Why does it seem like courts are against fathers when it comes to custody?
Because while the courts are becoming less and less biased against fathers as time goes by, they are still generally biased against fathers when it comes to awarding child custody. And we know why. It’s no mystery.
Believe it or not, the courts were biased in favor of men in child custody cases before the pendulum swung the other way. Back then, when men had more education, more job skills, more brute force strength to perform the manual labor jobs, more property and more rights than women, the idea of giving custody to a mother would have been to condemn a child to a likely life of poverty and destitution. You can see how it made sense at the time: society made it all but impossible for the average mother to support a family on her own, and so fathers were more frequently awarded custody of the children.
The reason courts became biased against fathers in the first place is due to the pervasive belief that women are better parents than men, especially to infants and very young children. This is known as the “tender years doctrine”. It has been rejected—correctly—by most state courts as a form a sexual discrimination. But even after that most courts kept applying the principle in an “underground” way—switching from the “tender years doctrine” to the “primary caregiver” presumption—thus still awarding custody to mothers and/or refusing to award joint custody by still presuming women are better parents than men, just not outright stating it in their rulings and court orders.
It is both prejudicial and erroneous to assume in every case that the mother is “the better” of the two parents (to presume that both parents are not equally fit to exercise custody is erroneous and prejudicial on its face) nor does it require courts to treat child custody as requiring a parent (let’s call him “the father”) to “divorce” his children in the course of his divorce from his spouse. Where the “best parent” for a child is both parents, assuming that joint custody isn’t an option is antithetical to acting in the best interest of the child.
Not all divorced parents will be able to exercise joint physical custody of their children. Not all divorced parents are fit to exercise custody of their children. If a parent is neglectful or abusive, that parent is clearly not fit to exercise custody of his or her children. But with approximately half of marriages ending in divorce, we all know that it’s simply not the case (it can’t be) that one of every two divorcing parents is unfit to exercise custody of children.
Indeed, where divorced parents are both loving and decent people, and live close enough to each other to make the exercise of joint physical custody feasible, there is simply no justification for relegating one parent to the role of “noncustodial” parent who exercises “visitation” of his/her own children. There is simply no justification for denying children the benefits of the love, caring, example, and overall rearing of both parents. It’s literally no different than expecting a tailor to do as good as job with one half of the scissors as with both halves.
If Mom and Dad are both fit parents and live within a short distance of each other, the best thing for the children is a joint legal and joint physical custody award, so that the children have the benefit of both parents being as involved in caring for and loving their children as much as possible. This is self-evident (eeven if it weren’t, the social science data support are overwhelming).
Joint custody doesn’t imply that a mother is an unfit parent, but in today’s culture there are many mothers who fear that very perception, if joint custody is awarded. I understand.
In a culture where 1) it is erroneously presumed that all divorced parents cannot or should not continue to exercise joint custody of their children; 2) that one parent must be awarded the primary or sole custody of children; and 3) that women are presumptively the better of the two parents, then a joint custody award could lead some people to believe that “mom just wasn’t good enough to get sole custody”. These culturally erroneous presumptions thus must be rejected, for the benefit of mothers, fathers, and children alike.
Utah Family Law, LC | divorceutah.com | 801-466-9277