When Dr. William Fabricius asks the question here why the practice of child custody orders differs so sharply from the widespread belief in equal parenting time post-divorce, he ventures into uncharted waters. Sadly, he doesn’t navigate well.
Here’s his conclusion:
Thus the reason that the practice of equal parenting time lags the consensus about its value, despite much evidence that fathers desire more parenting time (see Fabricius et al., 2010), appears to be that fathers do not bargain harder because of the guidance they receive from attorneys, and their own widespread belief, that the system has a maternal bias.
In othe words, family attorneys believe there’s an anti-dad bias in family courts. They advise their male clients of their belief and, their male clients, having the same belief, tend to not bargain very hard for parenting time.
That of course raises the question of whether those family attorneys are correct in their belief about family court bias. Oddly enough, Fabricius never once considers the possibility that they might be. To my mind, when thousands of attorneys who practice daily in family courts agree that there’s an anti-dad bias in custody decisions, the smart money doesn’t ignore them. Fabricius does.
Instead, he offers his only evidence that family court judges aren’t biased against dads. It seems he attended a conference of family judges and commissioners, gave the same hypothetical examples to them that he’d given to the Tucson jury pool members and sure enough, some 90% of them said they’d give equal custody.
The most obvious problem with that survey is that only 30 judges were polled. It seems a bit much for an experienced researcher to ask us to believe that such a small sample actually represents family judges generally.
That seems particularly flawed when he chalks up to a mere “belief” the opinions of experienced family attorneys that there’s an anti-dad bias in family courts. Illogically, he goes on to claim that that “belief,” not actual bias, must be the cause of fathers getting the short end of the custody stick.
Likewise Fabricius ignores altogether evidence out of Washington State here about the actual practices of family court judges there. For several years now, Washington State has compiled records on every custody case decided there. The results suggest that Dr. Fabricius’ theory that if dads only ignored their attorneys and tried for more parenting time they’d succeed is too facile by half.
The Washington data show that, in the year 2009-10, fathers were awarded less parenting time than mothers in 66% of all cases. Fathers got more time than mothers in 17% of cases and the rest of the cases saw parenting time divided equally.
More to the point, Washington took a look at contested and agreed cases. In other words, the state examined what happens when dads don’t just passively agree to a custody arrangement, but fight for what they want. In other words, they do exactly what Fabricius says they should.
Here are the results:
To examine whether the residential time of children was related to the type of decision, cases in which there were no risk factors for either parent were compared. For agreed cases, 64% of the mothers received the majority of time, and 22% of mothers and fathers received equal time (see Exhibit 6). For the few contested cases, 67% of mothers received the majority of time, but only 5% of mothers and fathers received equal time.
So according to the Washington State data, contesting matters tends to be a bad idea for fathers. Certainly, those data aren’t definitive. They don’t tell us who’s contesting what and again the sample size isn’t large because the vast majority of cases are agreed to by the parties.
But what the data suggest is that things go better for dads if they don’t contest the case. Stated another way, they stand a better chance with their ex than they do with the judge.
In agreed cases, mothers get majority time in 64% of cases while in contested cases they rate goes up to 67%. That’s not much, but if a dad is going for equal time, contesting the matter is a bad idea. His chances of winning equal custody drop from 22% to 5% if he contests the matter.
Fabricius might argue that the same holds true for mothers. After all, her chances of getting equal time drop the same as dad’s – from 22% to 5%.
But that argument ignores one large, if inconvenient, truth. When a father fails to get equal time, he likely gets less; when a mother does, she likely gets more. So the drop from 22% to 5% of equal custody for both men and women when cases are contested masks an important fact – it’s a win for her and a loss for him.
Another fact that suggests bias against fathers and the idea of equal parenting is the fact that, although the idea has been around for many years, no jurisdiction (with the partial and short-lived exception of Australia) has ever passed a law mandating a presumption of equally shared parenting.
Granted, judges aren’t state legislators and vice versa, but the fact that proposed statutes establishing the presumption invariably fail surely tells us something about how fathers are viewed. Combine that with Fabricius and Braver’s conclusion that there’s widespread public support for equal parenting and we’re left with an unavoidable question – “why don’t legislatures do the will of the people in the case of equal parenting?”
I’ve argued before and I’ll do so again that that is a function of political elites deciding what’s best for the rest of us. And it should come as no surprise that what they decide regarding equal parenting is invariably anti-dad. How can that be anything but bias if the people generally support equal parenting?
Finally, let’s not forget that the entire nationwide structure of child support militates against equal parenting. That’s because, for every dollar in child support states collect, they get reimbursed a percentage by the federal government. Equal parenting reduces child support amounts, and therefore reduces the inflow of federal dollars to states.
So Fabricius’ argument that family judges really aren’t biased against dads despite the fact that family law attorneys believe they are and the fact that their rulings in agreed and contested cases alike indicate they are requires a lot more support than a survey of 30 judges in Arizona.