July 11, 2013 by Robert Franklin, Esq.
I’ve commented before on what happened in the late 1990s when the State of Oregon decided to change its laws on child custody to try to get judges to decrease orders giving sole custody and increase joint custody. Brinig and Allen studied data from three years before the law changed and two years after and concluded that, apart from a decrease in awards of sole maternal custody, the law didn’t have much effect. In short, judicial behavior remained pretty much the same regardless of the law and the wishes of the people of the state it embodied.
Now we have a study out of Italy that shows the same thing (CEIS, 7/3/13). The Centre for Economic and International Studies looked at every child custody case in that country from 2000 to 2010, which means six years before a change in custody law and four years after. The results are (a) outrageous and (b) unsurprising.
It seems that, in 2006, the Italian Parliament enacted significant changes to Italian custody laws. Prior to 2006, mothers received sole legal custody in virtually every case, i.e. about 85%, while fathers got sole custody about 5% of the time. As to physical custody, that too for fathers was minimal.
As to physical custody, the relationship between the child and her/his father was limited to a few weekly hours, one or two weekends every month and a couple of weeks during the summer.
So Parliament changed the law. Law 54/2006 mandated that neither parent was to receive sole custody except in the most extreme circumstances. It also established the right of children to have “a balanced and lasting relationship with both parents” following divorce or separation.
Finally, it required child support payments to reflect that amount of parenting time a parent had with the child after divorce; the more time, the less child support.
It also substituted direct child support for indirect support. Prior to 2006, child support was paid by fathers to mothers to be used in any way they chose. That’s how it’s done in the United States and many non-custodial parents resent it. They rightly point out that the money they pay for their child can be used for alcohol, drugs, fast cars, anything the mother chooses, whether or not it benefits the child. So Italy substituted direct support which means that both parents are obligated to pay for certain necessities of the child and obligates the money to go for that.
Interestingly, the only part of the new law that was mandatory was the part that sought to reduce sole maternal custody. All other parts were subject to judicial discretion.
Guess what happened.
After the effective date of the new law, sole custody dropped from about 85% for mothers to about 10% and from 5% to 1% for fathers. In short, by essentially requiring joint legal custody, the law had an immediate and lasting effect. It did what Parliament intended.
But when it came to the parts of the law that weren’t mandatory, Italian judges frankly ignored the new statute and its clear intentions, and kept doing what they’d always done, in fact, a little more of it. So the amount of time children spend with their fathers changed not a whit. Nor did the amount of indirect child support paid by fathers change, nor did the percentage of fathers paying support (87%).
However, the provisions of the law related to financial post-separation arrangements remained unapplied.
So when the judiciary was mandated to do something (decrease sole custody), it did it. Everything else it kept the same despite the clear import of Law 54/2006.
One thing that did change, however, was the cost of litigating custody matters and the time it takes to resolve them. Those increased dramatically. That seems to have occurred because fathers, seeing the new law as promising them more time with their children asked for exactly that. Mothers resisted and courts were left to make orders in the greater number of contested cases.
The researchers for the CEIS also compared cases in which the divorcing parents arrived at a pre-trial agreement and those in which they didn’t. The unambiguous results show that conflict is good for mothers. In essentially every category of result studied, mothers in non-agreed-to cases made out better than those who agreed. Conflict cost fathers dearly.
Where judges made the decision instead of the parties, mothers were far more likely to keep the family residence, far more likely to receive child support, received significantly more support and received higher awards of alimony. The lesson? For mothers amicable agreement is a losing proposition; conflict is good.
The researchers, Guido de Blasio and Daniela Vuri are under no illusions about how this frank contravention of law by judges sworn to uphold it comes about – pro-mother bias. They note that family law in Italy is a “female dominated business” as an explanation for the “gender-biased” way in which judges interpret the law. They go on to cite an Austrian study finding that female judges in custody cases are biased against joint custody.
Finally, Blasio and Vuri point out the social costs of denying paternal time to children. First, having cited numerous studies showing joint custody to be best for children, they point out that its absence is harmful both emotionally and psychologically. Second, there’s the large increase in costs to both mothers and fathers, but mostly fathers of increased litigation. The authors bemoan the growth of the new industry of family court consultants, mostly psychologists and psychiatrists, whose scientific basis they call “precarious.”
Finally they point out the anti-democratic nature of the judiciary’s actions. After all, for the judicial branch to nullify the will of the people as expressed by their elected representatives is more than just bad for children, though it is surely that. It’s also bad for the body politic that depends on the separation of powers. Judges are supposed to enforce laws, not thwart them.
All of that brings us to what we’ve seen in countless jurisdictions in the past. In legislatures from the UK to Canada to various states in the United States, whenever bills to establish a presumption of shared parenting are brought up, one argument is invariably raised in opposition. We are forever told that such laws infringe upon “judicial discretion” in child custody cases. To do that, the lawyers and judges of the family law bar inform us would be to wreak havoc on the system of courts and the well-being of children. How they know this, having never been required to enforce such a presumption, they never let on, but clearly, now we know the real nut of their opposition. They don’t want fathers getting too much time with their kids and they’re afraid the legislature might require them to order exactly that. Italian judges aren’t the only ones with a frank anti-father bias; we see it in this country every day.
So when you read the “judicial discretion” argument, be aware that it’s really an anti-father bias argument. You knew that anyway, but now we have proof.
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