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September 2nd, 2012 by Robert Franklin, Esq.
Am I imagining things or do the arguments against equal parenting get more threadbare every day?  It sure seems that way to me, and this article is the latest to support my belief (Huffington Post, 8/29/12).

It’s written by someone named Henry Gornbein who tells us he’s specialized in family law for over 40 years.  Now, if that’s true, his entire article is a straw man.  Come to think of it, even if he is an attorney, it’s a straw man, but maybe we can forgive him for his lack of understanding.  You see, his entire piece is based on the premise that he, an attorney with 40 years of practice under his belt, has no idea of what a legal presumption is.  An attorney’s not knowing what a legal presumption is is roughly akin to a plumber not knowing what PVC pipe is.

Gornbein’s piece responds to this earlier piece in the same publication (Huffington Post, 6/29/12).  In it, Fred Silberberg, also a lawyer, comes out in favor of a presumption of equally shared parenting, and Gornbein disagrees.  Fine.  I’ts OK to disagree, but it’s not OK to pretend that a presumption of equal parenting is something it’s not.  And that’s precisely what Gornbein does.

I recently read a blog on the Huffington Post advocating for a statutory policy in all cases that children should spend equal time with both parents.

No, actually you didn’t.  What Silberberg argues for throughout his piece is a presumption of equal parenting post-divorce or separation.  Silberberg used the word “presumption” in his article no fewer than 10 times and “presumed” once.  Given that, you’d think that anyone, and certainly a 40-year attorney, could figure out that he was talking about a presumption of equal parenting, not an invariable, inflexible requirement.  It’s true that in one sentence, Silberberg used language that could be construed as calling for mandatory equal parenting, but given the context, no reader serious could get that message.

As Gornbein of course knows, the law is replete with presumptions; in criminal law, there’s the presumption of innocence; in family law, there’s the presumption that a child born to a married woman is her husband’s.  The main thing a presumption does is let the parties know who has the burden of proof.  Since a defendant in a criminal case is protected by the presumption of innocence, the state has the burden of overcoming that presumption.  If it fails to do so, the defendant walks free.  If the husband wants to overcome the presumption that he’s the child’s father, the burden falls on him to produce evidence that he’s not.  Again, if he fails, the law considers him the dad.

Like those and other presumptions in the law, a presumption of equal parenting could be overcome by appropriate evidence.  If one party wanted to claim equal parenting wouldn’t be in the child’s best interests, it would be up to him/her to prove the point.  Usually that would be done by showing that the other parent wasn’t fit to have custody.  It could also be overcome by agreement of the parties.  So, for example, if one parent traveled too much for work to have 50% parenting time, the two could agree on another arrangement.

This is all quite simple and straightforward, and nothing Gornbein doesn’t understand, but he pretends not to.  He falls back on the traditional claim of anti-father advocates everywhere when confronted with the many virtues of equal parenting, “Divorce is not a situation — especially with children — where one size fits all.”  Very true, but no one ever said it is.  Clearly, a presumption of equal parenting is exactly as flexible as two fit parents want to make it.  They can agree on another plan or go with a 50-50 split.  It’s up to them.  If one is unfit to parent, the other can show the court as much.  Again, I don’t believe for an instant that Gornbein, or any of the others who grasp at straws to defeat equal parenting presumptions, doesn’t fully understand this.

What’s perhaps even more remarkable about this 40-year family lawyer is his apparent ignorance of the fact that we already have a one-size-fits-all pattern of child custody.  Mom gets primary custody, Dad gets visitation every other weekend and perhaps one night during the week.  That arrangement is ordered time and again, countless times every year.  Most judges and lawyers can recite the order in their sleep, but for some reason that unvarying rule suits Gornbein just fine.  Never mind that it marginalizes fathers in the lives of their children who in turn suffer deeply the loss of a parent.  Never mind that over a third of children in the U.S. have essentially no relationship with their fathers in part for the very reason that Gornbein’s preferred custody arrangement kicks Dad to the curb.

No, as is always the case with those who oppose fathers’ rights to children and children’s rights to their fathers, Gornbein offers nothing with which to replace the existing system.  He’s dead-set against equal parenting, never explains why the system we have is worth keeping and never offers an alternative.

Perhaps sensing the untenable nature of what he’s arguing for, he tosses this out, apparently hoping readers will conclude that equal parenting will somehow come into being on a wide scale without anyone doing anything to promote it.

In my practice, I’ve specializing (sic) in family law for over 40 years and have handled many custody disputes. I’ve also see (sic) a trend for shared or equal parenting time, though I do not believe that it should be statutorily mandated.

Well, I can’t comment on the cases he’s handled, but nationwide, he’s seen no such thing.  In 1993, the U.S. Census Bureau data showed that mothers got primary custody in a fraction over 84% of cases.  Sixteen years later, in 2009, that figure stood at a fraction under 84%.  In short, courts haven’t changed their custody orders one bit.  The simple fact is that they won’t until legislation requires it of them; my guess is that many of them won’t even then.  After all, the problem isn’t the law; no law requires maternal custody.  The problem is the maternal bias of family courts.

Gornbein goes on to say that, since typically one parent does more childcare than the other, that parent should receive primary custody.  Why he says this, he doesn’t make clear, but the reasons against it are legion.  As many studies and untold numbers of fathers attest to, the typical arrangement of primary custody/visitation effectively cuts the father out of the child’s life.  He quickly becomes just what researcher Susan Stewart calls a “Disneyland Dad,” i.e. more of an entertainer than a parent.  Of course courts’ unwillingness to enforce visitation orders play a role in that, but what’s most important are the child’s needs.  That means having real relationships with both parents, something the usual custody order tends to prevent.

Another problem with Gornbein’s preference for continuing the status quo is that he assumes that, because Dad worked and earned the money to put a roof over the child’s head, clothes on his/her back and food on the table, in some way he didn’t do childcare.  Actually, doing those obviously necessary things is every bit as loving and caring as what Mom typically does.  The only difference is that people like Gornbein and apparently every court in the nation don’t see it as such.

The whole goal of child custody cases should be the maintenance of real, loving relationships between each parent and the child.  If the current system accomplished that, it wouldn’t be under fire from all quarters.  But it is because far too often, the system of divorce and custody results in the child’s losing his/her father.  Gornbein and others like him think that’s good enough, but it’s far from it.  It’s a disgrace and one of two or three most important factors in the growing dysfunction of American society.

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