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In the best interest of the children...

By Wendy McElroy
web posted July 7, 2003

A new legal term is creating debate across North America: the "rebuttable presumption of joint custody."  It means family courts should presume that divorcing parents will equally share the legal and physical custody of children unless there is compelling reason to rule otherwise.

Advocates say children are more likely to emerge from divorce with both a mother and a father in their lives unless, of course, one parent is shown to be unfit. Why is this idea controversial?

PC feminist organizations, like NOW, claim that the rebuttable presumption of joint custody would cripple the current standard, which is "the best interests of the child." They claim the family court system  blindly turns children over to abusive fathers. Instead of joint custody, such feminists wish children to remain with "primary caregivers" -- overwhelmingly, the mothers.

The much publicized California NOW Family Court Report 2002 recommends, "Abolish the tendency to assume joint custody is always in the best interests of the child. This is a false presumption with no support in reality...Sole custody [should] default to the primary caregiver at separation."

In short, father's rights  advocates want joint custody to be the default position at separation. PC feminists want sole custody for the primary caregiver. Both situations would be rebuttable; that is, they could be revised by a court with cause.

Such feminists assume that the welfare of children conflicts with the parental rights  of non-primary caregivers, who are overwhelmingly fathers. Yet both groups claim to be furthering the interests of the child in promoting their preferred form of custody.

Each side of this debate can point to specific cases in which it is clearly in the interests of a child to be in the custody of either the father or the mother, not both. But specific cases do not make for good sweeping laws. If fathers can be said to benefit children in a general manner, then men as a category should not be slighted in custody arrangements simply because some bad fathers exist. The same statement could be made of mothers.

If children need both mothers and fathers, there should be a presumption of joint custody  upon separation. When exceptions to the rule arise, when a father or mother is an inappropriate parent -- for example, he or she is physically abusive -- then the custody arrangement would be "rebuttable."

In arguing for the importance of fathers, joint custody advocates point to research such as 100 studies presented and analyzed in The Importance of Father Love: History and Contemporary Evidence," an essay published by the American Psychological Association . The essay concludes that good fathering is as important a factor as good mothering in the "social, emotional, and cognitive development" of children. Father-deprived children were far more prone to drug abuse, crime, depression, and violence.

At least two aspects of child custody would be significantly impacted by a joint arrangement. Monetary: money is far from the most important value parents offer to children but it is an essential one. Joint custody may alleviate a major complaint heard from sole custody mothers: deadbeat dads  who do not pay child support reliably.

The Hartford Advocate repeats a theme common to father's rights advocates, "There's an important link between the amount of contact a non-custodial parent has with a child and the willingness of that person to pay child support . In 1991, about 4.4 million non-custodial parents with visitation privileges and/or joint custody owed child support. Of that number, 79 percent paid all or part of it. By comparison, only 56 percent of the 900,000 people with no visitation or joint custody rights paid all or part of what they owed."

Physical: at the risk of stating the obvious, parenting requires regular contact with children. Alienated parents complain vigorously about "move-aways" -- custodial parents who move the children hundreds, sometimes thousands of miles away. (Although relocation may sometimes be necessary for reasons such as medical treatment, it is most often optional.) A study in the June 2003 issue of the Journal of Family Psychology examined the negative impact of moving-away on children. Father's rights advocate Glenn Sacks explains that "among 14 variables [in the study] related to a young adult's overall well-being, move-away status was correlated to significant, negative impact in 11 of them."

Joint custody would place some additional demands on separated parents, a greater demand for co-operation regarding children, for example. If so, this could be a good consequence. Moreover, there might well be less hostility in joint custody arrangements if only because power and responsibility would be legally shared.

Family law varies from state-to-state. In many states, judges will not order joint custody -- especially joint physical custody -- if one parent objects. These are "hostile parent veto states." It should take much more than an objection to strip someone of his or her rights as a parent. It should take real evidence of misconduct presented in court. Because every time you deny a person the right to parent, you are stripping a child of a mother or father. The rebuttable presumption of joint custody is in the best interests of children.

Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, Liberty for Women: Freedom and Feminism in the 21st Century (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

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