LAGGING BEHIND THE TIMES: PARENTHOOD, CUSTODY, AND GENDER BIAS IN THE FAMILY COURT
CYNTHIA A. MCNEELY[**]
"When by birth a child is subject to a father it is for the general interest of children and really for the interest of the particular infant that the Court should not, except in extreme cases interfere with the discretion of the father but leave to him the responsibility by exercising that power which nature has given by the birth of the child."[1]
In separate Broward cases, one deadbeat dad was found hiding behind a shower curtain; another in a bedroom closet.
In Daytona Beach, a helicopter and police canines helped track down a father who had fled into woods behind his home when authorities arrived. In Pensacola, one deadbeat dad eluded authorities at his doorstep, only to be captured at the state tax office as he was trying to argue his way out of payments.
"We stalled him until the deputies came to arrest him," [a Florida Department of Revenue spokeswoman] said. "He even tried to run away as he was led out."
. . . .
"The difference with this roundup is that it was statewide, and merely the first in what will be many Florida-wide efforts," [the spokeswoman] said.[2]
I. INTRODUCTION
Society's view of fathers has changed dramatically since the days when courts rarely intervened between the father-child relationship. The transformation can be traced to several sources, most notably the Industrial Revolution, which required fathers to remove their labor from the home to a remote facility.[3] Mothers, viewed as physically and temperamentally weaker, were deemed incapable of adapting to the rigorous demands of the workplace and were singularly charged with the management of the domestic sphere.[4] The feminization of the homefront resulted in mothers replacing fathers as the "primary and irreplaceable caregivers" in both "law and custom," effectively leading to a "progressive loss of substance of the father's authority and a diminution of his power in the family and over the family."[5] The stereotypical images of fathers as familial breadwinners and mothers as domestic caretakers and primary childrearers were born.[6]
With the reemergence of feminism in the early 1970s,[7] many women realized that they needed a man about as much as "a fish needs a bicycle."[8] Justifiably, the male-female relationship was long overdue for a reconfiguration. However, in the quest to throw off the shackles that commonly constrained women in marriage, women, the state, and society overlooked the reality that children needed-and still need-the love and support of their fathers about as much as a fish needs water.[9] Only lately have we begun to understand that children suffer serious negative consequences when fathers are marginalized.[10]
Despite continuous efforts from the feminist and fathers' rights movements to modify these stereotypical images, they still persist today.[11] In no greater sphere do these outdated gender roles persist than in our nation's family court system.[12] There, the state frequently not only denies the capability and desire of many men to participate actively and meaningfully in the care of their children,[13] but also perpetuates the subjugation of women as mothers by deeming them weak and incapable of survival without the support of a man.[14] This state-instituted romantic paternalization of mothers, combined with the narrowed view of the role of fathers, is largely responsible for the wholesale destruction of the post-divorce, father-child relationship.[15] Consequently, the state creates increased psychological, educational, behavioral, and health disorders for children, and crime and violence for society.[16]
Paradoxically, society maintains its insistence that it wants to promote women's independence by setting them free of the constraints of a bad marriage through state-sanctioned marital dissolution,[17] while at the same time operating a system that expects, permits, and maintains the outdated role of women as the weaker and dependent sex, primarily responsible for caregiving and incapable of economic self-sufficiency.[18]
The state's treatment of divorced fathers has become a self-fulfilling prophecy. By sending a distinct message to divorced fathers that they are not essential to the raising of children beyond supplying a percentage of their paychecks to the mother of their children, and perhaps a couple of hours a week of "visitation" with their children, the state has encouraged divorced fathers to abandon true fatherhood.[19] Yet, society looks on with bewilderment and disdain when divorced fathers fade from a meaningful relationship with their children.[20] No one should be surprised that the situation has been reduced to cornering some non-custodial fathers behind shower curtains and chasing them with police dogs and helicopters.[21]
http://www.law.fsu.edu/journals/lawreview/frames/254/mcnetxt.html