Tag: best parent

When flawed thinking is tragic thinking (thank goodness)

I frequently encounter comments made in child custody disputes to the effect that “courts favor the nurturing and detailed attentiveness of mothers over fathers.” 

I am as grateful for such comments as I am disheartened by them. Grateful because they reveal a common and recurring flaw in so many people’s thinking—and identifying the problem is the first step toward solving it. Disheartened because they reveal a common and recurring flaw in so many people’s thinking—which makes correcting it such a daunting task.  

Such comments commit the fallacy of indulging a sexist, stereotypical, and (thus) false presumption that “good mothers are better and more necessary parents than good fathers.” When courts commit this fallacy, then the notion of basing a court’s decisions on evidence and proof in each individual case are illusory. Yet frankly, that is exactly what most judges do in making the child custody award.  

Some judges do this by essentially requiring a good father to “prove” that he is “just as good as and just as qualified a parent as” as an archetypal mother. This is an impossible standard for a father to meet because a) such archetypes necessarily exist only in the imagination, not in the real world; and b) not only can real-world fathers not meet this impossible standard, but neither can real-world mothers, for that matter.  

These judges follow unwritten rules that rig the game (some judges knowingly rig the game, others do so unwittingly due to their deep-seated biases and prejudices):  

1) that to be worthy of joint physical custody of their children fathers who are good parents by every reasonable standard must be the equivalent of mothers; and  

2) good mothers possess crucial and unique qualities fathers cannot possess.  

Thus, merely good fathers can never be worthy of sharing joint equal custody with a good mother. Perversely, for a child to enjoy being reared by both good parents equally, the father must prove either himself superior as a parent to the mother (which, as I have demonstrated above, is virtually impossible) or show the good mother to be found wanting (in one way or another) such that the only way to compensate is “unfortunately” an award of joint equal physical custody to the father.  

Decent, loving, fit parents never have been and never will be perfect, which is why I cannot understand how a court would deny a child the benefits of being reared as much as possible by both of its decent, loving, and fit parents. This is why (to crib from C.S. Lewis) asking which of a child’s fit and loving parents is the “better” or “more necessary” parent is like asking which blade of the scissors is better or more necessary.  

The “best parent” is both good parents. Give the child the benefit of all of the good traits each good parent brings to a child’s upbringing. We cannot expect a child to tailor the fabric of his life successfully with only one blade of the scissors in hand. As a recent billboard so poignantly states, “You don’t have to be perfect to be a perfect parent.” 

Utah Family Law, LC | | 801-466-9277  

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What does it take to get the court to award custody to the father?

What does it take to get the court to award custody to the father?


A) a miracle


B) the mother has to be so clearly an unfit parent that the court cannot both i) award her custody and ii) be taken seriously.

Now first, I exaggerate, but only a bit.

While fathers are being increasingly (albeit slowly) treated more fairly in child custody awards, there is an obvious bias against awarding fathers sole, much less joint, physical custody of children. Culturally, the courts (and society at large) has been duped into believing that mothers “make better parents.” Courts frequently cite to the fact that the mother was “the primary caregiver” as a reason for awarding custody solely or primarily to mothers. That might actually be a valid argument if a child is a nursing infant dependent upon a parent for 24/7 care. Yet even when the children are in school and Mom now has a job, the “mom was the primary caregiver” argument is often made. That’s silly and grossly unfair to fathers and children alike. That’s like saying Kareem Abdul Jabar should be paid tens of millions of dollars to play in the NBA again because he was such a great player before he turned 73 years old.

Second, no parent—whether father or mother—should seek sole legal or physical custody of children if both parents are at least minimally fit and their geographic proximity, job schedules, and other such material factors enable them to exercise joint physical and legal custody of the the children. The children love both of their parents and want to spend as much time as possible with each of them. Unless joint physical custody is a practicable impossibility, the “best parent” is both parents.

“We cannot expect men to be active, engaged fathers when they have been told since birth that they are the lesser parent, that they should defer to the mothers, and that once they no longer live in the same home as their children, they are relegated to a visitor and a paycheck.”

Emma Johnson

Utah Family Law, LC | | 801-466-9277

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I wonder which state in the U.S. has the highest rate of awarding joint physical custody of children in divorce

I wonder which state in the U.S. has the highest rate of awarding joint physical custody of children in divorce. Unfortunately, I wouldn’t be the least bit surprised if Utah isn’t it, would not the least bit surprised if it’s not even close.

Joint physical custody is clearly not always the right thing for every child, but ask children of divorce, whether they are still young children or adults, and they’ll tell you how much they miss/missed the non-custodial parent, how much they resented their time with that parent being limited and restricted, and how badly the relationship with that parent suffered (and usually deteriorated) as a result.

Spouses divorce, but divorcing parents don’t want to divorce their children. But our child custody laws and the way they are administered virtually force divorcing spouses to fight over custody of their children. Can you imagine what child custody would look like, how much simpler, less expensive and less distressing it would be for all, if it rarely, if ever, entered the minds of judges and parents that child custody should or could be an issue? If joint physical custody and joint legal custody where the rule, instead of the exception?

Take the profit motive out of child custody awards, and that would also do a lot to make a presumption of joint physical custody more popular, as well as more sensible.

The best interest of the child standard is the current standard that guides custody awards, and it is a bad standard (the standard should be the best interest of the family, both individually and collectively, but I digress); even so, the custody award that truly subserves the best interest of the child is essentially, necessarily, and by definition a custody award that is the best for the child (not merely adequate or workable or expedient).

With parental rights being one of the most fundamental human and constitutional rights, with parents naturally being far more aware of and interested in meeting the needs of children far better than any government can, and with the mountain of proof showing the damage done to fatherless and motherless children, then unless one parent has been shown to be clearly unfit to exercise custody of his or her own child, or if there is so much animus between one parent and another that they cannot live together, I don’t see how anyone can seriously argue that sole custody is best for any child. The “best parent” is both parents.

A family-friendly state cannot be such without respecting and fostering all that makes families and parent-child relationships strong and beneficial for parents and children alike.

Joint custody has to be such that it doesn’t take from the parents and children more than it gives back. When parents live in different cities, or even in different neighborhoods, then joint custody may a parent feel more “connected” to his or her children, but the children can feel isolated because they are, in fact, isolated. Unless Mom’s and Dad’s houses are within walking distance of each other, unless living with Mom and with Dad also means staying in the same neighborhood, where they are able to attend the same church and engage in the same weekly, athletic and extracurricular activities with the same friends, then half the benefits of joint custody are often lost.

Some parents’ circumstances won’t allow them to share joint custody. Some parents (few, but they exist) don’t want joint custody. Some parents aren’t fit to share custody, and some children don’t want joint custody either.

Notwithstanding, the ludicrously overwhelming majority of children want joint custody. And if money weren’t a factor in the child custody award, the ludicrously overwhelming majority of parents want joint custody. The notion that all divorcing parents must fight or want to fight over “child custody” is absurd.

With extraordinarily rare exception (to the point that the exceptions aren’t even worth considering), normal children of two fit parents don’t want their relationships with either of their parents curtailed, infringed, or damaged, period. And in divorce they certainly don’t want their relationships with either of their parents curtailed, infringed, or damaged any more than necessary. So now I ask you (rhetorically, because this simply isn’t debatable): which child custody presumption really serves the best interest of children better: a presumption of sole custody (which is Utah’s statutory presumption), or a presumption of joint custody on an equal time-sharing basis?

Utah Family Law, LC | | 801-466-9277

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