Fathers Get the Shaft in Family Law Proceedings
The following article written by Daniel R. Butler, Butler & Allen, P.A., was published in the December 1995 volume of Law & Politics. This article discusses the reality of gender issues in family law court proceedings.
Fathers are getting a raw deal in court.
Though state statutes affecting family law proceedings are allegedly gender-neutral, the reality is something completely different. The implementation of those “gender-neutral” statutes by those in authority all too often weighs heavily against the rights of fathers to a fair custody proceeding and an effective parental relationship with their children.
For example, it has been my frequent experience that a mother with a doubtful primary parent history will seek to strengthen her custodial case by first using her “discretion” to have the father removed from the home as a domestic abuser. The standard required by most courts to establish removal by the Order for Protection process is deteriorating to one of removal literally upon request.
The female alleged victim is provided with free advocate assistance to maximize her allegations. Male victims are routinely refused such assistance, even when asking for protection for their children. This did not surprise one judge I spoke with. I told the judge the domestic abuse office had refused to help my male client. “The workers there do have their agenda,” said the judge.
If no physical abuse or threat has been encountered (as required by statute) and the accuser is uncomfortable with perjury, allegations of “I believe he may be a ticking time bomb” or “Petitioner is fearful for her emotional well-being” have resulted in the removal of fathers from their home, family and property, literally with only the clothes on their back.
One wonders what happened to that portion of the Fifth Amendment that used to guarantee that no one would be deprived of his or her property without due process of law, and whether some judges even read the orders they sign when the orders clearly are not founded upon allegations of physical assault or overt threat as required by statute and case law.
The removal is then followed by an abbreviated hearing in which the complainant is again only afforded a free advocate and/or legal assistance. No objective proof is required. If the petitioner simply says she is afraid, the order for protection will commonly be issued giving her the home, the children, child support, maintenance, etc. Father is left to fend for himself with whatever is left.
Often similar allegations are also made in the criminal court and in a divorce proceeding as well so that a father trying to maintain a relationship with his children suddenly finds himself having to fund his defense in three proceedings at one time while the mother is assured of no expense in at least two of these proceedings, regardless of their respective financial resources.
Abuse is not the exclusive domain of one gender.
Many a father-child relationship has been compromised by the lack of funds necessary to allow a father to compete with the resources the political system currently makes available to women only, even though many of them are abusers as well.
In fact, recent studies reported in the Los Angeles Times demonstrate that the problem of female abuse is increasing. In an article entitled “Women Are Responsible Too,” Dr. Judith Sherven and Dr. James Sniechowski report that men and women now abuse each other with almost equal frequency; that 54 percent of all domestic abuse termed “severe” is committed by women against their husbands or boyfriends. According to Child Protective Services (including Minnesota’s) approximately two-thirds of the child abuse is committed by the mother.
Unfortunately, public recognition of these facts is not potitically correct. Until it is, we can expect more children to suffer injury up to and including deaths such as that of little Lydia Healey. The timely report of Lydia’s abuse went unheeded simply because it was made by a boyfriend who was himself accused of being abusive of her murdering mother when he tried to stop the abuse of the child.
Moving on in the dissolution process, a father who loses custody is relegated to the position of an occasional weekend entertainer of the children commonly referred to as a Disneyland Dad. All too often his only hope of avoiding that is to enter into an internecine family court warfare. There he must prove that leaving the children with the mother will present a risk to the children because of her shortcomings and dysfunctional behaviors. This forces the court to choose not between two well-qualified parents, but rather between a politically correct assumption in favor of the mother and the risk of her neglecting the children.
Regardless of who “gets” the children after this process, they are sure to be victims of the limitations of being raised by a single parent. Constructive approaches must find a way to provide joint custody. While the benefits of shared parenting provided by joint custody are too numerous to detail here, those interested would do well to review The Best Parent Is Both Parents, A Guide to Shared Parenting in the 21st Century by David L. Levy (Hampton Roads 1993).
The battle for custody can be financially compelled. There is a great deal of difference between paying 25 percent of one’s net income for the support of a child one is occasionally “allowed” to see, and receiving 25 percent of your spouse’s income. In reality the difference is often far more than the actual cost of one’s additional expenses actually caused by the child. (Interestingly, one of the many benefits of shared parenting is that the problem of “deadbeat dads” can be eliminated. According to Census Bureau statistics, over 90 percent of parents with joint custody paid their child support obligations.
Dads must pay but Moms are free to squander the money.
Here again, fathers are routinely discriminated against under the theory that it is “in the children’s best interests” that they be made to pay their statutory “guideline” mandated by support.
Can this be true in the case of a high-earning custodial mother, in which the support payment from a lower-earning father hinders his ability to provide a decent environment for the children at his home?
Can it be true in the case in which the father has to contribute to the actual support of the children because the mother chooses to spend the support money on parties, vacations or a new car?
In fact, if it is absolutely in the best interests of the children to require that the support be paid for them, then why should we not also absolutely require that the money be spent for them.
Finally, the hostility of the support enforcement bureaucracy is routinely prejudical to fathers. Fathers owed support rarely get county-funded support enforcement help even though the percentage of deadbeat female obligors is far higher than male obligors. Male obligors quickly find themselves pursued regardless of their circumstances.
Typical of the attitude of the county enforcement efforts was our case of Austin v. Austin. There the county had taken over custody and support of a dependant adult child. It then assumed the right to use the mother’s old divorce proceeding without the mother’s knowledge or consent to attempt to make only the father pay child support at the family law statutory rate forever instead of proceeding under a much less generous statute against both parents as it was required to do.
In this situation, it was telling and distressing the the lower court saw nothing unfair about this. Fortunately, the Court of Appeals disagreed.
Recent legislative changes have done nothing to improve this situation. Many obligor fathers have suffered visitation denials and those were formerly handled as part of one proceeding with support issues. The new Administrative Process for Child and Medical Support Orders will normally require a separate proceeding for resolution of visitation issues in county-initiated actions. Again, expense to the father will be greatly increased. When a father cannot afford this increased expense, his children suffer from loss of his presence in their lives.
The notion that children can be properly raised without the presence of a father engaged in a parental role must be discarded: there is now proof that fatherless families result in children more likely to commit crime, fail in school, and to grow up to be ineffective adults.
It is time for the courts and the legislature to ensure responsible males the right to be a parental role model to their children by requiring shared custody as the norm. Until it is, family courtrooms will remain highly conflicted pressure cookers serving no one well and only at the expense of the children suffering the loss of their right to two parents.