Divorce and Custody

Divorce and Custody April 17, 2012

My friend, Tony Jones, testified in court. The issue, in part, is percentage of custody; the issue, at its heart, are laws that favor mothers and discriminate against fathers. Here’s some of Tony’s post:

Last month, I testified in front of the Judiciary and Public Safety Committee of the Minnesota Senate. I spoke in favor of Bill 1402, which aims to bring presumed equality to shared parenting time in divorced families. Currently, the presumption in Minnesota — that is, the guidelines that are recommended for family court judges to follow — is that one parent gets the majority (75%) of parenting time, and the other parent gets the rest. As you might guess, the 75% almost always goes to the mother. (I won’t comment on my own custody arrangement; negotiations are ongoing.)

This bill has been bouncing around the Capitol for over a decade. One intrepid woman,Molly Olson, has kept the bill alive. She — and I — believe that it is in the best interests of children that the default presumption should be 50-50. The bill makes all sorts of exceptions, for unfit parents and other extenuating circumstances.

By the time I testified, the bill had basically been gutted. The percentage was dropped from 50% to 35%. Nevertheless, I testified that the Court system has habituated a outdated notion that mothers are always better to be the primary parent than fathers. I argued that when the judicial branch of our government is too habituated in certain patterns, the legislative branch needs to step in and set things right.

I acknowledged that it’s odd for a white man to be claiming discrimination. Even so, that’s what this is.

But here’s the funny thing: Democrats are unanimously against this bill, and Republicans are for it. You know who else is against it?

Divorce lawyers. Even my own lawyer is against it.


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  • Mark Edward

    The bias of the system is so archaic and idiotic. My brother nearly got screwed over by it as well, even when his ex-wife admitted to him that she had planned all along to find a guy, seduce him, get pregnant, get married to him, then break it off (which she did via adultery one year after they got married), all so she could be like her friends and say she had a kid and got married. Ironically, my brother didn’t bring any of this up because he didn’t think it was right to take someone’s kid away. He just wanted equal custody, which the court was about ready to hand to the mother on a silver platter.

  • Joe Canner

    Since the current law does not actually discriminate against men (it just says that each parent is entitled to at least 25% custody), perhaps the original intention was to provide a more consistent environment for the children. So, while I sympathize with Jones (and other divorced fathers), it sounds like there needs to be a better understanding of what is best for the kids in terms of the time division.

  • Joe Canner

    It suddenly dawned on me why divorce lawyers are against the bill (I’m a little slow), which also explains why Democrats are against it. So, I am quite willing to admit that the original motives for the current law are not as honorable as I proposed previously. However, having seen a few 50-50 custody arrangements in action, I remain concerned as to whether they are in the best interest of the child. Perhaps there is research on this topic.

  • I argued with my seminary classmates on occasion that equality requires not only more participation of women in traditional male roles (which is often the focus of gender equality conversations) but more men participating in traditional female roles like child rearing. Yet again, another law that is implemented based on gender stereotypes and the gender biases of patriarchy. As Joe notes, (though I’d like to hear what dawned on him), there is a concern about whether 50-50 custody arrangements are in the best interest of the child. Wouldn’t it be nice if custody issues were determined based on who was best suited to and willing to provide and care for the children regardless or artificial societal restraints? It is a tragedy when primary custody is awarded to an unfit parent regardless of what gender they are! I would be curious to see a study on how custody awards have changed in the last 50 years.

  • Joe Canner

    Elizabeth, based on the fact that divorce lawyers are against the bill (and favor the current law), it doesn’t take much cynicism to realize that 50-50 custody arrangements would render a lawyer’s services unnecessary to argue for which parent should have the greater custody. That said, I’m sure lawyers could still find ways to make themselves useful, because they would still be entitled to question parental fitness and they could also question the logistics of a 50-50 arrangement.*

    *The current law reads: “In the absence of other evidence, there is a rebuttable presumption that a parent is entitled to receive at least 25 percent of the parenting time for the child.” (emphasis mine) There’s still plenty enough weasel words in the law to allow courts to make adjustments based on specific circumstances, regardless of what the percentage actually is. So, the decision remains with the courts, who seem to be most of the problem already with their gender-biased custody decisions.

  • Andrew

    Custody arrangements need to be determined on a family-by-family / season-by-season basis. This certainly isn’t the most expedient process, but as a youth pastor talking to students and parents alike, I have seen enough cases when 75-90% custody is in the child’s best interest. The constant switching of living spaces and friendship circles destroys children. The weekly traveling and ‘put on face’ to try to hold things together and not rock the boat is brutal. In addition to all this, one of the adults may be unfit to parent (abusive / disfunctional / unhealthy lifestyle / a jack@$$ – pardon me, but there’s no better way of saying that).

    The best (Christian) resource on this is The Children of Divorce by Andrew Root. Pastors need to read it.

  • T


    I don’t do family law, but I’m pretty sure in Florida the term has changed from “custody” to “shared parental responsibility.” The reasoning behind the change was multifaceted, but one reason was to change the focus. Parents are going to have “shared parental responsibility” going forward regardless of where the child(ren) spend a majority of nights in a given week or month. I doubt Florida was the first or only state to make that change.

    I’m saddened to hear that Tony is divorced and has to deal with this at all personally.

  • I don’t have the stats, but I’ve heard the shared custody thing has it’s own set of tensions from the child’s perspective (imagine having your scenery change 50% of the time).

    If it were me, and my relationship with my wife was good, and of course if I lived geographically close, then percentages tend to become a little irrelevant. But totally relevant in situations especially where the relationship between the divorcees is anti-social.

  • Prodigal Daughter

    What an awful thing to have to fight for. I think equal shared parenting responsibilities should be worked toward if both parents are equally fit; I don’t think that custody laws should be skewed in favor of women just bc they are women. I’ve seen some pretty crappy mothering. That said, I think that any couple (or father) who wishes to share 50/50 should be required to live within a close proximity of his/her ex. I have a tennis partner who is divorced and her kids are HS aged. Her ex also lives in our development. Our neighborhood is large enough that she doesn’t run into her ex much and the kids get to stay in the same in the same town with their own friends when they go to live with the other parent. I know an arrangement like this isn’t always feasible, but people are going to push for this, there has to be something they give up in order to do what’s best for the kids.

  • Monicalyn

    Having been in a 50/50 shared parenting arrangement before (as a stepmother) I have to say that it rarely works well for either parent but most especially for the children. Joint custody means that you have equal say in all decisions made concerning your children (as it should be) but shared parenting time is different than that. The logistics of shuttling kids and their increasingly complex schedules back and forth is so very difficult and hard on them. I have to agree with the Minnesota recommendations that children have a “home base,” though certainly it should not automatically be the mother’s household.

  • In Florida, the term used now is “Time Sharing” as if the parents were sharing a condo! And this is often accompanied by shared parental responsibility which has been in place for many years (I divorced in 1993 and it was used then). 50/50 is extremely difficult for the children. One week at Mom’s and going t school. One week at Dad’s and going to school. It might work better if parents could get along and not argue over who brings the forgotten book bag, etc., but since they are divorced, I’m sure there was a reason behind it. As a counselor, I deal with many families (and children) who are very confused by 50/50 arrangements. What I am seeing more and more in my practice (and I confess that many of my clients are dealing with domestic abuse) is that the pendulum is swinging the other way, trying to be “over-fair” to the fathers and mothers are losing their rights to time with their children. I have had too many cases lately where the father is given primary custody (remember they are abusive) and it is held against the mother that she was a stay a t home Mom raising her children. In one case, the mother raised her children for 16 years and home schooled and the father never assisted. But HE was the better custodial parent? While having shared custody, he continually manipulated the children to hate their mother. Sad, very sad.
    My point is there are always two sides and no law can be just in every situation. Each situation needs to be evaluated on its own merits and any law that is designed to make a perfect case is flawed in its premise. And the children are the ones who suffer the most.

  • Tom F.

    I think the question may need to be examined a bit. Are we asking what is most fair for the father? Are we asking what is best for the children? Both of these questions seem to be a bit individualistic, as though what is best for one is independent of the other.

    Is it good for children to have consistency? Clearly. Is it good for children to have a father who feels recognized by society as being equally involved in raising his children. Clearly.

    I don’t know how to answer the question specifically, other than to point out that setting the needs of the father against the needs of the children is a false choice: what is (truly) good for the father is also good for his children.

  • My concern is for professing Christians involved in these matters. Why are Christians getting divorced and wrecking their families in the first place? If Christian couples worked on their marriages the way most of them do their ministries and careers, we wouldn’t be near as inclined to get involved in these legal matters of the state–where the courts must play God.

    I’m usually more patient when I disagree with others, but this whole thing is absolutely pathetic. It’s a terrible mockery of the King Jesus Gospel. If it’s a “Christian” couple, I say give the children to the parent who refused to quit on their family and the Lord. If they both agreed to quit, tell the children that their parents have decided to love themselves more than the Lord or their own kids. Mommy and daddy are dangerous people, home-wreckers, domestic terrorists! Give the kids to willing grandparents or a faithful Christian couple in the church–at least until their parents put an end to their selfishness, get right with the Lord, and are restored to fellowship.

  • Taylor G

    Is it possible the courts like to perpetuate the inequality because the profit from the whole situation? The courts manage child support payments, and correct me if I’m wrong, but don’t they also take a cut?

    Reform is the area custody equity is so over due it’s almost insane.

  • Taylor G

    And the inequality makes me so enraged, that apparently I cannot put forth proper grammar either.

  • Jeremy

    David: Christians are human just like everyone else and what you propose would leave a shattered landscape of broken relationships and broken people. You’re proposing destroying families even MORE than they have already been and having the church actively participate in parental alienation. This is NOT a healthy model for dealing with children in terrible situations.

  • Jeremy

    Taylor, I think it’s more the assumption that mothers are the primary caregiver and usually the most capable of meeting the child’s needs. The problem isn’t that this isn’t necessarily true (I tend to agree, all things being equal), it’s that the system favors women by default so much that men are usually just along for the ride unless they engage in some very, very heavy character assassination.

  • JohnM


    David is just scraping away the sugar coating we’ve applied in our imitation of the surrounding culture. Christians are human, but not just like everyone else, not if there is anything to the gospel.

  • Brandon Smith

    “Wow!” to what David Flowers said above. Personally, as a child of divorce, and a step parent, none by sheer will, I think that what David says is true, but does not take into account the sheer fact that we live in 2012, not 1960. It is really bizarre that folks can’t stay married or that they have the belief that they have “rights” when it comes to children as if these rights were inalienable or maybe even the same as “rights” to property. King Solomon’s suggestion to split the child in half comes to mind.

    In my circumstance, my boy (stepson) has never lived with his father, a father who has never had the ability to house him either, yet he has to go and visit him. My internal reaction to this has been akin to an obligatory Psalm (I consistently find my self praying for his father’s demise, even though I know that can’t be exactly healthy! 🙂 Mostly, the concern is that his father is pretty low class, harsh, and very much so not of the same mind set and value set. But having faced this for nine years now, I have watched my son grow into a boy that has a lot of discernment in the face of the adversity (yes, I am not one who believes in Father Rights for this particular case).

    In essence though, I hate to be harsh, but if you find your self in this circumstance and situation, I think it’s crucial to accept responsibility (even if you don’t bear the brunt of it), and to realize that the way the law favors the mother is really a throw back to days gone by. The trouble is, no matter what decade, if the state is involved in these matters, something has gone drastically wrong.

  • Brandon Smith

    And on another thought, 50/50 is terrible for many children. It would be horrific if my son had to spend 50% of his time with his father. It would be like spending 50% of his time in a subdivision, nice home, with two professionals, and then 50% of his time with two folks in a trailer park.

  • randy

    After looking this in the face, I just see a lot of brokenness. A fallen state too overwhelmed by the numbers to actually determine what’s best for the children once this is filed in front of them (the state is necessarily involved and it only takes one to file) and must make decisions based on gross numbers and historical assumptions, a church too broken (in every instance I’ve seen) to stand up and do anything at all except sigh and proclaim that it’s a tragedy, friends that generally don’t know what to say, parents too broken by sin to see clearly and most of all, children – broken by circumstances that are utterly out of their hands.

  • So David, according to you I, as a Christian, should have stayed in a violent abusive marriage and because I did not stay and sought a divorce and my “Christian” X did not want the divorce, he should have been given custody of our 3 sons who at the time were 7, 9 and 11? By the way he was also an alcoholic? And I worked for19 years trying to “fix” abroken marriae that could not be fixed. A very naive comment. And not the example of Jesus. Also, he would not pay his measely child support so yes, I did have to go to court and no, they did not get a percentage.

    And yes, the divorce rate for Christians is way too high, it equals the secular world. But why is that? Did you know the divorce rate for non-abused women is 15% but the divorce rate for abused women is 75%? Want to cut down on divorce, let’s get to the heart of the matter. Something most are not willing to do, especially in the church. One last comment…. what breaks the marriage bond is not the divorce, it is the disrespectful treatment that is perpetrated in all too many cases. Love, honor and cherish means just that. If it happened more often, there would be less disrespect and abuse.

  • and yes Randy, too much brokenness inside and outside of marriages. Sad, very sad.

  • Paul


    I don’t know that this law would mandate 50/50 split. Rather I think it would be the default position unless other things factored in. Your situation sounds like outside factors (inability to house your step-son) would change the result. I’m a child of a divorce and I hardly ever saw my father, but again this was the result of some specific situational issues. In other words, if both parents are capable, why shouldn’t they both be allowed to parent? That is how I read the change to the law that is being proposed.

  • DRT

    I see the wisdom in giving one parent the majority of custody because it makes sense for the kids to have a home base. But what an unfortunate and difficult circumstance that puts parents who are both firmly attached to their children in.

    One parent should sacrifice for the kids….though I am certain that could be infuriating and cause near insanity in some situations.

  • DRT

    David, I agree with Kate, this is much more complicated that the simplistic judgment you put down on people.

  • Sean P. Nelson

    Thank you Tom F… Well said.. “what is (truly) good for the father is also good for his children.”

    I’m on the tail end of a 2 year custody battle. The mother has tried to all but completely take mug children away, along for nothing more than only allowing me every other Friday and Saturday… Period. I am a very involved parent, sharing many responsibilities, homework, field trips, classroom visits and volunteering etc. But in South Carolina I am assumed to be nothing more than a source of income. My children woulda love to spend equal time with each parent and have expressed such. But from the very outset of the divorce process it was assumed that their mother was the primary care giver.

    What’s best for the children is for parents to quit getting divorced. However, is that isn’t going to change we MUST stop acting like alienating the children from one parent (e.g. Only 25% of their time spent with their father) is somehow providing “stability.” That thinking is asinine. It destroys opportunity for developing healthy thriving relationships that are integral to a childs development and destroys the fathers role that he has a right to in his child life.

    Maybe if we quit thinking that it’s OK for children to grow up with limited parental relationships we woulda work harder at learning and developing schedules and routines that make 50/50 situations as advantageous as possible to all involved in the destruction of a family (aka divorce).

    I intentionally chose my occupation and working environment (home office, etc.) Just so I could be more involved as a father with my children. The time that had ben striped away from me by a calloused and ambivalent court system is nothing short of tyranny… It’s wrong and it needs to be righted.

  • Sean P. Nelson

    sorry for all the typos… Typing on a mobile phone and autocorrect isn’t being very helpful. 🙁

  • TJJ

    Family law is a very difficult area of the law and one that the law is not really equipped to deal with well. Most do the best they can. The current parenting time laws are similar in most states, and reflect the fact that most children do better with one primary care parent. Mothers do get the presumption of primary care for young and elementary children. However, that presumption can be rebutted, and Family Law Courts can shift the parenting time pursuant to the evidence, including parenting studies by Court appointed 3rd parties.

    Family Law Courts see and deal with families all day long, all year long. What those Courts see tend to confirm the presumption that most often mothers are the better primary parent for younger children, and that very often (not always, but often) the reason fathers seek 50/50 parenting has more to do with reducing or avoiding child support than anything else. Family Law Courts know this too. Most family law attorneys will tell you the same thing. It is not a criticism, it is just a fact.

    Aso, one needs to also realize that the court does not even need to be the one setting parenting time. The parties can reach their own parenting time agreements, either through attorney negotiations, or through a court appointed mediator. And many do, and this is really the best outcome. But of course many do not.

    I am sorry to see Tony Jones going through a dissolution and parenting time litigation. As I do with most parents with children. It is a hard/difficult thing, no one wins, some just lose less. Dissolution is emotionally, spiritually, financially painful and devastating. We should all seek to have it happen less, but we should be slow to judge/criticize, and quicker to listen and show mercy and grace to those who have/are going through this. IMHO

  • Juniper

    It is a fact in the judicial system that fathers and mothers are viewed differently and viewed differently. In family law, the laws don’t generally specifically favor one gender, but attitudes can drive decisions given the fact finder is a judge as (at least in the state I’m in) there are no jury trials in family law matters. In probate and juvenile dependency courts, that is very different and in many jurisdictions there are laws that make it difficult for unmarried non-custodial father to even establish paternity. (I have to go to seminars on this every so often.) Changing the legal presumptions might help. Having the kids have to talk to the judge to say what they want (not a mediator or child custody evaluator) might help. (A primary complaint of older foster children is that no one ever listened to them.) Educating the system participants might help as you’d find that there are a lot of suppositions floating around in a family law court with not a whole lot of evidence to back them up. All of this is complicated by the fact that most people in family court represent themselves because of the cost of my kind. These are just a few thoughts. I certainly don’t have any answers. I’m very sorry for anyone who has to go through this.

  • Thanks, Scot, for posting. And thanks, everyone, for the kind comments.

    As Juniper says above, the system is tilted toward mothers. Everyone acknowledges that, even the people who run the system. And when bureaucratic systems get entrenched in their ways, it’s very difficult to change them.

    As for those of you who think that kids need a “home base,” and those who argue that kids move more in a 50-50 situation, neither is true. Most current research confirms that far more important to the development of a child is a healthy, ongoing relationship with both parents. And nothing — nothing! — can substitute for time in this regard.

  • CGC

    Hi Everyone,
    It seems to me that churches do nothing to little in discipling families and families discipling their children. The statistics I have seen is the divorce rate is higher among Christians than those who are not. Divorce is probably crippling and is just as much a huge part of the decline in the North American Church as churches often lose all parties (or at least most of the family) when a divorce happens. Then you have others who leave churches because the church not only doesn’t know what marriage is, it doesn’t know how to handle divorce either. People choose sides if both people decide to stay in the church for a while and more families end up leaving the church. Then the State is given all power to decide what is best for families and people wonder “What’s wrong with this picture?”

    PS – I was at a Wheaton College Patristic conference where Tony Jones showed a picture of his beautiful family to the audience. May God bring healing to all His children!

  • TJJ

    Tony jones wrote:

    “Most current research confirms that far more important to the development of a child is a healthy, ongoing relationship with both parents. And nothing — nothing! — can substitute for time in this regard.”

    I toally agree with your statement. And all parenting time statutes I am aware of have that same recognition written right into the law. But that does not therefore mean or equate to 50/50 parenting. Even in intact families/marriages, children do not get 50/50 parenting in most cases. And with all the childcare going on, many children get more “parenting time” with care givers these days, than with their parents, who often both work long hours.

    Also, the current research I have read on parenting time issues indicates that 50/50 parenting, where children live with both parents in equal segments of time, usually does not work well and is detrimental to children for reasons to many to enumerate now, unless……the parents live relatively close to each other, and the parents have a good/positive/contructive relationship with each other. If there is research that shows 50/50 parenting is bette rfor children, I would indeed be interested to be referred to it.

    Family courts do tend to favor mothers in terms of custodial parenting time (the 75%). But not because they wake up each morning and say let’s be unfair to fathers, or because they are ignortant of these issues and just do what they always do because they have always done it so. They are aware of these issues. Attorneys, conferences, etc., bring it up all the time. mothers tend to end up with 75% of parenting time for younger children becaue that is what the evidence presented tends to support, that is what outside studies and court appointed thearpists tend to recommend, and that is what experience has shown Family Courts, in their daily immersion in these issues, that most often that is in fact in the best interests of the children.

    But the bottom line is: the biggest factor in achieving the “best interests of the child” in parenting time is not the Family Law Magistrate/Judge, but the parents. They know their own children better than a court or Judge or mediator or court appointed parenting time evaluator could or will ever know. The parents love the children more than these others can or ever will. The parents are in the best position to make these decisions and work out parenting time. The fact that the parents who know and love their children so well cannot do that be agreement and must throw the decision to the Judge, mediator, etc., that is the real failure. Family Law courts will step in and make the decision if they must, but they should not be harshly criticized for not getting it perfect, when the parents have abdicated their role and responsibility and given it over to strangers to decide such things.

    I realize it takes two willing parents to make that happen. I judge or criticize no one going through dissolution or parenting litigation. There is always too much no 3rd partys knows or can ever know to make such judgments. Peace, Grace, Mercy, Support to all in these situations.

  • Monicalyn

    I actually don’t think Juniper said that the system is tilted toward mothers. One could argue that the system is tilted toward fathers who abandon their children. For example, I have a court order stating I was supposed to have been receiving child support for the past 15 years, yet my state won’t help me enforce it since I don’t collect ADC. (Only if I were taking welfare payments would the state care enough to enforce support.) Of course none of it is “fair;” do courts even try for that anymore? TJJ speaks the truth with a loving spirit (no family has equal parenting time), and I have tried to as well, simply speaking from years of experience parenting and step-parenting in a week on / week off manner. It was a horrible arrangement that did a great disservice to the children, who ended it as soon as they were old enough to say “no way!” I wish the best to everyone in this situation. Fortunately, the joy of parenting lasts long past those years when they are young, and no matter how limited one parent’s time may be for a season kids always know who loves them and will gravitate there eventually!

  • Nick Mackison

    Kate, your situation sounds terrible. I’m so sorry you went through that. I don’t think David’s comments were targeted at someone with a situation like yours. I’m pretty sure he was aiming his comments at those who abuse Christ’s divorce concessions (which you obviously didn’t). Will pray for you. Keep looking to Jesus.

  • Elizabeth

    David’s comment rubbed me the wrong way and Kate, my heart goes out to you.
    I work at a DV shelter and let me tell you, these women work HARD to fix thier abusive relationships and the fact of the matter is that the abused partner is the LAST person who can save or change the relationship.

    You’re right, Kate, people ignore the underlying issue. PLUS by saying, oh, he didn’t mean THAT kind of relationship, stigmatizes and marginalizes abuse even more.

    It is a victory when they are free. This is a terrible message to be blanketing the “divorce” issue with. “Try harder” is NOT what is helpful. All that does is makes getting out full of guilt and failure.

  • Thanks, Elizabeth, Nick and DRT. I am out and have been for quite a while and have a wonderful loving husband who not only IS a Christian but acts like one. My sons are now grown men and we are doing well. My ministry was born out of my experiences and I thank God that he has used my journey to bring healing to others, both as a counselor and speaker. Nick, the problem with blanket statements such as David’s is that there are never quailifications spelled out and frankly, I’m not sure David would make that qualification (he can correct me if I am wrong). And as Elizabeth has said, it keeps women like me in situations like that for far too long. If I wasn’t a Christian, I probably would have left sooner. Our words are drawn swords (Ps 55) and we must be careful how we us them.

  • RD

    As I begin the early stages of divorce, I am a little scared of what is on the other side for me and my kids. I married the love of my life 8 years ago. I worshiped the relationship and the relationship with her children from her previous marriage. I have read many of the articles and find myself still asking why has it come to this. I will tell you why. My faith was not as strong as my wife’s faith. I am a Christian and grew up going to Church, remember the felt characters in Sunday school. I too am a product of divorce. However, my mother is a very strong women and stayed with a very mean man for the kids. I have come to the realization that I let my wife down along with myself and children. I always go back in my mind saying, “I took the ultimate challenge and adopted her daughters” that should account for something. I can hear the dead silence from some saying, “What was he thinking”. I love my girls as if I was there when they were born. I also have a son who keeps me in line. Though I am a good father I think it is better that all the kids have some normalcy. I can’t pretend now that I have always been there for the kids for sports, outdoor stuff, etc… The system is broken and needs to be fixed but not at the cost of the kids. I have a sickening feeling in my stomach when I am around her. Is it because I let her down or because I let myself down.