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June 18, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Continued from yesterday.

The third and most damning criticism is the study’s selection bias.

The authors looked at cases in which a father, a mother or both had asked the court to issue an order of some sort. In so doing, the authors’ sample consisted of fathers who, for one reason or another, thought they had a chance to be granted the order they sought. That suggests the researchers have a sampling error. And sure enough they do. The fathers studied don’t represent fathers in family courts generally, but instead those who thought they could win.

As those familiar with the treatment fathers experience in family courts tell us, fathers tend not to ask for custody or significant parenting time because they’re confident the court won’t grant it to them. So, the fact that these fathers did make those applications strongly suggests they’re a special group of dads. We might hazard the guess that those fathers were dealing mothers who, in one way or another, were highly likely to be viewed by courts less favorably than were the fathers who made the applications.

And indeed, the study itself confirms exactly that. So, in the few cases in which one parent or the other sought a shared residence order (in which the child lives part-time with each parent), fathers were named the primary parent more often than were mothers. Success, right? Yes, but,

In the majority of these cases there were current or past child welfare related allegations against the mothers.

That is, the father was granted primary custody because the mother was demonstrably bad enough that he figured he could win and did. The authors cite a neglectful mother and one using heroin as examples of the phenomenon.

That we’re dealing with a special cohort of fathers — those associated with particularly ill-equipped mothers — becomes even more apparent on page 78 of the study. There the authors state bluntly that fathers who sought any sort of residence order, i.e. some form of child custody, tended strongly to be those whose ex was uniquely unqualified for custody.

[T]here was a clear correlation between the presence of very serious child welfare concerns and applications by fathers for residence orders.

And again on page 30:

In the first, and largest, category (of fathers seeking sole custody) were cases where the father sought to become the primary care giver or have his status confirmed because the mother could not cope. In 16 cases a change of residence was sought, from mum to dad, because of child welfare and safety concerns that had manifested in recent crises. In 4 further cases where dad was the established primary care giver for over 1 year the child had initially been placed with him due to mum’s inability to cope due to drugs or mental health issues.

Clearly then, the authors’ data reflect relatively good success by fathers seeking sole or shared residential custody. But they were able to do so because they looked almost exclusively at cases in which the mothers posed “very serious child welfare concerns.”

Indeed, in many of those cases, fathers had the backing of various “local authorities,” either child welfare authorities, medical professionals or the police. Not uncommonly, those authorities presented dads with a choice — either apply for custody or see your kids taken into foster care.

What stood out from these cases was how many of the fathers’ residence applications featured quite serious fears about the children’s safety, which were usually shared by social workers or healthcare professionals. If we look at the reasons given by the fathers in the 32 applications for sole residence, 8 mentioned local authority involvement, 7 claimed that Mum was incapable and 3 were made to protect the child from the mother…

In B36, C14 and D14 the fathers wrote in their applications that they had been expressly told that if they did not apply for residence, children’s services would have to consider care proceedings; the children could not be left with their mothers. In fact, the files showed that the local authority had been involved in placing the child with the fathers in 8 of the cases where the fathers sought residence orders…

In most of these cases, mothers struggled with addiction and/or mental illness.

It’s almost enough to conclude that, for a father to get custody, Mom has to be an addict or mentally ill. That in fact comes close to describing the lived experience of fathers in family courts, but Harding and Newnham don’t notice.

One would think that, with such obvious information stated in the pages of their own study, Harding and Newnham might have figured out that the sub-cohort of fathers who sought custody were actually a very special group — those whose exes were quite deficient as mothers. As such, any conclusions that can be drawn are limited to that type of cohort and no other. But if the researchers grasp that obvious concept, they nowhere say so.

Let’s be clear; there’s a simple way to determine whether family courts discriminate against fathers. First, select a large sample of cases. Second, make sure they’re representative of the general run of cases in the jurisdiction studied. Third, analyze cases in which neither the father nor the mother is significantly deficient as a parent, i.e. no allegations of abuse, no addiction, no mental health issues, etc. Fourth, compare the custody outcomes. If that results in an equal distribution of maternal and paternal custody, I’ll eat my hat. Needless to say, that’s not the study Harding and Newnham conducted.

That brings us to criticism number four.

One of the study’s strongest findings was that the status quo wins. That is, judges were extremely likely to keep parenting arrangements as they were at the time the application was made. Those who sought to alter the status quo faced an uphill battle. Of course that held true for mothers and fathers alike, and, in due course, gave rise to Harding’s claim that the process doesn’t discriminate. However,

Applications by mothers and fathers for residence occurred in different factual circumstances. Mother’s applications for residence were generally to preserve the status quo whereas a much greater number of the fathers’ applications were seeking a transfer of residence.

Residence orders were more likely to be made to maintain status quo than to effect a change. As more children lived with their mothers prior to court proceedings the residence orders reflected this reality. Several residence orders performed the same function where the status quo parent was the father. A number of studies have found that the most important factor in a residence dispute is who is looking after the children at the time, rather than gender or anything else.

This of course is answered by Poole when he says “the rules that shape family life in the UK are unfair and unequal and any system of law based on those rules can only ever be biased against men.” When family courts simply recapitulate in their parenting orders the gender roles of contemporary society, those orders will necessarily be biased against fathers and damaging to children.

To flesh out the concept, the cases studied were of two types — applications filed at the beginning of a divorce or separation case and those filed to modify or replace an existing order. So the “status quo” is either the caregiving arrangement at the outset of a case or the caregiving arrangement as ordered by the court. Either way, the status quo tends to prevail. Indeed, as Harding and Newnham state, it’s the strongest predictor of the outcome of the application.

Now, what is the likely status quo when the parents’ relationship first breaks down and someone applies for a court order? In all likelihood, the status quo is the mother as the child’s primary caregiver (PCG). So, absent the type of “very serious child welfare concerns” on the part of a mother referred to earlier, the rule that the status quo prevails means Mom gets custody.

That leaves the second type of case in which a parenting order exists, but someone wants to change it. Again, the status quo prevails, but what is the status quo? It’s what the court ordered which was based on the previous status quo, i.e. Mom as the PCG. So the second type of case simply proceeds from the first and both result in maternal custody.

The rules Poole refers to urge that mothers be PCGs when the family is intact. Women across all cultures and of every class, race, religion and educational level tend strongly to choose that role. Men strongly opt for the breadwinner role. Overwhelmingly, that is the status quo when mother and father file for divorce and overwhelmingly that status quo is reflected in the parenting orders issued by family courts.

The authors are correct that, when Dad is the PCG, he tends to get custody just as a PCG mom would. But those fathers are rare; in fact they are about as rare as custodial fathers post-divorce. But Harding and Newnham conclude that the family courts’ replication of the sexism of society at large is in some way not itself sexism. They are self-evidently wrong.

They are particularly wrong given that the social science on child well-being demonstrates that children’s welfare doesn’t depend on who changed the diapers or who earned the money to buy them. Children attach to both parents given the chance and, even though Dad may have spent most of his time at work and Mom stayed home, the kids suffer due to the loss of either parent.

That’s why the sexism of the courts that replicates the sexism of typical family arrangements is still sexism. But it’s sexism of a particularly destructive sort. It removes one parent, usually Dad, from the child’s life and does grievous damage to all concerned in the process.

Of the 174 cases studied, 121 involved applications filed by fathers. Forty of those were for sole custody or shared residence and 68 were for contact only. Fathers did well in their custody applications for two reasons — bad mothers and the fact that the Dads were the PCG. Fathers did well when requesting contact because they were asking for the bare minimum a court can grant. That accounts for all but 13 applications made by dads.

In short, there’s little positive to say. If Dad’s ex is a bad enough mother or if he’s that rarest of birds - a PCG, Dad can get custody, but essentially in no other case. Whatever Harding may say, that’s not equality. And if a father asks for the least a court can grant him — just some form of visitation with his children, then usually they’ll throw him that well-gnawed bone. Tellingly, just three mothers asked for contact with their kids, strongly suggesting it’s not a highly valued prize.

Sadly, this study is already being used in the hopes of blunting the advance of family court reform. I can promise that it will be used again and again for that very purpose. That’s true despite the fact that, by its own admission, it doesn’t represent family court outcomes generally. It’s true despite its own sampling error regarding fathers. And it’s true despite the fact that replication of an anti-father/pro-mother status quo is neither equal nor just nor in children’s best interests.

In short, this study, and the commentary that’s followed it, are just a couple of additional shots in the war against equal parenting. The beat goes on.

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