In the Best Interest of the Children
http://mensnewsdaily.com/archive/m-n...lroy070103.htm
MensNewsdaily.com
July 1, 2003
by Wendy McElroy

A new legal term is creating debate across North America: the "rebuttable
presumption of joint custody." (search) It means family courts should
presume that divorcing parents will equally share the legal and physical
custody of children unless there is compelling reason to rule otherwise.

Advocates say children are more likely to emerge from divorce with both a
mother and a father in their lives unless, of course, one parent is shown to
be unfit. Why is this idea controversial?

PC feminist organizations, like NOW (search), claim that the rebuttable
presumption of joint custody would cripple the current standard, which is
"the best interests of the child." They claim the family court system
(search) blindly turns children over to abusive fathers. Instead of joint
custody, such feminists wish children to remain with "primary caregivers" --
overwhelmingly, the mothers.

The much publicized California NOW Family Court Report 2002 recommends,
"Abolish the tendency to assume joint custody is always in the best
interests of the child. This is a false presumption with no support in
reality...Sole custody [should] default to the primary caregiver at
separation."

In short, father's rights (search) advocates want joint custody to be the
default position at separation. PC feminists want sole custody for the
primary caregiver. Both situations would be rebuttable; that is, they could
be revised by a court with cause.

Such feminists assume that the welfare of children conflicts with the
parental rights (search) of non-primary caregivers, who are overwhelmingly
fathers. Yet both groups claim to be furthering the interests of the child
in promoting their preferred form of custody.

Each side of this debate can point to specific cases in which it is clearly
in the interests of a child to be in the custody of either the father or the
mother, not both. But specific cases do not make for good sweeping laws. If
fathers can be said to benefit children in a general manner, then men as a
category should not be slighted in custody arrangements simply because some
bad fathers exist. The same statement could be made of mothers.

If children need both mothers and fathers, there should be a presumption of
joint custody (search) upon separation. When exceptions to the rule arise,
when a father or mother is an inappropriate parent -- for example, he or she
is physically abusive -- then the custody arrangement would be "rebuttable."

In arguing for the importance of fathers, joint custody advocates point to
research such as 100 studies presented and analyzed in The Importance of
Father Love: History and Contemporary Evidence," an essay published by the
American Psychological Association (search). The essay concludes that good
fathering is as important a factor as good mothering in the "social,
emotional, and cognitive development" of children. Father-deprived children
were far more prone to drug abuse, crime, depression, and violence.

At least two aspects of child custody would be significantly impacted by a
joint arrangement. Monetary: money is far from the most important value
parents offer to children but it is an essential one. Joint custody may
alleviate a major complaint heard from sole custody mothers: deadbeat dads
(search) who do not pay child support reliably.

The Hartford Advocate repeats a theme common to father's rights advocates,
"There's an important link between the amount of contact a non-custodial
parent has with a child and the willingness of that person to pay child
support (search). In 1991, about 4.4 million non-custodial parents with
visitation privileges and/or joint custody owed child support. Of that
number, 79 percent paid all or part of it. By comparison, only 56 percent of
the 900,000 people with no visitation or joint custody rights paid all or
part of what they owed."

Physical: at the risk of stating the obvious, parenting requires regular
contact with children. Alienated parents complain vigorously about
"move-aways" -- custodial parents who move the children hundreds, sometimes
thousands of miles away. (Although relocation may sometimes be necessary for
reasons such as medical treatment, it is most often optional.) A study in
the June 2003 issue of the Journal of Family Psychology examined the
negative impact of moving-away on children. Father's rights advocate Glenn
Sacks explains that "among 14 variables [in the study] related to a young
adult's overall well-being, move-away status was correlated to significant,
negative impact in 11 of them."

Joint custody would place some additional demands on separated parents, a
greater demand for co-operation regarding children, for example. If so, this
could be a good consequence. Moreover, there might well be less hostility in
joint custody arrangements if only because power and responsibility would be
legally shared.

Family law varies from state-to-state. In many states, judges will not order
joint custody -- especially joint physical custody -- if one parent objects.
These are "hostile parent veto states." It should take much more than an
objection to strip someone of his or her rights as a parent. It should take
real evidence of misconduct presented in court. Because every time you deny
a person the right to parent, you are stripping a child of a mother or
father. The rebuttable presumption of joint custody is in the best interests
of children.


Wendy McElroy