Dealing With Unjust Custody Laws: Part I


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The fight for custody is often the most hotly contested issue in a divorce. For many reasons, men face a steep uphill battle when it comes to obtaining their fair share of custody.

Many family courts around the country heavily favor the mother when determining custody arrangements. The classic post-divorce family structure has long been for the mother to receive primary physical custody of children, while the father is left with a few days of visitation each month and a hefty child support payment.

This setup frequently uses the assumption that the mother is the primary caregiver, and it will be in the “best interests of the child” to stay with her the majority of the time. While this may have made sense 50 years ago, laws are slowly beginning to catch up with the drastically different family dynamics and modern research — though there is still a long way to go.

Studies over the past several years have concluded that spending time with both parents is far more beneficial to a child’s development than the current default standard of many states. It is common practice for courts to give non-custodial parents (overwhelmingly fathers) visitation that only consists of overnight visits every other weekend and a single afternoon visit each week.

For example, a report out of Nebraska found that custody cases between 2002 and 2012 resulted in 72 percent of fathers only seeing their children 5.5 days per month. It is very hard to believe that 72 percent of fathers over that 10-year period were horrible parents who didn’t want — or deserve — to see their children any more than that.

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Groups that oppose default equal custody vilify men as greedy abusers, which is completely unfair to any father who simply wants to spend more time with his children.

Additionally, we can no longer go off the presumption of a “traditional” household, where the father works as the primary breadwinner and the mother stays back as the homemaker. According to recent statistics gathered by the Pew Research Center, the employment rate of married mothers increased to 65 percent in 2011 (up from 11 percent in 1960), and 37 percent of married mothers have a higher income than their husband.

With so many more women as a part of the workforce, the tasks of the traditional homemaker are now being split with fathers much more frequently. However, when it comes to divorce, women still receive primary physical custody at a massively disproportionate rate — estimated between 66-88 percent of the time.

While there is a growing movement in many states to make equal parenting time the default standard, as well as legislation to simply increase the amount of time that non-custodial parents receive, don’t expect any sweeping changes anytime soon. The process will likely continue at a snail’s pace, despite popular support.

There are significant lobbyist groups opposed to any legislation that seeks to change the current standards in place. Their arguments, that frequently stereotype all fathers as abusers or that fathers would do anything to reduce their support payments, seem to hold little basis in reality. But at the same time, they have had a surprising amount pull when it comes to blocking legislation.

These concerns, as terrifying as they can be made to sound, are fairly baseless. If the laws were changed to create an assumption of equal parenting and a case involved proven abuse, the children wouldn’t be forced into staying with the abusive parent; a judge would still have the discretion to award sole custody, limit visitation, require supervision, etc.

Making equal custody the default would simply flip many current laws that create a situation where fathers are guilty until proven innocent. Where is the fairness in a system that presumes fathers are less capable of loving and caring for their children, and essentially forces them to “earn” their parenting time?

Additionally, vilifying all fathers as requesting more parenting time just to get out of paying child support is incredibly unfair to the majority of fathers who simply want to see their children. Sure, there are probably some bad apples out there who would back anything to save them a buck. But at the same time, there are likely just as many mothers who go out of their way to abuse the system that is currently in place and sap every penny they can get out of their ex-husband.

For now, custody will likely continue to be a hotly contested issue. However, being proactive and persistent in your effort to gain a fair parenting agreement will go a long way.

Editor’s Note: This is the first of a two-part series discussing the unfair laws that determine child custody and ways to strengthen your own custody case.

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