April 8, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Judicial bias? Are there judges who are blatantly anti-father and pro-mother? Many like to pretend it’s not true, but somehow fathers keep losing the custody wars despite a small avalanche of scientific studies demonstrating children’s need to maintain full, meaningful relationships with both parents post-divorce. Plus, fathers continue to be marginalized in their children’s lives by courts despite their marked increase in hands-on parenting by them. All that is true, but the rate of maternal sole or primary custody in the United States has remain statistically unchanged since at least 1993.
And who knows how much more hands-on parenting fathers would do were it not for that sword of Damocles hanging over their heads — family courts. The simple fact is that every father who can read knows that, if he gets divorced, his chances of maintaining a real relationship with his kids is vanishingly small. So he’s got a choice; he can do what society expects and spend most of his time working and earning or he can curtail his time on the job in order to spend more of it with little Andy or Jenny. If he does the former, he can expect to see his kids every other weekend after the divorce is finalized. If he does the latter, he can expect the same.
In short, he can opt for a full career and a truncated relationship with his children or he can have a truncated career and a truncated relationship with his kids. Seems like an obvious choice. The point being that divorce courts strongly encourage men to limit their involvement with their kids during marriage. After marriage, they order them to.
Here in the U.S., Scott Ritchie’s is a case in point. Read my accounts here and here. Scott and his wife decided when their son was born that he should be the stay-at-home parent. She would support the family until the boy started school at which point Scott would get back into paid work. That was the arrangement they both agreed to and both kept their end of the bargain — until their son started first grade. Then Scott’s wife filed for divorce and, sure enough, was given primary custody despite Scott’s having been their son’s primary caregiver for the first six years of the boy’s life. In one hearing, the judge actually stated on the record that he just couldn’t wrap his mind around the idea of a stay-at-home father and that, in the future, he’d stop reflexively giving custody to mothers.
It’s a cautionary tale for all fathers. At least one small study of family court judges in the U.S. demonstrates their admitted pro-mother bias. The recent analysis of Nebraska child custody cases showed that, in some jurisdictions in the state, fathers essentially never get primary or sole custody, while in others, the mother/father ratio is almost 50/50. How likely is it that the fathers in the second jurisdiction are that much better than in the first? The far more probable conclusion is that the judge in the former believes fathers shouldn’t have custody except in the rarest of circumstances.
Which brings us to this blatant case of anti-father/pro-mother bias out of South Africa (IOL News, 4/4/15). As in the Ritchie case, the father had been his daughter’s primary caregiver for all of her three years. More remarkably, once the pair decided to divorce, they agreed to a 50-50 split of parenting time, for which I applaud them. As I’ve said many times, it matters little to a child who did the majority of the hands-on parenting. What’s important is that she’s attached to both her parents, the loss of either of whom would be a serious blow to her emotional/psychological development. So, despite the fact that Dad did most of the parenting, it was altogether appropriate that the child should spend time equally with her mother and father after they split up.
But apparently the court knew better.
A High court judge told a Joburg businessman that because his child was a girl and only 3 years old, it was not appropriate for him to have “extensive contact” with her.
Instead, the child should live with her mother and he should have contact with his daughter only on alternate weekends.
The father, who argued in court that he was the child’s primary caregiver, has spent hundreds of thousands of rand fighting gender bias in a bid to be a parent to his child.
“Her primary attachment figure is me,” the dad says in court papers.
“She calls for me in the night and comes to me in the mornings for a cuddle.”
He told the Saturday Star this week: “I have spent all my available time in the past three years with her, mostly alone. But the judge said it was impossible to believe a mother of a 3-year-old girl would give her away and that in (the judge’s) experience a minor child belonged with her mother, and I could see my daughter only once a month.”…
On January 20, the North Gauteng High Court judge declared that “the minor child was a girl and should reside with her mother”.
“Joint residency is not in the minor’s child best interests in view of her age and the father should have contact with her on alternative weekends.”
Notice of course that this is “in the minor child’s best interests.” It continues to astonish that every single child custody case is decided in “the child’s best interests,” even when the overwhelming majority of them aren’t. The fact is that judges don’t know the social science on which post-divorce family structure tends to promote child well-being and which don’t. They don’t know the science because they’re not required to know it. So when judges like the one at the North Gauteng High Court intone the mantra of the best interests of children, they’re basically just making it up. That is, they’re consulting their preconceived notions about what children need — a mother, not a father — and issuing their orders accordingly.
The judge’s bias becomes more apparent when we notice his/her issuance of a no-contact order on behalf of the mother despite the fact that it was based on false claims that were later admitted by her. Still, it served its intended purpose of removing the father from the child’s life.
Meanwhile, it’s the father who’s been made to pay for extensive factual and psychological investigations ordered by the court. And, again like Ritchie, this father gave up a lucrative job to be his daughter’s primary parent.
After the couple agreed to file for divorce, his ex-wife secured a protection order against him that allowed him to see his daughter only with supervised access.
The order was later withdrawn.
He believed she was using their child as a “pawn” after the breakdown of their marriage.
“Not only was the basis for the protection order completely false, which my estranged wife later admitted, it was completely malicious and put me in a situation where I was allowed only supervised access to my child.”
The man was served with the order shortly after he returned from a three-week holiday with his daughter.
“I have cared for my daughter my entire life. I have never harmed her. I was insulted and took it very personally.
“My daughter is the best thing that ever happened to me. I changed my job, gave up my executive position in a company so I… could spend most of my time with her, giving her my undivided attention…
The judge ordered the father to pay for an investigation by private individuals, a social worker and psychologist, regarding parental responsibilities and rights in the best interests of the child.
The father is awaiting this report, which has cost him a further R85 000. “That’s the stigma about being the father of a girl. I can’t accept it. I’ve made a conscious choice to challenge the system,” he said.
By the time his court battle is over, he expects to have spent close to a R1 million.
Meanwhile, this father vows to fight the system that he sees as discriminating against fathers. He’s not alone.
“If I’m not happy with the outcome of this investigation, I’m going to the Constitutional Court. I’ve been advised I’ve got a strong case. I’m fighting for myself and for my daughter. She is the most beautiful, special little girl.”…
A group of fathers filed a multimillion-rand damages claim case against the Family Advocate’s office in Pretoria in 2012, saying they had been discriminated against because they were men. The group have been waiting for a court date for more than three years. “The Equality Court is supposed to bring swift justice,” one of the applicants said.
Steven Pretorius, founder of Fathers-4-Justice, said as more dads fought to secure their rights for greater parental access, there remained an “inherent gender bias against fathers” in raising children.
In many states, provinces and countries, laws are on the books that do not prevent judges from ordering equal custody. But laws are generally no better than the judges on whom we rely to interpret them fairly, honestly and without prejudice. But all too often, that reliance is misplaced. All too often, judges rule with their hearts and not their minds. And all too often, they’re simply ignorant of the important social science on parenting that frankly demands equal parenting time as long as both parents are fit to care for their children.
That of course means that one of the keys to shared parenting is educating judges in the science we have on what actually is in the best interests of children when their parents divorce.
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