Stay-at-Home Dad Loses Custody, Part 1

November 30th, 2011 by Robert Franklin, Esq.
I’ve said before that fathers who opt for the stay-at-home dad role should beware.  In the event of divorce, courts may still look at them as dads, not as stay-at-home dads.  That is, they may get the treatment that’s so familiar to fathers across the country and the English-speaking world – non-custodial status, minimal parenting time, child support.

The following is a case in point.  It’s also a cautionary tale for any father who considers embracing “role reversal.”  What the dad in this case found was that, while he accepted a reversal of sex roles with his wife, family courts did not.

Scott and Kathleen Ritchie were married in 1994.  At the time, he was a well-paid pilot scheduler for American Airlines and she was employed too.  For several years they lived a nomadic existence due to the fact that Kathleen often changed jobs seeking better pay.  That took them from Hershey, PA to St. Louis to Chicago, back to St. Louis, to Dearborn, MI, and finally to the Kalamazoo, Michigan area where both had extended family and friends.

When Kathleen discovered she was pregnant in 2003, both parents decided that Scott would be the stay-at-home parent.  Kathleen earned more than he did anyway, so the arrangement made sense.  For the first six years of their son Kyle’s life, Kathleen worked and received a paycheck and Scott stayed home and cared for their son who flourished under the arrangement.

Kathleen got laid off in the economic downturn in 2009 but eventually found work with Conagra in Omaha earning $120,000 per year.  She took that job in October of 2009, but they both wanted to stay in Michigan due to deep family ties there.  Kyle had started school, so, according to their agreement, Scott would once again start earning.  The plan was for both of them to seek employment in Michigan for one year, and if that didn’t work out, they’d pull up stakes and move – this time to Omaha.

From the time she took the job in Nebraska to about the summer of 2010, Scott and Kyle traveled there three or four times, but Kathleen came to Michigan more often.  As far as Scott knows though, she never applied for a job there despite the fact that Kellogg’s and Ford had both told her, when she left them, that she was welcome back any time.

Then, in the summer of 2010, Scott got several surprises.  The first was that Kathleen hadd cleaned out their joint bank accounts, placing all the money – $73,000 – in hers.  She also cleaned out the account they’d established for Kyle, about $1,500 in all.  A month and a half later, she filed for divorce, demanding custody of Kyle into the bargain.

Now, recall that Scott was a stay-at-home dad.  He hadn’t worked in several years and was way out of the loop in terms of his resume and his work skills.  He hadn’t worked and he hadn’t expected to work because that was their arrangement.  Now he had a six-year-old son to care for, no job and no money.  But he still had credit cards, right?  Nope, Kathleen had cancelled them as well.  Scott maintained one credit card he’d had before they married, but with no money to pay with, it was largely useless. Due to his wife’s theft of his share of their joint funds, Scott and Kyle had their backs against the wall – no job, no money, no credit. 

Into the bargain, Kathleen also had the utilities cut off in the house in which her husband and son were living.  With no job and no money, Scott and Kyle were trapped.  This was Michigan in 2010, the depths of the recession.

Now, you might think that all of that would mean a family judge would immediately issue a temporary order giving Scott custody and making Kathleen pay him child support of at least $2,000 per month.  Indeed, you’d probably think that the judge would be fairly ticked off at Kathleen for placing a little boy in such dire financial straits.  You might think those things because, if a father had done that to his son and wife, the judge wouldn’t hesitate to throw the book at him.

But you’d be wrong.  In fact, when they went before Referee Richard Minter in January of  2011, he gave custody to Kathleen. 

What were his reasons?  Michigan state law required him to consider 12 factors in deciding the relative merits of the parents.  Minter decided that all factors weighed equally between the two parents except one – the “capacity and disposition” of the parents to provide the child with food, clothing, medical care and… other material needs.”  In other words, Kathleen earned more money than Scott as per their agreement, and therefore should have custody.

Now, I know what you’re thinking.  There are some six million stay-at-home mothers in this country and they don’t all lose custody on divorce because their husbands did the earning in the family.  In fact, virtually none of them do.  So how could all those other factors be considered equal between the Scott and Kathleen when it was Scott who did the hands-on parenting?

A few interesting remarks Minter made during the initial hearing suggest the answer.  Those made it clear that he simply couldn’t wrap his brain around the concept of a stay-at-home father.  Stay-at-home mothers were familiar to him and he enthusiastically approved.  But a stay-at-home father was a strange and dangerous animal to the referee.  From the trial transcript:

Page 27, Line 7: “But I really struggled with that whole gender issue. And, you know-and that was the first question in my mind as I sat and went through this.   Well, a lot of things.
 
Line 13: “You know, if this were the dad that went away and got a job, and a mom who was home, what would I do? And I really, really struggled with that.
 
Page 31, Line 9: “On the gender issue, boy, I-the only answer I can give you at this point is that perhaps we are wrong if we look at favoring-and I have always tended to favor stay at home moms. I will admit that. Or stay at home parents. I respect that and admire that very, very much. Given these same circumstances in the future, I will remember this case, and I’m not going to rule in favor of a woman just because she’s a woman from here on in on these kinds of circumstances.

It doesn’t get a lot clearer than that.  Minter admits to having “always tended to favor stay at home moms.”  He respects and admires them “very, very much.”  But when a dad does the same thing, he all of a sudden doesn’t admire it so much.  He also admits to having ruled “in favor of a woman just because she’s a woman.”

So in the initial phase of his divorce and custody case, Scott Ritchie lost custody of the son he’d raised since birth, not because he was a bad dad, not because he was violent or uninvolved in Kyle’s life.  He lost his son for one reason only – he was a stay-at-home dad in a family court system that embraces only stay-at-home moms.