Mark Henricks breaks down the numbers to examine where fathers stand in child custody cases, and ask when equality will happen.
America occasionally flirts with the idea that fathers have rights, most recently with the paternity-leave controversy involving a Major League Baseball player as described in these pages by Ariel Chesler. Sometimes, when military fathers serving overseas are divorced by their partners, who then are named sole or primary custody of children, we rouse ourselves to a moderate level of outrage. Every now and then, an ordinary father, one more likely to watch a baseball game or read about a war than participate in either, gets some sympathy when his children’s mother absconds with them across national borders. There’s something about these special and rare cases involving fathers’ rights to spend time with their children that engages people and makes it permissible for them to care. That’s encouraging.
What’s not encouraging and, in fact, is deeply discouraging is the lack of public concern for the hundreds of thousands of times a year, in courtrooms across America, when fathers who have committed no crimes — and, in fact, done nothing discernibly wrong but disappoint their sworn lifetime partners — are forced to become no more than occasional visitors to their children, evicted from their homes and have their wages garnished for up to 18 years. These fathers have been transformed with the stroke of a pen into something more resembling favorite uncles, or perhaps deeply involved grandfathers. And, should they fail to perform their designated roles, rather than having to go to work when they’d rather be at home with their newborn, they will go to jail.
You will look long and hard to find any outrage about those cases. Where you do find it, it will almost certainly labeled the irrelevant discourse of “mad dads,” fringe-dwelling misogynistic wingnuts who can safely be ignored. Indeed, some people who complain about fathers’ rights do fit such a profile. Then again, even if Osama bin Laden were rise from his watery grave and take up the cause of fathers’ rights, that wouldn’t invalidate the entire movement, would it? A wrong is a wrong, even if some of the people who tell us so aren’t folks we’d like to sit next to at dinner.
And if you start looking carefully at the issue, using only the best available objective resources for evidence, you find that you don’t have to wear a tinfoil hat or think “The Protocols of the Elders of Zion” is a real plan for world domination in order see that fathers who complain that profound, widespread, continuing, and unaddressed gender bias in our family law system has stripped them of children, home and income without cause or recourse really seem to be onto something.
For reasons that are clear to some and not clear to others, this seems to be a complex issue that requires a great deal of careful proof before it can be accepted as legitimate. So let’s start at the very beginning, going from the actual numbers of divorces, who initiates them and why, the actual (as best as can be determined) frequency with which fathers are subjected to gender bias in custody matters, the possible justifications for maintaining the status quo and, finally, the outcomes of what we’re doing on children, fathers and the rest of society. I am going to walk us through this, using government reports, scholarly studies and other objective, reliable sources as opposed to advocacy group websites, news articles and the like.
First, nearly 1.3 million divorces occur annually in the United States. Of these, many studies over many years have consistently found the male is the primary initiator in about 1 in 3. According to the one study I have been able to find on the topic, non-initiating partners oppose divorce in 4 of 5 cases. Simple arithmetic suggests that suggest that as many as 667,000 men, most of them fathers, undergo divorce against their wishes each year. Given the universal availability of no-fault divorce, in which only one partner is required to initiate legal proceedings to dissolve the union, these men have no way to prevent divorce when a partner wishes it.
Once in the divorce system, the numbers work against the father even further. Perhaps the best evidence of this is Census Bureau data showing that 7.7 percent of people receiving child support payments are male. Let me remind you that every child has a mother and a father in an equal 1 to 1 ratio. When it comes to receiving child support payments, this equal balance is skewed to a 12 to 1 ratio. This fact alone is very suggestive of bias. Certainly something is happening to change a 1 to 1 ratio to a 12 to 1 ratio. More on that in a moment.
First, let’s examine a direct look by Census at children’s post-divorce living arrangements. Here, we find that 82 percent of children living with a divorced parent live with the mother, a circumstance that as of 2011 data had not changed significantly since 1994. (This fact should be recalled any time we are told that, “Things are changing. Fathers are increasingly being granted equal custody.” If it’s happening, it is missing the notice of the professional demographers at the Census Bureau.) Again, a ratio of mothers and fathers living with children before divorce of 1 to 1 becomes after divorce a ratio of 6 to 1. And, because children sometimes live with grandparents or other people besides parents after divorce, this ratio likely understates the preference against fathers.
These imbalances, which distort a once-equal ratio to lopsidedness by about an order of magnitude, are striking. An increase in likelihood of an order of magnitude, of course, is an increase of 10 times the chance of something occurring. That is an enormous change. For instance, we all recognize the health risk posed by second-hand tobacco smoke. A non-smoker who lives with a smoker has a roughly 25 percent greater chance of developing lung cancer than someone who doesn’t live with a smoker. That’s serious. By comparison, a man has a 1,300 percent greater chance of paying child support than receiving it.
Naturally, gender bias is not the only factor. Of millions of fathers, some are unfit parents. Some are unwilling. But there is no evidence that anything like 82 percent or 92 percent of divorced fathers are unfit or unwilling to be equal parents. And considerable evidence supports a contrary viewpoint.
To start with, most divorced fathers want to be more involved parents. In fact, one Australian study found more than 75 percent desired more time with children. What keeps them from doing so can be several factors, including that the mothers have moved far away with the children, or the fathers have moved, usually for reasons of employment. But the most common factor is a court order backed up by threat of arrest. A standard custody order calls for children to spend overnights with fathers every other weekend along with perhaps an added mid-week dinner. This means a child spends 85 percent of the time with the mother, and 15 percent with the father. Again, a nearly 6 to 1 ratio.
Mothers generally provide most childcare before divorce and this is often presented as justification for anti-father bias. However, in no other circumstance except divorce is a parent required to be more experienced and capable than another available caregiver or face court-ordered limitations on time with children. A mother who gives birth, for instance, is not required to show she is more competent than an alternative caregiver or be restricted to merely visiting her child. Fathers in divorce, however, are.
The contention that fathers are somehow unable to provide child care is, on its face, gender bias. It’s as if we concluded that women were unable to take their places alongside men in the workplace, and codified that into the way we handled employment discrimination.
Very often, the mother has opted to stay home with children rather than work, while the father goes to work to provide financial support so she can do this. He then finds that when he agreed to support her in staying home with children, he was unwittingly setting up a situation that would one day rob him of those children while leaving with continued financial responsibility for them.
Employment of double standards to support discrimination against fathers is common in divorce. In a clear example of such a double standard, when dividing financial assets of a divorcing couple, the universal default is an equal 50-50 split. This is despite the fact that in many cases, the father has been the primary wage earner. Similar equality should operate in custody.
An argument in favor of equal financial division, as well as payment of child support, holds that fathers should be required to financially provide for children. This seems sensible but is another example of a double standard that operates only in divorce and custody. For instance, if a mother voluntarily puts a child up for adoption, as happens about 15,000 times a year, she does not have to pay the adoptive parent or parents. If parents are ruled legally unfit to parent and their children are taken away, which happens about 300,000 times a year, their future wages are not garnished to provide money to foster parents. Divorced fathers, however, must pay whether voluntarily uninvolved in children’s lives or, as is much more common, unwillingly forced out because of a presumed lack of fitness relative to the mother. If they don’t pay, the penalty is prison.
Defenders of the status quo suggest that if fathers simply asked for more time with children, they would get it. However, for a father going through divorce, “asking” for more time could require being willing and able to take a divorce to trial. This generally costs at least tens of thousands of dollars, an amount well beyond the means of the vast majority of fathers. And, in most cases, the effort fails because of the presumption against fathers’ ability to care for children.
It’s easy to say, as one divorce legal guide does, that fathers should not let gender bias stop them. But it’s not so easy to explain why it’s smart or even possible to invest $20,000 or $50,000 or $100,000 in a legal battle that he’slikely to lose. Why is it acceptable for fathers to have to face such costly and daunting legal gauntlets?
There is no data on how many fathers would ask in this manner for equal custody if they thought they would get it. I can tell you that when I asked the attorney I hired to represent me in divorce about equal custody, he said, and this is an exact quote, “You can ask for it, but you won’t get it.” This is not because I had some kind of record as a violent, child- or wife-beating abuser or incestuous child molester. The problem was that my children’s mother was an adequate mother, and I was an adequate father. Reality is that even a hypothetically perfect father will virtually automatically be forced to the verges of his children’s lives in a typical divorce, while essentially all a mother has to do is show up.
Just as evidence supports existence of anti-father bias, it shows the dreadful toll it takes on fathers. For instance, a large American study found divorced men were 2.4 times as likely to commit suicide as other men. While the cause of this correlation has not been clarified, researchers suggest that relevant factors include men being stripped of roles as fathers, support systems, homes, children and future income.
The negative outcomes for children raised without fathers are numerous, grievous, lasting and well-documented and need no elaboration here. Less widely recognized but no less real are losses anti-father custody bias inflicts on grandparents, cousins, in-laws and other members of the paternal family who are likewise estranged from children.
This complex of damage done by gender bias in divorce, custody and support has a ready solution. That solution is for states to require a rebuttable presumption of equal 50-50 physical custody of minor children of divorce. That means fit and willing fathers won’t be forced out of children’s lives by divorce and that children won’t lose their fathers without cause. The default, instead of a 6 to 1 imbalance, will be equality.
Some people say things are changing toward equality and we should just wait. As Martin Luther King related in “Letter from The Birmingham Jail,” I am tired of waiting and fathers are tired of waiting. And, as the Census data showing no appreciable difference in children’s post-divorce living arrangements since 1994 indicate, in fact, change is not occurring.
Shock and grief from the experience of being a divorced father led me to research the topic to try to understand what had happened. I am also a degreed professional journalist and author of many thousands of freelance articles on a variety of topics that have appeared in, among other places, The New York Times, The Wall Street Journal and The Washington Post. My experience makes me appreciative of the benefits of careful research and skeptical of evidence supplied by advocacy groups. So I examined only original authoritative, objective sources such as scholarly studies and government reports and never relied on advocacy group talking points of any kind. To my surprise, shock and dismay, I found my experience was typical and the overall impact of this system on millions of innocent children, fathers and others was, in a word, dire.
I am not asking to make divorce more difficult to obtain. I consider divorce an inalienable right. No one should have to stay married to anyone if they don’t want to, for any reason or no reason. That is, in fact, the current situation with universal no-fault divorce.
I am not motivated by desire to change my personal circumstances. Defenders of the status quo often declare that fathers who complain about gender bias in custody are only trying to reduce the amount of child support they owe or, almost unbelievably, are primarily motivated by the desire to have their children at hand so they can more conveniently beat and rape them. Whatever these deluded persons may say or believe, this is purely about equality, and not for me but for others. I want equality for my young son and your sons, nephews, brothers and friends.
It doesn’t have to be perfect equality. I am not declaring unending struggle until no father anywhere is evicted, estranged and depleted by divorce. I accept that the world isn’t perfect. But I don’t want my son to face someday being stripped of home, children and income someday simply because he is a father. We can do much better for him and other future fathers. I’d like to take this occasional fascination with sports star fathers, military fathers and other special cases and start a real ongoing public dialogue about what we can do to stop gender bias against all fathers.
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