Fathers' Rights and Child Custody Law

Father's Rights in History

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. Unless a father chose otherwise, he retained custody of the children following divorce.

With the development of psychological science over the twentieth century, most jurisdictions completely abandoned the 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. The theory held that young children needed nurture and care of a nature that only a mother could provide, and that a father was better suited to supporting a family than to raising childen.

It now seems obvious that both of those models were fundamentally flawed - two sides of the same bad penny. In recent decades, a wide assortment of alternative models have arisen, each of which attempts to discern the custodial arrangement that is in the best interests of the children. Most modern models include a presumption that the parent who served as the primary caregiver during a marriage should be the primary custodian following divorce. Some states are experimenting with a presumption that joint physical custody is in the best interest of the children unless the evidence shows that one parent is not an appropriate custodian.

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. At the start of the movement, those perceptions were well-founded:

  • Under the tender years doctrine, absent a clear demonstration that the mother was not a fit parent, even the best fathers had great difficulty getting physical custody rights beyond basic visitation.

  • When parents follow a traditional division of household and parental duties, that division helps mothers establish themselves as the primary caregivers of their children.

  • Even as laws were changed to abandon the tender years doctrine, even when a truly objective examination of the facts would have resulted in a different outcome, some judges continued to rely upon their own childhood experiences and cultural beliefs to award sole or primary custody to a mother.

Fathers' rights 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 family courts should treat both parents are treated fairly and equally, and that action should be taken to amend legislation to ensure equality before the courts, and to eliminate judicial bias that favors the mother.

Fathers' rights groups often point to studies that suggest 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 recognize that fathers do tend to fare equally in custody litigation, but argue that it is misleading to look only at the outcome because fathers tend only to litigate the most extreme cases. There do not appear to be any formal studies examining the question of whether that belief is true.

One response to the father's rights movement's efforts to gain a presumption of joint custody is that such an approach raises the same dangers as the presumptions that came before it. Both the presumption of paternal custody under a property model and the presumption of maternal custody under the tender year's doctrine limited a court's discretion to make a fact-based decision, and a presumption of joint custody can similarly compel a court to overlook important facts that might otherwise be used to support a custody determination that is better for the children.

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. 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.

Many family lawyers view a claim of being a "father's rights lawyer" or "mother's rights lawyer" as a marketing gimmick that may work to the disadvantage of a parent who hires that type of firm. When a client walk into a court with a lawyer from a firm that only represents fathers or mothers, the judge will know the attorney's agenda, and that recognition may create a reflexive skepticism of the client's goals and intentions. Judges almost always prefer that the parties resolve their custody disputes between themselves. A law firm that litigates minor issues or insists upon taking weak or marginal custody cases to trial may develop a reputation that is potentially harmful to its clients.

Although some fathers' and mothers' rights firms have experienced, 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. Many charge less, as some advocacy firms charge premium fees. When a client is represented by a lawyer who represents both fathers and mothers, there is little risk that the judge will infer that the law firm or client has an agenda that may complicate an otherwise straightforward case.

Top family lawyers are attuned to the factors that may affect fathers involved in custody battles. The mere fact that a lawyer is willing to represent both fathers and mothers is not evidence that the lawyer won't provide zealous and effective advocacy for fathers. This is not to say that there aren't highly qualified lawyers who represent only fathers or only mothers, but you should take care that you're retaining a skilled practitioner and not being misled by a marketing gimmick.

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.

Copyright © 2003 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was first published on , and was last reviewed or amended on Jul 8, 2016.