FROM THE FEBRUARY ABA JOURNAL
FAMILY LAW
DADS WANT THEIR DAY
Fathers Charge Legal Bias Toward Moms Hamstrings Them as Full-Time Parents

BY WILLIAM C. SMITH

In 1973, New York’s highest court discarded the Victorian-era presumption that mothers are the best custodial parents for young children. “The simple fact of being a mother does not, by itself, indicate a willingness or capacity to render a quality of care different than that which a father can provide,” the court said. State ex rel. Watts v. Watts, 350 N.Y.S. 2d 285.

Thirty years later, many divorced fathers believe that the family courts have still not heard this simple message. They are fighting what they perceive as an anti-father bias in custody rulings and child support awards, in the disparate treatment of “deadbeat dads” and visitation-blocking moms, in the refusal to vacate child support orders in the face of DNA evidence of nonpaternity.

Anger at the family court system has helped fuel a growing fathers’ rights movement made up of concerned fathers, Internet-based mad dad groups, media-savvy divorce lawyers, volunteer activists and professional lobbyists.

In recent years, this loosely organized movement has demonstrated its political clout in state legislatures and family courts nationwide. Fathers’ rights advocates have lobbied several states to adopt a legal preference for joint custody, pressed for stricter enforcement of noncustodial fathers’ visitation rights, and pushed for DNA paternity tests in child support proceedings.

As the fathers’ rights movement challenges the fundamentals of family law, practitioners of this once-staid discipline are striving to keep up with revised statutes, shifting case law and more father-friendly approaches in child custody and support cases.

Fathers’ rights advocates claim family courts too often discourage divorced or unwed fathers from playing a positive role in their children’s lives, thus contributing to a nationwide “crisis of fatherlessness.” They cite census data showing that nearly 25 million American children do not live with their fathers, vs. fewer than 10 million fatherless kids in 1960.

Children raised by single mothers fare poorly compared to kids raised by both parents or by single fathers, claims Warren Farrell, a doctor of political science who has become a fathers’ rights luminary. In his 2001 book, Father and Child Reunion, Farrell compiles social science data showing that children who grow up without fathers have lower I.Q. scores, more psychiatric and medical problems, a higher incidence of suicide, and a greater likelihood to use drugs and alcohol. According to Farrell, the research shows that children of divorce do best with joint custody. If that’s not possible, though, kids are generally better off with dad than mom, he says.

A child without a father is more likely to grow up into a dangerous criminal, adds Jeffrey M. Leving. The Chicago lawyer and fathers’ rights advocate cites even scarier statistics on the fate of fatherless children, who reportedly make up 72 percent of teenage murderers and 60 percent of rapists, and are 11 times more likely to exhibit violent behavior than children from two-parent homes.

Some feminists and scholars dispute this data, as well as the broad claim that fathers are essential to good child-rearing. In a 1999 article on “Deconstructing the Essential Father,” Yeshiva University psychologists Louise B. Silverstein and Carl F. Auerbach said studies of a broad range of family structures showed that children need at least one, and preferably two, responsible adult caretakers. However, they conclude that neither the caretakers’ sex nor their biological relationship to the child was as significant as “the stability of the emotional connection and the predictability of the caretaking relationship.”

‘WINNING’ THE KIDS

Through most of Anglo-American legal history, there was little custody litigation because there was nothing to fight over. Dad always got the kids. Under English and early American common law, children were regarded as paternal property.

In the mid-1800s, the Industrial Revolution swept fathers out of jobs at or near home and into factories and businesses, prompting the courts to reverse course on custody. Under the “tender years” doctrine, eventually adopted in every state, the mother was presumed to be the proper custodian, especially for young children.

Jeffrey AtkinsonIn the 1970s, this doctrine was replaced by the ostensibly gender-neutral “best interest of the child” standard. Today, only five states—Alabama, Louisiana, Mississippi, South Carolina and Tennessee—have some form of maternal preference in custody statutes or case law, says Jeffrey Atkinson, author of Modern Child Custody Practice, 2d ed., and professor at DePaul University College of Law in Chicago.

Although the U.S. Supreme Court has not ruled on maternal preferences, Atkinson believes these holdout states are on shaky constitutional ground. “A presumption that women are inherently better able to care for children than men is not a legitimate, accurate method for determining custody,” he says.

Old stereotypes die hard, though, and fathers’ rights advocates say neutral statutory language has done little to change the courts’ pro-mother leanings. Moms are granted custody in 85 percent of all cases, notes Dianna Thompson, executive director of the Washington, D.C.-based American Coalition for Fathers and Children. She says the expense of litigation and likelihood of losing discourages many dads from even fighting for custody.

However, statistics on custody awards can be deceiving, since most custody orders are uncontested or negotiated by the parties. A 1992 study of California cases showed that fathers were awarded primary or joint custody in about half of contested custody matters.

Joel BigatelSome lawyers believe the gender gap in custody awards reflects a preference for the status quo, rather than bias against fathers. “Family law is a case-by-case, judge-by-judge affair,” says Joel Bigatel, a family lawyer in Narberth, Pa. “If there’s a bias in awarding custody, it’s in favor of primary caretakers. If dad is the working parent, and mom is the stay-at-home, she generally has a leg up.”

Working fathers have the best shot at being named primary caretakers if they have flexible schedules, or if the mother is also working and the children are already in day care or school, says Bigatel.

Bigatel tells clients that if their children were doing well before the separation, judges are more apt to award custody to the primary caretaker. If the other parent (typically the father) wants to buck this trend, he should urge the court to base the custody decision on the present circumstances of a dual household and two working parents, rather than the bygone days of a single home with a stay-at-home mom, he says.

Sharon L. Corbitt of Tulsa, Okla., a former chair of the ABA’s Family Law Section, says the courts recognize that a parent who has not spent much time with the kids during the marriage is often unwilling or unable to become more deeply involved after the divorce. “History is the best indicator of the future.”

A focus on child-care history, rather than the vague “best interest of the child” standard, is the custody approach recommended in Principles of the Law of Family Dissolution (2002), the American Law Institute’s sweeping treatise on matrimonial law. If parents can’t agree on a custody arrangement, ALI proposes that the court apply an “approximation rule,” divvying up custodial responsibilities to reflect each parent’s role in child-rearing before the separation.

In contested custody cases, says Corbitt, nonprimary-caretaker parents must prove their commitment to spend more than just “quality time” with the kids. She counsels clients to keep daily logs and calendars documenting their child care duties, and keeping track of the other parent’s out-of-town trips and missed opportunities to spend time with the kids. A parent’s involvement can also be shown by signatures on report cards, notes of doctor’s visits, and nonfamily witnesses such as teachers and coaches, Corbitt says.

Fathers’ advocates argue that a judicial preference for primary caretakers is hardly an improvement on the tender years doctrine. Frustrated by what they perceive as the courts’ unfair preference for mothers in custody cases, fathers’ rights groups have convinced 11 states and the District of Columbia to declare a general presumption in favor of joint custody, with 12 other states adopting a preference for joint custody if agreed to by both parents.

Leving, who co-authored the Illinois joint custody law, says a presumption favoring parental cooperation in child-rearing discourages custody litigation by putting both parents on an equal footing.

Bigatel begs to differ. “You can’t decide custody by presumption,” he asserts. “Custody presumptions don’t contribute anything to a case-specific decision based on parenting abilities. ... A custody case should be presented on its merits, and decided according to the best interests of the child.”

COOPERATION REQUIRED

In Bigatel’s experience, the most enduring joint custody arrangements are the product of the negotiation between the parents, rather than pressure from the court.

Joint custody works best when both parties “agree [about] the benefit of significant and regular contact with both parents, agree to respect the other parent’s equal role in their children’s lives, agree that they will place the interests of the children as the primary consideration, and agree that the children will not be put in the middle of the dispute [and] coerced to choose sides,” says Bigatel.

“Consequently, the cases in which it works best are those which never see the inside of a courtroom, the key word being ‘agree,’ ” Bigatel adds.

Joint custody does not necessarily mean an equal division of the child’s time between both parents, and such a “split the baby” approach is hardly Solomonic, cautions Boston lawyer Gerald L. Nissenbaum, past president of both the International and American Academy of Matrimonial Lawyers. “When parties come to court and ask for a 50/50 sharing of time, my experience shows that over time, every one of them will come back to change it. The kids grow to hate bouncing back and forth from house to house,” he says.

Nissenbaum has found that cooperation, not clockwatching, is key to successful shared-parenting arrangements. For example, parents must have a workable schedule to transport their kids to school, after-school activities, athletic events, friends’ houses and the mall. Also, “The rules in each home need to be essentially the same” to avoid disputes on homework, curfews, bedtimes, computer use and other matters, says Nissenbaum.

Thompson dismisses the criticism that joint custody often puts children between bickering parents. To the contrary, says Thompson, the traditional system that picks one parent, usually the mother, as the sole or primary custodian fuels continuing bitterness and litigation.

“Fathers love their children as much as mothers. It’s offensive that a loving, caring father is labeled a ‘noncustodial parent,’ ” says Thompson, “And it’s outrageous to assume that you can’t ask parents to get along” for their children’s sake, she says.

Noncustodial parents are often stuck with so-called “vanilla visitation.” This boilerplate court order allows them to see their own children one weeknight, alternating weekends and holidays, and a few weeks in the summer—perhaps 50 days a year. Many fathers complain that this schedule is barely enough to remain a familiar face to their children, let alone an effective and involved parent.

“Time ... is an essential component of child-rearing,” observes Leving. “Parents and children who don’t spend a great deal of time together never become at ease with each other. Building trust and establishing effective communication become virtually impossible.”

TRADING ‘DOLLARS FOR DAYS’

Bigatel agrees that vanilla visitation does not give nearly enough time for involved fathers, but dads who have been largely absent from their kids’ day-to-day lives during the marriage have a tough time convincing judges to give them more time after the divorce. In a custody battle, a distant dad who promises to begin spending quality time with his kids has to overcome the mother’s inevitable accusation that this new-found attentiveness is just a ploy to reduce child support payments.

That’s not always a baseless charge, says Laura Morgan of Charlottesville, Va., co-chair of the Family Law Section’s Child Support Committee. Under most states’ child support guidelines, a child support award may be reduced if the noncustodial parent cares for the child for a substantial portion of the month. The prospect of lower payments prompts some fathers to seek a heftier visitation schedule than they are willing or able to maintain, she says, leaving moms with fewer dollars for more days.

On the other hand, the “dollars for days” formula may also discourage custodial mothers from agreeing to reasonable visitation, claims Henry James Koehler IV of Beverly Hills, Calif., a board member of the National Congress for Fathers and Children. “Women love their children, but they also see them as a source of living money.”

A “born-again dad” faces an uphill battle to obtain more than vanilla visitation, and should be prepared to back up his pleadings with proof of his time commitment, says Nissenbaum. “While the case is pending, he asks for time with the children. He is there for them. He offers to take the kids when the mother has to go somewhere. He promotes a good relationship between himself, and the mother and the children,” he says.

Like drunk drivers and repeat offenders, deadbeat dads are a perennial target for politicians and the press, who play up the image of a shirking father living in a luxurious mansion while his children go hungry in an unheated hovel.

Fathers’ rights advocates point out that parents who default on child support obligations seldom fit the deadbeat dad stereotype. Most aren’t really deadbeats; they’re just cash-strapped debtors with too many creditors. Many aren’t even dads. Although mothers are far less likely to be ordered to pay child support, they are statistically more prone to be delinquent. Custodial mothers receive on average about 60 percent of their support payments, while custodial fathers collect less than 48 percent.

The law is clear that a noncustodial parent’s child support duties and visitation rights are distinct, separately enforceable matters, but this demarcation is hardly self-evident to many parents. Family court dockets are clogged with dueling contempt motions against delinquent dads and visitation-denying moms.

According to family law veterans, the courts are likely to throw the book at the dads—including fines, wage garnishments and jail time—while letting moms off with a warning to respect the father’s visitation rights.

Judges are naturally reluctant to fine or imprison custodial parents for fear that these punitive measures will ultimately harm the children, says Sandy Dolowitz of Salt Lake City, co-chair of the Family Law Section’s Custody Committee. Few judges relish the prospect of locking up a mom with kids at home. One judge confessed to Dolowitz that a jail term would just make a martyr out of a mother who repeatedly barred Dolowitz’s client from seeing his kids.

The court’s reluctance to deal severely with visitation violators can leave moms feeling free to block fathers’ access to their own children. But, says Bigatel, neither outcome is foreordained. Fathers who fall behind on their payments for a good reason are almost always given the chance to catch up. “The great majority of lockups occur when there are substantial arrears without valid explanation, often combined with missed court dates.”

Also, visitation deniers don’t always get off with a slap on the wrist. Bigatel recently represented a mother who was taken from the courtroom in handcuffs after the judge found her in contempt of his visitation order. She was released within an hour but was ordered to pay her ex-husband’s legal fees related to the contempt hearing.

In the 1990s, several states enacted laws dealing specifically with visitation enforcement. Remedies include makeup visitation to compensate for lost days, bonds to be forfeited for repeat offenses, attorney fee awards, fines or imprisonment, notes Atkinson. In Michigan, those who violate visitation or child support orders may lose their driving privileges and professional licenses.

DNA AND CHILD SUPPORT

In recent years, DNA analysis has cleared criminal suspects and liberated falsely accused death row inmates. However, genetic tests could not free Carnell Smith, an engineer in Decatur, Ga., from a court order requiring him to pay support for another man’s child.

After shelling out $40,000 in child support over 10 years for the daughter of ex-girlfriend Toni Odum, Smith provided DeKalb County Superior Court with a DNA test proving nonpaternity. In a May 2001 ruling, however, the court found that Smith had not exercised “due diligence” in seeking a paternity test soon after the girl’s birth. The Georgia Supreme Court rejected Smith’s appeal, and the U.S. Supreme Court denied certiorari this June. Smith v. Odum, No. 98-12744-9 (DeKalb Co. Sup. Ct., May 24, 2001), cert. denied 122 S. Ct. 2359 (2002).

Genetic evidence of nonpaternity is still relatively uncommon in child support cases. However, some family courts have rejected DNA tests on the basis of the “presumption of paternity,” an ancient common-law doctrine that a married man is conclusively presumed to be the father of a child conceived during the marriage.

This year, Georgia enacted a law allowing ex-husbands and boyfriends to use DNA to set aside child support orders, and similar laws are now on the books in Alabama, Arkansas, Colorado, Illinois, Iowa, Louisiana, Maryland, Ohio, Texas and Virginia.

According to some lawyers, however, tossing aside the presumption of paternity may protect a few duped dads, but punishes innocent children who stand to lose contact with the only father they have known. “There’s some assumption of risk in marriage,” says Atkinson. “DNA testing doesn’t deal with emotional bonding between parent and child.”

Family law is a quintessential state court function, but the fathers’ rights efforts like Smith v. Odum have pushed fatherhood issues onto the national political agenda. In 2001, the Bush administration appointed Wade F. Horn, the former president of the National Fatherhood Initiative, as assistant secretary of family support in the U.S. Department of Health and Human Services.

A psychologist-turned-policymaker, Horn is careful to distinguish the administration’s agenda from that of NFI or the fathers’ rights groups. However, Horn says the federal government can play a limited but positive role in encouraging unwed and divorced fathers to stay involved with their children.

Meanwhile, as politicians, professors and pundits debate policy and spar over statistics, it falls to family lawyers to help parents build a healthy home life for their kids after their marriage has fallen apart. For this important task, Sharon Corbitt of Tulsa finds little use for the rhetoric of either the fathers’ rights movement or its feminist detractors.

“The emphasis on fathers’ and mothers’ rights is troubling,” Corbitt concludes. “We’ve lost sight of the best interests of the child and the psychological data showing that lots of access to both parents is optimum.”

©2003 ABA Journal