Barbelith Underground > Switchboard > Fathers For Justice dress up as Captain America, Batman. Then Get Arrested. [PICS]

Ok, I have been working on and researching issues related to child custody, particularly the history of child custody law and practice in the United States, and have some first hand knowledge of the British legal system's determination of residence/contact with parents.

COMMONGROUND: I, too, am broadly sympathetic to the men who would like to raise their children but cannot. I believe they experience genuine pain and alienation when their parental role is devalued or diminished to non-existence. I agree with ShadowSax that there should be equality before the law for men and women, and that gender stereotypes hurt both men and women. I believe the world would be a better place if men and women were able to more equitably share all child-nurturing activities.

PROBLEM 1: The wikipedia articles linked to earlier by two posters have clearly been, when I looked at them, worked on by father's rights advocates and have a distinct slant in that direction. Indeed, the one linked to by grant included a citation, which failed to link, that claimed much higher rates of child abuse for women than for men (it was something like 40% of all children claimed their mothers abused them and only 13% claimed their fathers did.) I have never edited a wikipedia entry, but I deleted that link, mainly because it didn't work, and seemed to have been deliberately inserted to skew the argument against mothers and towards fathers. Most of the links to any wikipedia site related to these topics include an image of a court document wherein the father is "reduced to the status of a visitor..." due to the custody agreement. This is the language of propoganda, not reference material. In short, wikipedia entries on this material slyly put forth a father's rights agenda, while pretending to present a neutral stance.

BIGGER PROBLEM: The problem with those articles, and with ShadowSax's argument, is the precise lack of historical or social context for their arguments. Since in this area of social life, men currently do not get precisely 50% of all custody/residence orders, they conclude that the law is inherently biased against people with penises. This is a logical leap.

MY COUNTER CLAIM: Custody law is biased FOR nurturing. BUT our economic system is biased AGAINST nurturing. The resulting state of affairs is NOT gender neutral, although the ability to NURTURE is potentially gender neutral after the first 40 weeks of fetal development.

SOCIAL CONTEXT: What was correct about ShadowSax's initial posting is that this issue is inextricable from the broader social reality, where women are still doing the vast majority of all child care, women still are more likely to earn less than men, women still are more likely to quit or reduce their work when a child is born, women are still less likely to gain positions of power and authority in the workplace, and there is not enough quality child-care available to women who would like to maintain a real career path. Men are doing more, by and large, as virtually every survey notices, but they are still not doing anywhere close to 50% of the childrearing even when families are "intact." Men are still more likely to desert their families than women are. Men are more likely to make careers a priority over childrearing responsibilities.

I am not implying that all men make those choices, or that men are always happy about the choices that they make. Some men genuinely grieve that, because they're making more money, it only makes sense for the woman to be the one to put her career on hold when the children are born. Some men would genuinely like to spend more time with the children, and a very small percentage of men actually do significantly alter their career paths in order to accommodate increased child care responsibilities following the birth of a child. These men exist, but they are still a minority.

I will find links supporting any of those facts if any of them are seriously challenged.

NOTE: I do not assert, then, that this state of affairs is the result of a conscious male conspiracy. It is the result of long, complex historical processes, and a patriarchal heritage that has much more effect on custody/residence orders than does any evil feminist cabal.

HISTORICAL CONTEXT: There are a few good books on this topic, but I'll just mention one: Michael Grossberg's Governing the Hearth: Law and the Family in Nineteenth-Century America. Grossberg makes the case that the legal patriarchy, which, as grant pointed out, granted fathers exclusive rights to the care, custody, property, and labor value of their children (and, for that matter, that of their wives in most states), was, over the course of the 19th century, gradually replaced by a "judicial patriarchy." (The summary available on the Amazon page does not make this part of his argument clear, by the way).

This is key. Now, it would seem that the advocacy of a specific kind of "feminism" (the term hadn't been invented yet), a kind of difference-based feminism, in the popular press, resulted in mothers gaining more custody rights in the individual court decisions being made by a variety of judges over the course of the century. (Remember that child custody is still determined by courts, not by legislatures, so this was a distinct form of women's rights movement from the ones that march on Washington). These women had made the case that it was cruel to remove a child from a divorced--or widowed--mother because the father, be he a drunkard or a gambler, had sole rights. They made a case for motherhood based on the idea that mothers were the ones who did the nurturing, particularly in the increasingly wage-based, industrializing economy.

But Grossberg argues that the kind of unquestioned rights that men had enjoyed right up to that point were NEVER directly transfered to women, but handed over to other men--the judiciary--who excercised a great deal of control over which women were deemed 'fit" mothers, i.e., good nurturers, even while the "tender years" doctrine was enforced as a precedent in most court cases--I believe it was first used in a 1809 case, and it gradually became the dominant language for a big portion of the 19th century. That's why he coins the term "judicial patriarchy." The patriarchy wasn't eliminated, it was transfered.

Nevertheless, what made the "tender years" doctrine revolutionary, was that it said that a child who is less than 7 years old is best off with the mother BECAUSE the mother provides critical nurturance for the child. This ws the first time that nurturing was explicitly recognized and valued in the legal system. Before that, a child was only a labor source or potential property owner who had to be kept in check by the father. There was no sense that the child required nurturing. That valuation of nurturing then became encoded in the 'best interests' doctrine, which is still in place.

I still believe that the "best interest" doctrin can be argued to be quite legitimately gender neutral, in that it remains true that anyone can "mother" a child, can nurture a child, once the mother has done the initial nine months (really 40 weeks on average, so more like 10) of (generally unpaid) labor.

We could, in fact, choose to pay mothers for that work--the first 40 weeks. We could, in fact, choose to pay anyone who nurtures a child thereafter a very comfortable living wage with plenty of vacation time, sick leave, health care, other support.

But it is still not a profitable activity to nurture a child. It is still not an activity that we value enough to pay those who do it a generous income.

Women, in most nations, still bear the financial brunt of this state of affairs. Men suffer from it when they want to nurture their children but are constrained from doing so, either because they feel they can't afford to or because the judicial system does still seem to believe that in about 85-90% of cases where "sole custody" (US)/ "residence" (Britain) is granted, women are more likely to have the evidence that they have focused on "nurturing" the child.

But is that number significantly different than the percentage of women vs. men are more likely to stop work or seriously alter their career paths in order to care for a child? I don't have the stats in front of me, but I've got a pretty strong sense that it isn't too far off.

ShadowSax

14:14 / 03.02.06

First, we need to establish some definitions. What are we talking about when we talk about parenting? What are we talking about when we talk about nurturing?

To start this post, let's ignore gender. Let's simply use "custodial" and "non-custodial" parents. The system, as deep as it goes, it deeply aligned with the custodial parent. The custodial parent receives money, child support, from the non-custodial parent. If we look deeper, we find that financial aid systems are also provided to the custodial parent. However, we also find that financial responsibilities are still assigned to the non-custodial parent.

"Standard" here, we can use to define what is most average in terms of custody time and how that custody time is defined. Based on the stats on the page I linked to, between 80%-95% of custodial parents are mothers. And those custodial parents have about 70% of the custody time with their children. So NCP are much more likely to be with their children only 30% of the time.

I agree with Alas that our society values nurturing more than it used to, but I dont agree that it's not a financially viable position. In fact, CPs have more disposable income than NCPs, even though NCPs are still expected to provide the same essential needs of the children - a home, food, clothing. Also, when CPs work, it is the NCP who pays for most of the child care. The splitting of child care expenses isnt based upon how much of the time spent in child care comes from the CP's time with the child, but based instead upon the pre-support distribution of the parents. So if the NCP makes 60% of the combined income, then the NCP is providing 60% of the child care costs, in addition to 60% of the health care costs. So I would challenge the notion that being a custodial parent isnt profitable.

I would also point to the statistics that show the overwhelming difference between govt money spent enforcing child support orders and govt money spent enforcing custody orders. This is due in large part to the fact that entire govt agencies are set up to enforce child support orders, whereas the only agency that enforces custody orders is the police departments, which dont have dedicated officers for that task.

When a NCP fails in any way to provide part of the support order (health care costs, proof of insurance, or the support itself), it's not the CP who brings the NCP to court, it's the county support agency. This means that the CP's interests (financial) are paid for, are represented, by the county's atty. On the other hand, the NCP needs to bring their own attorney. Conversely, when the CP fails on some portion of the custody order, it falls to the NCP to bring the charges in court. So the CP's financial interests are supported and paid for by the county. The NCP's nurturing concerns are not supported by any outside agency.

So I would say that the society values ONLY the custodial parents' nurturing, and DOES indeed value the custodial parents' financial interests.

So, why? Directly, local officers are literally funded by the financial interests of the CP. The federal government pays a dollar for dollar incentive to the localities who collect child support. These incentive programs were developed by the Clinton administration in response to pressure from feminist interest groups and this is where the "deadbeat" dad image became popularized. Indeed, most CPs are women, and women voters have a vested interest in supporting the financial needs of custodial parents.

There are, by the way, organizations that are not fathers rights groups that are promoting the same positions, namely, presumption of shared (equal) custody, more enforcement of custody laws, etc. This is the most prominent one.

I came to position that feminist politics support this bias through several years of experience in the courts and support groups. At its basic level, the feminist movement sought to establish women as victims of a male-controlled society, and placed men as a favored class in legal, economic, and social systems. In seeking to right this valid wrong, womens groups have established things like support enforcement agencies. However, while we can argue that there are inherent counters, inherent push-back from male-centric groups in many areas (economic, for instance), there has been no push-back on the family court front. There is no counter to the mother/female/custodial parent interests. So we are left with a system that funds and supports the financial gain for custodial parents, but does very little to promote the nurturing gain for noncustodial parents. With the introduction of federal incentives to enforce the financial interests of custodial parents, there follows the bias for family courts to support themselves, for support agencies to support themselves, via a biased interest to focus on support instead of parenting.

My conclusion would in fact be that feminist politics have created a bias that hurts all NCPs, not just male NCPs.

However, when we introduce the actual custody battle into the picture, there is still a bias based on the nurturing factor that favors women.

Men seem to be valued for their economic value, and women for their nurturing value. We can say that that is an unfair situation for both genders, however, when we factor in how the localities enforce both ends of the parenting relationships, we end up with the fact that the financial interests of the mother, as supported by the father, are favored, as opposed to the nurturing interests of the father, as necessarily supported by the participation of the mother with the custody orders.

Everything within the family court system is aligned to favor financial gain for the system. This should come as no surprise to anyone. And the financial gain of the system is aligned to support the CP over the NCP. Here is a detailed example from the state of PA:

Example: the non-custodial parent (NCP) is required to pay not only child support, but also health insurance, for the children. Using Pennsylvania as an example, let's say that NCP doesnt have a job and has the children about 70% of the time, which is considered in most states to be the "standard" arrangement.

Child support is taken against pre-tax income, but it is not taxable income. The maximum amount that can be garnished (not the maximum amount that can be assigned) is 45%. So for a NCP making $2000 per month, they can be required to pay up to $900 per month in child support, but they are still required to pay taxes on $2000 per month. So in addition to having $900 per month taken in child support, they pay taxes of up to $400 per month. This leaves the NCP with $700 per month.

They are then required to provide health insurance. With only $700 of disposable income per month, it would seem that they fall into the income bracket designed for financial aid. Keep in mind that the $900 per month they pay in child support is not disposable income that can be divied up for different expenses based on need, rather, it is liquidated cash given directly to the CP. As with all income, CP is able to do whatever he or she wants to do with the money. However, they dont need to consider health care as part of that decision-making process, because the NCP has to provide health care.

If the NCP is lucky, health care is provided in part by the employer. This means that the employer offsets much of the health care cost, and the employer is able to have the balance deducted pre-tax. To pay for a family with more than one child, the NCP needs to buy a family health care plan. If the employee's responsibility is, let's say $100 per month, then the resulting income is about $620 per month. If not, if the NCP needs to seek their own health insurance, then they will pay around $250 per month for a family plan.

If the NCP was not divorced, but rather someone with $700 per month of disposable income, they would easily qualify for financial aid for health care for their children. However, financial aid offices do not consider child support to be income or an expense. So the NCP does not qualify for health care aid, because to govt offices, the NCP is considered to be bringing home $700 + $900 per month.

Further, say the NCP, even with his or her pretax income considered, does actual qualify, financially, for health care aid. Then, he or she will find themselves not qualifying for aid based on the fact that they are not the custodial parent. Yes, states that require the NCP to provide health care for children are not qualified to get state-assisted health care for children who spend a majority of the time at another household.

On the other hand, the CP qualifies for financial aid for the children's health care by virture of custody AND finances. Even though the CP has $900 per month of disposable income, $200 more than the NCP, the CP would qualify for financial aid.

If the CP wants to get a job to supplement the $900 of income from the NCP, then who pays for child care? The NCP does. So now the NCP is paying for the CP to work. Even if the CP's employer offers a less expensive health care plan, the NCP is still required to provide the health care. In fact, if the NCP doesnt provide that health care, the court will jail the NCP.

This gets very detailed and drawn-out. Hopefully I've kept it focused enough to bring any questions or issues to more specific points than earlier. I realize that my conclusions are based on a LOT of background and information. I am making some assumptions. Perhaps the biggest is that governmental agencies are more concerned with self-sustaining financial interests than with individual, humanist interests. With that assumption, it's not unreasonable to come to the conclusion that govt agencies will make decisions based on their own interests rather than on the interests of the parents involved. I am not saying that courts or lawyers are unscrupulous by nature, I am saying that lawyers seek any advantage they can get in a court of law and that most women, as CPs, have more advantages built into the system than NCPs or men. And judges, very often as elected officials, need to appeal to the very strong and ingrained female vote that comes from agreeing with the political system built in part, as described above, upon feminist interests.

I realize now I cant make my entire point in one post/essay. Hopefully Alas's post can lead to a more thoughtful discussion, and I hope I've contributed to forwarding that type of discussion.