The National Organization for Men Against Sexism1 is committed to make substantive this nation's ideals of equality and justice. In choosing loyalties in disputes over child custody, any society that cares for its future must make its primary concern that which is truly in the best interests of children. In a society such as ours in which men daily subject women to violence, oppression, and discrimination, men who would not add to this violence must not blindly side with other men in custody disputes. Indeed, men must relinquish the privilege of sitting idle while the lives and freedoms of women and children are impoverished by vindictive men who lobby, in our name, for laws that benefit men. An examination of custody laws in the various states2 reveals widespread injustice toward women and children. There is a disturbing national trend toward laws mandating joint custody3 despite a lack of psychological and social research showing this to be in the interests of the child.4 In fact it is clear that court mandated joint custody is not in the best interests of the child.5
- Joint custody forced upon two hostile parents can create a toxic psychological environment for a child.
- Because 95% of all joint custody awards are for joint legal custody6 the living arrangements are exactly the same as under a sole-custody/visitation order. However joint legal custody does expand the right of the non-primary-caretaking parent to impede the ability of the primary- caretaker to make needed and timely decisions.
- Some provisions in joint legal custody laws require a minimum visitation period for the noncustodial parent that can be limited only when there is a threat of physical harm to the child. This threat is difficult to prove, especially when the accuser is perceived as a litigant with a vested interest in distortion. And such provisions also do not address psychological and emotional abuse.
- The threat of a joint custody decision may be used by the husband to bargain out of court for a reduction in child support payments (trading children for money in a throwback to the 19th century laws in which children were considered to be property of the father). The potential for bartering away the child's financial resources because of a bad faith request for custody is reinforced by (“friendly parent”) provisions that give a preference to the parent requesting joint custody when the alternative of sole custody is considered by the court.
- Such “friendly parent” provisions also guarantee an abusive father or husband access to the victim. Men who batter their wives will frequently sexually abuse their children as well.7 8 The more fearful a woman is of the father gaining sole custody, the more willing she may be to submit to joint custody or to a reduction in child support.
Furthermore, court mandated joint custody is not in the best interests of mothers.
- Joint custody gives an abusive husband a key for perpetual access to his victim. In 50% of all US marriages at least one incident of spousal abuse has occurred9 and in 10-25% violence is a common occurrence. Attacks by husbands on wives result in more injuries requiring medical treatment than rapes, muggings, and auto accidents combined.10 Nearly a third of female homicide victims are killed by their husbands or partners.11
- “Friendly parent” provisions are particularly disastrous because a woman who does not assure “frequent and continuing contact” may be seen as “uncooperative,” resulting in the child being placed in the care of an abusive parent.
- Provisions barring removal of the child from the family home prior to custody resolution put a battered woman in the double-bind of jeopardizing her custody case or living in a dangerous and violent home.
- Provisions requiring that the noncustodial parent have unrestricted access to records and information pertaining to the child are extremely dangerous in that they allow an abusive parent access to the location of shelters for battered women, the child's residence and school, and the woman's residence and place of employment.
- Provisions requiring mediation rather than advocated negotiation or litigation pose grave dangers to women who are forced to “compromise” with a spouse who's abusive behavior is based on control and domination. Unequal bargaining power and ability between husband and wife, lack of confidentiality, and the bias and agenda of the mediator, add to the dangers inherent in a system in which mediators have had to meet no standards of training.
- Joint custody statutes including provisions for “modification at any time” enable the noncustodial parent to subject both the custodian and the child to repeated and frivolous litigation.
- Provisions for joint custody “when the parties are in agreement” contain the potential for one parent forcing the other into accepting such an “agreement” out of fear of losing in a sole custody trial. Such laws generally do not require the court to inquire whether the “agreement” was reached under duress.
- Joint custody is a workable arrangement only for those parents who can cooperate respectfully with each other and these parents can cooperate as fully under a sole-custody/visitation order.
Because court mandated joint custody is unworkable for those parents who cannot cooperate, is unneeded by those parents who can cooperate, and creates unconscionable costs in pain and privation for children and mothers, this option for settling custody disputes is unacceptable. In examining other options, we see that the awarding of sole custody based on so called “best interests of the child” also has its drawbacks.
- Custody determination based upon which parent can provide the greatest wealth, or upon the preference of children who may want to live with the parent that provides them with the greatest wealth, puts women at a disadvantage because men earn, on average, 169% of what women earn.
- There is a high correlation between the finding of which parent is deemed most fit by “expert [psychological and sociological] witnesses” and which parent is paying them.12
- The process of observation is intrusive, time consuming, and unsettling to the child.
- As with joint custody threats, the threat of a court battle over sole custody may be used to extract lower child support payments in an out-of-court agreement.
- In In re Abdulla “an Illinois appellate court [later overturned] found that a man's conviction for murdering his wife (the child's mother) was not `clear and convincing evidence' of depravity or unfitness so as to deny him custody of the child.”
Finally, laws providing for a “maternal preference” in awarding sole custody are not acceptable because they are unfair to men who are the primary care givers to their children. But these laws are easily corrected to the gender-neutral preference for leaving children in the custody of the parent who has been the primary giver of care (the parent who most often prepares the meals, changes diapers and dresses and bathes the child, chauffeurs the child, monitors the child's health, and interacts with the child's friends and teachers), as in the “Primary Caretaker Parent Rule” of West Virginia. Such a rule reflects that a custody settlement cannot be expected to undo a father's lack of participation in parenting within the marriage while also validating claims to custody by fathers who were fully involved in parenting within the marriage.
This policy statement has detailed the ways in which child custody laws that have been instituted by men have caused women and children fear, violence, and privation. Men within the National Organization for Changing Men understand that loyalty to other men cannot come at such a cost to women and children. Because silence implies consent, it is time for men who abhor violence against women and children to speak out against this injustice and get these laws changed. Men can no longer hide behind complacency and male privilege, allowing the bitterness and the manipulative, coercive, and controlling behavior of their peers to be the foundation of public policy.
*The important issue of custody disputes between the state and lesbians or gay men will not be addressed here.
1 Named "The National Organization for Changing Men" in 1989.
2 Carol S. Bruch, Int. J. of Law and the Family 2, 106 (1988).
3 Freed & Foster, “Divorce in the Fifty States: An Overview as of August 1, 1980,” 6 Fam. L. Rep. (BNA) 4043, 4047 (1980).
4 J. Schulman and V. Pitt, “Second Thoughts on Joint Child Custody,” Golden Gate University Law Review 12, 539 (1982).
5 See reference 2 for an excellent analysis of these points.
6 Levy & Chambers, “The Folly of Joint Custody,” 3 Fam. Adv. 6, 10 (Summer 1981).
7 M. K. Morgan, SafeTouch (Rape Crisis Network, Eugene, Oregon, 1985).
8 National Coalition Against Domestic Violence (1987).
9 “Report of National League of Cities and the United States Conference of Mayors,” cited in Langley & Levy, Wife Beating--The Silent Crisis 4 (1977).
10 The Lipman Report, The American Epidemic of Violence, December 15, 1985.
11 Attorney General's Task Force on Family Violence Final Report, September, 1984. 3
12 R. Neely, Yale Law & Policy Review III, 168 (Fall 1984). 4