Feminists will tell you that “Patriarchy” is the reason fathers are discriminated against in criminal court, via the presumption that women are better caregivers. That assertion is on a list that is being circulated and repeated by grassroots feminists in “debate,” without ever questioning its validity. A little research into the history of changes in custody standards debunks the claim.
The legal presumption that women are naturally better caregivers, used as a determining factor in the decision of child custody, is rooted in 19th century feminist activism. At that time, divorce was much more rare, and subject to strict rules. There was no no-fault divorce, and the reasons accepted for requesting one were limited to circumstances like adultery and neglect. If there were children from a marriage, they were considered to be in their father’s custody, not the custody of the couple. Whether the couple separated or divorced, they remained in their father’s custody.
This was the situation faced by Caroline Norton after separating from her husband, George Norton. The end of her marriage to her husband was not brought on by circumstances that were approved reasons for divorce. Because of this, when Norton separated from her husband, he had complete control of her ability to see their children. Norton looked for legal means to counter her husband’s alienation of her from her children, and found none. With no legal recourse, she began fighting to change the law.
When Caroline Norton wrote the bill which would become The Custody of Infants Act of 1839, followed by her “plain” letter to the Lord Chancellor regarding the bill, she probably had no idea that her writing would end up as the inspiration for a court doctrine which would cause for fathers in multiple nations to suffer exactly the indignities she was trying to eliminate in her own life and the lives of other women, but that is what occurred. The Custody of Infants Act was the start of what is now referred to as the Tender Years Doctrine, the basis upon which it became traditional to place custody of children in divorcing families with the mother. The argument that mothers are better caregivers is put forth in Mrs. Norton’s “plain” letter, in which she stated that fathers have to hire nursemaids to replace their wives’ involvement in the lives of children during their “tender years,” and therefore it is natural that the child should be placed in the custody of the mother. Over the years, this doctrine, originally intended to prevent divorce from keeping women from their children, has been pushed and twisted into an every-case imperative, making maternal custody the default in divorce cases.
Objections to the bill included the prediction that with the ability to gain custody of their children, women would be more likely to divorce their husbands, and dire warnings of maternal kidnapping to keep children from their fathers.
The result of her effort was the passage of the Custody of Enfants act of 1839, the basis for the Tender Years doctrine, which was used for much of the 20th century as the standard on which custody decisions were based. The tender years doctrine has since been abandoned for the nicer-sounding “best interests of the child” standard, but the determination of the child’s best interests includes presuming true the beliefs laid out in the tender years doctrine, namely, that young children are best off with their mothers.
In 1910, the Uniform Desertion and Non-Support Act was proposed by the National Conference of Commissioners on Uniform State Laws, and passed with modifications by 24 states. It was intended to address abandonment of the family by the husband and father, who at that time was generally their sole means of support. The unmodified version stated:
This was due to the far lower earning capacity of women at that time, as women considered less productive employees and were paid lower wages. The child support system, in other words, is a factor of traditional gender stereotypes.
In the United States, custody is awarded to mothers over 80% of the time. This also results in mothers receiving child support awards much more often. Even when fathers receive support, they receive less.
Child support law has evolved over time since then, with broader and often senseless application, greater strictness, and greater government involvement in enforcement. One of the issues which men’s rights activists have with existing child support law is that changes in it have not kept up with changes in women’s circumstances. The conditions which child support law was written to address are no longer a factor; women can work, and earn a living the same as a man. Not having a man in the house doesn’t automatically need to translate into poverty.
Feminists argue the implication of custody and child support statistics are debatable, claiming that fathers who file for custody get it most of the time. That claim is their basis for the assumption that fathers don’t get custody of their children because they don’t want it.
However, for a father to file for and be granted custody, he must first amass the funds for a lawyer and court costs. If his income is moderate (or low) and is already being reduced by a child support payment, he has little or no ability to fund any legal action.
Further, when feminists claim that fathers get “custody” of their children whenever they ask for it, they’re including joint custody agreements. These are nothing more than maternal custody/paternal visitation rewritten to recognize the father as a legitimate parent and afford him the ability to make decisions regarding the child’s medical care and school attendance. The living arrangement of the child is the same as when a mother has full legal custody, so the difference is mainly on paper.
This situation means that women do not have to be financially stable to be awarded custody of their children, while fathers have to have enough money to pursue legal action before the court will even consider awarding them custody.
The result has been an increase in single mother households living under the poverty level, eligible for and collecting government assistance. According to the latest data from the U.S. census bureau, custodial mothers are more likely than custodial fathers to:
- Not have jobs and not have enough non-employment income to be above the poverty level without being employed
- Earn low income even if employed
- Have custody of four or more children
- Combine joblessness with multiple child custody
- Become custodial parents as teens.
Single fathers report more income from employment (wages and salaries or self-employment) and savings and investment (interest, dividend, rental, and other property income), while single mothers report much more income from assistance sources (for example, unemployment, workers’ compensation, public assistance, alimony, and child support). This difference is in part due to the requirement that fathers prove themselves fit parents in order to obtain custody, while mothers do not face such expectations unless custody is contested in court. Social attitudes also play a role in this; a mother living in poverty is considered a victim of abandonment and financial neglect by the estranged father of her children. A father living in poverty is considered a deadbeat who won’t man up and take care of his family. Even though both parents have the same capacity to obtain employment and earn a living, only one is held responsible for doing so.
Cutting fathers out of their children’s’ lives can have significant negative impact on the child.
Research by Sara McLanahan at Princeton University suggests that boys are significantly more likely to end up in jail or prison by the time they turn 30 if they are raised by a single mother. Bruce Ellis of the University of Arizona found that about one-third of girls whose fathers left the home before they turned 6 ended up pregnant as teenagers, compared with just 5 percent of girls whose fathers were there throughout their childhood. A study by Mary Corcoran and Roger Gordon of the University of Michigan shows that receipt of welfare income has negative effects on the long-term employment and earnings capacity of young boys. That study also found that both boys and girls were twice as likely to become unwed teen parents if raised in a fatherless home.
Fathers’ rights groups have sought to remedy the courts’ senseless handling of child custody by introducing and advocating for legislation to change the standard custody arrangement following an uncontested divorce. These laws, introduced in the United States, Australia, and Canada, would ensure equal time with each parent. This would also change how child support is handled, as equal time between the parents would mean that neither should be faced with a greater share of the child’s living expenses. This would limit reasons for assigning a child support obligation to factors like differences in income or other personal resources.
Feminist groups have opposed the introduction of laws related to equally shared parenting using writing that uses a dishonest representation of the law as an every-case imperative, and demonization of fathers as deadbeats and abusers to argue against the proposed standard.
Feminist groups state that if shared parenting were ordered, fathers would not provide their share of the daily care for the children. The National Organization For Women and the American Bar Association also question the motives of those promoting shared parenting, noting that it would result in substantial decreases in or termination of child support payments.
Feminist arguments include claims that equally shared parenting laws would force judges to place children in abusive homes, and that men only want custody of their children to get out of paying child support. However, proposed laws would not make the equal time standard a set-in-stone requirement, but merely the default in uncontested cases. If a parent does not want that arrangement, he or she can contest it in court. If both parents agree that they want a different arrangement, they can sign a contract to that effect, as well.
While feminists accuse fathers of being deadbeats who have abandoned their children, available information shows that to be untrue.
- 40% of mothers reported that they had interfered with the non-custodial father’s visitation on at least one occasion, to punish their ex-spouse
- Between 250/0 – 33% of mothers denied visits
- 90% of the violence and kidnapping we have seen are in sole custody situations in which the sole custodial parent fears losing his or her custody status, or the parentectomized parent kidnaps the child away from the sole custody parent who possessively blocks the visiting parent from access.
– Frequency of Visitation by Divorced Fathers: Differences in Reports by Fathers and Mothers – Sanford H. Braver, Ph.D., Sharlene A. WoIchik, Ph.D., Irwin M. Sandler, Ph.D., Bruce S. Fogas, Ph.D., Daria Zvetina, M.Ed.
- Unilateral abuse of parental custodial power is more common in court ordered sole custody situations.- Child Custody and Parental Cooperation – Frank Williams, M.D., Dir. Psychiatry
- Overall, approximately 50% of mothers “see no value in the father’s continued contact with his children- Surviving the Breakup – Joan Berlin Kelly and Judith S. Wallerstein
- The former spouse [mother] was the greatest obstacle to having more frequent contact with the children
– Increasing Our Understanding of Fathers Who Have Infrequent Contact With Their Children – James R. Dudley, Professor, University North Carolina
- 70% of fathers felt they had too little time with their children.
- Very few of the children were satisfied with the amount of contact with their fathers, after divorce.
- Few men can afford to legally contest every infringement of the visitation agreement.
-Visitation and the Noncustodial Father – Mary Ann P. Koch, Carol R. Lowery, Journal of Divorce, Vol. 8, No. 2, Winter 1984)
That’s not fathers abandoning their children, but mothers refusing to allow their children time with their fathers. This puts fathers in the position of having to take legal action, or tolerate being evicted from their children’s lives by custodial mothers.
While feminists accuse fathers of being abusive, data from the U.S. Department of Health and Human Services shows that the majority of child abusers are women.
- In 2006, approximately 58% of perpetrators in child abuse cases were women.
- In 2007, 56.5% of the perpetrators were women.
- In 2008, 56.2% of the perpetrators were women.
- In 2009, 53.8% of the perpetrators were women.
- In 2010, 53.6% of the perpetrators were women.
- In 2011, 53.6% of the perpetrators were women again.
The above list of links does show a decline in percentage, but some of that can be accounted for by an overall decline in child abuse in the U.S. over the past 5 years.
Child Abuse Rate In The U.S. Drops For 5th Straight Year (Huffington Post)
Statistics showing that women are more than half of abuse perpetrators in the U.S. directly contradict NOW’s inference that routinely assigning custody to mothers following divorce would prevent children from being placed in abusive homes. One could even come to the conclusion that routinely assigning custody to mothers puts children at greater risk, yet nobody is proposing that mothers be cut out of their children’s lives to eliminate that risk.
Baseless accusations and conditions which aren’t gender specific are not legitimate reasons to oppose instituting equally shared parenting as the applied custody arrangement in uncontested divorces. As a society, we’ve seen the negative effects of cutting either parent out of the child’s life. Wouldn’t it be most beneficial to the child to ensure that he or she receive the benefit of both parents whenever possible?
If the best interest of the child really is the standard feminists embrace, the most sensible way they can show that is by ceasing to oppose equally shared parenting initiatives. That opposition is not rooted in concern over abuse, but self-serving bigotry against men.
Latest posts by Hannah Wallen (see all)
- “Equality!” | HBR Talk 51 - September 13, 2018
- The ballad of the never ending corner | HBR Talk 50 - September 6, 2018
- How Alison Tieman became a woman kicked out of comics - September 5, 2018