More Dads Getting Child Custody

Thanks to Family Law Prof for something I missed - a  New York Times article on more fathers getting custody of their children.  I am naturally skeptical about anything that tries to generalize about 2.2 million people scattered across 50 states.  Then when I reached the New York Times, I learned it was a blog post commenting on

Reading the comments to the comments I was struck by two things.  First being the number of people who toss around unfitness of the parent.  Unfitness of the parent is not the standard in Indiana for a parent-to-parent custody case.  The standard here is best interests of the child - the parent does not need to be unfit.  Unfit means a truly terrible parent.  In a parent-to-parent case, unfitness means a rather simple case.

The second thing was this comment that captures most of my experience up to a few years ago and signals to me a true change for custody cases:

It's not a raw deal at all - it is an expected, and welcome, shift (FWIW I am a mother).

Now that family courts can see that the father has been, and can continue to, provide the day to day and minute to minute care that a young child needs, in 1/2 the cases, he is getting custody. Which is a break from the past where fathers who contested for custody oftentimes were mostly trying to avoid child support payments, and it was clear to the court that the child would be raised largely by a grandmother or aunt or even daddy's-new-girlfriend. Now that fathers have a different role, they have a credible case to make.

This is a sign of progress.

The cases where I have gotten custody for a father after a contested hearing involved mothers who showed poor judgment, a desire to have "fun"  and some involvement in drugs.  The fathers put their children's interests ahead of themselves (which, for me, is the essence of best interests of the child).  Then, too, the fathers had the backbone to fight for custody.

On the other hand, I defended a mother who was struggling to make ends meet, had had to move three times in the preceding year (usually a sign of instability which our courts do not think is in the children's best interests) against a father who tried very had to remove the child from Little League baseball (which the child loved) and who claimed that the child's baby teeth were rotting in his mouth (although his own witnesses testified to not noticing any problems with the child's teeth).

Reading the original article, Custody Lost, I am really struck by how much of its discussion focuses on the amount of time is lost to work.  I did have a Delaware County case this year where mother lost her job and the judge considered that against her as custodial parent.  Indiana's economy has been so bad for so long that  I think we are all accepting that both parents have to work just to make ends meet.  So I am a little confused with these statements:

As progressive as we think we are, the courts haven’t fully grasped the many roles of working mothers. “Culturally embedded attitudes and roles are hard to change,” maintains Diana Dale, founder of the Houston-based WorkLife Institute. “Sometimes it takes three or four generations to make the attitude and behavior shifts.”

Today’s working women still face pressure to function in the traditional mother mode—even after a day at the office, says Ken Neumann, PhD, a New York City psychologist and divorce mediator. “Working mothers have a really bad deal because they have to do everything,” he says. “We don’t put that kind of pressure on men except in unusual circumstances.”

I would prefer to think that we have come to realize that the sex of the parent does matter in a custody case, that some women just as some men have no business having complete control over the raising of their children.  In short, that we look first at what the children need and then at how each parent can contribute to meeting those needs.  That men can meet those needs appears to be as well recognized when properly presented to a judge.  Therein may lie the real story:  that men bring their lawyers good cases who present those cases properly to a judge.

Mind that most of the discussion here has been about contested custody cases.  Settlement can be a good idea if the reason for settlement is the best interests of the child and not from fear.  This paragraph from Custody Lost provides a good insight into my meaning:

Many of us are looking at custody the wrong way, maintains Barbara Glesner Fines, a noted law professor at the University of Missouri–Kansas City School of Law. “The question shouldn’t be ‘How can I get or win custody?’ but rather ‘How can I make sure this re-formed family will function in a way that is good for the kids?’ Divorce is just the beginning of a lifetime of parenting your children with this other person. You’ve got to make that work.”

Finally, more might be learned from another New York Times article, Fathers Gain Respect From Experts (and Mothers). Thanks to Domestic Diversions blog for writing this up (and I do suggest that anyone reading this, go to Domestic Diversions and read the comment to its post. Lots of wisdom in one short comment.)