It’s good to see Sanford Braver’s recent research being exposed to a broader audience than that usually afforded academic studies. This article gives a good and balanced description of the study and its findings (Huffington Post, 6/9/11).
What’s troubling is the tendency of pieces like this one and others I’ve discussed to conclude that the system of family courts doesn’t discriminate against fathers. That’s an altogether facile conclusion that’s unwarranted by Braver’s findings and directly contradicted by much other information.
The reason I’m pleased to see the findings getting a wider audience is that they show that the people surveyed strongly prefer equal parenting post-divorce to the usual practice of family courts of giving primary custody to mothers and condemning dads to the status of permanent paying visitors.
Braver and colleagues asked their subjects to judge three different hypothetical “divorce” situations. One had Mom and Dad parenting equally during marriage and the other two had one parent doing 75% of the parenting and the other doing 25%. In none of the cases were there any allegations of abuse or neglect by either parent.
In the 50/50 hypothetical, 69% of those surveyed said they’d award 50% custody to each parent. In the hypotheticals in which one parent did the lion’s share of the childcare, almost 50% of survey participants still awarded equal custody to Mom and Dad. In all the scenarios, Braver’s subjects’ parenting orders were radically more egalitarian than those ordered by judges. Significantly, men and women didn’t differ in their custodial decisions.
So Braver’s study makes a strong case for the proposition that the general public favors equally-shared parenting post-divorce, at least as long as there are no serious problems of abuse, neglect or some other form of parental unfitness.
Braver went a step further and asked the same subjects what they thought the family court system would do in the same hypothetical cases.
Here participants thought the legal system would come to dramatically different conclusions. In the case in which both parents had 50-550 (sic) caregiving time, the study participants estimated that the legal system would award equal time in only 28% of the cases, although another 47% estimated that the child would live with mom and get lots of time with dad. In the case in which the mother was described as spending more time with the child, the most common expectation (about 33%) was that the court would rule that the child should live with mom and dad would get “some” time. In the reverse case in which the dad was described as spending more time in caregiving prior to the divorce, again only 27% expected the courts to award equal time to both parents. The study participants did not expect fathers who were caregivers to get the same results as the mothers. Twenty-seven percent expected the judge to rule that the child should live with the mom, but the father would get a lot of time. Likewise, only 24% expected that the judge would rule that the child would live with the father and the mother would get to spend a lot of time with the child.
Statistics kept by a variety of organizations indicate that Braver’s subjects were too optimisitic. In fact their ideas about how much parenting time dads get overestimate the reality. As most people who follow custody law and practice know, the rate of maternal sole and primary custody has stood at 84% in the United States at least since 1993. That’s according to the U.S. Census Bureau.
So what explains the radical difference between what the public wants and what family judges do? It’s here that the article and the researchers too easily conclude that
In writing about the implications of these findings, the researchers note that the perception of the legal system is important because both lawyers and parents may base their choices on what they believe the court will decide. They write, “the mere perception that there is a bias may influence the settlements on which most the judgments are based, [resulting in ] a self-fulfilling prophecy.”
It’s a happy thought. I’d love to believe it. What could be better and simpler than for everyone to simply change their attitudes about child custody? We wouldn’t have to lobby state legislatures or worry about the bias of judges custody evaluators and the like. And presto! Parents would have equal custody, children would have two parents and all would be right with the world.
But unfortunately, that rosy scenario doesn’t bear much resemblance to the reality of family law, family judges and the decision-making apparatus of custody cases. Most obviously, the great majority of cases are not tried by a judge but agreed to by the parties. As such they’re influenced by lawyers who practice daily in family court, many of them for decades.
Now, it’s unquestionably true that lawyers and litigants do have the perception of bias in the family court system and they surely make decisions based on that perception. The question is whether the perception is right or wrong.
By calling it a “perception” and a “self-fulfilling prophecy,” Braver and colleagues suggest that tens of thousands of divorce lawyers across the country who’ve tried countless custody cases are in some way uninformed about the tendencies of the judges before whom they practice. And that assertion needs a lot more evidence than anyone has produced for us to conclude that all those lawyers are misinformed about what goes on before their eyes.
Likewise, as I’ve reported before, Washington State keeps data on all custody cases in that state. Its statistics show that when either party contests a custody matter, i.e. requires a decision by a judge instead of agreeing with his/her ex-spouse, outcomes for fathers actually get worse. That could easily mean that the “perception” of judicial bias against dads that attorneys observe and the general public believes exists, does.
Finally, if there’s no bias against fathers, why does so much law relating to parents frankly treat mothers and fathers differently? Here are just a few examples: in almost every state, single mothers have parental rights automatically by virtue of their biological parentage. Single fathers don’t; they must prove their worth as parents and if they don’t, can lose their rights entirely.
Second, paternity fraud is uniformly accepted by state law. If there’s ever been a mother punished for falsely telling a man he’s the father of her child when he isn’t, or telling him he isn’t the dad when he is, I’ve never seen it. Where are the laws and judicial decisions protecting fathers and their children from the caprice of mothers?
The point is that, in the case of paternity fraud, as throughout the legal system governing father- child relationships, mothers exercise an alarming level of control over fathers’ parental rights, but not vice versa. That’s called bias.
Third, visitation with their children is what 84% of fathers receive from courts, and it is visitation that courts routinely refuse to enforce when it’s violated by mothers. Are we seriously expected to believe that it’s mere coincidence that it is precisely those meager rights of fathers that courts are happy to ignore?
Compare that with the draconian measures and billions of dollars expended at the local, state and federal levels to enforce child support that overwhelmingly benefit mothers and it becomes increasingly hard to ignore the dramatically different treatment accorded fathers and mothers by family courts and the many governmental agencies that enforce what they do.
Fourth, in state after state, adoption laws allow single mothers, but not single fathers to decide which children are placed for adoption. If a single mother wants to place a child for adoption, she may. But if a father wants to do so, he finds himself subject to her rights and her desires.
Worse, if a single father wants to stop the adoption of his child on which the mother has determined, he’s got an uphill climb. That’s because in over half the states, he’s not entitled to even know about the proceedings if he hasn’t signed up with the Putative Father Registry. Mom has no such obligation of course. And in non-PFR states, he still has to prove his worth as a dad. If he fails to do so, he loses his child, but again, the mother is exempt from such rules. Her fitness and desire to parent are presumed; his are not.
Of course, those are all legislative enactments, not judicial ones. But with that level of overt anti-father bias, are we seriously expected to believe that judges are immune?
Braver and his colleagues have done as much as anyone and more than most to inject reason and fact into the debate about fathers and mothers, divorce and custody. For that they should be applauded and I’ve done just that many times. I will again. But they shouldn’t conclude that anti-father bias is simply a perception that, if changed, would itself change the system. It isn’t and it won’t.