I’ve hesitated to step into the realm of politics here, particularly with respect to feminism.
Because you know. Feminists. We’re all just a bunch of man-hating, self-pitying, whiny people who have yet to accept that we’re somehow actually more privileged than men.
I stopped to think about how this very mainstream attitude towards woman’s rights advocates has effectively silenced so many voices, and then I realized that it has apparently silenced mine, too.
Here I have this amazing platform to speak to an audience that celebrates the feminine divine, the mysteries of womanhood and all the beautiful things that come acknowledging them.
I’m not afraid to talk about almost any religious issue, no matter how taboo or uncomfortable it is for mainstream spirituality. Give me a tagline and I’ll give you the content. Reconstructionism, voodoo, psychics.
Yet I’m afraid to discuss anything that might incite the misogynists—both female and male—-and all of whom have far more frightening implications about society at large than any voodoo priestess I’ve ever personally encountered outside of fiction.
Well, that’s bullshit.
So, starting now, expect me to speak my mind about how I see women’s issues, which, after all, are inherently linked to a religion that prides itself on celebrating womanhood.
To start, I’d like to discuss the absurd misconception that family law courts favor women in custody disputes.
I worked in family law as a legal professional, both in the private and non-profit sectors. And I don’t know where this idea comes from.
It is absolutely true that statistically, mothers are far, far more likely to be “awarded” custody than fathers.
But let’s look at that word. “Awarded.” It implies that there was a dispute, and that dispute resulted in the mother “winning.”
Usually, there is no dispute regarding custody.
Let me say that again: in most divorce proceedings, custody is not disputed at all.
If petitions for custody are any indication, most single fathers do not want the burden of raising children alone.
But when they do, family law judges generally go way out of the way to give fathers a fair shake. If anything, judges favor men, because they don’t want to be perceived as “unjustly biased towards maternal rights.”
I have never even heard an attorney make an argument based on a parent’s gender. Ever. If custody does come into dispute, courts look at all kinds of other factors—-school districts, stable living environments, history of abuse and so on. But parental gender is not one of those factors.
In fact, it’s just about the only thing that doesn’t matter.
Generally, family law judges have a great deal of discretion in deciding the best interest of the child. Here are some examples of the kinds of questions they might ask to determine who is best suited for custody when custody is the issue:
“Who helps you get ready for bed?”
“Who tucks you in at night?”
“Who helps you with bath time?”
“Who checks to see if you did your homework?”
“Who do your teachers call when you’re having trouble in class?”
“Who picks you up from school?”
“Who takes you to doctor’s appointments?”
Barring any serious, founded allegations of abuse, whoever is generally responsible for primary care duties in a custody dispute tends be awarded custody. It just so happens that society has set up a system where the primary burden of child-rearing usually falls on women. But in any given case, no one assumes the mother has filled the role of primary caretaker in the absence of clear and convincing evidence that she has, in fact, filled it.
If someone else has assumed that role, then someone else has assumed it.
No one cares if that’s the father or the mother, or even the stepfather.
The theory isn’t that children are inherently better off with their mothers, but that they are best attended to by the person who has always most often attended to them in the past. This is as it should be. Divorce is extremely disruptive to children. Maintaining any possible semblance of consistency usually facilitates a smoother, less traumatic transition.
“Okay. But come on. All things being equal, custody goes to the mother. Admit it!”
All things are never equal. If you believe that, you have never worked in the legal profession.
However, once custody has been established, whether it is awarded to the father or the mother (or grandpa, or someone else entirely) it is very difficult to get the court to change its mind. Again, this is as it should be. Children don’t do well when you whimsically pass them back and forth between households at your convenience.
But once the non-custodial party realizes how expensive child support is, and how serious the legal system is about enforcing child support orders, often times he or she suddenly becomes very interested in obtaining custody.
In this case, the court’s attitude is usually “Well, you weren’t interested in custody for the last two years. Disrupting the child’s life and stability because you suddenly want to play house does not seem in his best interest.”
Which, after all, is the court’s sole obligation in custody cases—to seek the best interest of the child. Not your interests. Not the interests of political special interest groups. The child’s. Whether you are a father who has disengaged, or a mother who went off the deep-end with drug addiction, you’d better come up with a pretty compelling reason to upset the balance.
Once again, I promise you, because I’m the mother will not work. If you passed up custody to begin with, the courts don’t care whether you’re a man or woman.
So yes. Custody is usually awarded to the mother. But not because she’s the mother. Because either there is overwhelming evidence she has filled the role of primary caregiver, or because the father is not even disputing that she should have it.
Men who accept this burden before the dissolution of marriage are “favored” by the courts, too. If you are a man who opted to stay home with your children, you probably ought to (and probably will) get custody. Barring abusive circumstances, drug addiction or neglect, I would absolutely support your right to it.
But that is not usually the case. As I’ve stated, it isn’t even usually the issue. Which brings us to the heart of the matter.
Eight of ten times, the “dispute” comes down to visitation, not custody, which in most (if not all) states, are two separate issues.
In 300 or so cases, I never once saw anyone, man or woman, denied some kind of visitation arrangement if they want it.
(Sadly, it’s far, far more common for them not to bother visiting at all.)
Most people are surprised to learn that even child molesters get supervised visitation.
Outrageously, in most states, even forcible rapists whose crimes have resulted in a child or children get to see their kids.
In the meantime, women who have been saddled with the burden of raising children alone often spend years in and out of courtrooms trying to secure child support while everyone involved behaves as if they’re doing her a big favor by making the father of her children pay it.
Generally, no one has a more inflated sense of entitlement than the deadbeat himself, who seems to think he ought to have a free full-time nanny (with a full-time second job to support the “privilege” of being his nanny) and he should not have to fork over one cent of his beer money to help her.
Sometimes, the non-custodial parent really does want more time with his kids. Sometimes, he realizes that if only he could get X amount more visitation, it would reduce his child support payment by X amount of dollars a month.
Either way, the courts seek the best interest of the child. If your ex-wife has Facebook pictures of you from last Saturday with a bong in your hand, you’re unlikely to get Saturday night visitation. If you’ve been a responsible, involved parent, showing up to baseball practice and PTA meetings every week, you have a high probability of securing more visitation.
This has nothing to do with you being male or female. It has to do with whether or not you conduct yourself in a way that is consistent with someone who places a high priority on the safety, well-being and happiness of your children.
None of this is to say there aren’t loving fathers who have sadly and undeservedly lost the battle for custody of their children—and mothers, too.
Or that there aren’t fathers who have a compassionate attitude towards the mothers of their children in situations of divorce.
But the idea that men are somehow disfavored by family law courts and the legal system in general ignores many realities that the system is actually set up to favor them.
Not the least of which is that 90% of family law judges are old, white men. Go into any courtroom in this country, in almost any jurisdiction, including the most liberal and racially diverse of them, and it will immediately become clear who dominates the bench.
So the next time you’re all hot and bothered by the way justice is dealt in family law courts, you may want to take a moment to recognize that people empowered to make these decisions look an awful lot like the people who are complaining about them.
Interesting to have your perspective with your legal background; thank you for sharing this insight. I look forward to more feminism-themed posts from you! Mo 🙂