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“Let us now praise famous men, and our fathers that begat us.” The Apocrypha, Ecclesiasticus, 44:1.
The father stands there wondering what just happened. The allegations weren’t substantiated by any agency, there was even evidence to suggest the mother created the allegations out of thin air. Yet, even with the entire case dismantled by his attorney, the decision comes back against him simply based upon allegations. The judge decides he would rather be safe than sorry, and grants father supervised visits for 2 hours a week to be paid for by father. Father literally has to pay money to see his kids for two hours a week, almost the equivalent to prison visitation periods, and only because mother decided to make an allegation that was not only discredited but shown to be false. Yet the judge was most significantly influenced by the seriousness of the allegations as opposed to the evidence to support those allegations, because the only guideline for the judge was the “best interest of the children” and the easy decision would be to go with the party not making the allegation. And with the stroke of a pen, another father loses his relationship with his children indefinitely. Although it would take more for him to go to jail on the allegations, some fathers would rather be tried by a jury of twelve than lose their children based on the whim of one.
Divorce has become the single greatest obstacle to father-child relationships in the 21st century. The disenfranchisement of fathers is the social issue of the day for domestic courts. However, fathers are not alone in this. Too often, the first to strike the deepest cut is advantaged in their endeavor to use the children as the figurative pound of flesh they so desperately want to extract from the other side. This strategy cuts both fathers and mothers when they are slow to strike first.
This "strike first" mentality does little to facilitate equal parenting of the children, and our state legislatures have done little to curb the social battlefront that our domestic courts have become from state to state. Without creating a statutory presumption in favor of equal time with both parents that actually has teeth, we will continue to face the systemic disenfranchisement of parents without legitimate ground across the spectrum of race, sex, and socioeconomic status.
While both sexes and all races face the ominous specter of losing the relationship they hope to have with their children, no group has been systemically disenfranchised within the domestic courts more than fathers. The adoption of “Standard Visitation Schedules” has placed a seal of approval on less than equal time with children that becomes the presumption, as opposed to the exception.
Empirical studies have consistently shown that children suffer emotionally, academically, and developmentally when they don’t have a close relationship with their father post-divorce during childhood. Math, reading, social skills and emotionality are affected based on the post-divorce relationship children have with their father. Girls who do not feel close to their fathers have demonstrated lower self-esteem and are at greater risk of depression over those who remain close to their fathers.[1] Boys suffer in the areas of self-control, sleep, and motivation when they remain with their mothers post-divorce, yet boys who live with their father post-divorce prove to be more mature and independent and even warmer in their relationships.[2] Therefore, the systemic disenfranchisement of fathers is not only unfair to fathers, but it is detrimental to children.
Children have been shown to interpret a father’s absence as abandonment, creating feelings of devaluation and in some cases causing children to feel responsible and guilty for such arrangements. All the while, the father is wanting nothing more than to spend every available moment he can with the child. The psychological impact of anything less than 50/50 time creates the perception of being the lesser parent, less important, less responsibility, less impact; and don’t even start on those fathers who only know their children through the steady submission of child support checks and reimbursement of expenses.
Most fathers recognize that although they may be reeling from the divorce, the relationship with their children is paramount coming out of the divorce itself. Yet they find themselves in a situation where they feel that nothing they do will be recognized for good, but their actions will only be viewed as a superficial ploy to support their argument within the divorce. The creation of uncertainty and perpetual variables justifies the creation of a more static expectation on custody determinations, eliminating some of the uncertainty that every parent faces when entering into custody litigation. It is time that we required all courts to begin with a presumption of joint time with the children and require findings of fact as to why such a schedule is not possible nor in the best interest of the minor children. It is only when we require judges to find in the negative that we will achieve parity within our domestic courts and improve the relationships between fathers and their children for future generations. Only when father-child relationships are viewed as significantly as mother-child relationships will our children prosper as they should, fathers will gain in stature, and mothers will receive the parity in respect they have sought for generations for the role they play.
Where the divorce may signify the death of the marriage, it must not represent the death of a parent’s relationship with their children. It should be enough to recognize the research that suggest boys in good joint custody arrangements do not differ significantly from sons of happily married couples. Would we ever create a statutory framework in which the divorce creates the death of the father’s relationship with the children? No. However, that’s exactly what we’ve done by allowing “best interest” testing to be the only guideline for determining custody and visitation of the minor children between the parents. “Best interest” covers all manner of sins, yet the sin that has gone on for too long is the sin of approving less than equal division of responsibility, time, and parenting between any two parents without the evidence to support it.
This is not to say there are not instances in which a parent has proven they are a risk to the children, but those instances should be specifically stated and enumerated. As family law attorneys, we all know too well that there are good parents walking the world that do not have the relationship they want and should have with their children. Only 34 percent of all children born in the last few years of the 20th century will have reached the age of 18 having lived with both parents for that time. Given these statistics, the treatment of parents within the domestic court setting becomes the most important factor impacting the development and parenting of 66% of all children born in the last few years of the 20th century? Have our courts served them well, or failed them?
Joint time with both parents is not only the best arrangement for the children but is also more beneficial for the parents. Fathers who get to exercise at least quarter-time visitation with their minor children report more satisfaction and feel more competent than fathers who have limited visitation such as a traditional schedule of one weeknight and every other weekend, or even those with sole childrearing responsibility.[3] And mothers who share custody have been shown to be more satisfied with the parenting arrangement than those who have sole custody with periodic contact with the dad.[4] Even mothers benefit from a more engaged father-child relationship which also provides more equality in opportunity for mothers to pursue life post-divorce.
Just as the type of marriage the couple had impacts the children, the type of divorce the couple has will impact the children even more. It should be the court’s duty to facilitate a divorce that does not negatively impact the minor children, in spite of the parents that are divorcing. It’s time for judges to take a Hippocratic oath of sorts to “do no harm.” That will begin with insuring that the emotions of the moment in any given dissolution action do not hinder the development of the children simply because the parents are too emotional in the moment to protect the children. Courts should be the governors of such social paradigms and see their role as more than just referee, but also protector of the best interest of the minor children, knowing that such determination may not be easy, but in due time it will prove most beneficial to the child.[5]
[1] U. Palosaari, H. Aro, and P. Laippala, “Parental Divorce and Depression in Young Adulthood: adolescents’ Closeness to Parents and Self-Esteem as a Mediating Factor,” Acta Psychiatry Stand 93 (1): 20-26 (January 1996).
[2] Richard Warshak and John Santrock, “the Impact of Divorce in Father-Custody and Mother-Custody Homes: The Child’s Perspective, “ in New Direction for Child Development: Vol. 19. Children and Divorce, ed. L.A. Kurdek (San Francisco: Jossey-Bass, 1983), pp. 19-46.
[3] Kyle D. Pruet, Fatherneed: why father care is as essential as mother care for your child (New York: Random House, 2000), 110.
[4] Id.
[5] Chris Smith is a family law attorney and partner with the law firm Ball Morse Lowe, PLLC. Chris is a peer-review rated AV-Preeminent attorney by Martindale-Hubbell and has been consistently recognized for family law by Best Lawyers, Super Lawyer Rising Starts, as well as local publications. He makes his home in Edmond, Oklahoma with his wife and two children.
