My position is that the laws overtly create “moral hazards” — they encourage bad behavior and divorce and child abandonment. They do this by encouraging “winner take all” renumeration and control, following divorce. “No fault” divorce substantially aggravates all of this… as does an uncritical adoption of “the best interest of the child” standard of custody.

A scenario with real examples: A disgruntled spouse starts an adulterous relationship, files for divorce, and announces that this new relationship has produced a baby on the way. This is the “Susy has a little sister now” ploy — it’s fairly common. The argument is that “in the best interest of the child(ren)” they must not be separated from their new half-sibling, and the new family will inevitably be parenting anyway.

Sadly, this ploy commonly prevails, trumping all other arguments. Most judges immediately grasp the gross moral failure here, but cannot or do not see it as enough to overturn the apparent “best interest of the child”

Statistics for this particular scenario are hard to get and the cases aren’t extremely common. Gathering by word of mouth/survey is obviously biased. But in the 6 cases I know about which are like this in the capital district of New York … in 5 cases the adulterous spouse was the wife and she did indeed get custody every time. The sixth was a man, and he lost it. What does one make of this?

Variations on this theme are common, but as a general rule adultery does pay, at least if done “smartly,” particularly with very small children involved. The first “profitable” adultery wins. The law turns marriage into what is commonly called “a mexican standoff.”

The “child support” formulas encourage seeing the child as a “profit center” (or at least “stop loss”) to be fought over. In New York at least the child support is commonly not apportioned on visitation. The effect of it commonly is that the non-custodial parent, paying child support, is reduced to living in a small apartment, while often paying more than the mortgage of a very expensive home … where the spouse lives with their new partner. Is it no wonder that under these circumstances the non-custodial involvement tends to drop off?

So far this appears gender neutral… but you know it isn’t. Generally it’s the man paying, watching his ex live with a new man at his expense, in a house (often what was his house) he can no longer remotely afford. And when you look at orders for child support in the case where the man has obtained custody, very rarely will the courts award him child support. The formula is supposed to be blind in this regard but the application is anything but.

I don’t know of any man in the area with custody, who is collecting child support from the mother … period. As far as I can see, that only happens in “Britany Spears” cases.

If you ask me how to “solve” these issues … I don’t have a clear answer. But the system as it stands is disastrously broken, and actually promotes endless misery for families.

Perhaps many of you will find it illiberal of me — but I think the primary idea of “no fault” is ridiculous… when there are children. With children, parents are supposed to stay married and make that marriage work, because they committed to do so and it is clearly in best interest of the child. I cannot see that even a “good” divorce is better than a reasonably-functional marriage, for the children. It is the moral and adult responsibility of the married parents to be able to do this. If they can’t … then prima facie “they” are not acting in the best interest of their children. Somebody, perhaps two somebodies … is at fault and that fault is not acting in their child’s best interest.

Divorce is not in a child’s best interest. Somebody is responsible — possibly both parties are responsible — but they shouldn’t be rewarded for it.

Though I don’t agree with all of your conclusions, you are correct that most divorcing couples that have non-traditional custody arrangements or (in my case mediated) agreements, then have those agreements signed by the presiding judge.

In my area, mediation is the favored method of custody resolution. And among the many single parents that I know, I only know a handful of fathers that have sole physical custody of their children, and many more mothers with either sole physical custody or joint custody arrangements.

I don’t know for sure that there is a bias against women or against men, but I can say that there are stereotypes at work in the family court system that should be overhauled. Women are not necessarily better parents strictly by virtue of their ability to give birth, nor are all fathers deadbeats, though those images and ideas pervade the family court system.

Ampersand:

But the court does not award or order custody in cases in which the parties mutually agree on father custody (your case #2); courts only award or order custody arrangements when the parties are contesting.

That’s not my understanding of how courts work. If the two parties agree on a particular matter then I would expect them to still apply for an order formalising the agreement, if only to ensure that the matter really is settled. I believe that the correct legal term for such an application is a ’stipulation’.

Also ‘not contested’ does not mean ‘agreed’. In some cases one party will apply for an order and the other will simply not contest it.

It would be nonsensical for them to open with an argument that the most “direct source of information” is contested cases if the statistics to follow do not actually refer to contested cases.

The phrase you quote is used by them only in connection with the testimony of George Kelly, which they dismiss. However nonsensical it might be to attempt to support (or in this case rebut) a claim or a position with non-relevent or partially relevent statistics, it’s hardly an uncommon practice.

In the four paragraphs devoted to citing statistics, I count nine references to fathers ’seeking’ custody (in various inflections of the verb), and no wording at all to indicate that these were only contested cases. It’s only when they draw their conclusions that they refer to contested cases. The impression I get is that in fact, their statistics do not support their conclusions, and that they’ve been bending over backwards to make it look like they do, without actually misstating them.

The alternative explanation is that when they say ’seek’, they’re just being careless. But if so, then they seem to have been very careful to be careless at every possible opportunity.

In fact, the more I read from this report, the more I get the impression that the authors are fitting the facts to their conclusions rather than vice versa. Take the imediately following section for example. They state: “When fathers contest custody, mothers are held to a different and higher standard than fathers. In general, if custody is contested, mothers are scrutinized more closely than fathers. ” Yet the evidence they adduce for this proposition is ambigous, anecdotal, and conclusionary.

I find it difficult to believe that the unsupported claims of “a Boston attorney” should be given more weight than those of a father’s rights activist, especially as it’s not hard to find attorneys who say the opposite.

The remark by “a family service officer” could be interpretted as indicating bias against men rather than against women. If custody is generally granted to fit mothers, regardless of the fitness of the father, and if most mothers are fit, then the most economic approach would be to investigate her for fitness before investigating him, since this will decide the issue in the majority of cases. If he’s going to lose custody anyway, then there’s no need to investigate him.

The remarks of “A witness from Greater Boston Legal Services” are annecdotal as are those of “one Boston attorney”. The latter doesn’t even indicate bias on the part of the probation officer unless it could be shown that he behaves differently towards female clients. Again FRA’s would not find it hard to describe countervailing annecdotes.

The remarks of Sheera Strick are conclusionary with no evidence in support being adduced.

Continuing to the next section, the slant becomes even more obvious. Half of probate judges hold traditional views about the roles of Mothers in bringing up their children. That’s a reason to believe that mothers are disfavoured in custody battles? And when judges say something which contradicts the researchers’ biases, the judges only claim to believe what they say, and the authors try to find something to discredit them, in this case, in the form of “nearly a quarter of the family law attorneys surveyed”, who apparently carry more weight with the researchers than the over three quarters of family law attorneys who support what the judges have said. The rest of the section are just more annecdotes.

And so it goes on and on.

My understanding is that an appeal indicates that one of the parties doesn’t settle for the lower court decision, not that neither party settles for it.

Point well taken.

Now it seems to me that both 1 and 2 would fall under the rubric of “fathers… actively seek[ing] custody”, and I see nothing within the passages you cite to indicate that the statistics quoted do not refer to the aggregate of the two

The introductory paragraph to the longer section I quoted said:

Although perceptions of bias that discourage fathers from seeking custody are a concern, the outcome of cases in which custody is contested provides a more direct source of information about possible judicial gender bias. We heard testimony from George Kelly, a representative of Concerned Fathers, that in contested custody cases, mothers are awarded physical custody over 90% of the time. Mr. Kelly was unable to provide substantiation, however, and our own investigation revealed a very different picture.

Introducing the passage this way certainly implies that the cases they are studying are cases in which “custody is contested.” It would be nonsensical for them to open with an argument that the most “direct source of information” is contested cases if the statistics to follow do not actually refer to contested cases.

Secondly, the passage quoting refers to custody being “awarded” or “ordered,” as in the following:

In two-thirds of the cases in which fathers sought custody, they received primary physical custody (42% in which fathers were awarded sole legal and sole physical custody, plus 25% in which fathers were awarded joint legal and primary physical custody). Joint physical and joint legal custody was awarded in 3.5% of cases. In 11% of the cases, mothers received primary physical and joint legal custody; in 12%, mothers were awarded sole legal and physical custody; other custodial arrangements were ordered in the remaining cases.

But the court does not award or order custody in cases in which the parties mutually agree on father custody (your case #2); courts only award or order custody arrangements when the parties are contesting.

I’d be more certain if I was able to find a more detailed account of their survey. But from what’s available, it appears to me that you and Cathy Young are mistaken.

the Massachusetts Supreme Judicial Court’s Gender Bias Study of 1989 … does not distinguish custody disputes from cases in which the father got custody by mutual agreement.

Ampersand:

The Massachusetts Study clearly distinguished between cases where there was “agreement of the parties” and cases in which “fathers… actively seek custody.”

That’s not how I read it at all. It seems to me that there are three cases:

1. Father seeks custody, mother contests.
2. Father seeks custody, mother does not contest.
3. Father does not seek custody.

Now it seems to me that both 1 and 2 would fall under the rubric of “fathers… actively seek[ing] custody”, and I see nothing within the passages you cite to indicate that the statistics quoted do not refer to the aggregate of the two. If the statistics in fact refer to “fathers who actively contest custody”, why did the authors not say so?

Although I can’t be certain of it, on plain reading it looks to me as though Cathy was correct.

[UPDATE (posted 5:30pm Tuesday): It appears I may have misunderstood the Maccoby and Mnookin quote I posted - how embarassing! When they say "fathers who conceded custody at lower levels of the conflict pyramid," they are referring to fathers who choose not to appeal after losing custody in a lower court. Counting all cases, mothers win twice as often as fathers; counting only those cases in which neither party settled for the lower court decision, fathers had about a 50/50 chance of winning..

My understanding is that an appeal indicates that one of the parties doesn’t settle for the lower court decision, not that neither party settles for it.

So Cathy’s citation of the Maccoby and Mnookin study may not be as bad as I thought. Nonetheless, the caveat that fathers who don’t give up early in the process get what they want 50% of the time is still a rather important thing for Cathy to have left out.

Except that it doesn’t follow, unless by ‘don’t give up’ you mean to include father’s who win at the lower court level, and who then defend the mother’s appeal. It doesn’t follow that Father’s who lose at the lower court level and appeal win 50% of the time.

As an extreme example of how bias could be hidden behind a 50% figure, suppose the appeal court automatically denied father’s appeals, while allowing mother’s 50% of the time. Under those circumstances no losing father would appeal, and the overall success rate of fathers in the appeal court would be 50% - all of them as appellees.

I’m not saying that’s how it is, only that you can’t conclude that losing fathers who appeal have a 50% success rate. Nor can you prove or disprove bias purely by looking at success rates, without looking at the underlying merits of the cases.

Most “cost of children” figures are based on per-capita allocation of costs. My mortgage runs me about $1,200 a month. The incremental cost of having a bedroom for the munchkin is, well, $0.00 because I live in one of the smallest houses in my subdivision (there’s one floor plan smaller and it’s ugly as sin …). Yet using a per-capita allocation model, the incremental cost of a child is $600. If I lived in a bigger house, which would basically involve me wandering around even more empty space, the incremental cost would somehow magically increase.

The other thing to bear in mind is that even “sole custody” isn’t a zero visitation custody arrangement. The average number of days of possession for all custody agreements, of which “joint custody” make up only some 9% at present, is over 70 days (I think that’s correct) per year. That’s just shy of a solid week each and every month and too much time for Dad to sleep sofa on a regular basis. For younger children the number of days of contact per year is about 10 days higher, which is more than a week per month. Meaning, the average non-custodial parent in a sole custody arrangement likely already has paid the incremental cost of a child. And while much is made of non-custodial parents who disappear a few years after a divorce, even below the poverty line children continue to have contact with the non-custodial parent.

“Joint custody” is simply a term of art. A parent with 80 days per year of possession in a “sole custody” arrangement, versus a parent with 146 days per year (40%), already has to live “fairly close”. Mothers having sole legal and physical custody is the most common (68%) arrangement, but even with “sole physical custody” there is still a lot of non-custodial involvement, on average. With “joint custody” being such a huge source of intra-divorce conflict, going from 70+ days to 146 days per year, and granting joint decision making abilities to both parents isn’t that great a change, in the grand scheme of the universe.

Heart writes:

And to suggest it’s something anybody ought to try via “universal joint custody” so-called is to show callous and in my opinion criminal disregard for the well-being of the children of divorce.

Every study of custody type has found the same thing — it isn’t the type of custody that matters, it is the lack of conflict and the availability of resources. From an HHS study on parenting trends –

Theoretically, all types of custody arrangements have the potential to be beneficial for the child. Several
studies indicate that it is ultimately the quality of parent-child contact within these arrangements that determine
child outcomes.105 See indicators on “Contact with Nonresident Parent” and “Parental Time with Children”
for further discussion of the influences of parental contact on child well-being. (Emphasis added.)

Footnote 105 is 105 Stewart, S.D. (1999). Disneyland dads, Disneyland moms? How nonresident parents spend time with absent
children. Journal of Family Issues, 20(4), 539-556.

I can post more, but the short answer is that the non-parenting father is a non-fact, along with the omnipresent abusing father (3% of fathers have ever abused their children), and the universally non-paying-child-support father (or mother, for that matter) seems to have left the building — more than half of both genders receives the full amount of support owed in any given year.

Which is all to say that lack of adequate daycare, paid time off for sick kids, etc., pregnancy leave, post-partum time off, are very much an issue of *sex* and not “parenthood.”

This, along with most of the rest of what she wrote, is facially false –

Women who are not mothers do not require any of what was written. Women who are mothers, who require those things, but who work for employers which do not provide them, have male co-workers who are fathers, who require some of those things, and who likewise do not receive them. What is common between mothers and fathers is parenthood, not sex. And there exist, to the best of my knowledge, exactly zero companies with family-friendly policies which grant family benefits to involved fathers, but which deny them to involved mothers.

Or to put it more plainly, parents who are denied time off for sick children aren’t denied it on the basis of sex. They are denied it on the basis of parenthood. The proof is that women who are non-parents do not get denied time off for sick children they do not have, and men who are parents who are denied time off for sick children are not denied time off any less so than mothers working for the same employer who are similarly denied time off.

The rest of the post can be summarized as “men are lousey parents and don’t want children anyway.”, which I suspect Heart knows is a gross over-generalization.

Many of the sorts of issues that create conflict post-divorce are not civil matters where there is a contract or court order which describes what “performance” or “compliance” means. Stalking, harassment, destruction of private property, theft, child neglect — these are all tactics used by former spouses (typically men) as a means of harassing the custodial parent (typicall women).

* Judges do not award custody based on parental involvement as has already been amply established here in more than one thread and elsewhere. Where a father seeks custody, he usually gets it. Fathers don’t have custody, in general, because they don’t seek it. Where fathers seek custody, in 70-80 percent of the instances, depending what studies you read, they get it.

* Universal joint custody is a supremely bad idea because you can’t force a parent who doesn’t want custody to be a good parent, and you can’t force a rotten parent to be a decent parent, and you can’t force an abandoning parent to be present and caring, and I don’t care how many law enforcement agencies you bring in or how much you up the child support because the guy doesn’t do his fair share. All he will do is find some way to (1) get the ex wife to do the lion’s share of the care without bringing the fact that she’s doing it to the attention of attorneys and judges (by threatening or intimidating her in various ways or mistreating the kids when he has them so they need to be with her for their own safety ); (2) palm his responsibilities off on his new girlfriend or boyfriend or his mother or his sister-in-law or his neighbor who may be as rotten a caregiver as he is, thus keeping the kids away from their mother while continuing to avoid his own responsibilities to his children, keeping his child support low, etc.

* The absolute best thing for babies as established by too many studies to count is breastfeeding, at least through the first year. Many mothers know this and want to breastfeed but they are forced back into the job market because they have to support themselves. Policies should not be based upon the fact that “many mothers return to work at 2-3 weeks post-partum.” Policies should make provision for the lived realities and choices of mothers and their babies: to wit, babies need breast milk, mothers are the ones who provide it, that needs taken into consideration always in issues around custody.

* It is absurd to suggest that lack of adequate daycare (which is something that, left to feminist mothers early on, would not even have been the feminist issue it has become, but anyway, that’s another thread for another day and probably not for Alas) has to do with “parenthood” and not sex. Lack of adequate daycare, rotten wages for daycare workers, rotten wages for caregivers of all kinds, have to do with men as the plumbline and men’s lives always as the standard. Men have never had to do caregiving of anybody but themselves (and not even themselves in many ways) until recently; women did it. Therefore, provision for the care of children, the disabled, elderly was never part of the equation so far as wages, time off, working conditions, salaries, etc. Men didn’t have to worry about that stuff and didn’t have to do it, so it was never, until recently, considered essential to any sort of wage or salary or employee benefit package an employer might conceive or offer or any fair labor standards might include. Feminist women have steadfastly insisted on women’s lives informing a male-dominated workplace and its wage and benefit packages, to include provisions for and considerations around pregnancy, birth, post-partum, care of infants, breastfeeding, care of sick children, care of disabled children. The problem isn’t and wasn’t some generic and remote set of “employers” per se, except that those employers we’re talking about, historically, until recently were all male and their policies reflected specifically male sensibilities. Which is all to say that lack of adequate daycare, paid time off for sick kids, etc., pregnancy leave, post-partum time off, are very much an issue of *sex* and not “parenthood.” I was let go from my job as an IHOP waitress in 1972 because I was *pregnant.* And if you were pregnant in those days, you were let go because you couldn’t wear the cute little orange uniform with the apron tied in the back. And that didn’t have to do with “parenthood.” Male parents could continue to work unhindered because men don’t bear children. That had to do with *sex*, namely, that I was a woman and got pregnant because of my sex. And the issues centered in sex discrimination will be resolved only to the degree that employers make room for the realities of women in their policies and benefit packages. They have ALREADY made provision for the realities of men. Men do not bear children. They do not get pregnant. They do not breastfeed. They do not require time to recuperate physically. And by and large, still, today, they do not bear responsibility for the care of children, and most of the time, as the studies bear out, that is *by choice*.

My biggest issue with what has been posted, though, is with this insance idea that through laws and enforcement and bringing in the big guns, you can make a good-dad-silk-purse out of a rotten/absent-dad-sow’s ear. It cannot be done. And to suggest it’s something anybody ought to try via “universal joint custody” so-called is to show callous and in my opinion criminal disregard for the well-being of the children of divorce. Not to mention all of the many issues around children’s rights, a consideration totally lacking in all but, imo, Amp’s posts. My own view is that once a child can tell us where she wants to be, that figures into the equation and must. At the point at which she doesn’t want to be somewhere, then I don’t believe she ought to be forced to be where she doesn’t want to be. In point of fact, courts increasingly do recognize that a child approaching puberty, 10, 11, 12, 13 and up can’t be forced to stay with a parent she doesn’t want to stay with. And I will tell you truly, a child is most often not going to be interested in living with a father who never wanted her and has palmed her off on all sorts of people if he ever made provision in his life for her at all. But that, too, is another thread for another day.

I think the legal standards should be gender neutral both is wording and in application, and ideally I favor a series of mediation sessions for resolution of divorce and custody in the majority of situations. For those women escaping dv or partners that abuse children… I favor using the full power of the law.

I don’t know about other states, but I believe my home state bars any parent who is convicted of domestic violence, and I believe that includes abuse against children, from having joint custody.

Apropos “full power of the law”, one thing I find highly problematic about divorce situations is that actions which would be handled as criminal matters if they happened between complete strangers are treated as “civil matters” when they happen between divorced couples. Since the entire purpose of divorce is to make two people “legal strangers”, that’s a practice that I think needs to be changed.

My home state has an offense, “Interference with a child custody order”, but getting an uncooperative spouse charged with that is almost impossible, as I found when my X was inclined to deny ordered periods of possession. It wasn’t until I was on the verge of filing a Motion to Show Cause (”contempt”) that such things stopped. I think “Please don’t file that motion!” was the last thing uttered before things finally improved.

Whether it’s former spouses who harass by violating custody orders or refusing to abide by telephone calling times, criminal offenses exist that could be used to curtail that behavior far more effectively than requiring a divorced couple to spend thousands of dollars in court with no guarantee of results. While I would have hated for my X to be arrested, finger printed and booked on a felony, I hated even more that the interference created conflict that our child then suffered because of.

I also feel like this disucssion has been very class biased. The issues facing low income men and women who are unmarried and have children together are much different, but still relevant. If you get the time, I would like to see you address low income families perspectives on this issue. I am very curious what you have to say. The truth of the matter is that part of the reason the child support number (you mentioned in an earlier post) was so low $280 per month is because many of people in divorced families are not well off. This debate needs to be expanded…..

It’s from numbers produced by the U.S. Census Bureau. I don’t know their methodology. I’d assume that all forms of childcare, including caring for sick children, is included. I could be wrong, however.

You do raise a valid point, in re, how parenting responsiblity reflects job flexibility rather than parental ability or interest. I don’t think men are any less capable of finding a doctor’s office (provided they stop and ask for directions if lost :) ) than women, so I have to conclude that there are other forces at work in the decision-making process. Since the most likely force is either wage inequity or employer hostility towards fathers, I feel that working towards wage equity between men and women as well as joint custody should remove that disproportionate burden from women.

And thanks for the kudos — one way that I differ from other feminists is that I believe a viable approach to solving women’s problems is by making them men’s problems as well. Since “burdened to care for children”, and all that entails, is a common problem for women, inflicting men with the joys (ahem) of parenting post-divorce seems like a workable approach to solving many of those problems.