June 10, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Throughout the English-speaking world, fathers are treated as second-class citizens in family courts. That’s made clear in any number of ways that anyone familiar with this blog can recite backwards and forwards. But compared to Ireland, dads in places like the U.S. and Australia fare pretty well. This article gives us a good idea of how far Irish fathers, particularly unmarried ones, are from anything like equality before the law (University Times, 3/30/16).
Rather, all fathers, regardless of sexual orientation, will sooner or later need to come to terms with their common reality: society treats them as disposable utilities with value commensurate with the resources they can provide.
If that sounds hyperbolic, consider first the legal status of an unmarried father. Up until the Children and Family Relationships Act 2015 – which became law barely two months ago – the only role recognised by the state for unwed fathers was one of financial obligation. They had no automatic right to guardianship over their own child, even if their name was on the birth certificate. Such fathers were required to support a child whilst having no legal right to access or custody. Guardian status was attainable only with the legal consent of the mother or, failing that, a spell in the district court.
Let’s expand on that a bit. Let’s compare how difficult it is for a father to assert his parental rights with how easy it is for the state or his child’s mother to establish his parental obligations. As to rights, he has to first learn that he has a child, or, more accurately, that the woman he had sex with gave birth to a child who could be his. As a practical matter, that may be impossible. If Mom decides she doesn’t want him in the child’s life, there’s little he can do about it. Many are the stories of women becoming pregnant and simply disappearing from the life of the child’s father. As my post yesterday mentioned, there is no law anywhere obligating a woman to inform the father of her child that he too has a child.
If Dad somehow does learn of his child, he’s then required to spend considerable sums of money to establish his paternity. That typically means paying a lawyer, filing a paternity suit and paying for genetic testing. If he turns out to be the father, then he gets to pay the lawyer still more money to establish some sort of order for parenting time. Of course if he comes to the game late, even through no fault of his own, he’ll immediately be marginalized in his child’s life. The child hasn’t gotten to know him, so the fait accompli rules. He’ll likely be given every other weekend visitation, if that.
Then of course, Mom can simply thwart his efforts to see his child. The tactics for doing so are well known. When it’s his day, she can simply not be at home when he shows up. She can say the child is sick or doesn’t want to be with him. She can do those things and many others and rarely face any sort of punishment from the court. That’s true even if he has the money to bring yet another action in court.
Ah, but when it comes to his financial obligations to little Andy or Jenny, that’s a different matter. Again, as my piece yesterday, citing paternity fraud expert Dianna Thomson, made clear, obligating a man to pay support for a child is simplicity itself. It’s so easy in fact that the man doesn’t even have to be the father for him to acquire the obligation of support. If Mom names a father, she or the state can get a court order “establishing paternity” with or without his knowledge. As Thompson said, all she has to provide is a last known address for him. If he no longer lives there, that’s his problem. Notice sent there can constitute notice of all future proceedings against him, whoever he is.
The system is so frankly anti-father, that in the past I’ve suggested – tongue-in-cheek – that we should simply assign paternity at random. The paternity lottery would feature a big basket with balls whirling around inside, each with a man’s name on it. A staff member from the state’s attorney general’s office would select a name to go with whatever child had most recently been born and – presto! – there’s Daddy.
More seriously though, the difficulty with which fathers gain their rights compared to the ease with which they become obligated for support speaks volumes about Behan’s observation that “society treats them as disposable utilities with value commensurate with the resources they can provide.”
Meanwhile, back in Ireland, there’s recently been a change in the law.
Under the new legislation, an unmarried father can automatically become a guardian by cohabiting with the mother for twelve months, three of which must be after the birth of the child. Better than nothing, perhaps, but the cohabiting clause is specifically structured to remind us that fatherhood is a privilege to be granted rather than an inalienable right. A mother’s love, as the saying goes, is irreplaceable. A father’s love isn’t just replaceable – it can be forgone altogether if need be.
In other words, fathers’ rights are still placed firmly in mothers’ hands. If she doesn’t want him to have parental rights, all she has to do is refuse to live with him, and of course there’s no way he can force her to do so. Why isn’t fatherhood a right? Why do states put so many barriers between fathers and their children?
Progressives will no doubt opine that all of this can be explained by the continued prevalence of traditional ideas regarding gender roles – dismantle these roles, and the problem will solve itself.
That of course is spectacularly untrue. Gender roles? Try this on for size: humans are one of only 5% – 10% of mammal species that are bi-parental, meaning fathers spend significant time caring for children. And that’s no new phenomenon. In fact it’s one that’s evolved over hundreds of thousands of years. At some point far back in our evolutionary past, human females began selecting as mates, not only the biggest, fastest and strongest of males, but as well those who demonstrated an affinity for childcare.
Many reproductive strategies of human (and other primate) females involve efforts to enhance the survival possibilities of their offspring. Cozying up to males who were skilled protectors and high in the male pecking order worked for a long time. But human females eventually added another approach to their repertoire. They mated with males who took a direct, personal interest in their offspring. Those males not only provided resources and protection directly to their young, but did hands-on nurturing as well.
Clearly, from an evolutionary perspective, this strategy worked. That’s why we’re the amazingly successful bi-parental species we are today. So the idea that “traditional ideas regarding gender roles” mean Mom as caregiver and Dad as not is simply wrong. More recently, prior to the feminist-inspired Tender Years Doctrine, fathers were routinely granted sole custody in the event of divorce.
Again, back in Ireland…
The simple arithmetic of going from one family living under one roof to two separate households implies that even if the father isn’t explicitly denied access, he is unlikely to have much free time to spend with his children if he is working to support two homes. How unlikely? In a 2015 Irish Times interview on the subject, O’Shea gives her own empirical estimate: the non-resident parent, usually the father, is with his children just one to two per cent of the week, if at all.
That works out to about two hours per week, or 100 hours per year. Through some weird alchemy, Dad goes from vital member of the child’s life while he’s married to Mom, to vestigial appendage when she decides to divorce him. All the while judges claim that everything done in family court is in “the best interests of the child.” Regardless of how much parenting time courts dole out to dads, they’ve never explained that hypocrisy.
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