The Disposable Parent

You've never met my three lovely daughters—Laura, Bebo, and Lulie—but as a stranger turned friend, you could walk them down to the corner candy store for a soda, take them out to dinner, have them stay overnight with your children, come over to help them with their homework, or have them just drop by to visit.

As their father, I have none of these rights.

Although the letter of the custody law gives each parent equal rights in divorce, the court has done everything possible, under law, to make me an ex–father as well as an ex–husband, all in the name of ‘what's best for the children,’ a doctrine no one has been able to define legally or psychologically.

I've never lived more than five minutes—a few New York City blocks—away from my children since my separation or divorce, but, as far as the court was concerned, it would have made little difference if I had moved to the suburbs or to California.

This quote is taken from the introduction to ‘The Disposable Parent’ by William Haddad one of the book’s co–authors and echoes the feelings of many parents who have encountered the Family Court's process of determining custody.  While he writes about the American system, it is equally familiar to those who have experienced the Australian equivalent.  Haddad proposed to the judge a joint physical custody arrangement where he would share custody of his three daughters equally with his ex–wife.  He offered to submit the matter to a panel of psychiatrists in order to determine his fitness as a parent and the impact of the proposed arrangement on the children. 

When the hearing was over, the judge awarded Haddad’s ex–wife sole custody.  For the children this meant they could only see their father on Thursday’s after school until 8.00 p.m.   They were not allowed to see him at any other time, except when he drove them to school in the mornings.  They were not allowed to be with him the two or three times his ex–wife was not at home.  When she had to be out of town for a week or longer, the children were not allowed to stay with their father but were instead sent to stay with relatives or friends. 

In Haddad's case, his application for joint custody was refused despite the facts that his fitness as a parent had not been challenged.  He lived only a few blocks away from his ex–wife and the children would always attend the same school and never be far away from their friends.  From talking to his daughters, Haddad learned that the judge had talked to them in chambers and that each had told the judge of a desire to try the joint custody arrangement.  According to the children, the judge had tried to persuade them against their stated wishes and instructed them not to tell either parent what the judge had said or what preferences the children had expressed concerning custody.     

Given the factual situation, the outcome of this case seems unfair and possibly atypical.  But in fact, at operation in this case is the common presumption in favour of maternal custody.  The assumptions underlying such a presumption have been the object of frequent criticism by both courts and commentators.  What is not noticed, however, is that the presumption of maternal custody rests upon an even more important and general presumption—namely the presumption of sole custody.  The presumption is that one parent alone, rather than both parents together, should have custody of the children following divorce.

Joint custody is typically not awarded if one parent opposes it.  Australian Family Court statistics show that joint custody is awarded in just 2.5% of disputed cases (Family Court Statistics 2001).  In the twilight world of child custody it defines logic and what we know of human potential that the child’s human right to an equal relationship with both their mother and father is supported in only 1in every 40 adjudicated cases.   Clearly, legislation is needed to protect the best interests of the child, and abrogate the obscene doctrine that one obstructionist parent can unilaterally deprive the child of a full relationship with the other parent.  

The most mean–spirited opposition to joint custody is that it should be rejected because of the risk of family violence. The opponents argue from a presumption of pathology, and urge a rule that assumes the worst behaviour of the most extreme individual is the norm. Policy cannot be made by anecdote, and the law should not be based on the presumption of pathology. The law should serve the vast majority of the fit and loving parents who simply want to be with their children.

It is clear that children in joint parenting situations have a better prognosis for post–divorce adjustment. What is disturbing about the current debate, is the extent to which myopic and immoderate views have influenced the policy of bodies such as the 1992 Family Law Council, which explained its opposition to joint custody in the following terms:

Council's view is consistent with feminist criticism of the model, i.e. the model facilitates control over the child and the mother by the father, not a shared program of day–to–day care and residence.

However, replicated research does not support the Family Law Council’s conclusions.  Specifically, the evidence establishes that children in joint physical custody situations are more successfully adjusted overall, that parents with joint custody are less litigious than parents in sole custody, that parents with joint custody are more likely to comply with financial child support obligation, that joint custody benefits both parents and both sets of grandparents and that parents in joint custody are more satisfied with the custodial arrangements, even if they initially disagreed with the custodial decision. 

Both evidence and common sense suggests that only through some form of joint physical custody can a child’s rights to know and love both parents and both sets of grandparents after the divorce be assured.   It is time to realistically and fairly define the post–divorce relationship between the child and both parents on the basis of what can be demonstrated by substantial research evidence to be in the best interests of the child, rather than according to myopic ideology.

Sources

Roman M., & Haddad W (1978). The Disposable Parent: The Case For Joint Custody. Holt, Rinehart & Winston: New York. pp 1-15  

Residence Order Outcomes Data: Outcomes Report: Blackstone. Family Court Of Australia  2001

See also Bordow S (1994). Defended Custody Cases In The Family Court: Factors Influencing The Outcome. Australian Journal of Family Law. 1(8): 253–263 

Family Law Council Note (December 1992).  Patterns of Parenting After Separation. Australian Journal of Family Law Family. 6(3): 190. 

 

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