TN Lawyer Sees Anti-Dad Bias of Family Courts Changing.

The playing field in family court is tilted against fathers according to Tennessee family lawyer Joseph Cordell.  Here’s his article (Huffington Post, 7/28/11).

Cordell doesn’t say anything we don’t already know, but it’s nice that his piece got posted on a widely read site.  The more mainstream publications that allow their readers to see the truth about family courts and family law, the better, so Cordell’s piece is welcome.

His article takes on the flagrant inequality of family courts in which mothers are routinely given primary custody.  That alone might not indicate bias, but when mothers and fathers behave the same way, but get different custodial results, it’s not hard to tell somethings amiss.

With the growing number of stay-at-home dads and two-working-parent households, one would think that the presumption that a child should spend equal time with each parent is a given–but not so.

I’ve seen several cases where you have a highly successfully, financial well-off wife married to an unemployed or underemployed husband who cares for the children.

For the most part, judges and opposing counsel see the situation and say, “Why doesn’t this guy go out and get a job?”

Now flip the roles. The husband is a high-paid executive and the wife is unemployed or underemployed. There is no presumption here that she should be working. In fact, many believe the woman is performing a perfectly legitimate role as a stay-at-home mom.

So a dad has to struggle to prove he is not guilty of being a deadbeat, but the same is not true when the situation is reversed.

It’s not hard to figure out; it’s a double standard favoring mothers.  A good number of judges identify the primary caregiver and give primary custody to her.  That practice overlooks several important things.

First, the system of primary custody/visitation is bad for children because the non-custodial parent tends to become a non-parent.  That’s true even if he never misses a visitation period, because seeing a child for two days every two weeks is insufficient to maintain the role of parent.  That’s the message of Susan Stewart’s study of custodial parents whom she calls “Disneyland Dads.”

Spending that little time, that far apart means the parent becomes a mere entertainer.  The non-custodial parent makes no important decisions about school, health, social life, nutrition, etc.  And that’s not lost on the child, who sees clearly who is the “real” parent, who makes the important decisions. 

Stewart also found that non-custodial mothers experience the same thing.  They quickly become non-parents to their children.

So the entire concept of primary parent/visitor erodes the non-custodial parent’s relationship with the child, to the detriment of both.

Second, the mere fact that Mom stayed home while Dad went off to work doesn’t make Dad less important than Mom in the child’s eyes, only the court’s.  Children don’t want to lose either of their parents post-divorce and suffer psychologically when they do.  Dr. Edward Kruk has reported on studies showing that children of divorce overwhelmingly want equal parenting time post-divorce.   But courts doggedly order radically unequal parenting time regardless.

The various ways family courts have of finding their way to primary custody for Mom and visitation for Dad have no basis in the science of children’s wellfare.  As Canadian Paul Millar found, there is no correlation between maternal custody and improved outcomes for children, while there’s some evidence for a connection between paternal custody and improve child well-being.

So why does it keep on happening?  According to Cordell, bias on the part of judges is a big reason, and that bias comes into play because judges have a huge amount of discretion in awarding custody.  One of the arguments we’ve heard against equal parenting statutes is that they’d “tie the hands” of the family court judge.  Cordell suggest that might not be such a bad idea.

In family law, more than any other area of the law, judges have a huge amount of discretion allowing ample opportunity for biases that we all as human beings have.

Since those presumptions are frequently held against fathers, men must spend more time, money, and effort just to try to get to a level playing field in a family law courtroom.

One purpose of the law is to protect us from those leanings of individual judges, but once you give a judge such a wide range of discretion and decision-making then it invites that sort of bias. Historically, it has not worked in the favor of guys.

For example, many states’ child custody laws specifically say the child is entitled to maintaining a relationship with both parents, but those same laws do not outline the quantity of time each parent has to establish and foster that relationship.

The result?  All too often it’s “every other weekend plus Wednesday night” for Dad.

Cordell sees things improving, but not very fast.  He thinks there’s been improvement in the shocking anti-father bias of family courts, and I hope he’s right.  I believe he is.

I’d argue that that’s in part because organizations fighting for fathers’ rights aren’t just pro-father; they’re pro-mother and pro-child too.  Social science says that greater paternal involvement in children’s lives is good for all three, father, mother and child.  Father with active roles in children’s lives are far more likely than childless men or fathers who don’t care for children, to be employed, out of jail and not using drugs.  Mothers with active fathers for their children have more time to work, earn, save and be promoted in their jobs than mothers who shoulder all of the childcare load.  And children of course benefit from having both parents caring for them.

So those who advocate for family court reform wisely emphasize, not fathers’ rights alone, but fairness toward both parents. 

The father’s rights movement isn’t an anti-mom or anti-woman movement; it’s an anti-unfairness movement. It just so happens that moms have most of the power in the family court system in America.

Thanks to Matt for the heads-up.

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