When it comes to child custody, we are staunch advocates for shared-parenting. Specifically, we believe that there must be a presumption of equal child custody for children and parents under the following basic provisions:
- Both parents are desirous of 50/50 child custody.
- Both parents are fit, loving parents.
- There are no provable issues of abuse of the children on the part of either parent.
- There are no provable issues of substance abuse on the part of either parent.
- When the dust has settled from the divorce, both parents have the minimum necessary housing and other provisions to meet the children’s basic needs and it is logistically feasible.
- Parents who choose, of their own free will, to make other parenting arrangements can and should do so.
We make a point of highlighting the term “provable” with a specific purpose. It almost goes without saying that the false accusation of domestic violence is the number-one tool in the arsenal of a disgruntled ex-spouse. The overwhelming majority of allegations of abuse during child custody proceedings are levied by the mother. The typical result is that a father is barred from the marital home and prohibited from seeing the children except under infrequent, supervised parenting time, if any at all, for an indeterminate amount of time. Generally, fathers are at a decided disadvantage in family court without such accusations looming over their heads. When these accusations do come, it only makes matters worse for them, and their ability to maintain a meaningful relationship with the children becomes almost impossible. They’re almost certain to get very limited child custody consideration.
In the earliest days of contested child custody, “The Tender Years Doctrine” generally governed child custody decisions. In short, up to the age of thirteen years old, the presumption was that children were better off with the mother. Thus, mothers almost exclusively were awarded primary or sole custody of the minor children. Viewed as a violation of the 14th Amendment of the United States Constitution regarding equal protection under the law, The Tender Years Doctrine was soon replaced with “The Best Interests of the Children.” While this was supposed to level the child custody field for fathers, a simple review of Census Bureau Statistics reveals that this was little more than window-dressing to get around the concerns about automatically giving child custody to mothers. Even since the advent of “The Best Interests of the Children” – children are still overwhelmingly placed in primary or sole custody of the mother in contested custody cases, even when a father is fit, ready, willing, and able to parent the children in every meaningful capacity that a mother can – even at the youngest ages.
Rather than start with a divorced father’s perspective on child custody, I will begin by donning my “childhood cap” and offer a perspective that few often honestly do in the midst of a contested child custody case – the perspective of the child. I do so given the five criteria that opened my point-of-view:
- I love both of my parents with all of my heart and soul. They are my leaders, my guides, my caregivers. I love them both. I need them both. I want them both.
- My comfortable, safe world of an intact family has forever been shattered by my parent’s divorce. I’m afraid. I’m uncertain as to what is going to happen next. I know I won’t see them both as much as I once did forever. I wonder if this is somehow my fault.
- Both of my parents take care of me and our entire family in sometimes the same way and in sometimes different ways. Neither is more important or better for me than the other. Without both of their hard work and effort, whether working or not, my life would not be as complete.
- I know that they are both my primary caregivers. When dad goes off to work to make money, fixes things around the house, mows the lawn, shovels the snow, reads me books, helps me with homework, tousles my hair and kisses me on the forehead at bedtime – he is doing so as a primary caregiver. When mom stays home, makes my meals, washes my clothes, sees me off to the school bus, gives me a bath, cleans the house, helps me with homework, arranges my play dates with friends – she is doing so as my primary caregiver. And if their roles were reversed or their roles were the same – they would both be doing it as my loving parents and my primary caregivers.
- I have no idea why they are fighting over who should have me. I love them both so very much and I am confused as to why one wants me more than the other. They’ve never done anything wrong for me. I know things will be different, why won’t they just stop fighting over us and figure out how we can see both of them as much as possible?
This is just a small sample of what everyone might imagine is rolling through a child’s head, assuming that they can get over what is an intense fear for their future in the midst of a divorce and broken family. However, high-conflict parents can rationalize just about anything to justify using their anger and rage at their ex-partner for whatever transgressions were perpetrated on them – real or imagined. They do this so that they can leverage the only weapon left in their arsenal to get back at them – the children. They often speak so eloquently for the children, as the children sit in the background silently, praying to themselves for an end to their parent’s madness. The “wronged” parent cannot separate their experiences in the failed marriage from parenting. If they’ve been wronged, then the children must have been wronged, too, and therefore, dad isn’t fit to have equal custody. It never dawns on them the long-term ramifications, almost all of them decidedly negative, for the children. Their zeal to punish their target is simply too overwhelming. They have all the justifications, rationalizations, and excuses to do what it is they do.
Mothers always can find a way to claim that what they do is primary care giving and what the father does isn’t quite primary care giving. The court buys into this mindset as well. How convenient. Of course, this sets up the highest possible child support order as in most cases, the father is making more money than the mother. The truth is that for the many high-conflict mothers and for certain – the states – the issue isn’t about “tender years” or the “best interests of the children” – it’s first and foremost about the best interests of the money. More custodial time with mothers means more money for mothers and more federal matching funds for states. More custodial time with fathers means less money for mother and less money for states. The financial incentives for this arrangement are far too powerful to deviate from. You need not look any further than the details in my article Greatest Motivator for Child Support Compliance is Parenting Time Compliance where I mention an excerpt from a 2006 issue of Children’s Voice Magazine:
The government spends roughly $4-billion on child support enforcement while at the same time it spends only $10 million on visitation enforcement. The government, using all of our tax dollars, spends 400-times more money on collection efforts than it does making sure that children get to spend time with the parent, usually a father, when the other parent is willfully violating custody orders.
In the event it’s not clear to you why this is – you need not look any further than the money. There is no financial incentive to enforce child custody. There are perverse financial incentives to child support receivers and the states for enforcing child support orders. There is simply no doubt that this is the answer to the question: Why do we spend 400-times more on child support enforcement as we do for child custody enforcement?
It’s all about the money.
In conclusion, when state child custody guidelines operate under the premise of creating a rebuttable presumption of shared parenting as the default custody arrangement – meaning 50/50 or as close to it as is feasible – only then will they be starting to operating with the best interests of the children in mind. Not only does it disincentivize the financial aspects of child custody litigation, it stifles the high-conflict personality from using the children as a pawn in their game of obtaining tax-free money and attempting to hurt their ex-partner by minimizing the time that they get to spend with the children. Carrying a child for 9-months no more entitles you to more child custody time than him earning the primary income entitles him to most of the money and property. The fact that you have a uterus doesn’t entitle you to more child custody consideration. Being a stay-at-home mother and doing all the things you do doesn’t make you any more a “primary” caregiver than what dad does by going out to work and all of the other things he does around the house. Changing more diapers doesn’t make you a better parent. Cooking more meals doesn’t make you a better parent. Taking the children to more extracurricular activities and other appointments doesn’t make you a better parent.
When you get divorced, things change in both households. Each parent has to position themselves to do better in every category and what your roles were during the course of the marriage does not define what you will do and how well you will do it after divorce.
The children want both parents in their lives for as much time as possible. Will you stop and think about them? Will you consider that the maximum times possible your children spend with each of you greatly increases their chances of avoiding problems and helping their overall success? Will you consider a shared-parenting arrangement?