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December 3rd, 2012 by Robert Franklin, Esq.
The New York Times has many things to recommend it.  Unfortunately, having a clue about marriage, divorce, parental rights and children’s welfare isn’t among them.  The Gray Lady occasionally ventures into that (for them) uncharted territory and very often gets it wrong.  This article is no exception (New York Times, 11/23/12).

Entitled “Kramer.com vs. Kramer.com,” it purports to explain how electronic communication makes divorce and custody problems easier.  Somehow the writer, Pamela Paul, fails to notice that essentially none of the things she mentions as possible flash points between divorced spouses are in any way ameliorated by email, texting, tweeting or any other quick, impersonal mode of communicating.  Here’s how she describes the problem:

Think of the clashing summer vacation plans, the who-goes-to-Lucy’s-birthday-party, the “Max forgot his homework again” at Dad’s. And those devilish contretemps that can arise if Mom, for example, decides to keep her house kosher while Dad serves the children pork chops. Or if her new boyfriend is suddenly sleeping over on “her” nights to host the children.

Let’s just say that no matter how well ex-spouses and still-parents coordinate, there’s a good chance of teary phone calls, angry exchanges during drop-off, and all-out fights about who’s not saving enough for college, often played out smack in front of the children.

Unless, of course, it’s all done remotely.

I don’t wish to state the obvious, but the kosher vs. pork chops problem isn’t solved by texting.  Also, children not being binary entities, pick-ups and drop-offs may still be teary affairs despite texting; they have to be done in person.  If Mom fails to work enough to save for little Andy or Jenny’s college fund, there’s precious little the Internet can do about it.  Dad will still carry most of  the load and likely resent Mom for not pulling her weight.  Electronic communications media don’t impact that in the least.

Now, about the least important of all issues involved with divorce and custody – the sound of the ex’s voice – Paul has a point.  If one parent just can’t stand to hear the other speak, email helps to alleviate the problem, but frankly that seems trivial.  Plus of course, electronic communication makes matters worse in many cases.  Anyone who’s ever sent and received email knows that tone of voice and body language – those crucial elements of human communication – are entirely absent.  Even the most innocent words can be misinterpreted, and when people are at each others’ throats anyway, the chances of that greatly increase.

So the idea of electronic communications being a panacea for divorced couples strikes me as dubious at best, even for simple things like day-to-day scheduling.

What’s worse though is Paul’s apparent ignorance of the basic facts of divorce and custody.  My guess is that comes from her reliance on talking to a few divorced mothers and lawyers instead of consulting databases.  The problem with just talking to divorced parents and lawyers is that it creates a false image of who’s involved and how they behave.  The simple fact is that most people don’t involve an attorney in their divorce because they can’t afford one, and that’s a trend that’s increasing.  Among those who do have a lawyer, it’s often just for the purpose of drawing up the appropriate documents, i.e. the bare minimum.  That too is for financial reasons.

So when Paul consults the head of the American Bar Association’s Family Law section on the subject, she’s talking to a person who doesn’t see – and has likely never seen – the reality of 90% of divorce and custody in the United States.

Unlike the “Kramer vs. Kramer” 1970s, when mothers won primary custody almost by default, today’s postdivorce “bi-nuclear family” setups are more egalitarian. Almost all states now offer some kind of joint custody. Joint legal custody, in which parents share or split decision-making, is almost the norm. And while laws vary widely by state, joint physical custody, where children divide their time between their father’s and mother’s homes, is increasingly common.

Again, Paul might want to consult actual figures before making such assertions.  The United States Census Bureau tells us that primary maternal custody in 1993 ran to about 84% of all cases; by 2009, it was down to about 83%.  That may be her definition of “increasingly common,” but it’s not mine.  As to joint legal custody’s being “almost the norm,” I wish she’d cite her authority for that claim.  I’m aware of no set of data that even records information on joint decision-making.  Indeed Washington, the only state that collects data on divorce and custody matters, doesn’t record that information.  So where’d Paul get her figures?  She doesn’t say, likely because it’s more a figment of her fervent belief in the egalitarian nature of custody law than of reality.

Just to gild the lily, Paul quotes another lawyer thus:

“In the ’80s, you used to see Dad on Sundays and get a Happy Meal and an ice cream cone,” said Leslie Barbara, a partner in the matrimonial and family law department at Davidoff Hutcher & Citron in Manhattan. “Now it’s all gender-neutral, and the parents each get spheres of influence. You put together what’s called an ‘access schedule,’ and ‘parenting coordinators’ help figure it all out.”

New York Times Calls Family Courts ‘Gender-Neutral’

Oh yes, there’s nothing quite as “gender-neutral” as family courts.  That’s why, after decades of trying, fathers with primary custody are now a whopping 17% of all parents with custody.  That’s why 56% of those fathers are under a court order to pay child support but only 30% of non-custodial mothers are.  It’s why the system typically rewards mothers – but not fathers – who allege abuse.  It’s why it does so despite the fact that some 85% of those allegations, when ruled on by a judge, are found to be unsubstantiated.

I could go on and on of course about the gender bias in family courts, but will confine myself to pointing out that Paul’s is the point of view you get when you rely on divorce attorneys for your evidence.  They tend to represent the financially well-off and their opponents do likewise.  In those battles of the well-heeled, it’s probably true that each is able to get something that bears at least a vague resemblance to gender-neutrality.  But the world of family law looks entirely different from that experienced by spouses residing in Manhattan and represented by  the head of the Family Law section of the ABA.  Too bad Paul didn’t think of that.

I suspect there’s an ulterior motive behind all the happy talk in Paul’s piece.  It’s suggested by her quotation of one of her divorced mothers.  (Paul quotes no divorced fathers in her article.)

When they see each other in person, she said, they inevitably quarrel. And so she keeps him at a safe electronic remove.

Aye, there’s the rub.  Of course that “safe electronic remove” may be both necessary and not a violation of the father’s rights under the divorce decree.  Or it may not.  Paul is too enthusiastic about non-face time to inquire, but the truth about that electronic remove is that it’s often used to marginalize fathers in the lives of their children.  As we’ve seen before, judges are increasingly using the excuse of Skype to allow mothers to move their children far (sometimes continents) away from their fathers.  The theory is that for a father, seeing his child on a computer screen and hearing his/her voice is good enough parenting.  That’s plainly false, but in family court, it seems any excuse will do.

Any article extolling the virtues of mothers keeping fathers at an “electronic remove” from them and their kids looks suspicious to me.  That’s particularly true of one that neglects to ask even one father his thoughts on communication by email and text, or the notion that family courts have all of a sudden become “gender-neutral.”  Electronic communication has often proved to be just another tool with which to shove fathers out of their children’s lives.  I suspect that’s the point.

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