Some Thoughts on Child Custody

Some Thoughts on Child Custody January 14, 2013

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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