Maternal custody loss and judicial perspectives on paternal custody arrangements

Fathers and Child Custody

THE OTHER PARENT

Earliest Trends: Paternal Custody, Tender Years Doctrine

More than a century ago, fathers were almost unilaterally awarded with the custody of their children in case of divorce (McCormack, 2009; Maddox, 2011, Bird, 2010). Children were automatically viewed as a father's property. This was the trend through the 1800s until a new thinking made the courts completely change focus in favor of the mother in the 1920s. This thinking was the Tender Years Doctrine, which assumed that the mother was the primary caregiver of children, especially in the early years. She was, thus, viewed as the parent suited to continue the care on a daily basis until they grew up. This day-to-day care-giving was part of physical custody, which was properly the mother's role in the home. Legal custody, on the other hand, was the father's role in making major decisions in the care of children without reference to their residence. Although the care of children was always perceived as a joint function, physical custody was equated with primary custody, which was the mother's. This led to the belief that children had to spend most of their time with the mother, especially in their early years. This became the basis of decisions concerning child custody. Mothers have traditionally been given primary custody in 70% of divorces or custody disputes. Fathers obtain primary rights at 10% of the time and 20% to joint custody. Joint custody, however, did not mean that the children had to divide their time of residence evenly between their parents. Often, they ended up spending more time with one parent. This was the situation up to the 70s (Bird, Maddox, McCormack).

From Tender Years Doctrine to the Best Interest Doctrine

Two events refuted the correctness of the Tender Years Doctrine in many regions (Maddox, 2011). One was the realization that the traditional gender-based concepts were erroneous. The other was the father's rights movement, which opposed the favoring of mothers in child custody cases and discrimination against fathers. The new wave of thought urged that child custody laws should not automatically favor either parent. Rather, these laws should seek to serve the child's best interests. The parent who spent more time in the care of the child during the marriage is the primary caregiver. He or she is the better custodial parent after the divorce. Following this line of thinking, he primary aim of the court was to determine which parental relationship was more consistent and nurturing. Child custody laws now fall under the four categories of child support, legal custody, physical custody, and visitation rights (Maddox).

As set forth in the Child Support Enforcement Act of 1984, child support is payment, computed from the amount needed in the care of children and the income of the non-custodial parent (Maddox, 2011; Lawsonchildcustody, 2011). Legal custody is awarded to the parent who makes the major decisions on a child's life. Physical custody goes to the parent with whom the child lives. Legal custody laws govern the choices of the legal guardian on education, medical treatment and religion. Physical custody laws can grant custody to one or both parents or jointly. Visitation rights belong to the non-custodial parent in case of sole physical custody. The court arranges a schedule for visits, mutually agreed by the parents at their convenience. If the non-custodial parent has a record of abusive behavior, his or her visitation will be supervised. A court-approved adult, not the custodial parent, will have to be present during each visit (Maddox, Lawsonchildcustody).

Fathers' Apprehension

Laws on child custody do not entirely disregard the possibility that the father may be the better parent (Lawsonchildcustody, 2011). Fathers are often apprehensive that courts will favor mothers because of traditional gender roles. Unmarried fathers have greater apprehensions. Their battle can, however, be won if they can prove to the court that their custody is in the best interest of the child (Lawsonchildcustody).

Sole Custody

The parent who is granted this will make all the major decisions in the child's life (Maddox, 2011; Lawsonchildcustody, 2011). He or she will provide shelter, food, health care, welfare and everything else needed to raise the child. The other parent can be completely taken out of the picture. That other parent will have nothing to do with anything concerning the child as he or she grows up. In some cases, the judge finds it not in the child's interest for one parent to be in their lives. The lack of respect or civility between parents will entangle children in the middle, hence the grant of sole custody to only one of them (Maddox, Lawsonchildcustody).

Determining Best Interest

The court taps the help of psychologists, social workers, family court advisors and forensic experts to conduct investigations (McCormack, 2009). These experts will scrutinize the child's living conditions, the current stability of his or her life, and the potential level of stability he or she is likely to have with either parent. The court also uses a welfare checklist, containing the child's own preference, physical and emotional needs, the likely effects of a change in his environment, harm or abuse he must have suffered from either parent, and the emotional and financial capability of both parents in taking care of the child (McCormack).

States focus on different aspects of the best interest doctrine while following the same guidelines (McCormack, 2009). Some emphasize family integrity and avoid removing the child from his present home. Others place more value on health and safety of the child or look for the basis of a timely decision so that the child is not left out for a long period of time. When the parents are amicable, friendly or civil, the courts increasingly favor joint custody. They see it as in the child's best interest to continue receiving much parenting from both parents. If both parents reside in the same school district, the court is likely to decide that the child should evenly split his time between both parents. If they continue to be nurturing and non-confrontational, this should be the best solution for everyone. At the end of the process, the court deliberates on the residence, the amount of contact the non-custodial parent should have with the child and the amount of child support, among other issues (McCormack).

Effects of Two Residences on the Child

Under this type of joint physical custody, the child spends equal amounts of time living with both parents' home (Leon, 2009). Arrangement may be two weeks or a month in the mother's house and two weeks or a month in the father's house. This may work well in some cases but may be very difficult in other cases, as a recent study showed. A recent comparative study of 33 cases of custody arrangements revealed that children in joint custody were more emotionally adjusted than children in sole custody. Those in joint custody arrangements had better emotional adjustment, family relationships, higher self-esteem, behavior and acceptance of the divorce than children in sole custody. Another study conducted on adolescents whose parents divorced found that those in dual residence arrangements were more comfortable in that arrangement than those living primarily with either parent. When the parents were at odds or not civil, the adolescent child who spent comparable time with them were negatively affected by their conflict (Leon).

Factors and issues to consider in deciding whether to opt for a dual residence arrangement include the level of conflict between the parents, the child's level of adaptability to change and the child's age (Leon, 2009). Parents need to communicate and cooperate under this arrangement if it must work. Conflict will not make it work. Children who are flexible and adaptable will thrive under this arrangement. And preschool-age children may find it difficult to move to and from two homes. They may also find difficulty in maintaining close ties with a parent he does not see for some time (McCormack).

Rights of Fathers

There are many advocates and many opponents of fathers' rights to child custody (Rajeer, 2011). Many fathers claim that they are equally capable of nurturing and providing for children. Child custody is awarded to the parent who is better equipped for the care of a child. The U.S. Census Bureau reported that 15% of custody rights in 2004 were granted to fathers and have since been increasing. More and more family courts are recognizing the nurturing capability of fathers and awarding them custody. New York State requires couples to file for custody while applying for divorce. Custody will be awarded to one parent under the Child Support Standards Act but both parents must support the child under 21 years of age. Rules and regulations differ from State to State on the custody rights of each parent. The 2004 O'Donnell Lemont case in Oregon affirmed that both parents must act in the best interest of the child. This presumption must be satisfied when the parents file for custody in applying for divorce. The parents are thus given equal rights to seek custody (Rajeer).

Most courts filter their decisions through very basic factors or criteria (Rajeer, 2011). The parent's mental and physical capacity to raise the child is one. Who the primary caregiver is between the parents is another. Who decides on his social interaction activities, handles an emergency, has better finances, and helps the child accomplish daily tasks are other criteria. A child, especially a young one, is exposed to trauma during the divorce process. Sometimes, the court assigns a psychologist to establish some routine and order for the child to cope. If the child is mature or old enough, the court considers his or her opinion. The father must thoroughly understand the physical and legal custody and their difference. If he gets sole custody, he should be aware that missing child support will not divest him of custody rights. But any form of misconduct against the child or the mother can be a ground for the court to withdraw sole custody permanently (Rajeer).

At What Age can a Child Choose?

Parents elicit their child's opinion during divorce procedures in the hope of gaining the court's favor to their respective end (Ellerbe, 2009). At other times, the child himself volunteers and initiates the opinion. He may do so because of a conflict with the custodial parent, to get close to a particular or some friends in the area, or to move over to the more lenient parent. The decision on residence is generally left to adult stakeholders in the conflict rather than the children. The guilt and stress of divorce and choice of custody are overwhelming enough to them. A child may feel guilty for the pain of the non-custodial parent as a consequence of the separation. If the parents are unable to reach a mutually satisfactory agreement on residence, a counselor may be sought for advice and guidance. If this does not work, a mediator may be called in or the matter turned over to the court for determination. Parents should make their own custody arrangements as they are the more knowledgeable parties than those interceding on what is best for the child. Parents should be the most capable parties to seek the best interest of the child (Ellerbe).

As much as possible, children should be guarded against the pain and pressure of custody conflict and decision (Ellerbe, 2009). But if they have to be involved, the court will give weight to their opinion according to age or maturity. The older the child, the greater the weight assigned to his opinion. Custody laws differ from State to State, but they generally hear the opinion of children who are at least 12 years old. But the age rule is not as strict as it may seem. Not all children at this age are able to think critically and correctly assess the situation for a valid opinion. His or her maturity level, the family situation, and parental influences are often the factors considered. But the most important factor is to determine which parent better meets the best interest of the child in a suitable and appropriate way. In the overall, the decision is still in the hands of adults, such as the parents themselves, professionals or the judge (Ellerbe).

States Favoring Women for Custody

After the replacement of the Tender Years Doctrine by the Best Interest Doctrine, joint custody laws were incorporated in the legislation of 40 States by 1991 (Bird, 2010).

Labels like "parent of primary residence" and "parent of alternate residence" surfaced and are still used in New Jersey. Many other States decide cases, based on the assumption that the child's primary caretaker during the marriage is also her primary parent after the divorce is granted. This is the primary caregiver doctrine. As of last year, legislations in Arizona, California, Colorado, and Oregon as well as New Jersey did not yet include the presumption of joint custody as based on the child's best interests. Sole or primary custody is more likely to be awarded to one parent. West Virginia still has no provision for joint custody and subscribes to the primary caregiver doctrine. These States are likely to award custody to mothers (Bird).

But Fathers Can Win

Fathers should be able to show and prove that they can care and support their children

(White, 2011). Preparation is the crucial factor. A father can begin by hiring a good family lawyer. A good one is knowledgeable about applicable State laws. Friends and acquaintances can make referrals. A father should choose from a set of lawyers with whom he will be most comfortable and successful. A father should maintain written records and information on his good side. These include emails, text messages and voice messages, which attest to his favorable qualities. Verbal claims of proper conduct are not strong enough in court. He should also put his finances in order. He need to pay for legal, court and financial costs. He must prove that he can adequately provide for the child's basic necessities, like food and shelter. He should streamline his time between work and non-work to show to the court that he has adequate time to spend with the child. It must both be quality and quantity time. He cannot work long hours. He must also establish a strong support system of friends and family to show that he can get outside help when needed. He should likewise maintain open communication lines with the mother. They should remain civil even if the custody process is heated. They can save time, money and hurt feelings if they first come to a mutual agreement on custody. If this is difficult or impossible, an impartial mediator should intervene (White).

What to Expect and What to Do