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Fathers' Rights and Child Custody Law

Contents

Historical Context

Prior to the twentieth century, common law jurisdictions typically treated children as the property of the father, and thus following divorce the father would gain custody as a matter of course. With the development of psychological science over the twentieth century, most jurisdictions completely transformed this presumption of paternal custody, instead imposing the so-called "tender years" doctrine which held that absent extraordinary circumstances young children should always be placed in the custody of their mothers.

As it became apparent that both of these models were fundamentally flawed - two sides of the same bad penny - a wide assortment of alternative models arose, each of which attempts to discern the custodial arrangement that is in the "best interests" of the children. Typically, these models include a presumption that the parent who served as the primary caregiver during a marriage should be the primary custodian following divorce.

Goals of the Fathers' Rights Movement

The fathers' rights movement arose in response to the perception that fathers were not being given equal treatment in child custody litigation. Fathers' advocacy groups typically to focus upon some or all of the following beliefs:

  • A "traditional" division of parental roles during a marriage should not of itself mean that the father should not be considered as a custodian following divorce;

  • Children are best served by being in the care of both parents, and thus there should be a legal presumption of joint physical custody and equal parenting time following divorce;

  • Fathers are at a disadvantage throughout the entire custody litigation process.

Fathers' rights groups assert that changes of this nature will create a family court environment where both parents are treated fairly and equally, and diminish the effects of legislation and, in some cases, of judicial bias which favors the mother.

Fathers' rights groups also typically point to studies which show that the absence of a father from a child's life can lead to a wide variety of negative behavioral and educational consequences.

Responses to the Fathers' Rights Movement

While acknowledging the importance of fathers, those who defend the current system respond:

  • It makes the most sense for a court to look to the parent who has been the primary caregiver of the children during a marriage to continue that role after divorce, and maintaining consistency in that relationship is best for the children. While it is true that this approach will often favor the mother, it is gender-neutral in that it also works to the advantage of fathers who serve as the primary caregivers of their children during a marriage;

  • Children are best served by a custody model that looks to their best interests based upon the actual facts and circumstances, and artificially imposed presumptions interfere with achieving a result that is in the best interests of the children;

  • When fathers litigate custody issues, they are as likely as mothers to prevail. (Father's rights organizations suggest that this is because fathers only litigate the most extreme cases, although there do not appear to be any formal studies on this issue.)

The more strident critics of the fathers' rights movement suggest that the goal of that movement is not equal treatment, but to provide an advantage to fathers in custody litigation. Some also suggest that much custody litigation initiated by fathers is focused not on actually gaining custody, but on coercing a more favorable financial settlement.

The "Father's Rights" Lawyer

In response to this movement, a number of lawyers and law firms hold themselves out as "fathers' rights" firms, claiming to represent only men, and to have special expertise in litigating custody cases on behalf of fathers. In response, a number of firms have arisen which claim to represent only women and mothers.

Many lawyers view this as a marketing gimmick, which works to the disadvantage of parents who hire this type of firm. When you walk into a court with a lawyer from this type of firm, the judge will know your attorney's agenda, and this may create a reflexive skepticism of the client's goals and intentions. Some of the advocacy firms promise to "fight hard" or even "to teach her (the mother) a lesson", and use that promise as a pretext to bring lots of motions which serve to drive up the cost of litigation, or even to force an unnecessary custody trial. At the same time, that type of tactic can exhaust a judge, given that judges almost always prefer that the parties resolve their custody disputes between themselves.

It is also important to note that, while some fathers' and mothers' rights firms have competent attorneys on staff, the best family lawyers don't need that type of marketing tactic in order to maintain a full caseload. Often the best family lawyers don't charge any more than these advocacy firms, some of which profit handsomely from their marketing campaigns, yet their entry into a case does not make the court automatically suspicious of their clients. Top family lawyers are attuned to the factors which affect fathers involved in custody battles, and the mere fact that they are also willing to represent mothers in no way means that they don't provide zealous and effective advocacy for fathers.

In short, when you are in a custody dispute, you are best served by obtaining the best legal representation you can find. A caring parent, deserving of custody, should be wary of sending the wrong message to a court by associating his or her child custody case with a particular political agenda.