Who Wins Custody in Contested Divorce Cases?

In the Boston Globe, “conservative/libertarian feminist” Cathy Young criticizes the empirical support for a recent PBS special about child abuse:

Thus, the reports cite the Massachusetts Supreme Judicial Court’s Gender Bias Study of 1989 as proof that fathers who seek custody receive it at least 70 percent of the time … even though this study does not distinguish custody disputes from cases in which the father got custody by mutual agreement. [...] No mention is made of much larger, representative studies of divorcing couples (such as the one reported by Stanford University psychologist Eleanor Maccoby and Harvard law professor Robert Mnookin in the 1992 book ”Dividing the Child”) showing that far fewer fathers than mothers get the custodial arrangements they want.

I haven’t seen the PBS special, nor all the evidence Cathy reviews, so I can’t comment on Cathy’s larger points. But I can safely say that Cathy displays a double-standard in the quoted paragraph. It’s true that Dividing the Child found that “far fewer fathers than mothers get the custodial arrangements they want,” but by putting it that way, Cathy fails to distinguish between custody disputes which reached an out-of-court settlement – what you might call “custody by mutual agreement” – and custody disputes in which the Court made the decision. (Also, scroll down to the update – Cathy’s description of the Massachusetts Study is dubious as well).

Here’s a quote from Dividing the Child (it’s a bit long – but if you don’t want to read the whole thing, make sure you at least read the first and final paragraphs):

We have found that although mothers receive sole physical custody in the vast majority of cases, the proportion of joint or father custody outcomes approaches 50 percent for high-conflict families. At first blush, this finding would appear to disprove allegations that the California divorce process reflects and perpetuates gender bias. Why, after all, shouldn’t a 50-50 distribution of outcomes suggest gender neutrality?

Both advocates for women’s rights and advocates for fathers’ rights would probably reject this reading of our findings, and in fact the presence or absence of gender bias in the legal process is not so simple to establish. A fathers’ rights group might well argue that since the overall gender ratio in cases where there are conflicting requests is 2 to 1, the law in action still reflects a maternal presumption. Why, after all, would fathers who conceded custody at lower levels of the conflict pyramid have settled for less than they wanted if they believed they had a 50 percent chance? Advocates for women, on the other hand, would counter that our findings demonstrate that escalation of legal conflict over custody clearly operates to the benefit of fathers. As we demonstrated in Chapter 3 before divorce mothers are the primary caretakers of children far more often than men. Thus, a 50-50 distribution of outcomes should be considered neither fair nor neutral. Rather, a “fair” distribution of outcomes should reflect differences in the care-taking base rate for mothers and fathers.

Alternatively, suppose that, on the merits, custody claims of mothers were, on the average, no stronger than the claims of fathers. (Imagine a judge going into her chambers and flipping a coin in all contested cases.) The outcome ratios might still vary by conflict level if most mothers simply cared more about the custodial outcomes than most fathers, and were therefore more prepared to escalate the conflict to a higher level rather than settle for less than their preferred custodial alternative. Because it takes time and energy to work one’s way up the conflict pyramid, this would imply that only in a small minority of families would the father be prepared to pay the price, even though those who did so might have a 50 percent chance of prevailing.

But one thing does seem reasonably clear: our finding that the gender ratio of custody decrees at the top approaches 50-50 even though the overall ratio among conflicted cases is closer to 2 to 1 in favor of mothers demonstrates neither the presence nor the absence of gender bias.

So when the Massachusetts Supreme Court study fails to distinguish between “custody by mutual agreement” and “custody disputes,” (or did it? see the update below) Cathy says that’s bad and wrong. But when Cathy herself cites a study to prove overwhelming male disadvantage, but lumps in “custody by mutual agreement” with cases decided by Judges – even though the Judges’ decisions were 50/50 between mothers and fathers – is that any better?

[UPDATE (posted 5:30pm Tuesday): It appears I may have misunderstood the Maccoby and Mnookin quote I posted – how embarrassing! When they say “fathers who conceded custody at lower levels of the conflict pyramid,” they are referring to fathers who choose not to appeal after losing custody in a lower court. Counting all cases, mothers win twice as often as fathers; counting only those cases in which neither party settled for the lower court decision, fathers had about a 50/50 chance of winning.. Unfortunately, I can’t find my darned copy of the book, so I can’t settle this for sure today.

So Cathy’s citation of the Maccoby and Mnookin study may not be as bad as I thought. Nonetheless, the caveat that fathers who don’t give up early in the process get what they want 50% of the time is still a rather important thing for Cathy to have left out. And the following paragraph that I wrote is still good:]

Maccoby and Mnookin explicitly say that their study doesn’t prove or disprove bias against fathers (or against mothers); if Cathy is going to quote their work to suggest Court bias against fathers, she should at least let her readers know that the researchers had a more nuanced view of their results.

Cathy also wrote:

In the same vein, Lasseur’s report is supplemented by a letter signed by ”98 professionals” who support the film’s conclusions … but a number of those ”professionals” are feminist activists, including National Organization for Women President Kim Gandy.

Cathy claims it’s not fair to call her an “anti-feminist,” and I don’t. But I find it odd that a self-identified feminist has so much contempt for feminism that if any feminist activists (many of whom have spent years or decades involved with abuse issues) sign a letter, that is in Cathy’s analysis ipso facto reason to dismiss the entire letter. Maybe next time Cathy should take a moment to examine her own idealogical biases.

(Curtsy: Family Scholars Blog.)

UPDATE: Cathy’s description of the Massachusetts Study’s methods appears to be misleading. Here’s what the Massachusetts Supreme Court’s Gender Bias Study reported (source).

We began our investigation of child custody aware of a common perception that there is a bias in favor of women in these decisions. Our research contradicted this perception. Although mothers more frequently get primary physical custody of children following divorce, this practice does not reflect bias but rather the agreement of the parties and the fact that, in most families, mothers have been the primary caretakers of children. Fathers who actively seek custody obtain either primary or joint physical custody over 70% of the time. Reports indicate, however, that in some cases perceptions of gender bias may discourage fathers from seeking custody and stereotypes about fathers may sometimes affect case outcomes. In general, our evidence suggests that the courts hold higher standards for mothers than fathers in custody determinations.

And then, from page 831 (this quote is the “long version” of the above summary quote):

Although perceptions of bias that discourage fathers from seeking custody are a concern, the outcome of cases in which custody is contested provides a more direct source of information about possible judicial gender bias. We heard testimony from George Kelly, a representative of Concerned Fathers, that in contested custody cases, mothers are awarded physical custody over 90% of the time. Mr. Kelly was unable to provide substantiation, however, and our own investigation revealed a very different picture.

The statewide sample of attorneys who responded to the family law survey had collectively represented fathers seeking custody in over 2,100 cases in the last 5 years. They reported that the fathers obtained primary physical custody in 29% of the cases, and joint physical custody in an additional 65% of the cases. Thus, when fathers actively sought physical custody, mothers obtained primary physical custody in only 7% of cases. The attorneys reported that the fathers had been primary caretakers in 29% of the cases in which they had sought custody.

The preliminary findings of the Middlesex Divorce Research Group relitigation study show a similarly high rate of paternal success, but fewer awards of joint physical custody. In their sample of 700 cases in Middlesex County between 1978 and 1984, fathers had sought custody in 57 cases (8.14% of the sample). In two-thirds of the cases in which fathers sought custody, they received primary physical custody (42% in which fathers were awarded sole legal and sole physical custody, plus 25% in which fathers were awarded joint legal and primary physical custody). Joint physical and joint legal custody was awarded in 3.5% of cases. In 11% of the cases, mothers received primary physical and joint legal custody; in 12%, mothers were awarded sole legal and physical custody; other custodial arrangements were ordered in the remaining cases. Thus, when fathers sought custody, mothers received primary physical custody in fewer than one-quarter of the cases in the Middlesex study. Information about which parent had been the primary caretaker was not available for the Middlesex cases.

These trends were apparent in an earlier study of a sample of 500 Middlesex County cases filed between 1978 and 1981. Fathers had sought sole custody in about 8% of the cases. They received sole custody in 41% of those cases, and joint custody in 38%. In 5% of the cases, custody went to someone other than a parent. In instances in which fathers sought sole custody, mothers received sole custody in only 15% of the cases (Phear et al., 1983).

These statistics may be a surprise to many. They are, however, consistent with findings in other states. A study of court records in Los Angeles County, California, in 1977 found that fathers who sought sole custody obtained it in 63% of the cases (up from a success rate of 37% in 1972) (Weitzman, 1985, p. 233). A nationwide survey of all reported appellate decisions in child custody cases in 1982 found that fathers obtained custody in 51% of the cases, up from an estimated 10% in 1980 (Atkinson, 1984).

The high success rate of fathers does not by itself establish gender bias against women. Additional evidence, however, indicates that women may be less able to afford the lawyers and experts needed in contested custody cases (see “Family Law Overview”) and that, in contested cases, different and stricter standards are applied to mothers.

The Massachusetts Study clearly distinguished between cases where there was “agreement of the parties” and cases in which “fathers… actively seek custody.” Cathy’s claim that “this study does not distinguish custody disputes from cases in which the father got custody by mutual agreement” is exactly the opposite of the truth.

As I said at the beginning of this post, I haven’t watched the documentary or researched every reference in Cathy’s column; I’ve basically just looked at one paragraph. However, in that single paragraph, there are important errors and omissions. My guess is that she trusted second-hand sources that she shouldn’t have, but whatever; the real point is, given the errors we know Cathy has made, none of this column’s claims should be trusted without independent verification.

UPDATE 2: Liznotes has some more comments.

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33 Responses to Who Wins Custody in Contested Divorce Cases?

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  4. 4
    Vache Folle says:

    I spent a lot of years in “matrimonial” law and observed no particular bias by judges against fathers. Culturally, there is a fairly broad consensus that mothers are the better choice for primary custody, and this is reflected in mutually agreed upon arrangements which favor mothers. One of the principal factors in determining who should be the primary caregiver is to maintain the status quo in that regard. Frankly, the majority of men in the cases in which I was involved, either as counsel for one of the spouses or for the children as a court appointed advocate, did not invest a great deal of time in thier children prior to the divorce, and this was frequently a factor in the marital conflict that culminated in divorce. This was especially true on the lower end of the socioeconomic scale where I have observed that men tend to prefer to spend less time with their wives and children.

    In those cases where men pursued custody, they were as likely as women to get it.

    Of course, this does not account for the fact that many men who might desire custody or more visitation might be dissuaded by their counsel from pursuing it because of costs. It would be appropriate to discourage a male client who has never before shown any interest in his children from pursuing sole custody of small children except as a bargaining ploy to gain economic concessions.

  5. 5
    carlaviii says:

    OK, so the numbers are all jumbled up and really ought to be classified more precisely.

    Personally, I think it would be interesting to look at both bias in court-appointed custody and bias within the divorcing couple about custody…

  6. 6
    binky says:

    The statement “far fewer fathers than mothers get the custodial arrangements they want” could mean virtually anything. It could mean “they want no contact and are forced to share 50% custody.” Hardly persuasive.

  7. 7
    Ed says:

    I think it would be a lot more useful to study physical custody. I for one was told flat out by my attorney that unless I could prove my ex-wife unfit attempting to get physical custody was a waste. I am not sure how that applies to everyone or if I just had a crappy lawyer but it definately felt biased at the time. Why should I NOT have a 50% chance?

    As for “spending little time” with wife or children, I would hesitate to say that is by choice. Working fathers in families where the woman stays home or works part time because of the childcare vs. income ratio do not love or think about their families less. Judges who use this as a justification for awarding custody should look at the broader picture. Both parents are making sacrifices to allow for the success of the family. Especially in the case of young children it is practicly required by biology. The mother births the child. Using the status quo reasoning simply punishes the parent that could and did pick up the economic side of family support because they were employable.

  8. 8
    FurryCatHerder says:

    I think the “Men have to work because women give birth” argument is interesting on two different sides.

    First, many women who work outside the home can and do return to full-time employment within weeks or months of giving birth. This tells me that there is no practical barrier to removing gender stereotypes in regards to which parent works at home and which parent works outside the home. If the argument is “ability to provide income”, my suggestion would be for the Father’s Rights movement to begin working towards equal pay for equal work.

    Secondly, I’m a bit disturbed by feminist arguments against joint legal and physical custody as a rebuttable presumption. If increasing shared parenting within a marriage is a feminist objective (anyone want to claim it isn’t or shouldn’t be?), how can reducing shared parenting outside a marriage be a feminist objective?

  9. 9
    Ampersand says:

    Secondly, I’m a bit disturbed by feminist arguments against joint legal and physical custody as a rebuttable presumption. If increasing shared parenting within a marriage is a feminist objective (anyone want to claim it isn’t or shouldn’t be?), how can reducing shared parenting outside a marriage be a feminist objective?

    Feminists, like most people, are able to balance competing interests.

    One interest is, “what’s in the best interests of the child in a contested divorce case?” And if the parents are so unable to get along that they need a judge to decide custody, then joint custody is not in the child’s best interests. To quote the Governor’s/Massachusetts Bar Association’s Commission on the Unmet Legal Needs of Children (1987),

    Parents who lack the goodwill, capacity, and ability to cooperate are enabled, through a joint custody order, to further exacerbate and prolong the damaging impact of divorce upon the child. In addition, joint physical or legal custody may be awarded with complete disregard for the age and developmental stage of the child, thus causing severe hardship and trauma to the minor in order to serve the parents’ need.

    Another interest is, “we’d like to avoid women getting screwed over in court.” Quoting from the Mass gender bias study:

    The inappropriate use of a presumption of permanent shared legal custody and inappropriate awards of shared legal custody disadvantage women in several ways. First, as the Governor’s/MBA’s Commission on the Unmet Legal Needs of Children found,

    when the statute [c. 208, § 31] is erroneously interpreted as presuming joint custody, a bargaining advantage accrues to a parent who would be an unlikely candidate for custody in the final decree. The more appropriate parent, aware of the deficiencies of the other adult, will often bargain away needed financial assets or income in order to win agreement for sole custody of the child.

    Second, when shared legal custody is ordered and parents are unable to agree, the burden falls most heavily on the parent with primary physical custody, usually the mother. As the physical custodian, she bears primary responsibility for seeing to it that the child’s needs are met. If important issues are unresolved, she must deal with the consequences. Thus, she must compromise to get agreement; the father has the option of becoming involved or not.

    Third, ordering a battered woman to share legal custody with her abuser can threaten her security. Studies of battering show that battering is part of a pattern of conduct that seeks to establish total control over the woman (see “Domestic Violence”). Shared legal custody provides a court-mandated opportunity for the abuser to continue to exercise control, divorce and protective orders notwithstanding.

    There are also studies showing that a very substantial percentage of fathers will, after the first year or so, stop doing their part of “joint” custody.

    On the other hand, it’s true that feminists want to see men taking more of an interest in childrearing.

    So how do we balance these competing interests – not seeing women screwed over, not seeing children damaged, and still favoring shared childrearing?

    I think that concentrating on making childrearing more egalitarian pre-divorce, but opposing the presumption of joint custody for the tiny, tiny number of families whose custody decisions will be made by a judge, is a reasonable compromise.

  10. 10
    Mendy says:

    Ampersand:

    think that concentrating on making childrearing more egalitarian pre-divorce, but opposing the presumption of joint custody for the tiny, tiny number of families whose custody decisions will be made by a judge, is a reasonable compromise.

    I agree with all but the last sentence. It has been my experience that many divorcing couples only seek mediated custody agreements because they a) find the idea of dragging kids through court distasteful, b) are advised by council to seek this means of settlement, and c) are actually coerced into settling out of court.

    I would have allowed the judge to decide custody, but decided against it because I knew that my ex husband was going to drag both my name and reputation through the “mud” and I preferred to spare my children this ordeal.

    I think the legal standards should be gender neutral both is wording and in application, and ideally I favor a series of mediation sessions for resolution of divorce and custody in the majority of situations. For those women escaping dv or partners that abuse children… I favor using the full power of the law.

  11. 11
    FurryCatHerder says:

    Amp writes:

    So how do we balance these competing interests – not seeing women screwed over, not seeing children damaged, and still favoring shared childrearing?

    I think that concentrating on making childrearing more egalitarian pre-divorce, but opposing the presumption of joint custody for the tiny, tiny number of families whose custody decisions will be made by a judge, is a reasonable compromise.

    I think that a rebuttable presumption of joint custody, if actually put into effect(1) would go a long way to making sure women aren’t “screwed over” and children aren’t harmed.

    Courts don’t decide custody based on “good parent versus bad parent”, or even “fit parent versus unfit parent”, courts primarily decide custody based on pre-divorce parenting involvement. We can want egalitarian parenting all we want, but couples are going to continue to make decisions which reflect financial realities — and the financial reality is that men earn more than women (this shouldn’t be news to any of us).

    Studies, such as the “American Time Use Survey” from the U.S. Census Bureau, show that “parenting time”, while differing between the sexes, differs significantly less than “working time” (by which the Census folks mean ‘outside the house’ — they breakdown “housework” separately). In the 25 to 44 age range(2), hours worked are 5.74 / day for men and 3.88 / day for women. This compares to 0.63 / day for men and 1.55 / day for women. In terms of total household time (childcare plus household), hours worked are 1.80 / day for men and 3.80 for women. FINALLY (whew!), comparing “outside the house” differences with “inside the house differences” yields men working outside the house 1.86 hours more per day compared to women working inside the house 2.00 hours more per day. I think that this reflects when FRA types claim — fathers make an economic decision about “household time”.

    Assuming that “working time” reflects economic requirements, and using a factor of 0.72 (ratio of women’s pay to men’s pay for comparable work) to compare “men’s wages earned” against “women’s wages earned”, getting to “egalitarian parenting” requires(3) that men and women change hours worked from 5.74 and 3.88, respectively to 4.97 hours per day each. In other words, the “cost” of “egalitarian parenting” given unfair pay practices is 0.77 fewer hours worked per day for men and 1.09 hours more worked per day for women. Assuming that the difference between “household hours worked” and “working time” that I showed earlier holds, the increase of 0.32 hours per day of “working time” would translate to a similar decrease in “household hours worked”, which would include some decline in “childcare hours”. In short “egalitarian parenting” in the current economic environment results in FEWER hours of “parenting time”, not more.

    The reason I support “universal joint custody”, by which I mean forcing a parent who wants “sole custody” to show that the other parent is actually unfit, and not “uninvolved”, is that I believe many social issues which affect women do so not strictly on the basis of sex, but moreso on the basis of parenthood. That is, lack of access to affordable daycare isn’t the result of maleness and femaleness, but rather government and employer policies. These might have origins in the devaluation of “women’s work” or “women’s issues”, but they remain “women’s work” and “women’s issues” so long as women remain primarily obligated, either by social customs or court-award sole custody, to provide childcare. By giving divorced men an equal obligation(4) to perform childcare, I believe that childcare issues — and the rest of the obstacles women face as parents and not as females — are more likely to be resolved.

    In summary, given that “egalitarian parenting” requires(3) an increase in total hours worked, “egalitarian parenting” will result in less “childcare time” until wage differentials between men and women no longer make it financially advantageous for men to work outside the house more hours than women. Furthermore, giving men a vested interest in solving “childcare” issues, by mandating and enforcing joint custody, except in the case of an unfit(5) parent, those social problems are more likely to be resolved.

    (1) As determined by measurable results since “coerced to settle for less than joint custody” remains a problem even if laws supporting joint custody are on the books.

    (2) Calculated by adding the 25 to 34 and 35 to 44 age groups and then dividing by two.

    (3) There’s no evidence that parents choosing to engage in “egalitarian parenting” are going to be paid “egalitarian wages”.

    (4) Rather than an “award” of “joint custody” in which the non-custodial parent can “choose” not to exercise custody and not be penalized beyond not having time with their child, I’d like to see “joint custody” mandated in which a parent who fails to exercise custody is considered to be guilty of child neglect and penalized in some way that makes it undesirable to do so. Furthermore, failing to exercise custody should result in an automatic increase in child support awards. And for the FRA crowd, interference in custody should likewise result in an automatic reversal of primary custody. I believe that by taking the guess work and courtroom conflict out of the picture the overall conflict in the post-divorce environment will decrease. Never let it be said that my politics can’t be draconian at times!

    (5) No one is saying that “unfit” parents should be given sole or joint custody, only that custody should be determined based on “involvement”, which I think I’ve shown has economic origins that result in an increased amount of parenting time compared to “egalitarian parenting”.

  12. 12
    Lee says:

    Awesome post, FCH. You have articulated what I’ve been thinking while reading the last few posts on this thread (but didn’t take the time to get the numbers). Although I have one nit to pick with your analysis, and maybe this is too detail-oriented, but it wasn’t clear to me if sick leave and sick child care were included in your analysis. I think you might find (if the numbers for this exist) that with small children, women generally take more sick leave or stay home with sick children more often, while with older children, the person with the most flexible work schedule and the most sick leave tends to handle these responsibilities more often, which increases the differential between work and home time for men and women. Judges also look at sick child care when considering parenting time, as one acquaintance discovered during her divorce, because her ex was almost always the one who took the child to doctor’s appointments and therefore got more “custody points.”

  13. 13
    FurryCatHerder says:

    Lee,

    It’s from numbers produced by the U.S. Census Bureau. I don’t know their methodology. I’d assume that all forms of childcare, including caring for sick children, is included. I could be wrong, however.

    You do raise a valid point, in re, how parenting responsiblity reflects job flexibility rather than parental ability or interest. I don’t think men are any less capable of finding a doctor’s office (provided they stop and ask for directions if lost :) ) than women, so I have to conclude that there are other forces at work in the decision-making process. Since the most likely force is either wage inequity or employer hostility towards fathers, I feel that working towards wage equity between men and women as well as joint custody should remove that disproportionate burden from women.

    And thanks for the kudos — one way that I differ from other feminists is that I believe a viable approach to solving women’s problems is by making them men’s problems as well. Since “burdened to care for children”, and all that entails, is a common problem for women, inflicting men with the joys (ahem) of parenting post-divorce seems like a workable approach to solving many of those problems.

  14. 14
    Rachel S says:

    Amp, I like this general discussion about MRAs and custody child support issues, but I think the discussion should also include relationhips between people who are never married. Many children are born to unmarried parents so the idea of contested divorce is a mute point.

    I also feel like this disucssion has been very class biased. The issues facing low income men and women who are unmarried and have children together are much different, but still relevant. If you get the time, I would like to see you address low income families perspectives on this issue. I am very curious what you have to say. The truth of the matter is that part of the reason the child support number (you mentioned in an earlier post) was so low $280 per month is because many of people in divorced families are not well off. This debate needs to be expanded…..

  15. 15
    FurryCatHerder says:

    Mendy writes:

    I think the legal standards should be gender neutral both is wording and in application, and ideally I favor a series of mediation sessions for resolution of divorce and custody in the majority of situations. For those women escaping dv or partners that abuse children… I favor using the full power of the law.

    I don’t know about other states, but I believe my home state bars any parent who is convicted of domestic violence, and I believe that includes abuse against children, from having joint custody.

    Apropos “full power of the law”, one thing I find highly problematic about divorce situations is that actions which would be handled as criminal matters if they happened between complete strangers are treated as “civil matters” when they happen between divorced couples. Since the entire purpose of divorce is to make two people “legal strangers”, that’s a practice that I think needs to be changed.

    My home state has an offense, “Interference with a child custody order”, but getting an uncooperative spouse charged with that is almost impossible, as I found when my X was inclined to deny ordered periods of possession. It wasn’t until I was on the verge of filing a Motion to Show Cause (“contempt”) that such things stopped. I think “Please don’t file that motion!” was the last thing uttered before things finally improved.

    Whether it’s former spouses who harass by violating custody orders or refusing to abide by telephone calling times, criminal offenses exist that could be used to curtail that behavior far more effectively than requiring a divorced couple to spend thousands of dollars in court with no guarantee of results. While I would have hated for my X to be arrested, finger printed and booked on a felony, I hated even more that the interference created conflict that our child then suffered because of.

  16. 16
    Lee says:

    FCH, that’s one of the problems with civil court settlements, as I (who am not a lawyer and therefore am probably getting this wrong) see it. We (our society) assume that because two people have signed on the dotted line that they will actually abide by the terms on that piece of paper, when part of the reason they were in court in the first place was because one or more of the parties didn’t respect the other parties’ wishes or rights. So there’s a blind spot where enforcement is concerned. At the risk of calling for even more government, maybe there should be a special enforcement unit for Family Court orders. They would almost certainly be overworked and underfunded, but it would be better than nothing.

  17. I am really busy right now and can’t be here to debate this, but also can’t let the type of ridiculous arguments advanced here over the past couple of days by a couple of people go unchallenged. I am not going to respond point by point, because again, I don’t have time. I do have this to say.

    * Judges do not award custody based on parental involvement as has already been amply established here in more than one thread and elsewhere. Where a father seeks custody, he usually gets it. Fathers don’t have custody, in general, because they don’t seek it. Where fathers seek custody, in 70-80 percent of the instances, depending what studies you read, they get it.

    * Universal joint custody is a supremely bad idea because you can’t force a parent who doesn’t want custody to be a good parent, and you can’t force a rotten parent to be a decent parent, and you can’t force an abandoning parent to be present and caring, and I don’t care how many law enforcement agencies you bring in or how much you up the child support because the guy doesn’t do his fair share. All he will do is find some way to (1) get the ex wife to do the lion’s share of the care without bringing the fact that she’s doing it to the attention of attorneys and judges (by threatening or intimidating her in various ways or mistreating the kids when he has them so they need to be with her for their own safety ); (2) palm his responsibilities off on his new girlfriend or boyfriend or his mother or his sister-in-law or his neighbor who may be as rotten a caregiver as he is, thus keeping the kids away from their mother while continuing to avoid his own responsibilities to his children, keeping his child support low, etc.

    * The absolute best thing for babies as established by too many studies to count is breastfeeding, at least through the first year. Many mothers know this and want to breastfeed but they are forced back into the job market because they have to support themselves. Policies should not be based upon the fact that “many mothers return to work at 2-3 weeks post-partum.” Policies should make provision for the lived realities and choices of mothers and their babies: to wit, babies need breast milk, mothers are the ones who provide it, that needs taken into consideration always in issues around custody.

    * It is absurd to suggest that lack of adequate daycare (which is something that, left to feminist mothers early on, would not even have been the feminist issue it has become, but anyway, that’s another thread for another day and probably not for Alas) has to do with “parenthood” and not sex. Lack of adequate daycare, rotten wages for daycare workers, rotten wages for caregivers of all kinds, have to do with men as the plumbline and men’s lives always as the standard. Men have never had to do caregiving of anybody but themselves (and not even themselves in many ways) until recently; women did it. Therefore, provision for the care of children, the disabled, elderly was never part of the equation so far as wages, time off, working conditions, salaries, etc. Men didn’t have to worry about that stuff and didn’t have to do it, so it was never, until recently, considered essential to any sort of wage or salary or employee benefit package an employer might conceive or offer or any fair labor standards might include. Feminist women have steadfastly insisted on women’s lives informing a male-dominated workplace and its wage and benefit packages, to include provisions for and considerations around pregnancy, birth, post-partum, care of infants, breastfeeding, care of sick children, care of disabled children. The problem isn’t and wasn’t some generic and remote set of “employers” per se, except that those employers we’re talking about, historically, until recently were all male and their policies reflected specifically male sensibilities. Which is all to say that lack of adequate daycare, paid time off for sick kids, etc., pregnancy leave, post-partum time off, are very much an issue of *sex* and not “parenthood.” I was let go from my job as an IHOP waitress in 1972 because I was *pregnant.* And if you were pregnant in those days, you were let go because you couldn’t wear the cute little orange uniform with the apron tied in the back. And that didn’t have to do with “parenthood.” Male parents could continue to work unhindered because men don’t bear children. That had to do with *sex*, namely, that I was a woman and got pregnant because of my sex. And the issues centered in sex discrimination will be resolved only to the degree that employers make room for the realities of women in their policies and benefit packages. They have ALREADY made provision for the realities of men. Men do not bear children. They do not get pregnant. They do not breastfeed. They do not require time to recuperate physically. And by and large, still, today, they do not bear responsibility for the care of children, and most of the time, as the studies bear out, that is *by choice*.

    My biggest issue with what has been posted, though, is with this insance idea that through laws and enforcement and bringing in the big guns, you can make a good-dad-silk-purse out of a rotten/absent-dad-sow’s ear. It cannot be done. And to suggest it’s something anybody ought to try via “universal joint custody” so-called is to show callous and in my opinion criminal disregard for the well-being of the children of divorce. Not to mention all of the many issues around children’s rights, a consideration totally lacking in all but, imo, Amp’s posts. My own view is that once a child can tell us where she wants to be, that figures into the equation and must. At the point at which she doesn’t want to be somewhere, then I don’t believe she ought to be forced to be where she doesn’t want to be. In point of fact, courts increasingly do recognize that a child approaching puberty, 10, 11, 12, 13 and up can’t be forced to stay with a parent she doesn’t want to stay with. And I will tell you truly, a child is most often not going to be interested in living with a father who never wanted her and has palmed her off on all sorts of people if he ever made provision in his life for her at all. But that, too, is another thread for another day.

  18. 18
    FurryCatHerder says:

    Lee,

    Many of the sorts of issues that create conflict post-divorce are not civil matters where there is a contract or court order which describes what “performance” or “compliance” means. Stalking, harassment, destruction of private property, theft, child neglect — these are all tactics used by former spouses (typically men) as a means of harassing the custodial parent (typicall women).

  19. 19
    FurryCatHerder says:

    Heart writes:

    Which is all to say that lack of adequate daycare, paid time off for sick kids, etc., pregnancy leave, post-partum time off, are very much an issue of *sex* and not “parenthood.”

    This, along with most of the rest of what she wrote, is facially false –

    Women who are not mothers do not require any of what was written. Women who are mothers, who require those things, but who work for employers which do not provide them, have male co-workers who are fathers, who require some of those things, and who likewise do not receive them. What is common between mothers and fathers is parenthood, not sex. And there exist, to the best of my knowledge, exactly zero companies with family-friendly policies which grant family benefits to involved fathers, but which deny them to involved mothers.

    Or to put it more plainly, parents who are denied time off for sick children aren’t denied it on the basis of sex. They are denied it on the basis of parenthood. The proof is that women who are non-parents do not get denied time off for sick children they do not have, and men who are parents who are denied time off for sick children are not denied time off any less so than mothers working for the same employer who are similarly denied time off.

    The rest of the post can be summarized as “men are lousey parents and don’t want children anyway.”, which I suspect Heart knows is a gross over-generalization.

  20. 20
    FurryCatHerder says:

    Hah! I knew I’d find what I was looking for.

    Heart writes:

    And to suggest it’s something anybody ought to try via “universal joint custody” so-called is to show callous and in my opinion criminal disregard for the well-being of the children of divorce.

    Every study of custody type has found the same thing — it isn’t the type of custody that matters, it is the lack of conflict and the availability of resources. From an HHS study on parenting trends –

    Theoretically, all types of custody arrangements have the potential to be beneficial for the child. Several
    studies indicate that it is ultimately the quality of parent-child contact within these arrangements that determine
    child outcomes.
    105 See indicators on “Contact with Nonresident Parent” and “Parental Time with Children”
    for further discussion of the influences of parental contact on child well-being.
    (Emphasis added.)

    Footnote 105 is 105 Stewart, S.D. (1999). Disneyland dads, Disneyland moms? How nonresident parents spend time with absent
    children. Journal of Family Issues, 20(4), 539-556.

    I can post more, but the short answer is that the non-parenting father is a non-fact, along with the omnipresent abusing father (3% of fathers have ever abused their children), and the universally non-paying-child-support father (or mother, for that matter) seems to have left the building — more than half of both genders receives the full amount of support owed in any given year.

  21. 21
    Helen says:

    The “availability of resources” idea hasn’t really been given enough of a run – in the articles I’ve read about presumtion of joint custody, it’s been said that it is suited to wealthier families, obviously because the duplication of shelter and posessions is much higher. Also, the parents must be happy to live fairly close together. This is not always possible or desirable.

  22. 22
    Jen says:

    Lots of stuff to comment to here – but in my home state (Colo) things have got a little more than bent by political correctness if you ask me. The notion of what is best for the kids seems lost to making sure the terms “joint parenthood” eclipse old terms such as “custody”. It is as if by saying the words parents will be better parents. And with the attempt to be fair to everyone (primarily parents) it seems that often enough the main ones affected by this situation are overlooked – the children.

  23. 23
    FurryCatHerder says:

    I think that the “duplication of shelter and possessions” argument is over played.

    Most “cost of children” figures are based on per-capita allocation of costs. My mortgage runs me about $1,200 a month. The incremental cost of having a bedroom for the munchkin is, well, $0.00 because I live in one of the smallest houses in my subdivision (there’s one floor plan smaller and it’s ugly as sin …). Yet using a per-capita allocation model, the incremental cost of a child is $600. If I lived in a bigger house, which would basically involve me wandering around even more empty space, the incremental cost would somehow magically increase.

    The other thing to bear in mind is that even “sole custody” isn’t a zero visitation custody arrangement. The average number of days of possession for all custody agreements, of which “joint custody” make up only some 9% at present, is over 70 days (I think that’s correct) per year. That’s just shy of a solid week each and every month and too much time for Dad to sleep sofa on a regular basis. For younger children the number of days of contact per year is about 10 days higher, which is more than a week per month. Meaning, the average non-custodial parent in a sole custody arrangement likely already has paid the incremental cost of a child. And while much is made of non-custodial parents who disappear a few years after a divorce, even below the poverty line children continue to have contact with the non-custodial parent.

    “Joint custody” is simply a term of art. A parent with 80 days per year of possession in a “sole custody” arrangement, versus a parent with 146 days per year (40%), already has to live “fairly close”. Mothers having sole legal and physical custody is the most common (68%) arrangement, but even with “sole physical custody” there is still a lot of non-custodial involvement, on average. With “joint custody” being such a huge source of intra-divorce conflict, going from 70+ days to 146 days per year, and granting joint decision making abilities to both parents isn’t that great a change, in the grand scheme of the universe.

  24. 24
    clew says:

    I suspect that, if parenting were more equally shared, pay would become somewhat more equal. The ability to concentrate on one’s job for longer periods of time is a benefit to one’s skill, and when it is more equally divided, rewards for work productivity will also be more equally divided.

  25. 25
    Daran says:

    Ampersand:

    [UPDATE (posted 5:30pm Tuesday): It appears I may have misunderstood the Maccoby and Mnookin quote I posted – how embarassing! When they say “fathers who conceded custody at lower levels of the conflict pyramid,” they are referring to fathers who choose not to appeal after losing custody in a lower court. Counting all cases, mothers win twice as often as fathers; counting only those cases in which neither party settled for the lower court decision, fathers had about a 50/50 chance of winning..

    My understanding is that an appeal indicates that one of the parties doesn’t settle for the lower court decision, not that neither party settles for it.

    So Cathy’s citation of the Maccoby and Mnookin study may not be as bad as I thought. Nonetheless, the caveat that fathers who don’t give up early in the process get what they want 50% of the time is still a rather important thing for Cathy to have left out.

    Except that it doesn’t follow, unless by ‘don’t give up’ you mean to include father’s who win at the lower court level, and who then defend the mother’s appeal. It doesn’t follow that Father’s who lose at the lower court level and appeal win 50% of the time.

    As an extreme example of how bias could be hidden behind a 50% figure, suppose the appeal court automatically denied father’s appeals, while allowing mother’s 50% of the time. Under those circumstances no losing father would appeal, and the overall success rate of fathers in the appeal court would be 50% – all of them as appellees.

    I’m not saying that’s how it is, only that you can’t conclude that losing fathers who appeal have a 50% success rate. Nor can you prove or disprove bias purely by looking at success rates, without looking at the underlying merits of the cases.

  26. 26
    Daran says:

    Cathy:

    the Massachusetts Supreme Judicial Court’s Gender Bias Study of 1989 … does not distinguish custody disputes from cases in which the father got custody by mutual agreement.

    Ampersand:

    The Massachusetts Study clearly distinguished between cases where there was “agreement of the parties” and cases in which “fathers… actively seek custody.”

    That’s not how I read it at all. It seems to me that there are three cases:

    1. Father seeks custody, mother contests.
    2. Father seeks custody, mother does not contest.
    3. Father does not seek custody.

    Now it seems to me that both 1 and 2 would fall under the rubric of “fathers… actively seek[ing] custody”, and I see nothing within the passages you cite to indicate that the statistics quoted do not refer to the aggregate of the two. If the statistics in fact refer to “fathers who actively contest custody”, why did the authors not say so?

    Although I can’t be certain of it, on plain reading it looks to me as though Cathy was correct.

  27. 27
    Ampersand says:

    Daran wrote:

    My understanding is that an appeal indicates that one of the parties doesn’t settle for the lower court decision, not that neither party settles for it.

    Point well taken.

    Now it seems to me that both 1 and 2 would fall under the rubric of “fathers… actively seek[ing] custody”, and I see nothing within the passages you cite to indicate that the statistics quoted do not refer to the aggregate of the two

    The introductory paragraph to the longer section I quoted said:

    Although perceptions of bias that discourage fathers from seeking custody are a concern, the outcome of cases in which custody is contested provides a more direct source of information about possible judicial gender bias. We heard testimony from George Kelly, a representative of Concerned Fathers, that in contested custody cases, mothers are awarded physical custody over 90% of the time. Mr. Kelly was unable to provide substantiation, however, and our own investigation revealed a very different picture.

    Introducing the passage this way certainly implies that the cases they are studying are cases in which “custody is contested.” It would be nonsensical for them to open with an argument that the most “direct source of information” is contested cases if the statistics to follow do not actually refer to contested cases.

    Secondly, the passage quoting refers to custody being “awarded” or “ordered,” as in the following:

    In two-thirds of the cases in which fathers sought custody, they received primary physical custody (42% in which fathers were awarded sole legal and sole physical custody, plus 25% in which fathers were awarded joint legal and primary physical custody). Joint physical and joint legal custody was awarded in 3.5% of cases. In 11% of the cases, mothers received primary physical and joint legal custody; in 12%, mothers were awarded sole legal and physical custody; other custodial arrangements were ordered in the remaining cases.

    But the court does not award or order custody in cases in which the parties mutually agree on father custody (your case #2); courts only award or order custody arrangements when the parties are contesting.

    I’d be more certain if I was able to find a more detailed account of their survey. But from what’s available, it appears to me that you and Cathy Young are mistaken.

  28. 28
    Daran says:

    It would be nonsensical for them to open with an argument that the most “direct source of information” is contested cases if the statistics to follow do not actually refer to contested cases.

    The phrase you quote is used by them only in connection with the testimony of George Kelly, which they dismiss. However nonsensical it might be to attempt to support (or in this case rebut) a claim or a position with non-relevent or partially relevent statistics, it’s hardly an uncommon practice.

    In the four paragraphs devoted to citing statistics, I count nine references to fathers ‘seeking’ custody (in various inflections of the verb), and no wording at all to indicate that these were only contested cases. It’s only when they draw their conclusions that they refer to contested cases. The impression I get is that in fact, their statistics do not support their conclusions, and that they’ve been bending over backwards to make it look like they do, without actually misstating them.

    The alternative explanation is that when they say ‘seek’, they’re just being careless. But if so, then they seem to have been very careful to be careless at every possible opportunity.

    In fact, the more I read from this report, the more I get the impression that the authors are fitting the facts to their conclusions rather than vice versa. Take the imediately following section for example. They state: “When fathers contest custody, mothers are held to a different and higher standard than fathers. In general, if custody is contested, mothers are scrutinized more closely than fathers. ” Yet the evidence they adduce for this proposition is ambigous, anecdotal, and conclusionary.

    I find it difficult to believe that the unsupported claims of “a Boston attorney” should be given more weight than those of a father’s rights activist, especially as it’s not hard to find attorneys who say the opposite.

    The remark by “a family service officer” could be interpretted as indicating bias against men rather than against women. If custody is generally granted to fit mothers, regardless of the fitness of the father, and if most mothers are fit, then the most economic approach would be to investigate her for fitness before investigating him, since this will decide the issue in the majority of cases. If he’s going to lose custody anyway, then there’s no need to investigate him.

    The remarks of “A witness from Greater Boston Legal Services” are annecdotal as are those of “one Boston attorney”. The latter doesn’t even indicate bias on the part of the probation officer unless it could be shown that he behaves differently towards female clients. Again FRA’s would not find it hard to describe countervailing annecdotes.

    The remarks of Sheera Strick are conclusionary with no evidence in support being adduced.

    Continuing to the next section, the slant becomes even more obvious. Half of probate judges hold traditional views about the roles of Mothers in bringing up their children. That’s a reason to believe that mothers are disfavoured in custody battles? And when judges say something which contradicts the researchers’ biases, the judges only claim to believe what they say, and the authors try to find something to discredit them, in this case, in the form of “nearly a quarter of the family law attorneys surveyed”, who apparently carry more weight with the researchers than the over three quarters of family law attorneys who support what the judges have said. The rest of the section are just more annecdotes.

    And so it goes on and on.

  29. 29
    Daran says:

    Oops, forgot to address this:

    Ampersand:

    But the court does not award or order custody in cases in which the parties mutually agree on father custody (your case #2); courts only award or order custody arrangements when the parties are contesting.

    That’s not my understanding of how courts work. If the two parties agree on a particular matter then I would expect them to still apply for an order formalising the agreement, if only to ensure that the matter really is settled. I believe that the correct legal term for such an application is a ‘stipulation’.

    Also ‘not contested’ does not mean ‘agreed’. In some cases one party will apply for an order and the other will simply not contest it.

  30. 30
    Mendy says:

    Daran,

    Though I don’t agree with all of your conclusions, you are correct that most divorcing couples that have non-traditional custody arrangements or (in my case mediated) agreements, then have those agreements signed by the presiding judge.

    In my area, mediation is the favored method of custody resolution. And among the many single parents that I know, I only know a handful of fathers that have sole physical custody of their children, and many more mothers with either sole physical custody or joint custody arrangements.

    I don’t know for sure that there is a bias against women or against men, but I can say that there are stereotypes at work in the family court system that should be overhauled. Women are not necessarily better parents strictly by virtue of their ability to give birth, nor are all fathers deadbeats, though those images and ideas pervade the family court system.

  31. 31
    Tony says:

    Amp, I think you need to be careful about describing settlements as “mutual agreement.” Settlements of legal disputes are taking place in the shadow of the law, and what people will “agree” to depends on what they could get if they actually decided to fight things out on court. When Dad agrees to give Mom custody, this doesn’t necessarily mean Dad and Mom have talked things out and decided that all things considered the kids will be better off living with Mom.

  32. 32
    Lee H says:

    Most of the back and forth here seems to be very partisan, male or female perspective only. And much of that appears to based/biased on gender role stereotypes, and divorce stereotypes which are at the very least, not universally applicable.

    My position is that the laws overtly create “moral hazards” — they encourage bad behavior and divorce and child abandonment. They do this by encouraging “winner take all” renumeration and control, following divorce. “No fault” divorce substantially aggravates all of this… as does an uncritical adoption of “the best interest of the child” standard of custody.

    A scenario with real examples: A disgruntled spouse starts an adulterous relationship, files for divorce, and announces that this new relationship has produced a baby on the way. This is the “Susy has a little sister now” ploy — it’s fairly common. The argument is that “in the best interest of the child(ren)” they must not be separated from their new half-sibling, and the new family will inevitably be parenting anyway.

    Sadly, this ploy commonly prevails, trumping all other arguments. Most judges immediately grasp the gross moral failure here, but cannot or do not see it as enough to overturn the apparent “best interest of the child”

    Statistics for this particular scenario are hard to get and the cases aren’t extremely common. Gathering by word of mouth/survey is obviously biased. But in the 6 cases I know about which are like this in the capital district of New York … in 5 cases the adulterous spouse was the wife and she did indeed get custody every time. The sixth was a man, and he lost it. What does one make of this?

    Variations on this theme are common, but as a general rule adultery does pay, at least if done “smartly,” particularly with very small children involved. The first “profitable” adultery wins. The law turns marriage into what is commonly called “a mexican standoff.”

    The “child support” formulas encourage seeing the child as a “profit center” (or at least “stop loss”) to be fought over. In New York at least the child support is commonly not apportioned on visitation. The effect of it commonly is that the non-custodial parent, paying child support, is reduced to living in a small apartment, while often paying more than the mortgage of a very expensive home … where the spouse lives with their new partner. Is it no wonder that under these circumstances the non-custodial involvement tends to drop off?

    So far this appears gender neutral… but you know it isn’t. Generally it’s the man paying, watching his ex live with a new man at his expense, in a house (often what was his house) he can no longer remotely afford. And when you look at orders for child support in the case where the man has obtained custody, very rarely will the courts award him child support. The formula is supposed to be blind in this regard but the application is anything but.

    I don’t know of any man in the area with custody, who is collecting child support from the mother … period. As far as I can see, that only happens in “Britany Spears” cases.

    If you ask me how to “solve” these issues … I don’t have a clear answer. But the system as it stands is disastrously broken, and actually promotes endless misery for families.

    Perhaps many of you will find it illiberal of me — but I think the primary idea of “no fault” is ridiculous… when there are children. With children, parents are supposed to stay married and make that marriage work, because they committed to do so and it is clearly in best interest of the child. I cannot see that even a “good” divorce is better than a reasonably-functional marriage, for the children. It is the moral and adult responsibility of the married parents to be able to do this. If they can’t … then prima facie “they” are not acting in the best interest of their children. Somebody, perhaps two somebodies … is at fault and that fault is not acting in their child’s best interest.

    Divorce is not in a child’s best interest. Somebody is responsible — possibly both parties are responsible — but they shouldn’t be rewarded for it.

  33. 33
    John Anderson says:

    “When they say “fathers who conceded custody at lower levels of the conflict pyramid,” they are referring to fathers who choose not to appeal after losing custody in a lower court. Counting all cases, mothers win twice as often as fathers; counting only those cases in which neither party settled for the lower court decision, fathers had about a 50/50 chance of winning.”

    That actually proves that fathers face bias in the court system. If the lower courts ruling was correct, it would not have been overturned.