Migration — It’s Not About Fathers’ Rights

Friday, August 15, 2008

Somehow I managed to catch up on periodicals for a change. Hence a column on a current topic. Writing in this week’s Newsweek, Dahlia Lithwick says that family court decisions are often unfair to fathers. The context is Clark Rockefeller who has been charged with kidnapping his daughter after her mother, who had custody, moved to London for her job. Setting aside that this guy may also be facing murder charges and is otherwise probably not the ideal parent, the issue is not that fathers are denied custody in a disproportionate number of cases. The problem is that the court system in this country is not set up to handle family cases.
The training that judges receive equips them pretty well to adjudicate who was at fault in a traffic accident – or at least to instruct a jury on how to reach the correct decision. They do pretty well, too, with contract disputes. More recently law schools have added courses in environmental law and more recently still in intellectual property, though the law in the latter instance still lags far behind the ability of hackers and copyright thieves. But that’s not the fault of the judges. The legislative branch can’t keep up.
There is, however, no adequate training in law schools to deal with family matters. A course in family law consists of discussion of how no-fault divorce came to be the norm (thanks in part to New York’s Governor Nelson Rockefeller), pre-nuptial agreements – much more important these days – adoption, and the like.
Decisions in these types of cases – and in support cases fall more into the contract/traffic accident category, where lawyers and judges can look at a statute or case law and apply the same principles to the case before them.
When it comes to deciding child custody cases, however, no one with a juris doctor degree has adequate preparation to make sound decisions. The standard used is always “the best interests of the child.” What that is, we are told, depends entirely on the unique facts of each individual case. Judges historically cited the “tender years doctrine” to award custody of young children to their mothers. This doctrine has been discredited in recent years, but Lithwick and others believe it’s still being applied more broadly than it should. The doctrine is supposed moot as children age: The wishes of children 14 and older generally considered binding, unless of course the kid says she wants to live with her mother because they get to eat Big Macs for dinner every night.
Of course parents who genuinely have their children’s best interests at heart don’t wind up in custody trials. For those who do, mediation may help avoid the wrenching spectacle of “he did/she did” (See Pulitzer vs. Pulitzer with its allegations of cocaine abuse, adultery, incest. If both parties in that case were to be believed, the “best interests of the child” would say the twins were better off in the worst foster home to be found than with either parent.)
It is commendable that courts have increasingly turned to psychologists and social workers – professionals trained to examine the emotional and psychological well-being, to assist in making decisions. But that costs money and for those who lack the resources they are still on the mercy of a judge who may have excelled at figuring out whether a shareholder derivative action would be successful but whose understanding of a child’s sense of time or a child sense of guilt over a parents’ split is nonexistent.
The number and variety of problems that arise in custody disputes are testament to an overall failure of the system. To support her argument that judges fail to give fathers equal rights, Lithwick cites the case of Darren Mack who became so enraged by the custody proceedings that he stabbed his wife to death and then tried to kill the judge presiding over the family case.
I maintain that there is no way to improve the system. Decisions in custody disputes should be removed from the court system completely and put in the hands of people trained in non-adversarial process who can reach decisions that will not make families more disfunctional than they already are. Maybe social workers or psychologists or other mental health professionals couldn’t have prevented these men from acting as they did but they would understand that the dynamics do not have to be Kramer vs. Kramer.
In every custody case that winds up in court, there is one guaranteed loser. That’s the person the system is meant to protect. That’s the child.

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