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May 15, 2012, 12:47:00 PM
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Gender bias is alive and well when it comes to divorce and fathers being granted custody of their children. Because gender bias in child custody situations is so deeply entrenched in our society and our court systems, we haven't heard too much about it. This is slowly changing as our attitudes towards parenting change also. In today's culture, we see more and more fathers not only taking a more active role in their children's lives after divorce, we see more and more being granted the physical custody of their children. The Internet is filled with stories and information from fathers who have either been denied custody or who are fighting just to see their children on a regular basis. Though some are breaking ground and winning, there is still a long way to go.
History
The societal and legal history of child custody determinations began in Rome. In those days wives and children were considered the property of the father. Even if the father died, the mother could still not have custody of her children (Kelly 121). This patriarchal viewpoint continued under English law where husbands and fathers had absolute power over their wives and children.
Changes began in English law when an English lawyer named Thomas Noon Talfourd authored a law under the British Act of 1839 that was called the "tender years" (Kelly 122) law. It granted mothers custody of children under the age of seven. After that the custody was given to fathers and the mothers may get visitation rights (Kelly 122, McNeely 3).
In early America, this English system carried over into American laws. In the seventeenth and eighteenth centuries, the American legal system was patriarchal and in divorces, custody was almost always granted to the father. Legal and societal viewpoints began to change by the nineteenth century. Some states started passing laws that gave parents equal custody of their children (Kelly 122).
After the Civil War, the Industrial Revolution began. During this time major changes started happening in divorce and custody laws. Fathers began to leave home in droves to work in the cities. When farming was the major industry, fathers lived at home and had absolute control over their children. Mothers, fathers and children all worked the farms together. When fathers started leaving home to work they became wage earners while the mothers became the caretakers of the children and home (Kelly 122, McNeely 3).
By the late nineteenth and early twentieth century, societal views of child custody had changed dramatically. There was almost a "cultural reverence" (McNeely 3) for motherhood and the legal system began reflecting this viewpoint in custody decisions. By the 1920s it was firmly rooted in both society and the legal systems that mothers were granted sole legal custody of the children regardless of their ages. The patriarchal society had now been replaced by a matriarchal society in regard to divorce and child custody. This viewpoint continued until the 1960s (McNeely 5).
In the late 1960s and early 1970s another cultural revolution happened in the United States. Women started protesting and lobbying for equal rights with men. As women gained more rights to equality, fathers involved in divorces began questioning the old custody laws and more and more fathers started demanding and fighting for more custodial rights to their children (Kelly 123, McNeely 6).
In 1970 the Uniform Marriage and Divorce Act was passed (Funk & Wagnall's 1994). This act provided for a best interest (McNeely 122) standard in child custody law. Instead of basing the right to custody on gender or the rights of one parent, the courts were encouraged to consider the best interests and needs of children involved in divorce actions. Most states adopted this law.
This shift to neutral gender and the best interests of children caused the legal systems to come up with new custody arrangements. This was called "joint custody" (Kelly 122).
Divorce wasn't common in the United States from the 1700s through the early 1960s, but during the women's movement of the 1960s and 1970s, there was a great increase in divorces. Because divorce custody laws still favored a matriarchal system, fathers were suddenly finding themselves only wage earners and many were left out completely in regard to their children's lives. They found they were required to pay child support, but allowed only limited visitation with their children. They were disenfranchised in large numbers.
Divorce Statistics
According to a 1995 Monthly Vital Statistics Report from the National Center for Health Statistics (Clarke 43.9), there were 264,000 divorces or annulments granted in 1940. By 1990, there were 1,182,000 divorces or annulments granted.
In 1997, according to the Monthly Vital Statistics Report (v. 46.12 (1998), DIVORCE Magazine 1999), there were 1,163,000 divorces granted in the United States compared to 1,150,000 in 1996. Provisional data for divorces from the National Vital Statistics Reports (v 48,19) showed 1,134,000 divorces granted and almost 1,200,000 divorces granted in 1999. Further statistics show that over one million children per year are directly affected by divorce.
Children of Divorce
With millions of children directly affected by divorce, child experts, the media, and politicians started examining the effects of divorce on children, especially those who had little or no contact with their fathers. The results were startling.
In the 1995 special Monthly Vital Statistics Report (Clarke), statistics showed that in 1990 alone, the wife was awarded custody of the children 72 percent of the time. Joint custody was awarded in 16 percent of the cases and husbands were awarded custody in only 9 percent of the states reporting. These statistics have changed little since 1990. Divorce Magazine reports in it's February, 1999 issue that 27 percent of family households involve a single parent and that there were 20 million children in the U.S. in 1998 who were living with just one parent, most generally the mother. Statistics from Current Population /Reports, U.S. Bureau of the Census, showed that in 1991, there were a total of 11,268,000 total custodial mothers compared to a total of 2,907,000 custodial fathers. They also reported the following statistics about children from a fatherless home. Fatherless children are:
- 5 times more likely to commit suicide
- 32 times more likely to run away
- 20 times more likely to have behavioral disorders
- 14 times more likely to commit rape
- 9 times more likely to drop out of school
- 10 times more likely to abuse chemical substances
- 9 times more likely to end up in a state operated institution
- 20 times more likely to end up in prison
Even though there are many studies showing children of divorce are much better off when their father stays actively involved in their lives, the legal systems still seems biased towards the matriarchal custody standards. In the article Data on Bias in Child Custody Determinations (Christensen), 162 judges were surveyed across the United States in regard to their feeling about child custody. When both parents were found to be equal candidates for custody, the mother received custody 100% of the time. In further studies, it was found in Arizona that mothers receive custody by a ratio of 3:2. Another study in New York showed that 39% of children felt closer to their father than mother, but had never been given the right to choose with which parent they wanted to live.
Adversaries
The National Organization of Women (NOW) and other feminist groups lobby heavily to prevent fathers from ever gaining custody of their children. They feel that this takes away part of their power as women. In 1996, according to the article "Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family Court," NOW issued national resolutions announcing that the organization was preparing a counter-assault against all fathers' rights groups because their recent successes - primarily legislation that inched fathers minimally forward to permitting them to spend more time with the children threatened all women (McNeely 20). McNeely went on to say:
"What is so wrong with fathers spending more time with their children? For many women, this change presents a threat in the only arena in which they clearly have an advantage. The family court. On the one hand,it is hard to blame women for fighting tooth and nail to maintain every inch of the status quo they enjoy within our legal system. But because women have fought for and won the right to enter into traditional male domains, women should therefore understand what it feels like to be subject to oppression, based on a physical characteristic. Instead of judging all males "in the form of universals, rather than in the form of particulars of individual parents' experiences," women must recognize the important role most fathers play in the lives of their children. (20)."
Fathers have been having limited success in filing lawsuits under the Fourteenth Amendment claiming their rights to equal protection under the law have been violated. Some states supreme courts have upheld this as legally sound.
Joint Custody
Currently, over thirty-five states have passed joint custody legislation. The others have passed some limited form of legislation regarding the law and custody criteria. The following table from the American Bar Association Family Law Section summarizes the laws in all fifty states.
|
American Bar Association Family Law Section Tables Summarizing the Law in the Fifty States Chart 2: Custody Criteria |
|||||||
| STATE |
Statutory Guidelines
|
Children's Wishes
|
Joint Custody*
|
Cooperative Parent
|
Domestic Violence
|
Health
|
Attorney or GAL
|
| Alabama |
x
|
x
|
x
|
x
|
|||
|
Alaska |
x |
x
|
x
|
x
|
x
|
x
|
x
|
|
Arizona |
x
|
x
|
x
|
x
|
x
|
x
|
x
|
|
Arkansas |
x
|
||||||
|
California |
x
|
x
|
x
|
x
|
x
|
x
|
|
|
Colorado |
x
|
x
|
x1
|
x
|
x
|
x
|
x
|
|
Connecticut |
x
|
x
|
x
|
||||
|
Delaware |
x
|
x
|
x
|
x
|
|||
|
District of Columbia |
x
|
x
|
x
|
x
|
x
|
x
|
x
|
|
Florida |
x
|
x
|
x
|
x
|
x
|
x
|
x
|
|
Georgia |
x
|
x
|
x
|
x
|
x
|
||
|
Hawaii |
x
|
x
|
x
|
x
|
x
|
||
|
Idaho |
x
|
x
|
x
|
x
|
x
|
||
|
Illinois |
x
|
x
|
x
|
x
|
x
|
x
|
x
|
|
Indiana |
x
|
x
|
x
|
x
|
x
|
x
|
x
|
|
Iowa |
x
|
x
|
x
|
x
|
x
|
x
|
x
|
|
Kansas |
x
|
x
|
x
|
x
|
x
|
x
|
|
|
Kentucky |
x
|
x
|
x
|
x
|
x
|
x
|
x
|
|
Louisiana |
x
|
x
|
x
|
x
|
|||
|
Maine |
x
|
x
|
x
|
x
|
x
|
||
|
Maryland |
x
|
x
|
x
|
x
|
x
|
x
|
|
|
Massachusetts |
x
|
x
|
x
|
||||
|
Michigan |
x
|
x
|
x
|
x
|
x
|
x
|
x
|
|
Minnesota |
x
|
x
|
x
|
x
|
x
|
x
|
|
|
Mississippi |
x
|
x
|
x
|
||||
|
Missouri |
x
|
x
|
x
|
x
|
x
|
x
|
x
|
|
Montana |
x
|
x
|
x
|
x
|
x
|
||
|
Nebraska |
x
|
x
|
x
|
x
|
x
|
x
|
|
|
Nevada |
x
|
x
|
x
|
x
|
x
|
x
|
|
|
New Hampshire |
x
|
x
|
x
|
x
|
x
|
||
|
New Jersey |
x
|
x
|
x
|
x
|
x
|
x
|
x
|
|
New Mexico |
x
|
x
|
x
|
x
|
x
|
x
|
x
|
|
New York |
x
|
x3
|
x
|
||||
|
North Carolina |
x2
|
x
|
x
|
x
|
|||
|
North Dakota |
x
|
x
|
x
|
x3
|
x
|
x
|
|
|
Ohio |
x
|
x
|
x
|
x
|
x
|
x
|
|
|
Oklahoma |
x
|
x
|
x
|
x
|
x
|
x
|
|
|
Oregon |
x
|
x
|
x
|
x
|
x
|
x3
|
|
|
Pennsylvania |
x
|
x
|
x
|
x
|
x
|
x
|
x
|
|
Rhode Island |
x
|
x
|
x
|
x
|
x
|
x
|
|
|
South Carolina |
x
|
x
|
x
|
x
|
x
|
x
|
|
|
South Dakota |
x
|
x
|
x
|
x
|
|||
|
Tennessee |
x
|
x
|
x
|
x
|
x
|
x
|
|
|
Texas |
x
|
x
|
x
|
x
|
x
|
x
|
x
|
|
Utah |
x
|
x
|
x
|
x
|
x
|
||
|
Vermont |
x
|
x
|
x
|
x
|
|||
|
Virginia |
x
|
x
|
x
|
x
|
x
|
x
|
x
|
|
Washington |
x
|
x
|
x
|
x
|
x
|
||
|
West Virginia |
x
|
x
|
x
|
||||
|
Wisconsin |
x
|
x
|
x
|
x
|
x
|
x
|
x
|
|
Wyoming |
x
|
x
|
x
|
|
|||
|
* At least joint legal custody. 1. Now uses the term ''parental rights and responsibilities.'' 2. Considered if child is old enough. 3. By case law. |
|||||||
Rights of Fathers
Fathers are now fighting back. They are organizing and lobbying for legislation and providing information to the public regarding fathers, divorce, and custody. They are tired of gender bias when it comes to the courts, society, and their children.
As mentioned above, fathers are starting to file suits under the Fourteenth Amendment's Equal Protection Clause, and winning. However, progress is slow. Few courts keep statistics regarding the custody of children and father's groups feel some of the information being provided to the general public is distorted. They are educating other fathers, the public, the schools in child custody matters and the rights of parents. They are also being fought every step of the way by feminist groups.
One of the father's rights groups is the American Coalition for Fathers and Children. In their mission statement on their home page of the Internet, they maintain they are dedicating their efforts to a creation of a family law system, legislative system, and public awareness which promotes rights for all the parties involved in a divorce as it affects children. Among other things, they firmly believe there is gender bias in the law and in society. They believe "when equity is created in our laws, the conflicts inherent in divorce situations dissolve and in the end is the greatest gift which we, as parents, could possibly bestow on our children. (ACFC Mission Statement)."
Another fathers' rights group is the National Fatherhood Initiative led by President Wade F. Horn, Ph.D. Dr. Horn is also an advocate of children's rights under divorce and some of his supporters are the actor James Earl Jones, Louis W. Sullivan, a former Secretary of the U.S. Health and Human Services, William Bennett, former Secretary of Education, and pollster George Gallup. To date, they have managed to acquire over $100 million in donated advertising to further the awareness of fathers' rights. His group describes the 1990s as the "Decade of the Father."
While researching, I found other fathers' rights groups on the Internet. Some of them include:
- American Coalition for Fathers and Children
- National Center for Fathering
- Fathers Rights Foundation
- Women for Fatherhood
- DadsDivorce.com
- Father's Right to Custody
There were also many state fathers' rights organizations listed. My mentor introduced me via e-mail to the President of the Father's Right to Custody, Waylon.
Waylon agreed to a telephone interview and I talked with him on April 27, 2001. He is reluctant to use his last name because he has been the victim of Internet stalkings and threats. He keeps his identity secret in order to protect his home and family.
I asked him what caused him to start the Separated Parenting Access and Resource Center, or 'SPARC' (formerly 'Father's Right to Custody'). He told me that he had fought a custody battle for the custody of his son. He discovered during that fight that there were very few resources for men involved in these situations. His organization contains a wealth of information for fathers, including articles, guides, forums, chat rooms for sharing of information, links to other sites with helpful information, information about attorneys, dictionaries giving legal definitions, and letters that other fathers share about their experiences with custody. His organization is a non-profit organization and exists solely to help other father's have an easier time of it when they want sole or joint custody of their children.
At this time, SPARC has approximately 25,000 users, and receives an average of 1.5 million hits per month on the web site.
Waylon said some mothers refuse to share custody with fathers for many reasons. He said divorce usually generates hard feelings and mothers sometimes use the children as leverage or to deliberately hurt fathers. He said children have very limited rights as far as custody rights since they are minors. Some children can choose where they want to live such as Georgia, where children 14 or older can choose their custodial parent.
I asked him why state legislatures weren't more active regarding this issue and why more laws weren't being passed to protect fathers. He said one of the reasons may be ignorance, some is from pressure from women's groups, who are strong lobbyists. The same goes, he said, for most politicians because they fear getting voted out of office if they vote for unpopular legislation.
He said prolonged custody battles are expensive. The cost can be from $10,000 to $20,000 per case and can last from six months to several years. He eventually won custody of his son, but the cost was about $20,000 and took almost a year and a half to win.
Summary
In summary, divorce and child custody have gone through many changes. It went from patriarchal to matriarchal as cultural and legal values changed. At this time, I believe another cultural change is happening. However, progress seems very slow. Child experts today almost unanimously agree that having both parents actively involved in their lives is much better for the child, yet because of bitterness on the part of wives, opposition by feminist groups, and the bias of society and courts, divorced fathers are being almost completely shut out of their children's lives other than to pay child support and have visitation once in awhile. Now that fathers are organizing and fighting back, the legal systems and society are beginning to recognize that fathers are important too. Maybe in the future, all parents will do what's best for their children and it will be a better world.
BIBLIOGRAPHY
"Benefits of Joint Custody." SPARC. Online. Internet. <a href="https://deltabravo.net/forum/index.php?page=636">Benefits of Joint Custody</a>
"Births, Marriages, Divorces, and Deaths for 1997." Monthly Vital Statistics Report, National Center for Health Statistics, 46.12 (1998).
"Births, Marriages, Divorces, and Deaths: Provisional Data for 1999." CDC National Vital Statistics Reports 48.19 (2001).
Christensen, F.M. Ph.D. "Data on Bias in Child Custody Determinations." Online. Internet. https://www.electromagnet.sm.demon.co.uk/08094.htm.
Clarke, Sally C. "Advance Report of Final Divorce Statistics, 1989 and 1990." Monthly Vital Statistics Report, National Center for Health Statistics, 43.9 (1995). Supplement.
"Current Population Reports." U.S. Bureau of the Census, Series P-20, No. 458, (1991).
"Divorce." Funk & Wagnalls New Encyclopedia. 1994.
Horn, Wade F. "Father Facts." National Fatherhood Initiative. Online. Internet. http://www.leaderu.com/fatherfacts/introduction.html.
"Information to Assist Fathers and Non-Custodial Parents." Fathers' Rights to Custody. 2001. Online. Internet. http://www.deltabravo.net.
"Joint Custody Laws in the U.S." Fathers' Rights to Custody. 2001. Online. Internet. http://www.deltabravo.net.
Kelly, Joan B. "The Determination of Child Custody." The Future of Children 4.1 (1994) 121-142
Kuhn, Richard , and John Guidubaldi. "Child Custody Policies and Divorce Rates in the US." Paper. 11th Annual Conference of the Children's Rights Council October 23026-1997. Online. Internet. http://www.vix.com/crc/sp/spcrc97.htm. 2001
McNeely, Cynthia A. "Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family Court." Florida State University Law Review 25.4 (1998): 1 - 48.
"Mission Statement." American Coalition for Fathers & Children. Online. Internet. http://www.acfc.org/missn.htm.
National Indicators of the Status of Fatherhood." National Fatherhood Initiative. Online. Internet. http://www.leaderu.com/fatherfacts/introduction.html.
"Table Summarizing the Law in the Fifty States. Chart 2: Custody Criteria." American Bar Association, Family Law Section. 2001. Online. Internet. http://www.abanet.org/family/familylaw/table2.html.
"U.S. Divorce Statistics." DIVORCE Magazine. 1999. Online. Internet. Available http://wwwdivorcemag.com/statistics/statsUS.shtml.
Waylon, President of Fathers' Rights to Custody Organization.(now the Separated Parenting Access & Resource Center) Telephone Interview. 27 Apr. 2001.