Jewish World Review July 2, 2003 / 2 Tamuz 5763

Wendy McElroy

Wendy McElroy
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Rebuttable presumption of joint custody


http://www.NewsAndOpinion.com | 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."

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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.

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JWR contributor Wendy McElroy is the editor of Ifeminists.com. She also edited Freedom, Feminism, and the State (Independent Institute, 1999) and Sexual Correctness: The Gender Feminist Attack on Women (McFarland, 1996). She lives with her husband in Canada. Comment by clicking here.

Up

06/18/03: A Conscientious Objector to the Gender War
06/04/03: Gender issues impacted by masculinists
05/28/03: The value of error
05/21/03: U.S. to Fund Gender Feminism in Africa?
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04/28/03: The Great Lie
04/16/03: War may redefine gun control
04/09/03: Why we must discuss a post-war U.S.
04/02/03: Leftist feminists using war as podium
03/26/03: Laying down 'the white woman's burden'
03/19/03: Iraq War may kill feminism as we know it
03/13/03: A woman to replace Saddam
02/19/03: Elder abuse demands family solutions
02/13/03: Iraqi women brutalized by Saddam
01/29/03: There ought not to be a law
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01/02/03: The future of fatherhood
12/26/02: U.N. complicit in forced sterilizations
12/20/02: Compassion, kindness killed by fear, paranoia
12/11/02: Affirmative action insults immigrant contributions
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11/27/02: Feminist fighting: Aren't we all women?
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11/14/02: Feminist "urban legends"
11/06/02: Equal access does not guarantee equal outcome
10/24/02: Battered Women's Syndrome: Science or sham?
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10/09/02: Abortion debate is about to be ratcheted up yet again
10/02/02: 'Restorative justice' offers battered women more options
09/25/02: Why is prez promising to embrace UN radical social engineering programs?
09/18/02: Dirty dealings kill men's panel
09/11/02: Taking back your power
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08/21/02: Will Congress empower a group of radical feminists to oversee money slated for Afghan women?
08/14/02: Empower the U.N. with power to sculpt American laws and institutions into the image of gender feminism!?
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07/24/02: All male, bad. All female, good: Your tax dollars at work
07/11/02: Put Up or Shut Up
07/03/02: NOW they've done it, again!
06/19/02: A dark cloud shades U.N. Women's Treaty
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05/31/02: When good women do nothing
05/28/02: Feminists claiming motherhood as liberal cause
05/20/02: Wounds in health care system are self-inflicted: Or, why "my son the lawyer" makes more sense
05/10/02: Are parents boycotting public schools?
05/03/02: Women can't be gun-shy about defense
04/25/02: The Bill of Intellectual Rights
04/19/02: World Bank or World Government?: The World Bank is blackmailing impoverished nations
04/12/02: Victims From Birth: Engineering Defects in Helpless Children Crosses the Line
04/05/02: The professor made me cry, now I will make him pay!
03/31/02: Doctors and teens --- parents be on guard
03/22/02: I was born, now I'm suing you!
03/15/02: The 21st Century is knocking at the barricaded door of feminism
03/08/02: Fun and games at the Ms mag Bulletin Board
03/01/02: Andrea Yates, NOW, and Feminist Jurisprudence
02/22/02: Lady, Your Slip is Showing
02/14/02: 'Abusing' Valentine's Day
02/11/02: Is NOW Pro-Choice or Pro-Abortion?
02/01/02: Are 'fathers' rights' a factor in male suicide?
01/25/02: Is the U.N. Running Brothels in Bosnia?
01/18/02: 'Freedom' at another's (moral) expense
01/11/02: Feminists hit Ground Zero with WTC funds grab
01/04/02: Males winning "diversity discrimination" cases is good?
12/21/01: Good will toward men
12/14/01: "Boss Tweed" feminism
12/07/01: Call me 'anti-woman'

© 2001, Wendy McElroy