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March 17, 2020 by Robert Franklin, JD, Member, National Board of Directors

This continues from my previous piece on Guardian editor Sonia Sodha’s, article claiming that it’s a “fallacy” that fathers aren’t treated equally by British family courts.  To that threadbare claim she attempts to recruit a 2015 study conducted by Profs. Maebh Harding and Annika Newnham.  Her effort fails miserably on many counts as I described last time.  It also fails when Sodha tries to convince readers that, even when DV is proven against fathers, they still get custody.

Harding and Newnham examined 174 divorce and custody cases in England and Wales.  In a grand total of nine of them did a father who was found to have committed DV get custody.  Is that shocking?  Outrageous? 

Nope.

For one thing, the study’s definition of domestic abuse is, to use its word, “broad.”  It includes physical violence, but also “allegations of any controlling, coercive or threatening behaviour including physical violence, sexual violence, and emotional abuse.”  So “domestic abuse” can mean almost anything.  Did Dad try, on more than one occasion to get Mom to spend less?  To refrain from spending so much time with the heroin addicts down the street?  If so, he’s abusive.

More importantly, the study is crystal clear that the reason Dad got custody over Mom is that Mom was so defective a parent (and a human being), that the courts had no choice.  As I showed last time, that is the same reason fathers got custody in non-DV cases.  It’s also true in cases of abuse.

There were five cases in which a father who’d committed DV got sole custody.  Here’s what Harding and Newnham say about them.

In two of the cases it was feared that the mothers would not adequately protect the children from dangerous third parties, in two cases the mothers had serious mental health issues. In one case, the children had come home and found their mother in bed with another man; they were now staunchly opposed to any kind of direct contact. In addition there was problematic drug or alcohol use in relation to three of the mothers.

In the other four cases, a shared parenting order was issued.  In all those cases, the parents’ relationship was characterized by high conflict and dueling claims of abuse, unfitness, etc.  The courts in those cases opted for shared residence in an effort to ameliorate parental conflict.

Now, in 86 of the cases examined by Harding and Newnham, there were allegations of DV, 69 by the mother against the father, three by the father against the mother and 14 in which each accused the other.  In 45 cases, the allegation was considered to have been proven, although the study makes no mention of which of the cases were and which weren’t.  So it’s impossible to know what the percentage of proven cases against a father also resulted in his gaining sole or shared custody.  Whatever the case, the nine cases in which fathers did get some form of parenting time, despite a finding of DV, are hardly cause for alarm.

In short, virtually the only way fathers got custody in the Harding/Newnham study is if Mom were extremely deficient as a parent or a person.  Needless to say, mothers bore no such burden in achieving custody.

In fact, the most robust finding of the study, the one the authors call the best predictor of custodial outcomes, is the status quo ante.  That is, whoever the primary caregiver to the child was before the application for custody/parenting time was filed is the parent to whom the court gives sole or primary custody.  That of course is usually Mom.  That also fails to conform to the dictates of the science on children’s well-being and parenting time post-divorce.  The simple fact is that mothers tend to do the lion’s share of parenting and fathers the lion’s share of paid work.  For this, mothers are rewarded and fathers punished by family courts, regardless of the science on the child’s best interests.

Harding and Newnham correctly point out that the courts are about equally likely to give custody to primary-caregiver dads as to primary-caregiver moms, but the facts remain that (a) the practice contradicts applicable science and (b) fathers still end up with far less custody than do mothers.

Finally, there’s the fact that the researchers candidly admit that the study is in no way representative of Britain’s family courts.  That’s because the cohort studied was too small and no effort was made to ensure that it was representative of fathers, mothers, what they request of British courts or how the courts respond to those requests.  This study just is what it is and nothing more.  It can’t be relied on to describe British family courts or whether fathers do or don’t get a fair hearing in them.

But that’s precisely what Sodha does.  Of course she does.  She takes a study that’s inapplicable to the population at large and assumes it is.  She uses a study that demonstrates how unequally fathers are treated by family courts and cites it to show they’re treated equally.

She’s not the first.  That was one of my points back in 2015 when the study first came out.  The article reporting on it then did what Sodha does now – pretends that the Harding/Newnham study shows that fathers and mothers are equal in family courts. 

I suppose that’s what people do who oppose shared parenting, but who don’t have real arguments to make to support their cause.

But Sodha’s still not finished misrepresenting what fathers face in family courts.  More on that next time.

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