leave it up to the reader to judge whether that’s appropriate or not; what can I do? My depression is still untreated, I don’t work, I don’t have money, and even when I did work my best year was $11k…
    All in all, I feel as if in some ways I was railroaded, and in some ways I was indeed granted a privilege based on my status as a woman. If the roles were reversed, would my ex-husband have been made to only pay $25 a month in child support?
    One last thing: I’m not even sure of the legality of charging me child support when I have no legal rights to custody (or even contact, as far as I know) – I admit I am woefully uninformed on even my own case. As far as I know my son was legally adopted by my husband’s mother at the time and now lives with my ex-husband with the wife and family he has developed since that time. What legal custody changes might have occurred since then, I have no idea.
    I’m not sure I had a point, I just wanted to provide a perspective from a woman who has had to deal with custody issues, and was not at all elevated to some goddess/mother/default authority when it came to the Government versus Me.

    • Noelle

      if all your legal parental rights are indeed terminated, you should not have to pay anything. Now, by signing the initial agreement, you did agree to pay something. You would need help from a lawyer to have all the correct papers in order if you did wish to persue that route.

      • Lucreza Borgia

        She might have signed TPR papers, but the court might not have approved because there is another parent in the picture. Courts are loathe to voluntarily TPR one parent when the other parent is fit and willing because the state doesn’t want to be on the hook completely for any monies that might be paid out to the custodial parent. I know in my situation, the mother has signed TPR but the judge has yet to approve it because my husband is still trying for custody as the non-offending parent.

    • Sheldon

      My sympathies for what you had to go through, Serena.

      I have to wonder how much of your experience with the court had to do with misunderstanding/bigotry about mental illness that is so prevalent in our culture. It’s something that I experienced personally.

      I have depression, and I have been seriously questioned about whether or not I am a high functioning autistic. (I have a hard time relating to and understanding people, as well as expressing emotion). It’s something that I haven’t been tested for, I show a lot of signs for it, but I’m not going to say for sure if I have it until I get confirmation from a psychiatrist.

      It’s frustrating the way some people look down on me because of the way I act, or if I can’t understand them, and there’s many people that deny that mental illness is even real.

      When my fundamentalist family found out about my depression, they said it was due to “guilt”, and “not having a right relationship with god”. I proved them wrong, my depression got better, not worse after I finally gave up Christianity.

      • Serena

        Thank you, I feel I should clarify a few things even though nobody has brought them up yet – CPS became involved (as far as I understand it) due to a vaccination visit i brought my son to in which the nurse seemed worried about his weight (he was around 3 months old). I can only assume she or some representative of the office placed the call. After several months in foster homes and apparently thorough hospital diagnostics, it was discovered that my son had an allergy to wheat and this was why he was underweight – not any neglect whatsoever. In retrospect it has always seemed like something I should have fought back harder against, but I was too cowed by the domineering women involved in my case and certainly intimidated by the court setting – an environment in which I had never had (and -knock on wood- have yet to have) any experience in. Especially in the whirlwind of it all; boy was I freaked out.
        So I suppose if anyone was wondering, it was emphasized to me that there was no criminal charges being pointed at me, no accusations of physical abuse. He was underweight because he wasn’t absorbing nutrients, the poor kid :/ I really am sorry I didn’t find that out sooner.
        There’s a second thing I’d like to mention in the interest of being honest (which, as you will see, is demonstrated to be a bad idea). I was and still am a marijuana user. At the time that all this happened, I hadn’t smoked any since the day I’d found out I was pregnant nearly 2 years before. Because I don’t tend to lie, I was honest about my previous use. This admittance turned all the focus onto my marijuana use (oddly, no forced pee-tests, twice a week color-code TASK bullshit ordered for my husband) and on top of all that, I’m told I must enroll in ‘group counseling’. YAY! I think, finally I get some fucking counseling!! I’ll get to learn how to cope!! …Nope, wrong again, Bob. It’s substance abuse class. A pothead who cried in front of an infant one too many times, in a room with Bob Saget laughing ‘I sucked dick for crack!’.
        I think the prejudice I was effected by most is the “drug users deserve constant scrutiny” mindset, followed by “poor people can’t do anything”, followed by “girls can’t make their own choices”.
        Thank you again and forgive me for hijacking this post as it’s gone way off topic.
        OT: In my case, the courts and CPS put far far less pressure on my husband than on me when it came to custody issues. As for the divorce, I was not present in any proceedings, merely signed papers that I havent re-read in 5 years.

  • luckyducky

    This sort of came up for me personally — though not in the context of divorce — I was considering a job that would have required a move and my husband and I to live apart for a year. There was some very deep soul searching about which parent the kids should live with for the year. I was physically ill at the thought of leaving them but rationally it made a lot of sense for him to have them (there were rational reasons for me to take them too but I ended up not taking the job for other reasons and we never had to do the math).

    I suspect that a lot of the reason why I struggled with the thought of leaving them so much was because of the social expectation that the mom being the caretaker — *I* would be lacking as a mom if I didn’t take them. I never got the impression that my husband struggled with the same sort of identity issues that I was. He was much more in the rational realm of what made the most sense and it was never a question of him having to take on a lot of new parenting tasks — to some degree or another, he does meals, bath and bed time, homework, play dates, birthday parties, etc. already.

    The day that we had our first conversation about our “custody” arrangement, I happened to have drinks with friends and the issue of dads and (lack of) caretaking came up before I shared the job prospect with them. I was completely taken aback at how unusual my quandary was, even among educated, middle class, professional professed feminists. Not one of the other women questioned that, without some exceptional circumstances, the children would go with the mom if they were to live apart from their SO and they were surprised we were even debating where the kids would go.

    I was surprised at the level of discomfort I experience. Though my dad did not do egalitarian parenting, he was definitely the more immediately available parent because my mom worked nights and had a long commute and he worked standard hours blocks from school and home. For example, while my husband has learned some of basic long hair styling, my dad tied my hair back with electrical tape when it got in the way once and I *never* remember him helping me brush it and have the school pictures as evidence ;). Despite this, I think they both did a good job.

  • Anon for this time

    I practice law as a lawyer appointed to represent children in custody disputes. There’s a whole host of things I’m happy to email back and forth with you on, Libby, if you want. I just wanted to note that what the laws are for custody/standards are highly specific to each state.

    • Sheldon

      Hi, anon, if you would like, can you send those links/materials to me as well? I would like to know more.

      My e-mail is on my blog, the contact me page.

  • Anonymouse

    It’s a common MRA fantasy that women get married to men for the sole reason of having children, then divorcing the men and living high off the hog on child support. This is just a fantasy, however; as a leading-edge Gen X’er (that is, born at the very beginning of what’s known as Gen X), I’ve worked with and known so many divorced people, and to a one, the woman’s life was much, much harder after divorce. I’ve also witnessed men crowing with delight that one of their children turned 18, and the father would be “off the hook” in paying another cent toward the child’s support–as if children aged 18 and one day no longer needed food or clothing or any sort of support whatsoever. That always falls to the mother to provide.

    • Sheldon

      I’m not sure if you are trying to imply I am an MRA. If you are, I challenge you to read my blog, you’ll see that I most definitely am not one. I have written many posts on how patriarchal religious groups, like an organization my sister fell into, the Independent Fundamental Baptists, not only tend to be very sexist, but highly abusive to women and children as well.

      • Libby Anne

        I don’t’ think she’s trying to imply that, just that when MRAs argue that women actually have it all and that men are the marginalized and discriminated against group, custody is one of the first things they bring up (along with the draft). The bizarre thing (besides their not seeing the many ways that men are advantaged and women disadvantaged in our society) is that they can’t seem to see that things like custody imbalances and the draft stem from patriarchy, not from feminism (which they see as some sort of evil man-hating female supremicist movement.) There’s a good summary of this here. Anyway, I think Anonymouse was replying to the role of the custody question in the MRA fantasy world, not trying to imply that you are an MRA.

    • Sheldon

      Thanks, Libby Anne. I’m usually better at judging context and tone online that I am in person, but I’m still not great at it sometimes.

    • sylvia_rachel

      That sounds exactly like my late father. Except he was even more of an ass about it: after having paid child-support to my older sister and brother (his kids with wife #2) through grad school, he cut me off when I graduated from high school and my brother, who was having some issues and had temporarily dropped out, on his 18th birthday, purely to spite our mom (wife #3). Thanks a lot, dad.

  • Cass_m

    When people wonder why feminism is still important they seem forget that laws don’t really change people’s attitudes. Child custody is a case in point. Although custody is based on best interests of the child, it’s a strong man who will fight for custody and a strong woman who will give custody to the father and deal with the societal backlash. I knew a woman who did leave her marriage and daughter to move west. She was very open about it but I think it was easier because she was building a life ‘from scratch’.

  • Andrew G.

    The big problems with the “best interests of the child” standard are:

    1. It’s very vulnerable to subjective interpretation. Pervasive myths about gender roles can lead to it being applied unequally in practice, regardless of how detailed the applicable guidelines are.

    This could possibly be addressed by fixing the myths, by working to collect actual relevant data in as unbiased a fashion as possible, and so on, rather than changing the standard, so this is the easy one.

    2. The hard one: it represents a slippery slope with no Schelling fence. That is to say, there is no general agreement on how far it is possible to go before some obviously unjust action can’t be justified by appealing to it. (There are some really shocking examples of how far courts have taken this.)

    Related to this is the fact that it works so well as a thought-stopper – how could anyone consider that any other factor matters? Obviously anyone arguing against it is in the wrong, and can be dismissed by just reciting the mantra…

  • Karen

    I know a couple of anecdotes on this issue, where Mom got custody and did her best to turn kid(s) against Dad, usually successfully. I am also well aware that anecdotes are not data. Alas, there is no courtroom remedy for being an asshole, and women struggling to support a family partially on inadequate child-support payments are often not their ex’s best advocates.

    • Sheldon

      “I am also well aware that anecdotes are not data.”

      Me too, and Libby Anne did point that out (and I’m glad she did, and took the time to research the issue). I was basing my post mostly off of what I have seen in my community, and the personal experiences of people that I have known that have went through divorce.

  • Christine

    I think that custody cases are actually a great example of how men need feminism too. There are a lot of great parallels to women’s wages: yes, men and women are equal on paper, but…

    Maybe the difference is because women aren’t asking for higher wages/men aren’t asking for custody. Maybe it’s because they don’t feel they can ask. Maybe it’s because they’re treated differently when they do. I’d be careful saying that “oh, well the law says X, of course men & women are treated equally, they just need to ask.” in any case, because it can come across as blaming the victims. (I’m aware that you aren’t saying it’s the men’s fault, that you’re aware changes are needed to make men able to ask.)

    “Best interest of the child” is also overly vague. I mean we can all agree that ought to give an advantage when the child is under a year. But, of course, the official recommendation is for children to be breastfed for at least two years. I don’t, however, know anyone who made it to two years who stopped before three. Should the mother of a three-year-old nurseling get preference? Bear in mind that one woman I know, had her case gone to court (where her ex could have gotten full custody) would likely have worked to keep her child nursing so that she had a “right” to more custody (that sort of behaviour is why her ex would get custody if he went to court).

    I think that a more feminist judge is less likely to say “well a mother gives better care” and weigh the arguments more reasonably for “best interest”. Feminism also helps in that the parents are more likely to be sharing the parenting equally before a split. (Although splits are less likely to happen, so this may be moot). I read a piece in Macleans that said for a lot of fathers whose marriages are breaking down, the advice is to start creating a paper trail of involvement. If the mother is the one who always signs the report card, goes to parent-teacher interviews, etc, then she can much more easily make a case that she’s the parent who takes care of the kids & therefore should have custody. (This was foreign to me when I heard it – my mom was a SAHM, took most of the care of us, but on paper you would not have been able to tell, because they did all that stuff together.)

  • TheSeravy

    What I can’t stand is the token demand for custody rights. Some people, men and women, will fight for custody or complain about not getting their fair share of rights when in reality, they are less than capable of taking care of them. Even then, I question whether some parents even want the kids. But asking for them is the moral thing to do as well as complaining about it when you don’t get them. It is always assumed people with children, want them. Not necessarily. And let’s not forget the cases where one parent just walks out. Disappears.

    To begin with, if stupid people aren’t allowed to have kids, a lot of the custody drama and ugliness could be avoided all together. And there is a good portion of people who want/have kids for all the wrong reasons.

  • Lucreza Borgia

    As others here have stated, “best interest” is such a nebulous legal standard that it’s woefully undefined and almost completely based on the biases of the presiding judge. Yet the law is carefully defined regarding when a parent’s rights can be terminated. The laws vary from state to state with some states not recognizing anything but sole-custody.

    Anecdotal stuff…a friend of mine in Wisconsin has been battling his ex for years. She spent the first 4 years of their marriage battling her ex husband and making it so that he would just disappear. She is now doing this to him (She married again and had another child. Meanwhile she pushed my friend to get a vasectomy) and the way the case goes is totally dependent on which commissioner hears the case. The last time custody was re-evaluated, the commissioner declared that my friend wasn’t doing anything wrong…but gave more time to the ex anyways because he deemed that the ex had their “best interest” at heart more than him! This same commissioner told my friend that if he didn’t stop fighting in court for his rights that “one of you guys needs to disappear.” Oh and there are no transcripts of this because the court here does not deem it necessary to record custody hearings.

    Meanwhile, my husband has been fighting Missouri for 2.5 years for custody of his daughter. She was taken for neglect and abuse at 16 months and my husband had not yet gained paternity. She went to foster care and CPS did absolutely nothing to reunify father and daughter. In fact, they just admitted in an email that they had completely failed to do their job! Alas, since we go to court Feb. 1st, we are told that they cannot do anything at this point. The foster parents are asking for custody and even though my husband had absolutely nothing to do with why his daughter was abused and that there are no grounds for TPR, he has to fight them in court. How do you argue “best interest” when it’s not legally defined? A judge can take a child and keep the child from a parent solely based on “best interest”.

  • Sheldon

    Wow. I’m both surprised and highly honored that you both saw my post and mentioned it. I’ve been a reader of your blog for the last several months, and enjoy reading it , especially your posts about your past fundamentalist life (I’m also a former fundamentalist myself).

    First of all, my sincerest apologies, if you felt that I was saying that you deliberately left out the issue out of your post, I’ll say those statements were poorly worded, and I shouldn’t have included them in my post.

    I do in fact think that courts are generally biased against men in custody battles (you seem to disagree), but you are in fact right that it’s due to the perception, a hangover from the patriarchal past, if you will, of gender roles. What I wonder is if men don’t fight for custody often because of the perception that they don’t have a chance at all of winning (maybe it would be different if they actually fought for custody more often)

    Despite all the progress that has been made, I agree with you that we are still stuck in the sexist mindset of rigid gender roles, we think that only women are capable of raising children, and that’s it’s preferable for them to stay home and take care of children instead of work outside the home, which hurts women in work force , and in life in general .There’s absolutely nothing wrong with being a stay at home mother ( I was raised by one myself), but it’s sexist to think that women should be limited only or primarily to that role in life, it should be up to her. The point that I was trying to make (and I think I failed at), is that this idea hurts BOTH women and men.

    I know this may be a long shot, but would you like the opportunity to write about this issue for my blog? You have no idea how honored I would be if you did, I’m a big admirer of you and your writing. (I hope that didn’t sound too stalkerish, lol)

    • Sheldon

      Sorry again, Libby Anne, read the post again, I misunderstood what you meant, you do agree there is a gender imbalance in custody issues. (That will teach me to read a post throughly several times before commenting….)

  • Sheldon

    Also, some courts are actually trying to correct this custody imbalance, and I applaud them for their forward thinking. The laws regarding custody are supposed to be gender neutral in theory, but that’s not often how it ends up in practice.

  • Noelle

    I’d have to see real numbers to believe the non-custodial parent goes broke paying child support while the custodial parent lives the life of ease business. When my parents divorced in the late 70s, my brother and I went to live with mom and dad had visitation rights and paid child support. They both remarried other people, and mom and step-dad went on to have 3 more kids. Mom died when I was 16, and my brother and I went back to live with dad.

    It was the years we lived with mom that we lived in poverty. She only had a high school education. Dad had a degree in engineering. Step-dad worked, but only jobs that didn’t pay much. Having extra kids on board certainly put a financial toll on us too. These were the years I didn’t get enough to eat, added up cavities because of no dental care (which dad was very frustrated about when he found out because we were on his dental insurance), was afraid to tell anyone I couldn’t see the blackboard because glasses cost a lot, etc. Dad was in a much better financial situation. When we went to live with him there were no worries about money.

    I asked them at some point if they fought over custody when we were little, because I’d seen it like that on the TV. But no. They had agreed we’d go with mom. She was the more invested parent. Knowing them both, I’d have to say they were right. My mother was the better parent and I would’ve been very distraught if I hadn’t been allowed to stay with her.

    When my husband’s parents divorced, he was a teenager. He chose to stay with dad so he could live in the same house and finish out his high school years in the same school.

    • Lucreza Borgia

      Do you think your mom didn’t let your father know what was going on? Especially given that your dental work would have been covered?

      • Noelle

        It’s all guesswork with mom dead over 20 years, but I think she was too sick to coordinate everything like she’d done before. She was diagnosed with cancer at 38 and died at 40. And she was very sick during that time. I was the oldest of 6 children in the house, and it was chaotic at the best of times. That last year was the closest to Hell I’d ever come.

        I also wonder if my dad never bothered to send her an insurance card. I say this because when I was in college and still on his insurance but old enough to make my own appointments, he took for friggin’ ever to get me copies of up to date cards to bring in. I don’t know why. Absentmindedness? And that was with me calling and reminding him. I don’t know that mom would’ve called him that much. I’d also learned to not ask for stuff that cost money when we were poor, and didn’t realize I was covered on another insurance. So I kept small toothaches to myself. It wasn’t until I went to live with him and we did our first dental appointment there that he knew my mouth was full of cavities.

        I think he knew we weren’t well off, but I don’t know that he knew just how bad it was. He’d ask sometimes if we wanted to come live with him, but I loved my mother too much. And seeing that I only had her for 16 years, I am thankful for every day.

  • Lucreza Borgia

    One area where women have much more power than men is with adoption. Especially in Utah. Tho this is only an issue for unmarried men.

  • ki sarita

    Milk, Milk, Milk. Yes there is a biological basis why women are better equipped to care for very young children. Or at least have a head start on men.
    Of course this had little to do with custody disputes, just saying how the wheels got (and still get) rolling.

  • Rachel Marcy (Bix)

    I also think we shouldn’t assume that shared custody is automatically the best for the kids, even when both parents are fit. This is anecdotal, but my friend’s parents divorced when he and his sister were quite young, and they had shared custody. His father was a very successful and very busy businessman, and his mother was a stay at home mom. When they were at his dad’s house, they spent most of their time with a nanny, and it seems like it was a really fraught situation, especially for his younger sister. It’s a real shame they weren’t able to spend more time with their dad, especially as he died shortly afterward, and I’m sure their dad really wished he could spend more time with his kids too. But perhaps it would have been better for them to live full-time with their mom, and for their dad to have visitation when he could really devote himself to spending quality time with his kids. As it was, I think their predominant memories of living with their dad are a big scary house, a nanny they didn’t like, and a father who was constantly involved in business. And when you’re a very young child, that’s hard to understand. I know this anecdote isn’t necessarily widely applicable, but I think there’s different options for keeping both parents involved in their children’s lives, and it really depends on the individual situation.

  • anonymous

    When I left my ex, the kids went with me. There was a custody hearing and I lost. The counselor said “it’s obvious to me that the mother considers this to be a job and the father loves the kids”. I appealed it and lost because the father had a M-F/weekends and holidays off, the mother worked many weekends/holidays, therefore the kids would have more parental contact with the father. Although still distasteful, this was a reason I could, at least, accept.
    My standard of living plummeted, because 1/3 of my take home pay now went to child support. My standard of living also plummeted, because the father did exactly what I thought he would….he was great for about 6 months, but couldn’t keep it up (because he did precious little of the child care while we were together). Raising kids is hard work and he was all about the lazy. That meant when the kids needed something, they detoured around him and came to me. *upload sarcasm font* Of course it was just a job for me. *end sarcasm font* I would not allow finances to let my kids go w/o the things they needed so for the next 13 years, I not only paid him but I also went without myself and bought the kids clothes, gifts for his birthday/fathers day/friends birthdays/christmas, etc.
    At 18, the eldest left there & came to live with me. That INCREASED my child support. By about $100 a month. At 16.5 the youngest moved in here too. It was a long, hard road with the fallout still not tallied total today, as the kids got no help at all from the father with college costs. One is living here, and the other 2 still get financial help from me because their school loans are obscene.
    I am/was lucky, I had a good job and benefits paid (mostly) by my employer, if I had to work at a minimum wage/p-t job, the outcome for me and/or the kids might have been considerably different.

  • Rob F

    A few years ago, there was a SCOTUS case, Flores-Villar v. United States. The primary issue was whether a law that allows a citizen father to pass US Citizenship to his overseas-born child if he was present in the US for five years before his child’s birth. The analogous period for mothers is only one year. This is (to me) obvious sex discrimination.

    If you go to SCOTUSblog you’ll see a large number of amici curiae briefs. You’ll find out that a substantial number of feminist organizations (such as the Southwest Women’s Law Center, Feminist Majority Foundation, California Women’s Law Center) all filed or joined briefs in support of striking the law down. In other words, feminists take sexism against everyone seriously, and fully support eliminating sexism against both men and women.

    And how many of those supposed “fathers’ rights organizations” or “MRA’s” actually supported striking down the law and eliminating sexism against men? The only one that seems to be one is the National Latino Fatherhood and Family Institute.

    From this is pretty much goes without saying that MRA’s and FRO’s aren’t really concerned with ending sexism against men, but rather about advancing misogyny and bashing feminism and women.

  • Angela

    You bring up some good points, as do many of the commenters. I agree we need to re-evaluate the patriarchal biases in our society but when it comes to custody hearings I feel that the largest issue is that children are still treated more like property than human beings. It amazes me that when courts and parents attempt to hash out “the best interests of the children” that children are rarely consulted or included in any way. No, I don’t think kids should have the final say and I think the level of involvement definitely needs to take age and maturity into account. I also know that what kids want may not actually be what’s best. They may, for example, want to live with the “fun” parent even if that parent is very irresponsible and addicted to drugs. Kids do have plenty of legitimate gripes regarding custody though (such being forced to give up an extracurricular activity that conflicts with visitation or getting worn out from constantly traveling between houses) and I think it’s a shame that their opinions are rarely even taken into account. Men may be discriminated against but at they have a voice in the matter. In my opinion the logical starting point for custody hearings would be to have a court-appointed advocate speak to the children involved (especially when it comes to older children or teens) and go from there.

    • anonymous

      Angela wrote: It amazes me that when courts and parents attempt to hash out “the best interests of the children” that children are rarely consulted or included in any way. No, I don’t think kids should have the final say and I think the level of involvement definitely needs to take age and maturity into account.

      Angela the original custody counselor DID in fact speak to my 8 year old and his 6 year old sister. The 8 year old told the counselor he wanted to stay with daddy because he had apple trees. The 6 year old refused to speak to him.
      Children should only be consulted AFTER they have the maturity to understand what it is they are speaking about. I’m not sure that happens until they are in their mid 20′s.

      • Angela

        Sorry, I really didn’t mean to imply that the burden of formulating an arrangement should rest on the kids. I’m kind of shocked that a professional counselor would ask a kid such a loaded question as “Which parent would you rather live with?” Rather more appropriate questions for a child that age would be “Who usually helps you when you are scared or sick?” “Do you feel safe with both parents?” “What’s the most frustrating thing for you about having your parents live apart?” “Does all the traveling back and forth interfere with homework/practices/getting together with friends?”

        My point was that even if we erase the gender bias in the courts that children are still being used as pawns in bitter power struggles and that (at least in my state) custody is generally determined without any input from the kids themselves.

  • Padraig

    I do not have children (yet), but have been fired from positions in childcare because of my gender. The mothers didn’t like having a man play with their children all day. They didn’t understand why a guy would want to run around and wipe noses and change diapers and be jumped on and climbed on. I love children and would never want them to come to harm. When I read about children dying in the paper, like in Connecticut, it terrifies me. It makes me think of all my nieces and nephews, all of the children I’ve babysat, standing in the place of the dead. I pray for their safety and protection, and for the safety of all children.

  • Sophie

    My mum had severe postnatal depression after my birth and failed to bond with me. My dad quit his job and took care of me for the first 6 months of my life. He also had always been a very hands on parent with my older brother. My dad left my mother when I was 6 months old with the intention of taking my brother and me once he found a decent place to live. But when the custody hearing came around, my mum lied and said he never took care of us, that he was a drug addict and an unsuitable parent. Obviously she got custody. She then left us with childminders for most of our childhoods even though our dad was available to take care of us whilst she worked. She also allowed her boyfriend to kick both of out of the house when we were in our early teens. My mother was emotionally abusive and often neglectful. Both my older brother and I have mental health problems which do relate to the fact that we were not loved by our mother. My dad wishes he had just taken us and run rather than trust the legal system. And to be honest, I really wish he had too. So yeah ‘best interests for the child’ really worked out in my case.

    • Lucreza Borgia

      My few experiences in family court have led me to believe that it’s the only time a person has to prove accusations wrong instead of the accuser having to prove that they are right.

  • Carys Birch

    An anecdote: I’ve worked as a legal aide in family law firms in several states. In a very conservative midwestern state where I worked about ten years ago, custody went disproportionately to mothers with child support paid (and evaded) mostly by fathers. In a liberal New England state where I worked as recently as last year, it was generally close to a 50/50 split, and I saw a lot of cases where no child support was paid by either party because the children’s living and expenses were “substantially equal” already. I’m not sure if it’s the location/prevailing climate or if it’s the timing, but there is progress being made on this front, at least in some places.

  • Joseph Goldberg

    The Right Parental Alienation Lawyer:
    How Do You Know If You Have One ?
    ……………..By Joseph Goldberg………

    The chances are pretty high that you do
    not have the right lawyer for your case.
    In fact, you probably have a lawyer who
    is about to blow your case, right now.

    How sure am I ? I’d say I’m about 95%
    sure of this fact.

    I base it on my observations in hundreds
    of cases. I have watched lawyers with 25
    years of experience go down in flames. I
    have heard all of their excuses. I’ve seen
    lawyers that advertise they are experts in
    representing fathers lose. I have watched
    lawyers who claim to have the respect of
    the judge lose. I have seen them lose for
    not showing up in court. I’ve mostly seen
    them lose for showing up in court.

    I’ve seen lawyers lose because they fast -
    talked a client into believing that they
    know everything there is to know about
    parental alienation.

    I’ve seen lawyers lose because they took
    the case for a small retainer deposit, and
    a low hourly fee. I’ve seen lawyers lose
    because they have more cases than they
    can manage at any given time. I’ve seen
    lawyers lose because they said they can
    win the case without even talking about
    parental alienation.

    I’ve seen lawyers lose by referring ( in
    court ) to the term “ parental alienation
    syndrome, “ when all they should have
    talked about was the concept of parental

    I’ve seen lawyers lose because they did
    not introduce the complaint of parental
    alienation to the court in an expeditious
    manner. I’ve seen lawyers lose because
    they misused the term.
    I’ve seen lawyers lose because they did
    not know the difference between
    parental alienation, realistic estrange-
    ment and or enmeshment. They lost be -
    cause they did not know the difference
    between a pure case of alienation from
    a hybrid case of alienation.

    I’ve seen lawyers lose because they did
    not prepare their clients for testimony or
    for depositions. Nor did they know how
    to properly examine and cross examine
    the alienating parent. They did not know
    the right doctor to use for psychological
    evaluations, for treating alienation or for
    reunification counselling.

    I’ve seen lawyers lose because the client
    listened to their poor advise; because the
    lawyer did not know how to prevent and
    or change the behaviour of an alienating
    parent and because alienated children are
    overly empowered.

    I’ve seen lawyers lose because they were
    sure that they did not need the help of a
    parental alienation consultant; they were
    not familiar with social science research;
    they had no awareness of treatment for an
    alienated child.

    I’ve seen lawyers lose cases because
    they advised their clients to use the
    services of a therapist chosen by the
    alienating parent or because they
    sided with the advise of the opposing

    I’ve seen lawyers lose because they
    agreed to select a custody evaluator
    chosen by the alienating parent, or
    because of the wishes of the opposing
    lawyer, or because of the selection of
    a professional on a court roster.

    I’ve seen lawyers lose because the
    joint custody guidelines were
    breached and the lawyer did not
    expose this defect to the court. I’ve
    seen lawyers lose because of
    counter-productive, costly legal
    strategies that were ineffective,
    more often than not making matters

    I’ve seen lawyers blow the case
    because the lawyer was unprepared,
    burnt out, disorganized, argument -
    ative over issues that only wasted
    valuable court time, and for under -
    estimating the time needed for the

    I’ve seen lawyers blow the case
    because they recommended the help
    of a guardian ad litem. I’ve seen
    lawyers blow the case because they
    did not object and argue against an
    alienated child being interviewed by
    the judge.

    I’ve seen lawyers lose because of
    conflicts of interest where the lawyer
    wants to protect the local profession -
    als they need credible in other cases.

    I have seen lawyers throw their
    clients under a bus because of press -
    ure from partners within the firm
    who needed to continue doing
    business with the alienating parent
    or with one of the family members.

    I’ve seen lawyers lose because they
    know when clients have very limited
    financial resources, so it makes it
    easy to cut them loose in the middle
    of litigation.

    I’ve seen lawyers lose because they
    relied on counter-productive strat -
    egies to expedite a client’s financial

    I’ve seen lawyers lose because they
    never attempted to protect the client
    from overly reactive behaviour.

    Okay, that’s enough !!!

    The question is : Given all the
    reasons why a lawyer can and will
    lose your parental alienation case,
    how do you decide who you should
    hire in order to win ?

    The answer to this question is simple.
    You need to hire a parental alienation
    consultant. You need to hire this
    consultant and follow the advise they
    give you.

    For example, if you don’t have a
    lawyer let your consultant interview
    the lawyers in your jurisdiction and
    select the one that would work best
    with them on the case.

    I am a parental alienation consultant.
    I have worked on these types cases all
    over the United States; I’ve worked
    on these cases all over Canada, I’ve
    helped people with these cases in
    England, Australia, South Africa, and
    South America.

    In most of my cases, I’ve never met
    face to face with my clients. Never
    met face to face with their lawyers. In
    the work I do providing litigation
    support, I do not have to be local in
    order to provide my services because
    the therapeutic and legal interventions
    needed to end parental alienation are
    the same wherever the case takes me.

    Only the strategy is likely to change in
    order to obtain these interventions.

    If a lawyer goes rogue ( meaning the
    lawyer is representing you without the
    support of a parental alienation
    consultant ), brace yourself for things
    to go from bad to worse, and now that
    you know this advise, you can not
    longer blame the lawyers for mucking
    things up, you’ll have to blame your -
    self for blowing the case because you
    avoided or tried to skate away from this

    Why am I so sure of this ? Well, let me
    just say that I have heard back from
    hundreds of people saying, “ If I had
    only listened to you I would have been
    so much better off than I am today. “

    For me to say. ‘ I told you so, ‘ won’t
    change a thing for them but reporting
    it to you might make a difference in
    your case. Get a parental alienation
    consultant to help. Don’t make the
    same mistake that thousands of people
    made before you, not getting the help
    of a parental alienation consultant.

    Visit my webite at :
    and visist my Facebook page :
    Parental Alienation Consulting

  • Racquel Cousins

    This is a great article and spot on when it comes to describing the roles of each parent, at least in most circumstances, when it comes to the rearing of children in divorced households. As mentioned, many women who don’t take the role of custodial parent are looked at as being incompetent or not responsible enough to care for their kids because the norm is for them to assume that role. Each case is different and needs to be looked at as unique especially when kids are involved but the stereotype that women should most often be the custodial parent will most likely remain.