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May 10, 2005

Fathers' Rights

I suppose it would be too much to ask that paternal rights might receive impartial treatment at the hands of the Grey Lady? The Times wastes no time in trotting out its patented journalism by metaphor strategy to paint fathers rights' advocates as loony, wall-climbing extremists:

If, earlier in the evening, others at the restaurant looked over to Hatch's table (and given the noise emanating from it, they surely did), they would have seen that Hatch wore a T-shirt emblazoned with the purple logo of Fathers 4 Justice, a political group that is well known in Britain for staging high-profile stunts to raise awareness about the custody rights of divorced and separated fathers. (In one memorable incident, a member pelted Prime Minister Tony Blair with a condom filled with purple flour.) Some might even have recognized Hatch and made a note to mention their brush with semi-celebrity to their friends: this was the man who scaled Buckingham Palace last year dressed as Batman, unfurling a banner in support of fathers' rights and spending more than five hours perched on a ledge near the palace balcony as security officers tried to talk him down. The event, which made news around the world, saturated the British media for nearly two days.
...Although some of the issues raised by Fathers 4 Justice concern quirks of the British custody system, most of them overlap with demands of divorced-fathers' groups in other countries: stronger enforcement of visitation rights, more shared-custody arrangements, a better public and legal acknowledgment of a father's importance in his child's life. In the United States, the influence and visibility of those groups have waxed and waned since the mid-70's, but they appear to be agitating now as never before. In the past year, class-action suits have been filed in more than 40 states, claiming that a father's constitutional right to be a parent guarantees him nothing less than 50 percent of the time with his children. And on the legislative front, last spring Iowa passed some of the strongest legislation to date in favor of joint physical custody -- the division of the child's time between the two parents as close to equal as possible.

One wonders, did it ever enter the author's mind to link deadbeat dads laws and new legislation that holds even non-married biological fathers fiscally responsible for the care and maintenance of their wayward spermatazoa with the sudden demand for more equitable custody arrangements? Was it so inconceivable that demands for more paternal accountability might spawn a demand for some say-so in the lives of the children these men must support for 18 years?

Actions have consequences; a circumstance lamented by feminists who like child support money but not the dimunition in parental control that comes with it. Still, the author asks a good question: are paternal rights campaigns made with the best interests of the child at heart?

Good question indeed. Pity no one seems to have asked it when the overwhelming presumption was that a child's best interest was served by awarding custody to the mother and denying visitation to the father. A historical review of custody law follows:

For most of American legal history, the laws required judges to consider sex the most significant factor when making custody decisions, although which sex had the advantage changed over time. Until the mid-1800's, under common law, a father's right to custody in the event of a divorce was so strong that it practically functioned as a property right. Toward the end of that century, this principle was reversed by the ''tender years'' doctrine -- the presumption that young children need to be with their mothers -- which lasted in a handful of jurisdictions into the early 80's. For the most part, however, by the late 70's, the ''tender years'' doctrine had given way to the less prejudiced, but also less clear, directive that judges base their decisions on the so-called best interest of the child. Today many fathers' rights advocates -- particularly those who filed the 40-some class-action lawsuits demanding a 50-50 split of custody -- would like to usher in a new paradigm: one that values parental rights as highly as the child's best interest.

This seems to me to be the wrong tack. A more reasonable question is perhaps, is it truly in a child's best interest to be deprived of contact with its father? Both boys and girls need a masculine role model in their lives. Boys must learn how to be men and girls, to learn how to interact with them emotionally and intellectually. The Times quickly summons the extreme example to show that fathers are merely self-centered opportunists:

Fast-talking and faster-thinking, Newdow, 51, is a tall, thin man who manages to look crisply dressed in even informal clothing. Conversationally, he toggles between two modes, aggrieved and outraged, and he has an expressive face that seems well designed to reflect those emotions. That evening, sitting in the lobby of the Michigan Union, he talked for close to two hours about his troubles -- the custody battles he endured with his daughter's mother (whom he never married); the impassioned exchanges that alienated the family-court judge; the injustices he feels he suffered at the hands of foolish mediators; the court appearances over all manner of arcane disputes, including whether he could take his daughter out hunting for frogs one night (no) and whether he could take her to hear him argue before the Supreme Court (again, no). Although the courts deprived him of final decision-making power over his daughter, who is now 10, he does spend about 30 percent of the time with her, a relatively generous arrangement. Nonetheless, Newdow, who has spent half a million dollars on legal fees, the lion's share of those incurred by his child's mother, claims that the family-court system has ruined his life. He's a second-class parent, he said; he can't do the things he'd like to do with his daughter. The system allows his daughter's mother to stifle his freedom to care for his child the way he'd like. ''It's as bad as slavery,'' he said.
...But what also worried Newdow, he continued, was not the problem of how to determine what's ''best'' for the child, but rather the assumption that you can deprive someone of his or her fundamental parental right simply in order to make a child's life more pleasant. Of course, he conceded, society has an obligation to protect those, like children, who cannot protect themselves. But there is a world of difference between protecting someone from harm and improving his life more generally. ''We've gone from protection to suddenly 'make their lives better,''' he said. ''And that's a violation of equal protection -- because you're taking one person's life and ruining it to make another person's better. If you can show real harm to the child, the kind of harm that the state would protect any child in an intact family from -- abuse, neglect -- sure, of course, protect it. But when it's just what someone thinks might be better for the child, you have to weigh that compared to the harm suffered by the parent.''

An interesting discussion of competing "parental rights" follows. It looks like a disaster for the hapless child caught in the middle.

David Meyer, a University of Illinois law professor who specializes in the intersection of family and constitutional laws, agrees with Newdow that the courts have recognized a fundamental parental right. The problem, Meyer says, is that so-called strict scrutiny -- the process by which the court determines whether there's a state interest so compelling that it should override a fundamental right -- is complicated when multiple people in a single family are asserting their fundamental constitutional rights. In Troxel, he notes, ''the court was forced into a mushy kind of balancing test, balancing the interests of the children and the parents and all kinds of facts.'' In his opinion in Troxel, Justice Clarence Thomas raised the question of why strict scrutiny wasn't being applied. ''None of the other justices answered him,'' Meyer told me. ''But implicitly the answer is: it just doesn't work here.''

Not to put too fine a point on it, duh. It is always so entertaining when suit-happy Americans encounter limits to the number of things a court of law can successfully adjudicate. Perhaps the best interest of the child isn't so bad a standard after all. And perhaps even divorce does not dissolve the partnership that begins when two people begin a life. In perusing this long, but well-worth reading article I couldn't help remembering that old chestnut, "Be careful what you wish for.".

Feminists have long pushed for greater paternal responsiblity and lamented the way so many fathers don't take an equal share of domestic chores. It appears that, finally gaining what they wished for, the brass ring may have lost some of its luster.

Posted by Cassandra at May 10, 2005 08:19 AM

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Tracked on May 11, 2005 03:33 PM


Of course, we could always try the "Solomon" method and threaten to cut the child in half until somebody caves. Or, how about this: a bidding war! Mom bids $3k permonth and a TV in every bedroom; Dad counters with $3.5k and a yearly trip to Disneyworld. Or maybe this: the state creates a chart listing annual support per child. The parents determine what percentage they are willing to pay, and their custody rights are so accorded. The agreement is reviewed and open to amendment annually.

Or we can get all concerned with messy facts and do what's best for the child. The hard way.

Posted by: spd rdr [TypeKey Profile Page] at May 10, 2005 12:10 PM


This is why I hated family law practice so much - I was constantly tempted to grab both parties by the shirt collar, bang their heads together, and scream,"it's not about you two, anymore".

I do think the courts could treat fathers more equitably, but the fact that these things even end up in court is never a good sign.

Posted by: Cassandra [TypeKey Profile Page] at May 10, 2005 12:26 PM

Aren't these the same people who thought Elian Gonzales needed to be with his papa, courtesy of Auntie Janet El Reno?

Next: Isn't that the same caption contest where he finally got off the wall by having to use the loo?

Just asking.

I was surfing around tonight and found one of those tender, touching stories about paternal concern: Man impregnates girlfriend, then repudiates her and refuses to help her either get an abortion or help pay for the raising of the
baby. Baby-to-be dies in a crash and mother successfully sues for 150K. Enter sprem donor, asking for half because he 'shared' in the baby.

Fortunately the judge threw it out. I shed tears.

I realize I harp on the hound side more than I do the side of those men who do want to be involved and love their children no matter what and put up with the crap of family courts and law. My reasons for so doing are not altruistic, because of the fact that for every good decent man who is a loving caring provider/husband/father, there are the hounds and they are the ones who are the dead beats that create the Catch-22 of child support laws and visitation, along with the wretched women who accuse and waste time with goading their husbands.

Trank 'em all.

Posted by: La Femme Crickita [TypeKey Profile Page] at May 10, 2005 11:14 PM

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