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March 27th, 2013 by Robert Franklin, Esq.
One of the eternal verities in the fight for equal parental rights in family courts is that equal parenting’s staunchest opponents are family lawyers.  As far as I’ve seen, every single time there’s an equal parenting bill before a legislative committee, the ones speaking against it are family lawyers.  I recently ran a piece on the failure of such a bill before the South Dakota Legislature and, sure enough, those opposed were overwhelmingly family lawyers.



Social science tells us why.  Large amounts of social science show that equal parenting arrangements post-divorce tend to lessen conflict between the parents.  By contrast, the “winner-take-all” system, so beloved of family lawyers everywhere, has been shown to exacerbate conflict both during and after divorce.  How could it not?  When both parents go into a custody case knowing that one will “win” and one will “lose,” it’s no surprise that they fight like cats and dogs not to be the loser.  Losing of course means something pretty substantial.  We’re not talking about losing a baseball game where the teams play again the next day.  And we’re not talking about losing a couple of hundred dollars at the Black Jack table.  No, we’re talking about losing one’s child.  Parents, pretty much without exception view that as they view nothing else, and rightly so.  Ergo, a custody battle can be a donnybrook that sometimes goes on and on long after the “final” order.

Family lawyers take conflict to the bank.  The more conflict between the parents, the higher the fees for the lawyers.  So it comes as no surprise that family lawyers always line up against the one thing that poses a risk to their bank accounts – equally shared parenting.  If every parent knows that, barring exceptional circumstances, he/she will get the kids half the time, what is there to fight about but the sofa, the car and the dog?  Family lawyers view that scenario with understandable alarm.

So when we read an article by a family attorney that’s opposed to the principle of equally shared parenting post-divorce, we do so with a jaundiced eye.  She’d better have some very convincing arguments to make or we’ll toss her aside assuming that she’s just making sure the Porsche payments get made.  And so it is here (Huffington Post, 3/22/13).

Writer/lawyer Natalie Gregg comes on as father-friendly, but don’t be fooled.

In my practice as a divorce lawyer, the vast majority of the fathers whom I have represented want to remain actively involved as parents after their divorce has been settled. Very few want to sever ties with their children, even when they cannot stand the sight of their ex-wives.

In fact, I am seeing an increasing number who are fighting to be named the primary conservator — or the parent who determines where the children live and has majority of the access. This is especially true when both spouses are working full-time.

Not only that, but Gregg’s married to a man with whom she shares childcare strictly 50/50.  So obviously she knows that more and more men are taking their parenting duties seriously both before and after divorce.  Surely that means she’ll come out in favor of some version of equal parenting.  Nah.

In fact what she favors is some version of the “approximation rule.”  The approximation rule holds that parental time post-divorce should approximate parental time pre-divorce.  So whoever did the most hands-on parenting is the parent to get the most time after the parents split.

Now, all the things wrong with that concept are almost too numerous to list.  (That may explain why no U.S. jurisdiction has adopted the rule, although some states include who was the primary parent in their list of considerations for a judge  in deciding custody.)

For one thing, the rule is blatantly pro-mother and anti-father.  Indeed, that’s why it was proposed in the first place years ago – to establish a uniform rule whereby mothers could almost always get custody.  And so it’s no surprise that what the rule values as parenting has little to do with the actual value of what they provide the child or the family, and everything to do with mothers’ typical parenting behavior.  So it prefers diapering to earning the money to buy the diapers; it values feeding the child over buying the food; it places putting the child to bed over making it possible for the child to have a bed, a roof over its head, etc.

In other words, the parent who earns the money that relieves the other parent of the obligation and frees that parent to do the hands-on parenting is the bad guy.  And yes, that parent usually is the guy.  Whatever else may have changed, when it comes to kids, fathers still do the majority of the paid work and mothers still do most of the day-to-day care.  So why do those like Gregg who tout the approximation rule never get around to stating their obvious bias against the parenting fathers do and in favor of that done by mothers?  Do they really expect us to believe that Dad’s contributions aren’t necessary for the child’s welfare?  Or maybe they just believe that what Mom does is more important than what Dad does.  That’s my guess, and it’s called bias.  They want to devalue fathers, so they devalue what fathers typically do.

But wait.  Maybe there’s some sort of proof that turning the child over to the more hands-on parent is actually good for it.  If so, then it’s the right thing to do.  But of course there is no such proof, quite the opposite.  No social science backs up the claim that children are better off with their primary caregiver while losing almost all contact with their other parent.  In fact, children suffer terribly at the loss of their fathers on divorce.  It’s been shown far too many times to count.

And let’s not forget, that’s just what happens in custody cases.  One parent “wins,” meaning primary custody, and the other loses almost all contact with the child.  When Mom files for divorce, little Andy or Jenny waves Dad bye-bye.  That’s why 35% of American children have little or no contact with their fathers; the family court system of child custody wants it that way.

That of course is what Natialie Gregg is arguing for.

The key consideration is whether the father was equally (or more) involved in the children’s lives and took a vested interest on a daily basis in parenting. Examples include the following: taking the children to school, attending PTA meetings, making meals for the children, managing doctor appointments, choosing extracurricular activities and the like. Here, the court seeks to maintain what is closest to continuity for the children.

Nope, not even close.  It would be bad enough if that were true, but it’s not, which is worse.  What happens is that the “primary parent” is identified by who does the most hands-on parenting and that parent is then given almost all the parenting time.  In other words, the “approximation rule” doesn’t approximate anything.  It’s a naked weapon for giving custody to mothers, as if we needed another one.

Besides, quite a few sets of data show men doing a lot more hands-on parenting than ever before, but their levels of child custody remain doggedly the same.  From 1993 to 2009, the U.S. Census Bureau’s figures on primary custody remained unchanged.  In 1993, mothers got 84.3% of primary custody; by 2009 it was 83.7%.  And yet, just a casual glance at things like the American Time Use Survey by the Bureau of Labor Statistics shows fathers doing doing about 43% of the child care and mothers doing about 57%.  I don’t know many dads who’d be dissatisfied with a 43/57 split of parenting time post-divorce, but how many of them get it?

Dr. Edward Kruk cites studies showing the time spent in childcare between mothers and fathers to be far closer - 11.1 hours per week versus 10.5 hours per week respectively - or, a 51%/49% split.  So where are all those dads in Natialie Gregg’s calculations?  Nowhere to be seen.  Courts don’t notice them either.  They’re there, but their contributions to their children’s lives aren’t deemed important enough to matter much when it comes to apportioning parenting time.

And that of course is why we need a presumption of equal parenting.  They’ve had their opportunity to get it right and failed abysmally.  Time for others to have a say.

By the way, the comments to Gregg’s piece are far better and better-informed than the article itself.  “Steven Gauck’s” comments are particularly worth reading as are “Suzy C’s,” but there are many others.  And that in itself is news.  When even the comments to a HuffPo piece are so well-grounded and pro-equal parenting, you know the movement’s come a loooooong way.  I’d say Natalie Gregg and her friends in the family law bar are the last line of defense against good sense in custody cases.

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