Let’s stop acting in children’s worst interests
Published 7:49 am Saturday, June 18, 2016
By Mark Henricks
Child custody inequality is one of America’s biggest unaddressed human rights violations. It grievously harms many millions of children, parents, grandparents, aunts, uncles, cousins, in-laws and others, in addition to society overall. Almost no one is unaffected by this tragedy. And it is founded upon a basic error.
In divorces involving minor children, we ignore equality. Instead of granting a child equal access to both parents, we overwhelmingly grant one parent, almost always the mother, a lopsided share or even complete monopoly of the ability to parent the child.
Despite long and dedicated efforts by many people committed to custody equality, change has been difficult. In fact, no state today requires that a fit and willing parent receive equal custody.
Across the country, numerous bills that would require custody equality are introduced to state legislatures every year. And, every year, these bills are blocked by opponents. There are many reasons why this keeps happening, ranging from bureaucratic apathy to political arm-twisting to built-in financial disincentives.
However, one of the biggest obstacles is the idea that the current system is in the “best interests of the child.” This concept has long been the legal standard used to determine custody virtually everywhere. It sounds great — who is against what is best for a child? As applied in divorce, however, it is inappropriate, illegitimate and harmful.
Much research shows that children are best raised by their parents. And our laws clearly recognize that, because any effort outside divorce to separate a parent and child must meet a high standard.
Outside divorce, no one can force a parent out of a child’s life simply because another person might be better at raising the child. In divorce, however, one parent, almost always the mother, is seen as the superior parent. The father is reduced to, at best, being little more than an occasional visitor in the child’s life.
The fact that this only happens in divorce was made explicit to me recently when I was called for jury duty. The state in this case wanted to remove children from a married couple. The jury pool did not learn details of the alleged parental misbehavior.
However, attorneys stressed that the outcome could not depend on whether someone else might be better than the parents at raising the children. It had to be shown that the children were harmed or would be harmed unless they were removed. This is very different from divorce, where a subjective, arbitrary, gender-biased and usually pre-ordained evaluation of relative parenting skills is the deciding factor.
Actual harm is the legal standard in negligence and abuse cases because parents have an established constitutional right to raise children as they see fit. Relative parenting ability is not a factor.
Except in divorce, no one can tell a parent, “We think someone else would be better at raising these children, so you’re out.” Yet that is exactly what happens hundreds of thousands of times a year in divorce.
Why in divorce? One argument is that divorcing parents can’t agree. However, all married couples disagree to some extent, and childrearing is a major area of disagreement. But we never separate children from married parents, no matter how much they disagree. So why do it in divorce?
This is a double standard. If it’s wrong in abuse and negligence cases with single parents and married couples, it’s wrong in divorce. Parents’ ability to get along lacks relevance. And many divorced couples do agree well enough to raise children. But even then, children are routinely placed with the presumably superior parent while the other must watch from afar.
It doesn’t happen only to fathers. Mothers can also be forced out of children’s lives if they are made to appear less fit. Sometimes perfectly fit and loving mothers or fathers are stripped from children’s lives merely because they lack the financial resources to pay an attorney. This is clearly wrong and deserves a remedy.
Fathers are, however, particular targets thanks mostly to outdated gender role stereotypes of men as inferior parents. Of course, fathers are not inferior parents, any more than women are inferior employees, soldiers, firefighters or politicians. And equality, justice, fairness and children’s real best interests require that we stop acting as if it were so.
This Father’s Day, let’s stop acting in children’s worst interests. A child should never lose a parent, and a parent should never lose a child, because of a prejudice that one parent is better. Call or write your state legislator to back custody equality. Support organizations working to achieve equal custody. The real best interests of our children demand it.
Mark Henricks is an Austin, Texas, father, journalist and equal custody advocate.