-
Family courts throughout the country are guided by the over-arching principle that child custody cases are to be resolved in the "best interests of the child." What that has meant in practice, however, is "the best interests of the child" are often indistinguishable from the best interests of the mother.
In about 90 percent of the disputed custody cases in America (93 percent in Colorado), it's the mother, not the father, who is designated by the courts as the primary residential parent.
This lopsided outcome has understandably angered millions of men who resent being consigned to marginal roles in the lives of their children or, in some cases, completely excluded.
These men, instead of quietly accepting their fate, have begun to mount a series of challenges to the best interests standard.
They have filed individual and class-action lawsuits, proposed new laws and in general been more aggressive in advancing their own interests in individual cases. Each of these steps is aimed at the same goal: the desire to limit, if not utterly remove, the broad discretion now routinely exercised by family court judges.
Does that mean the "best interests"
standard is about to be replaced or seriously modified? Probably not, but significant changes in law have grown from much more modest social roots than the male rebellion now under way.
Timing in public policy matters is everything. In a fortuitous accident of timing, the fresh technology of the Internet provides a ready means for disgruntled fathers to effectively unite in ways not possible even a few years ago.
There are increasing numbers of Web sites exclusively devoted to spreading the word about past family court injustices as well as rounding up troops for future action. Given the ease and speed of modern communication, it is inconceivable that the fathers who feel aggrieved by the family court system would ever again settle for isolation and silence.
Earlier this year, a ballot initiative was circulated in the state of Washington under the title "Washington's Shared Parenting Duties Act." Under the state's fairly complicated initiative process, the proponents lack the required number of signatures, but it is one of the very first serious attempts to change the way that family courts operate.
What the initiative sponsors want to do is rewrite Washington's legislative declaration to make it clear that the state policy is to provide every child with maximum access to "each of their parents."
The initiative also proposed a major reduction in court discretion. It would accomplish this by imposing on the parents the task of determining the best interests of the child and would require the courts to approve those voluntary agreements concerning parenting time. The court would have discretion only when the allocation agreed to would be "harmful to the children."
The initiative contained other provisions to establish a presumption that each parent, at the minimum, would have the child no less than 35 percent of the time, or 127 days and nights per year. This kind of division would alter the child-support arrangements and reduce the amount of financial support received by the mother.
In the cases where parents simply couldn't agree, a dispute-resolution mechanism would be employed.
Any parent could allege that shared parental duties and residential placement would be detrimental to a child or children, but that parent would have to prove that allegation by clear and convincing evidence. The proposed law also would require the judge to make his or her findings in writing based on the evidence.
Those provisions, while they would surely limit the court's discretion, still left open the possibility that a judge eventually would have to determine parenting plans. The initiative was intended to reduce the number of those decisions and to make sure they weren't casually crafted.
Importantly, the initiative would not have had any effect in those divorce and custody cases where violence against a child was a factor. Washington law regarding issues of abuse would have remained unchanged.
The language of the proposed initiative is worth further study if for no other reason than that it represents a serious attempt to sell a change in the "best interests" to the general public. It has been described as an attempt to "tweak" the standard, but some critics of the existing order don't think tweaking will be enough.
They believe that only a rewrite of existing law will do. They specifically propose that certain presumptions be written into the law. These could include the requirements for minimal overnight stays, or a presumption that, in the absence of proven harmful conduct, each parent be placed on equal footing. The law also might include a presumption that any parenting plans, to the degree possible, would minimize the disruption on the lives of the children and assure substantial contact with both parents.
Either approach - tweaking the existing order or rewriting it - would arguably produce more fair results than the present system.
Volumes have been written about the current inequities, but one recent example from the local courts should be enough to demonstrate the hazard that often awaits males in custody disputes.
Several weeks ago in Arapahoe District Court, a magistrate ruled on a motion brought by the father. The father asked that his two children, one of them physically handicapped, be allowed to live with him. He testified that on a visit to his wife's residence, he had found his children unsupervised, shoeless and coatless, in the cold. His wife, he said, was nowhere to be found. The court also was informed by competent witnesses that the wife had two earlier charges of child neglect and abuse against her, and that a third charge was pending.
The wife testified in response that she had instructed a 12-year-old boy next door to watch the children, and that he had abandoned them. In an attempt to discredit the husband, she testified that, on one occasion, her husband had been given a chance to visit the children but passed up the opportunity to play volleyball.
Having heard the testimony of the two parties, the court ruled that custody would remain with the mother, even though she acknowledged the children didn't have a bedroom of their own in her present living arrangement. The fact that the father could provide better facilities didn't alter the court's view.
This patently imbalanced result is not terribly unusual. It is offered here to make the twin points that there is an elemental unfairness in our family courts and to demonstrate that changing it won't be easy.
The main impediment standing in the way of legal modifications in family law is a deeply ingrained public belief that fathers are, as often as not, shirking their child-support obligations. For a number of reasons, the image of "deadbeat dad"
lingers.
As long as it persists, it will be very difficult to convince a legislature to change the law in any significant way.
Gradually, however, information is emerging that chips away at the deadbeat-dad stereotype. A variety of research has shown that the child-support payment rates are not only improving, but there also are plausible explanations for some of those instances in which timely payments aren't being made.
A chart that accompanies this article, provided by the Urban Institute, clearly shows the improvement over a 20-year period for three categories of mothers. What the statistics show is that never-married mothers have by far the least chance of receiving child support. Payment rates are much higher for women who are divorced or separated.
A comparison of the years 1977 and 1997 shows a dramatic cultural shift affecting child support. In 1977, the single mothers in the nation were divided into two starkly different groups. More than 80 percent of them were divorced or separated, and just 18 percent were in the never-married category. Over time, those numbers shifted dramatically. By 1997, the 80 percent-plus figure for divorced and separated mothers was down to just 54 percent. During the same period, the percentage of single mothers who had never married went from just 17 percent to more than 45 percent.
There are a lot of obvious reasons why it is more difficult for an unmarried
mother to collect child support than for someone who was married. Many of these unions were short term. In many instances, the mothers had no desire to maintain a relationship with the father. In a significant percentage of the cases, the fathers didn't even know they had produced children.
Many mothers may not, for one reason or another, wish to initiate the step-by-step process of establishing paternity. Low-income women typically may apply for welfare benefits, and only then does the state undertake to establish paternity and collect past child support from the father. In many cases, because considerable time has passed, collection of the full amount - including that in arrears - becomes difficult, if not impossible.
All of these factors skew the statistics. They are further reduced by at least two other factors that are often unremarked upon.
The first is that a large number of fathers are in prison and therefore unable to pay any significant portion of child support. By some accounts, more than 60 percent of the men incarcerated in this coun try are fathers.
Finally, there is the fact that many low-income fathers are especially disadvantaged by current child-support guidelines, which virtually invite delinquency. For example, in Colorado, a divorced father with two children and a gross monthly income of $1,500 - reduced to $1,300 or less after taxes - would be required to pay more than $400 per month in child support. The $900 left after that child support payment would not allow for minimal living expenses, i.e., an apartment, a car or other transportation, food and insurance.
Not surprisingly, many of these low-income men quickly fall behind in child-support payments.
There have been a number of recent attempts to accurately measure how well divorced fathers are doing in keeping up with childsupport payments.
A 1998 book, "Divorced Dads - Shattering the Myths," by Sanford. L Braver and Diane O'Connell contains information on an eight-year study of divorced fathers.
The authors were critical of Census Bureau surveys which, they pointed out, were solely based on reports from custodial mothers.
Thousands of parents were contacted, and what the researchers found was a significant disparity in what the two parents reported.
The custodial parents said they were receiving just 68 percent of court-ordered child support, but the non-custodial parents reported paying 84 percent. The researchers concluded that "the amount actually paid by divorced fathers is almost certainly higher than most official estimates."
A number of government reports confirm parts of the general picture. Where court orders are in place, some 76 percent of fathers pay. Many, but certainly not all, of those who do not are delinquent because they lack income or because the mother is denying court-ordered parenting time.
The various groups now working to get more of a fair shake in the family court system must first deal with the public perception that divorced fathers typically are lax in making child-support payments.
Once the stereotype is eroded, some state or states will experiment with new and better ways of dealing with dissolution-of-marriage issues.
In the meantime, the "best interests"
standard will continue to be applied - to the detriment of many fathers and their children whose relationships will continue to give way to the best interests of the mother.
