James R. Balmforth: Equal Rights for Fathers and Mothers

I live in the United States of America, and I’ve been a Child Custody Lawyer for long, long time, and I believe most people would agree is a country in which the equality of men and women is the greatest on earth.

The U.S.A. works vigilantly to ensure that men and women are not treated unfairly under the law because of their sex and/or gender.

Equality Problems for Moms and Dads

One of which is the treatment of parents in child custody disputes.

Everyone knows as a de facto matter that women/mothers are generally favored over men/fathers in matters of child custody awards. The reasons why can be explained briefly by this excerpt from Wikipedia on the “tender years doctrine”:

Historically, English family law gave custody of the children to the father after a divorce because the father is able to provide the child. Until the 19th century, the women had few individual rights and obligations, most being derived through their fathers or husbands. In the early nineteenth century, Caroline Norton, a prominent social reformer author, journalist, and society beauty, began to campaign for the right of women to have custody of their children. Norton, who had undergone a divorce and been deprived of her children, worked with politicians and eventually was able to convince the British Parliament to enact legislation to protect mothers’ rights, with the Custody of Infants Act 1839, which gave some discretion to the judge in a child custody case and established a presumption of maternal custody for children under the age of seven years maintaining the responsibility from financial support to their husbands.[1] In 1873 the Parliament extended the presumption of maternal custody until a child reached sixteen.[2] The doctrine spread in many states of the world because of the British Empire. By the end of the 20th century, the doctrine was abolished in most of the United States and Europe.

Equal Rights In United States

Tender years doctrine was also frequently used in the 20th century being gradually replaced towards the end of the century, in the legislation of most states, by the “best interests of the child” doctrine of custody.[3] Furthermore, several courts have held that the tender years doctrine violates the equal protection clause of the Fourteenth Amendment to the U.S. Constitution.[4]

Even though it is said that the tender years doctrine was ostensibly abrogated in most of the U.S.A., it really hasn’t been. Culturally, the pervasive belief goes something like, “Let’s face it, everyone knows that women are generally better parents than men, so it’s a safe bet that awarding custody of the kids to mom is a safe bet.” And, frankly, there is some truth underlying this belief. Women carry their children for 9 months and develop a bond with their children in the course of pregnancy and birth. Only women can nurse. Women constitute the overwhelming number of personal care providers for a couple’s children, particularly their very young children. In the animal kingdom the “mama bear” is a real thing.

But a problem arises when courts approach a child custody award with an unfounded presumption that women are better parents than men and then “determine” that the mother is the better parent primarily based upon that presumption. That’s bias. That’s sexual discrimination, pure and simple.

I don’t have rigorously up to date data, but while equal custody awards are on the upswing, the estimates are that in the U.S. mothers are awarded primary custody at least 70% of the time, fathers receive primary custody slightly more than 10% of the time, and equal custody is awarded less than 10% of the time.

If this is the way the courts treat men and women in the U.S.A., I must hypothesize that countries that care less about preventing sexual discrimination favor one sex over the other even more when it comes to making child custody awards.

Divorce and Custody

Because divorce almost invariably changes the nature of both parents’ parental roles.

Where the husband/father has (usually) been, previous to divorce, the primary breadwinner, both parents will find themselves working, and usually working full-time for their individual support. The mothers end up taking on more breadwinner responsibilities. This and other consequences of divorce compel the fathers to take on more personal child caretaking responsibilities.

Regardless, the idea that “children are better off in the care of the mother than the father” is a notion that is hardly settled by hard data. Children don’t want one of their parents to be relegated to second-class status. Where two loving and fit parents go through divorce and both are ready, willing, and able to exercise joint custody of their children, it appears to me painfully and rationally obvious that the best “parent” [singular] is both parents.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need help with a child support issue, please call Ascent Law at (801) 676-5506. We will help you.