Mother Presumption in Custody Cases?

 

                  This guest post is from Regent Law student Daniella LaRosa:

The idea of splitting up a family with a divorce or separation is unhappily too common in this era. The sad and daunting thought is often, what will happen to the kids? Usually, a significant custody battle ends with the mother having sole or primary custody, and the father having visitation. There are situations where this is appropriate and in the child's best interest, as posted and discussed earlier in this blog. The law requires, however, that both parents are equally entitled to parental rights if they are fit parents, and furthermore, the child has a liberty interest in having both parents involved in his or her life.

Many people are aware of pro-mom or pro-dad situations, in which one parent over another seems to have a presumption of primary custody. Upon initial research, all states claim no presumption for one parent exists, but rather all afford equal custody rights to both parents, but this seems different from what is played out in an actual courtroom. The map above breaks down the average custody percentages awarded to a father according to the case outcomes in each state. Based on the amount of hours in a day, days in a week, and days in a year, this map reveals that most states award over 70% of custody time to mothers. States have different definitions of what qualifies as “a full day or half day.” All these times are added and computed in the state's software based on their state law to calculate the total time spent with the child. This determines who has primary custody, financial obligations, and legal decision-making.

There are concerns with a presumption that would favor mothers. Historically, mothers were awarded primary custody under the tender years doctrine. Or people generally may have an inherent bias towards the mother in general, which is impactful regardless of a child’s age. The tender years doctrine is the notion that a newborn until the age of 2 or 3, depending on the jurisdiction, should be primarily with the mother based on the child’s needs. The tender years presumption has been ruled unconstitutional as it is a violation of equal protection to favor mothers’ rights over fathers’ rights. The law today in every state uses instead a primary caretaker presumption.  A judge’s mind, however, may still carry an inherent bias in favor of mothers. In the mind of a judge there may be a presumption that women are better parental figures, or that children need their mother more. This thinking makes a custody hearing much more challenging for a dad. These concerns impact fair custody decisions and distributions and can essentially require a father to have to fight in court to be granted more time with his children.

Unfortunately, I saw this firsthand in California, watching a father fight for custody. Sadly, in his case, after four years of fighting, he still only saw his children two full days every other week. This is not an uncommon court-ordered parenting plan. Conversely in Nevada, a court case close to my family ended with joint custody, even with intentional efforts to encourage primary custody. That state favored joint custody unless an opposing parent posed a proven danger. In California and many other “pro-mother” states, even with the claim that it is a 50-50 custody state or when a case carries a preponderance of the evidence stating otherwise, the mother often receives primary custody.

The initial reasoning for the mother custody presumption had much to do with women and men in the workforce. Most fathers who got divorced, whether remarried or not, typically were still the primary income earners. Most women were homemakers and, even after divorce, remained this way until the children were much older. Given this situation and understanding, it makes sense to give women primary custody. However, this is not the case anymore. The majority of families are dual-income. After divorce, 66% of women and 69% of men are in the workforce. Given these statistics, maintaining this presumption is no longer in the child's best interest and encourages the perception of single-mother households. When the father is competent and entitled to be involved in his child’s life, the law must reflect what it purports.

The common concerns with claiming joint custody being a reality are the judge's bias, the father’s perception of his rights, and the cultural acceptance of this parenting schedule. The states that, regardless of any initial presumption, by the close of the court case typically order joint custody among the parents are Alaska, Arizona, Idaho, Iowa, Louisiana, Minnesota, and South Dakota. That essentially means that out of the fifty states that purport to enlist a joint parenting structure, only seven statistically have those outcomes. If a father wants to see his child more than twice a month, he might consider moving to one of these states.

This is concerning for many reasons, but this post simply aims to point out this discrepancy. Fathers should not allow a previous significant other or society to railroad them into believing they have no rights and should be grateful for whatever time they get with their children. As with many common fallacies and injustices, without education or knowledge of these rights many fathers lose out on a good deal of the lives of their children. The law and an excellent lawyer can help advocate for the rights of a father. Mothers also need to encourage fathers to exercise their parental rights because it’s best for children to have a dad involved in their lives.

Mothers and fathers are the first defense in trying to adjust this presumption. If everyone works to make it fair and keeps the children as the priority, we all can make great strides to change the lives of children from broken homes.