Father’s Rights
For years there has been a growing backlash against the model states use to decide who gets to raise children and how much the other parent will pay in support when there is a divorce. Many fathers come away from the experience feeling like they were the presumed looser from the start, left seeing their kids on off weekends and paying support that leaves them financial disabled, unable to live a normal life. Sometimes these movements focus on the amount of money the support laws require for the support of their kids. More recently, there has been a movement of fathers that calls into question where the justice system views mothers and fathers in the same light when making custody determinations.
Now, the Equal Protection Clause of the United States Constitution and similar provisions in most state constitutions prevents laws to explicitly favor mothers over fathers, a distinction based on the parent’s sex. So the laws are written in a gender neutral manner. Reading the statutes, you will not see any basis for the claimed unfairness. The results, though, show that mothers get full custody of their children far more often than fathers do.
From my experience, I cannot say that the system is truly blind to the sex of the parents. I have heard child development experts and even a few judges give the age old “little children should be with their mothers” opinion. But in defense of the system, the results generally are more a reflection of our society, where mothers continue to carry the bulk of the weight in caring for kids, while fathers generally are able to earn more in the workplace than their female colleagues, than a reflection of the unfairness of the justice system.
The standard used in most states is “the best interests of the child.” Meaning that the court evaluates the determination of custody from the perspective of what will benefit the children the most. Especially for younger children, this involves determining which parent has been the “primary care-giver” and awarding custody to this parent, to maintain the status quo and give the children stability. Most experts will state that shuttling children from home to home on a weekly, or monthly, or daily basis in a “split” custody arrangement presents too much disruption in the child’s life, particularly on school nights, when the child needs stability and routine to get the basics of nutrition, homework, and sleep done in a reliable fashion.
The fathers’ groups focus on the right to parent, and wonder why, if the rights of the parents are equal in the eyes of the law, how come the courts do not equally divide the parenting time?
In truth, states have responded to these complaints. Indiana’s parenting time guidelines now effect an equal split of the non-school time (half the weekends, half the summer, and half the holiday time) between the parents, but still show a preference for the kids being at one parent’s home on school nights (i.e., the bulk of the year).
Indiana also recently revised its support guidelines to provide additional reductions in support for non-custodial parents who have the kids at their homes more frequently (which has created a reluctance to permit additional parenting time for many custodial parents. A new problem for parents and practitioners). I have not seen any studies of the impact of this change, but in my experience, we are seeing a lowering of support obligations for parents who stay involved in their kids lives.
The next frontier for the father’s rights groups is litigation. A father in Pennsylvania has brought a federal suit against the state seeking class certification for a claim that the state system unfairly results in the impairment of parent’s right to parent their children. Legislation is being put forth as well to “fix” the system:
Stevenson’s bill would set a “presumptive standard” that physical custody should be split 50-50 unless one parent can prove that there’s a good reason for a different arrangement. Legal custody, which gives both parents a say in issues such as religion, health and education, can be shared equally even when physical custody is not.
But many of the experts say legislating a 50-50 standard is a bad idea.
“This is one more attempt to say that every case that goes into court should start with the assumption that it’s 50-50 time - even if they haven’t been putting in 50-50 time before that,” said Lynne Gold-Bikin, a family law attorney and past chair of the American Bar Association’s family law section. “And why do they want 50-50 (custody)? Some people want it because they know they can reduce the support they pay to their wives” as a result.
One of the main groups behind the movement is the Indiana Civil Rights Counsel, which estimates that over 40 such lawsuits are on file around the country.
