(Summer/97)
COVER STORY / DOMESTIC RELATIONS, AMERICAN BAR ASSOCIATION JOURNAL

Make Room for Daddy
In all its variations, the fathers' rights movement is saying one thing ...

BY STEPHANIE B. GOLDBERG
Stuart Miller is a resident of Vienna, Va., but also of a country that, for many of us, is as ephemeral as Brigadoon. In this strange, topsy-turvy world, men, not women, are the objects of gender bias in the courts, and deadbeat dad Jeffrey Nichols, the man who lived in pala- tial splendor while his children were left wanting, is more likely to get sympathy than the members of the First Wives Club.
Miller, who is now federal lobbyist for his own organization, the American Fathers' Coalition, admits that he is "an angry guy, and justifiably so." At 40, he lives in his parents' basement and, after a bitter custody fight, rears his 9-year-old son alone.
His former wife, as Miller tells it, "retired" to a 30-acre ranch. With a touch of sadness in his voice, he recounts how his ex "married me just to divorce me." Miller says he was so devastated by the breakup that he had to close his commercial real estate and construction business and could not even afford to pay a relatively modest support award of $538 a month. He is still in arrears on that obligation and has been threatened with jail, he says. Divorce horror stories like Mil-ler's are commonplace in the fathers' rights movement, although not much else unites the various factions, apart from beliefs in the importance of father involvement in families and the justice system's indifference, even animosity, toward letting men play this part.
Some, like Playboy columnist Asa Baber, who's been carrying the men's rights torch for nearly 20 years, are not even sure whether it is a movement rather than just "a ragtag group of guys" whose efforts, Baber says, are probably 15 years away from reaching critical mass. Most estimates peg the movement's membership at somewhere between 5,000 and 10,000, although it is impossible to know how many men log on to Internet sites or privately fight the silent revolution of a new role for fathers.
Jed Abraham, an Evanston, Ill., lawyer who represents men in domestic matters, describes the different groups as united in the goal of supporting fathers but divided in strategies and, sometimes, in val-ues. For instance, "Some men feel feminism has gone too far; others feel it's wonderful," says Abraham.
All, however, do see eye to eye on the evils of a divorce process sup-posedly intent on making them into "Disneyland dads." They speak of their own blinding pain or that coming from disconsolate voices of men who call their organizations' hot lines, of being told by lawyers that their chances for primary custody are nil, of forking over tens of thousands of dollars in legal fees for an ultimately unsatisfying outcome.
Men in the movement also speak of the larger phenomenon among today's children of "fatherlessness," which correlates statistically to higher rates of teen suicide, substance abuse, crime, runaways, and other maladies.
Their message-often expressed as the slogan "Dan Quayle Was Right"-resonates with the current presidential administration, which has sponsored conferences on fatherlessness and issued an executive order to make internal policies more father-friendly.
The attention being paid to "fatherless America" seems to have thrust the fathers' rights movement into a particularly propitious moment. By joining forces with second wives, grandparents and non-custodial mothers, and toning down some of its rhetorical excess, a large chunk of the movement has become more mainstream. For example, women now occupy conspicuous positions of authority in the movement: Dianna Thomp-son of California is the director of the National Organization for Fathers and Children. "It's not about fathers' rights or mothers' rights, but about seeking what's best for the children" is how Thompson explains her involvement. Also, Mi-chelle Delo, a noncustodial mother of six from Seattle, works with Miller in advocating the interests of 250 fathers' groups to members of Congress.
As a result, when today's activists weigh in on national matters of family law and policy, their concerns are taken seriously. The recent welfare reform act, for example, included funding earmarked for demonstration projects on conducting visitation. Fathers' rights activists also were included in the two most recent federal commissions looking at child support. Both times, however, these commissioners could not endorse the conclusions of the final report.
Most importantly, a presumption of joint custody or shared parenting now operates in 14 states and the District of Columbia, while the option of joint custody is recognized by all states except South Carolina.
[INLINE] Victor Smith: Federal resources are available to women, who 'suck them dry. The big money for men goes into prisons, jails, armies.'
If some see this as progress, it fails to impress hardliners such as Victor Smith of the Portland, Ore.-based Dads Against Discrimination, which has branches in five states offering paralegal and emotional support. Because Smith thinks residual animosity dooms most joint custody arrangements, he advocates sole father custody.
"Why should I tell a father to settle for anything less?"
Fathers need to have someone in their corner, he contends. "America hasn't realized the value of fathers," says Smith. "Not to my knowledge has any state, local or federal government set aside a penny specifically for fathers and their issues," says Smith. (That excludes the federal demonstration program on visitation, which, Smith points out, is gender-neutral.)
Meanwhile, he says, government programs spend "big money" on women. "Millions of women suck out these resources and try to suck them dry. The big money for men goes into prisons, jails and armies." Share and Share Alike
Smith's skepticism to the contrary, most would say that the widespread recognition of joint custody arrangements has been the movement's greatest legal victory. Certainly, the proposition that two loving parents are better than one is almost indisputable, which may explain why, beginning in the late 1970s, so many states have opened the door to these arrangements.
Fathers' rights activists are quick to point out that fathers routinely assumed custody of their chil-dren throughout much of history. Indeed, the doctrine of "father-right"-that is, father custody-did not fade until the late 19th century.
Previously, writes British law Professor Richard Collier in Mascu-linity, Law and The Family, (Rout-ledge, 1995), a child's legal status traditionally "rested on the proof (or absence of disproof) of a link with a particular man." Courts had no authority to intervene on a mother's behalf, writes Collier, because the rights of fathers were natural and sacred. However, this bond existed because children, like wives, were viewed as property, and the children's labor was integral to running the family fa m or business, he and others have noted.
Father-right ended with the industrial revolution, which pushed men off the land and into the fac- tories, forcing them to spend long hours away from their children. Courts began applying the "tender years doctrine," which rested on the historical notion of mother as nurturer.
Maryane Mason, a professor at the School of Social Welfare, University of California at Berkeley, writes in her 1994 book, From Fathers' Property to Children's Rights (Columbia), that tender years was essentially a natural law argument posed against the common law of father-right.
[INLINE] After being turned down for joint custody, James Cook helped effect changes in California family law in 1979.
An 1842 decision by the New York Court of Appeals, Mercein v. People, is frequently cited as an example of this reasoning, according to Mason.
The opinion states: "The law of nature has given to [the mother] an attachment for her infant offspring which no other relative will be likely to possess in an equal degree." Mason notes, however, that it was characteristic of the era's ambivalence that Mercein's finding was modified two years later by the trial court, which returned custody of a 5-year-old daughter to the father.

Shared Parenting
There is now a presumption* of joint custody in 14 states and the District of Columbia:
· California
· Florida
· Idaho
· Iowa
· Kansas
· Louisiana
· Minnesota
· Mississippi
· Missouri
· Montana
· Nevada
· New Mexico
· Oklahoma
· Texas

*by law, court ruling or frequency of availability; in some states, presumption operates only if both parents consent to arrangement. Source: Children's Rights Council, Washington, D.C.

By the late 20th century, the tender years doctrine seemed inconsistent with the equality rhet-oric of the women's movement and no-fault divorce. In the bellwether state of New York, the New York City Family Court announced in State ex rel. Watts v. Watts: "The simple fact of being a mother does not, by itself, indicate a capacity or willingness to render a quality of care different from that which the father can provide." 350 N.Y.S. 2d 285 (1973).
Other courts were less outspoken and employed a "best interests of the child" test, says Mason. In practice, this meant leaving the child in the mother's custody, absent proof of unfitness.
Then came James A. Cook of Los Angeles into this arena. Cook, who had worked in the U.S. State Department as well as at the Rand Corp., specializing in policy analysis, was divorced in the mid-1970s and had proposed a joint custody arrangement. He "got turned down flat by the ex-wife and the judge," he recalls.
Cook and men like him began a grassroots movement in their own states. In many respects, the women's movement had caused them to reflect on their own situations.
"I saw there was no permission in the law [for joint custody], and I said to myself, 'I shall change the law,' " recalls Cook, who is 73. By "cranking out an enormous amount of philosophical material" on joint custody, he helped effect a revision of California's family law in 1979. Later, Cook began thinking about how to get the information out to other states. "You don't have to re-invent the wheel," notes Cook, who founded the Joint Custody Association in 1979.
His "association," however, is really just Cook strategizing and offering advice and educational material to several hundred people who contact him yearly. "I've thought about chapters, but I'm really concerned about the quality of people and really have much better luck shipping it off from here."
Having won the original goal of recognition of joint custody, the emphasis now is on making it a rebuttable presumption except in those instances of domestic violence or acute conflict.
"We should not presume pathology," cautions Ron Hen-ry, a children's rights activist and lawyer in Washington, D.C. Henry was involved in the drafting of recent legislation for a presumption of joint custody that was adopted by the District of Columbia.
Like Cook, Henry favors the notion of making the parent who opposes joint custody prove that the arrangement is unsuitable rather than placing the burden on the parent seeking it.
Henry, however, is careful to delineate his politics from those of the fathers' movement: He is not angry, he has never been divorced, and his interest is in negotiating win-win solutions that leave a child with two involved parents. And therein lies a paradox: The most effective advocates for fathers' rights may be those situated outside the movement.
Similarly, an organization that Henry does pro bono work for, the D.C.-based Children's Rights Council, champions joint custody but holds itself separate from the fathers' movement.
In The Best Parent Is Both Parents, a book edited by Children's Rights president David L. Levy, the case is made for joint custody: If children start out with two parents, the law should not take away one of them. Also, joint custody gives children two sets of role models and more abundant resources.
Why isn't it sufficient simply to make joint custody available to those who want it? Alexander Hil-lary II, a contributor to the CRC anthology, writes that a discretionary approach "does not send a strong enough message to parents and judges." He gives the example of Nevada, which passed legislation recognizing joint custody as an option and found two years later that only one family had taken advantage of it.
Custody and Support
Women's groups, by and large, prefer granting custody to the primary caretaker. Because this person is ordinarily the mother, some think the standard perpetuates the tender years doctrine and reinforces stereotypical roles. Also, in working families the line between "caretaker" and "provider" is not always neatly drawn. ("That's like asking which parent has opened the most cans of Spaghetti-Os," says Henry.)
[INLINE] The real question is what is in the best interest of the child, says Joan Entmacher (with two friends).
The real question is what is in the best interests of the child, says Joan Entmacher, a lawyer with the Women's Legal Defense Fund in Washington, D.C. "I don't think that, in the name of doing away with stereotypical roles, we should place children in situations in which they feel uncomfortable."
Entmacher notes that studies show that children do not do well growing up when there is considerable family conflict. Yet conflict or irreconcilable differences is a reason people get divorced.
Which raises the thorny question: Does a presumption of joint custody motivate parents to mend their fences more quickly, or does it aggravate the conflict by throwing them together when they would rather be apart?
Another consideration is "to what extent do you use state policy to mold parental conduct?" asks Jeff Atkinson, a professor of family and health law at DePaul University in Chicago.
"My hunch is that it can work some of the time, but not all of the time. Judges do the best they can" to discern where joint custody arrangements will work best, says At- kinson. Studies have shown, he notes, that the hardiness and resilience of the children and the psychological well-being of the parents are predictors of success.
Entmacher says, in some instances, the real motivation for men to seek joint custody is to retain control over the ex-wife's life and finances. Dads Against Divorce's Smith says many men don't get the message that a relationship is over. "When a woman files for divorce, she's telling you she wants out, she wants rid of you. What does she have to say to make that clear?"
Apart from the emotional difficulties of making joint custody work, there's a legal problem of vagueness.
Most states define joint custody simply as "frequent and continuing contact," says Atkinson. Thus, joint custody can encompass anything from an equal splitting of expenses and decision-mak-ing to arrangements that are in fact indistinguishable from sole custody with visitation.
Ideally, some fathers' rights supporters say, joint custody should ne-gate the necessity for child support, since the more time a parent spends with a child, the greater the likelihood of equal expenditures by both parents.
Curiously enough, says Entmacher, only a few years ago, the fathers' rights movement was citing denial of access as a reason child sup-port was not paid. "They were saying, 'If only fathers had access to their children, the problem of nonpayment of support would disappear.' " To her, it sounds like an attempt to avoid obligations and is inconsistent with caring about one's children.
There is, however, a pragmatic reason for linking child support to visitation and custody.
"If you're not involved emotionally, there's no motivation to stay involved financially," says Robert Green of Austin, Texas, a volunteer legislative analyst and member of the Texas Fathers' Alliance, which worked to amend the Texas Family Code in 1995 to include a joint custody presumption. Studies do show that joint custody is associated with greater compliance with support obligations, although Entmacher thinks these findings are susceptible to other interpretations.
But Green's remark also illustrates why the "rights" rhetoric of the fathers' movement has been largely unpersuasive: It seems to be suggesting that it's unfair to impose burdens without some corresponding benefit or privilege-here, the rich, rewarding feeling of being an involved father.
Nevertheless, talk of vindication of "rights" elicits very little sympathy from a society in which any number of victimized groups already have come forward to state their grievances. That may explain why talking about children's welfare is a much more winning strategy.
Yet, listening more attentively to men tell their stories may be something the legal system very much needs to do, as it has already done with rape and sexual harassment victims, families of crime victims, and others caught up in its process. One problem, say fathers' rights activists, is that most men are simply not comfortable opening up in this fashion. They want to be perceived as winners, not whiners.
[INLINE] Charles Calderon helped create a California court office that oversees visitation, support.
Thus, one of the last people one would expect to hear talk about his gut-wrenching experience with divorce court is the Senate majority leader of California. "The presumption of joint custody has definitely not filtered down to the courts," says Charles Calderon, D-Montebello. Maintaining a close relationship with his two children ended up costing him $100,000 in legal fees when he divorced six years ago, he says.
It was a real eye-opener.
"On one hand, my professional status meant I had to pay a certain amount of support. But my ex-wife also argued that my professional status would make it impossible for me to be an involved parent."
His ex-wife's argument was ultimately a loser but one that stayed with Calderon, who has made use of his office to change the law. As head of the Judiciary Committee, he established a Family Law Subcommittee and sponsored legislation that excluded second-spouses' income from the income considered for child support and put time limits on alimony.
But the legislation he is proudest of has created a Friend of the Court office that will enforce child support and visitation rights without parents having to go to court or incur the expense of hiring an attorney.
Backing this legislation has made Calderon something of a hero within the fathers' rights movement, although he disavows any explicit connection. He considers the movement to be somewhat "naive" but thinks its message of the importance of father involvement is well worth heeding.
On a personal note, most-but not all-of the conflict between himself and his ex-wife has disappeared, he says, almost bemused by the turn of events. "We even agreed recently to meet for coffee several times a month to discuss family matters." His children now spend 50 percent of their time with him, and he works at home as much as he possibly can.
Doing justice to professional and personal responsibilities isn't easy, he emphasizes. "I make the time. I just have a longer day," says Calderon, who adds, echoing the words of a supermom, circa 1980: "It is possible to have it all."

Stephanie B. Goldberg, a lawyer, is a senior editor with the ABA Journal.

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