by Nick Seidenman

One of the main (if not THE main) tenets of the Father's Rights (FR) position is the modification of family law to include a rebuttable presumption of joint custody.

"Kids have", they argue, "two parents; they should have equal time with both."

Although at first this may sound fair, in practice it is not. In MOST cases (i.e., cases for which any "presumption" must apply) one parent is the primary caregiver. To say that, post-divorce, both parents are now equally situated to care for and have custody of minor children is to disregard the material fact that most are not.

It's not a question of who CAN be a primary parent; any moron with two hands can change a diaper or put a Band-aid on a finger. And we are NOT talking about those (sadly, few) cases where both parents do indeed share ALL of the child care responsibilities. (I daresay that of these marriages, few will see the inside of a divorce court.) We're talking about who HAS BEEN doing it all along, who HAS a history and a track record of giving up personal advancement for the sake of the children. And actions speak louder than words, do they not?

What joint custody does is REDUCE the amount of time and attention a child receives from its primary parent (who we now refer to as the custodial parent -- CP), to be made up, presumably, by the other parent.

The FRs will tell you that this is good for everyone in that it takes some of the load off the erstwhile primary parent, giving them more time to go out and start building a career, and at the same time give the non-primary parent "a chance" to spend more time with the child(ren).

Noble-sounding? Sure. Specious? You bet!

Consider that the non-primary parent was, in most cases, the primary wage-earner; a status that by itself probably limited the amount of time and attention he could focus on the child to begin with. The FRs would have us believe the non-primary parent is now, by virtue of no longer being married, going to spend less time at work and more time being actively involved with their child.  Hogwash. This might be the case for some, but nobody is going to believe "some" is a sufficient percentage to justify such a presumption, applicable (unless rebutted) to all cases. By and large, in a stressful situation, such as a divorce, a person is going to tend to act out of habit and instinct. It is probably the worst time to try to change fundamental attitudes and behavioral patterns and expect any sort of real success at it.

Most non-primary parents have little or no clue as to what is involved in day-to-day child care. It's not just a list of tasks to perform, but a mental attitude that begins its formation when the mother realizes she's pregnant, and develops right along with the child in her womb. By the time the child is born, a mother is effectively conditioned, mentally and emotionally, to be CONSTANTLY aware of the child. This is something those of us who are men, cannot truly fathom; we can barely give mental assent to it. And when you artificially reallocate the child-parent time distribution, what will, in fact, happen is that the child will have reduced attention from one parent, with minimally increased (at best) attention from the other to compensate. Over-all, the child winds up with LESS (MUCH less, I maintain) PARENT in the bargain.

But that's not the only problem. Naturally, since the child is "with" the (now former) primary parent less than it would be without a JCP (joint-custody presumption), the other parent, the primary wage-earner, would expect to pay less in child support (CS). And herein lies one core reason the FRs push so hard for joint custody: they don't like paying child support. Who does? Oh, they'll deny it vehemently, but FR arguments, sooner or later, all come down to money, not time with the kids. The latter makes a dandy, unassailable motive to trot around, but it turns out to be little more than a rubrik for the real intent. When access to the kids is brought up, it is usually in the context of "I'm paying all this child support; why shouldn't I have (more) access?", as though there were any linkage. A child can live without "access" by an NCP. A child CANNOT live without material means of support to buy food, shelter, and clothing.

My language, you'll note, has thus far been rather gender-neutral. Now it's time to put some "hair" on things. The reality is that, notwithstanding the advances made by women in the workplace over the last two or three decades, men still earn more and are typically the primary wage-earners, even in two-income families. Women, on the other hand, are still, in the majority of cases, the primary child-care provider. But the "dads" agitating for joint custody claim they want their "turn" at being a care-provider. Who are they trying to fool?

You KNOW they aren't going to quit their jobs or cut back on the work hours to spend more time with and for the child(ren). No, sir! They're going to put that child in daycare, hand it off to a second spouse, or turn it into a latchkey kid. The net effect is the overall reduction in the amount of time and attention the child has FROM EITHER PARENT. For older children this is in some ways less of an issue. But with younger children it is particularly detrimental.

And besides, if they were so interested in being with and caring for their children, why didn't they do it DURING the marriage?

The real underlying motive in the majority of cases is that these guys can't stand the thought of paying a dime to "that bitch" they were married to and/or losing control over people they were accustomed to dominating. Presumptive joint custody ignores the status quo, pays no heed to the established track record of both parents, and puts more responsibility on a parent who will almost immediately hand it off to someone else -- daycare or a second spouse -- to the ultimate detriment of the child.

Furthermore, since women are typically the primary care-provider during the marriage, it hurts them not just emotionally, but financially as well. The majority of them have made substantial sacrifices from their careers and self-sufficiency in order to have and care for their children. Telling them they must now go out and "get a job" to support themselves and contribute "their share" of the child support ignores this sacrifice and this induced deficiency in their earning potential.

In short, joint custody is not fair to kids and it's not fair to women. So, to whom is it "fair?"  You guessed it. It's for the benefit of the men who are clamoring so hard for it.

But note: we are not seeing any movement of those men clamoring to do housework and take on menial child care tasks (e.g., changing and washing dirty diapers.) It is true that there are women who advocate joint custody -- guess who they are. That's right; the second spouses/girlfriends of the men making all of the fuss.

So you see, all this noise about caring for their children sounds nice. To be quite candid, I used to agree with it -- until I looked at the facts.

Children need a stable home with ONE consistent parent. Two are better, if the home is intact, but only one is necessary. A divorce is one of the most traumatic experiences a child can go through and the need for stability, when all else is going to hell, is particularly great during this time. Joint custody does NOTHING to enhance the child's sense of stability and "home", and in fact goes a long way toward destablizing, if not outright destroying it.

Finally, all the while they argue about the so-called "biases" against fathers in the family court systems, these guys don't go in saying "what about my child." Their whole argument before the court is "what about ME" and if you think for a minute that a judge can't smell that a mile away, from under any facade of professed "care" for the child, think again. The track record of these "dads" speaks for itself. The ones who have been DOING the care all along are going to have a better shot at joint or primary custody than those whose total "involvement" amounted to little more than a hug at the door and cheering on the sidelines at little league games.

Face it. Acting in the best interests of the child involves recognizing which parent has proven better at certain elements of caring for the child. It takes money to raise a kid, and the noncustodial parent should be that parent who is de facto best at doing it. Likewise, the custodial parent should be the one who has been providing the childcare all along. Trying to judicially or legislatively change reality serves only to make a bad situation worse, and amounts to trying to make law that "fixes" one of the few things in the divorce that isn't really broken.

Nick Seidenman

This article was posted to the Linda Elrod's Washburn familylaw-l list in January, 1997, and appeared in the April 1997 Issue of the ABA Journal as a letter to the editor.

Here's the opinion of another noncustodial father:

From: Mark Evans evans_mark@yahoo.com
Sent: Wednesday, July 04, 2001 9:46 AM
Subject: Criminalizing Motherhood

A letter to the editor of The Daily Star in Oneonta, N.Y.

Criminalizing Motherhood.

Yesterday I stumbled upon the story of Vicky Shaffer, who recently surrendered to authorities to face felony charges of custody interference after disappearing with her young daughter three years ago on the heels of custody being awarded to Vicky's ex-boyfriend, Mark Winslow.

Opinions apparently vary as to whether Vicky Shaffer is a villian or a heroine. For what it is worth -- about two cents -- this is my opinion. On the one hand, I believe that Vicky exercised terrible judgement in running. On the other hand, I believe that Vicky was driven by natural maternal impulses to protect her child, the same type of protective maternal behavior that we have the common sense not to mess with in bears, elephants, and most other mammalian species. I wonder what other moms would do in the same situation. Would you stoically stand by as your child is ripped from your arms to be raised by, ahem, ex-boyfriend (which really makes you wonder about these family court proceedings)? Does it make sense to fill our prisons with moms such as Vicky Shaffer from your community, Carol Mardeusz of Marin County California, Wendy Titelman of Cobb County Georgia, and many protective moms around the country driven to desperation by courts that more and more seem driven by testosterone?

I have heard it said that the greatest gift a father can give his children is to love their mother. Does that mean that the greatest harm a father can do to his children, besides rape or murder, is take them away from their mom?

Something is terribly wrong with a culture that devalues and criminalizes motherhood.

Prayers are with the jury who will have to sort out this mess. I hope that in the process of sorting out this mess, someone attends to what the child says and feels. What a radical concept!