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April 8, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

The family law system in this country and many others is broken. I say that because it actively disserves the very children in whose best interests it is supposed to act. It does so by routinely removing one parent from the life of a child. That parent has been ever-present in the child’s life up to the time of divorce and the child early on learned to see that adult as one of the two most important figures in his/her life. That parent is usually the child’s father, but not always. The reason fathers fare so poorly in custody cases is explained by a number of factors, but systemic anti-father bias on the part of judges, lawyers and mental health professionals is the main one. Several studies demonstrate the fact.

Now, what I stress again and again is the importance of the welfare of children. But the way in which the system removes fathers from their children’s lives is all about adults. Specifically, courts and laws give custodial parents, 80% + of whom are mothers, astonishing power to decide the amount and nature of non-custodial parents’ time with their children. By placing so much power in the hands of one parent, the system essentially invites abuse of that power.

Needless to say, custodial mothers have no monopoly on bad behavior. When it comes to gatekeeping, parental alienation, violation of visitation orders and the like, custodial dads take a backseat to no one. But since such a large majority of custodial parents are mothers, they’re the ones we see time and again doing the most outrageous things to deprive their children of their dads.

Let us be clear. Courts give enormous power to custodial parents and when people have power, some of them are bound to abuse it. ‘Twas ever thus.

This article hits that nail squarely on the head (Huffington Post, 4/4/16). Its conceit is that family courts place fathers in a non-consensual game of Mother May I.

Do you remember the childhood game, Mother May I? The mother directs the children to take a certain number of hops, giant steps or baby steps toward her. Each child must ask “Mother May I?” before moving. If they don’t, then they must go back to the start line. The first one to reach the mother wins. She had all the power, controlled every move and got to decide who won before the game ever started. Even if the child asked, “Mother may I?”, she still could answer, “No you may not!”.

The author, Donna Mott, goes on to list three types of Mother May I games courts allow custodial mothers to force their exes to play. First:

Mother may I have equal rights to my children? Even if they legally have joint custody, many fathers are not treated as an equal parent. These dads are at the mercy of what the mom is willing to share, especially in reference to doctor visits or school information. One dad shared with me that his court order states that he is entitled to attend doctor appointments and school events. He then showed me an email from his ex-wife acknowledging that although he has the right to attend, she does not have to tell him when those things are scheduled, even though she is the one doing the scheduling.

That’s how the game is played. Anything not clearly stated in the court order can be interpreted any way the custodial parent desires. That type of outrageous behavior might well get a judge’s attention, but how many fathers have the money to run to their lawyer and then to court at each such flaunting of the power of the custodial parent?

Second:

Mother may I have equal time with my child? The mother is granted primary custody the majority of the time in a biased family court system. Because of this bias, fathers are often falsely painted as lazy, abusive or cheaters. Good and loving dads who are desperately trying to hang on to a parenting relationship with their children are often reduced to nothing more than a babysitter and can only pray that they are granted more than every other weekend and one night a week.

Third:

Mother may I at least have extra time and share special events with my children? The legal documents cannot possibly spell out every detail or scenario so the dad is still at the mercy of the mother. I recently spoke with some fathers in this situation, all of them shared that the moms would manipulate and misinterpret the court papers in order to withhold time with their children, such as taking away a weekend or Father’s Day, or not allowing a soldier returning from duty extended time with his children through some loophole in the legal wording.

Sadly, those behaviors are all too familiar to those who pay attention to the family court system. But where Mott really nails it is here:

I am also a mother who has sadly played this game. I have never withheld information or time with my children from their father because I always felt it would hurt my kids. However, when they were younger, I did fight for and win control. And looking back, I can honestly admit it was, in part, motivated by fear that somehow my children would be taken away from me or I would lose them if I did not have that control.

Right. She fought for and won control. It is the core of the problem with family courts that, according to their skewed and inaccurate view of the matter, one person must win and one must lose. The winner is the one with control of future dealings between the exes regarding the child.

Put simply, it doesn’t need to be that way. Shared parenting, in which each parent plays a real and substantial role in the child’s life, rejects the notion that one parent must win and the other lose. As Dr. Edward Kruk points out, it is this system of winners and losers that begets much of the inter-parental conflict that have come to characterize child custody cases.

And that of course is precisely what Mott is getting at. She won the fight at least in part because of the system’s pro-mother bias. But she entered the fray in the first place because of fear – fear of losing her kids. That’s the same fear that every father has when he enters family court. It’s the fear that is engendered by the winner-take-all system we apply to custody cases. So, unsurprisingly, the parents fight. Kruk shows the social science on the matter.

Adversarial legal processes that result in win-lose outcomes such as sole custody or primary residence seem tailor-made to produce or exacerbate high parental conflict, and it is no surprise that parental conflict levels are highest during the legal divorce transition. There is ample research that demonstrates this effect, as detailed in chapter 6. For example, Hawthorne and Lennings (2008) found that legal maternal custody and primary residence judgments, and the removal of fathers from children’s daily routines, were correlated with fathers’ increased anger and hostility toward their ex-wives. As discussed, parental conflict increases after sole custody and primary residence determinations and decreases with the establishment of equal or shared parenting arrangements, just as parental co-operation decreases with primary residence judgements, and increases in equal and shared parenting arrangements (Citations).

Judges, lawyers and legislatures need to pay attention to the facts of child well-being.

Thanks to Terry for the heads-up.

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