The Federalist Takes on Feminist Family Law

March 9, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

I like Leslie Loftis. She has a lot to say and says it well. She has a wealth of information about many subjects near and dear to me and this article is a good example (The Federalist, 3/6/17). Indeed, I’ve made some of her points many times before, so she must be at least verging on genius-level intelligence, right? Ahem.

Her topic is divorce and child custody law and the relatively recent history of same. More to the point, her interest is in feminism’s effects on family law, so there’s much good to her article. That said, I wish she’d gone further and pointed out how feminism’s antipathy for fathers’ rights to access to their children post-divorce contradicts everything feminism supposedly stands for. And then I wish she’d speculated about why feminist organizations might do such a thing.

Still, I feel I’m quibbling.

Loftis quotes Slate.com on the subject of women being considered the “default parent” in divorce court.

“As long as women are still the default homemakers and caregivers—a reality perpetuated by the gender wage gap and policies that deny men paid family leave—they have less independence and energy to devote to personal lives, careers, and political advocacy.”

Hey, it’s Slate, so what did you expect, good sense? Needless to say, the Slate writer has it exactly backwards and, well, just plain wrong. No, women aren’t caregivers by default due to the wage gap; the wage gap exists because women are the default caregivers. Study after study demonstrate that one of the two major reasons why women earn less than men in the aggregate is that they work fewer hours. Why do they work less? Because they’re caring for children. I’ve lost count of the number of studies showing women from all walks of life either quitting work altogether when the first child arrives or reducing their hours dramatically.

And of course women routinely opt for parenting over paid work for the reason I’ve harped on for years – their biology. Nature connects mothers particularly but fathers as well to their children and all but demands parenting behavior. In short, due to millions of years of evolution, among other things, women prefer to care for their children over most other endeavors.

Loftis has her own response.

Yes, that is the narrative. Women’s default caregiver status is the result of unequal wages — a factoid that has been repeatedly debunked yet persists — and lack of a federal family leave policy. In truth, the main perpetuator of women as default caregivers is family law, specifically custody law in the case of divorce.

In U.S. courts, the overwhelming majority of physical custody awards is to mothers, with fathers getting “visitation” and “secondary parent” designations.

All true, but I wish Loftis had questioned her own assertion that child custody law is what makes mothers the default caregivers. It’s of course entirely accurate to point out the role of family courts and laws in the establishment of mothers as caregivers and the marginalization of dads. But no one in family court forces women to claim primary or sole custody. Like anyone else, they can present the court with a petition requesting equal parenting time and, in most instances and as long as Dad agrees, judges will be all too happy to sign an order doing just that.

But mothers very, very rarely do that. Loftis never asks why. We know why, because researchers Margaret Brinig and Douglas Allen have provided the research to answer the question. Mothers know to a virtual certainty that they’ll get custody of their kids and, being mothers and therefore strongly tied to their kids, that’s what they ask for. The known biology of the matter explains a lot.

Loftis seeks the answer in other places, and I don’t for a minute say she’s wrong to do so. Yes, money too is a powerful incentive to any behavior and child custody is no exception.

Compassionate courts and regretful feminists started disguising spousal support as child support in the 1980’s. Since child support depends greatly on who has physical custody, mothers retaining primary physical custody became essential. And no coincidence, I’m sure, but the 80’s supercharged the doofus dad trope.

By the time the law started making provisions for spousal support in long-term marriages — see the Chicago Tribune, 1986, “Feminists Call for Change In Feminist-Backed Alimony Laws” —assumptions about mothers as primary custodians of children were well set.

Needless to say, if we offer a person money to do A, we’re not surprised when that person does A. So yes, the child support and alimony system offers mothers an incentive to stay home with the kids. But face it, they had the most powerful incentive there is to do that anyway. After all, no one pays chimpanzee mothers to care for their infants, but they still do it. And human mothers were the default caregivers to children long, long before the 1980s or before Second Wave feminism or before feminism, etc.

Besides, even the most casual glance at Census Bureau data on child support payments by fathers to mothers dispels any notion that it offers a particularly strong motivation to opt out of paid work. As of 2011, the average child support received by mothers was $3,862 per year, or about $322 per month. In short, on average, mothers are going in the hole financially in order to have custody of their kids. That doesn’t seem like quite the powerful motivating factor Loftis seems to think it is.

I have no quibble with Loftis’s point – that women seek custody in part because they get paid if they prevail (and may have to pay if they don’t). I would only say that, as a purely financial matter, equal parenting time for Dad and Mom makes a lot more sense for Mom than primary custody plus child support.

My point is that child custody is scarcely “a purely financial matter.” Parenting costs money, to be sure, but parents are motivated by their biological attachment to their children far more than anything else. That motivation is powerful enough to have survived and evolved for countless millennia and won’t be denied by family courts or laws or money.

Family courts are definitely part of the problem. They are because they routinely fail to respect children’s need for both parents to be present in their lives.

More about feminism tomorrow. Meanwhile, kudos to Leslie Loftis for speaking the truth about family courts and how they got to the critical state in which we find them.

 

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