Except for the battlefield, family court has to be the last bastion of legally enforced sexism in our society. State statutes that determine child custody arrangements and child support may be written in gender-neutral language, but they are not applied that way. Traditional concepts of the family - where the father is breadwinner and the mother controls the domestic sphere - permeate the process, often disadvantaging men who want an equal opportunity to rear their children.
David Blankenhorn, who wrote Fatherless America, says absent fathers are "the most destructive trend of our generation." But our institutions are adding to this crisis by overwhelmingly preferring the mother as the primary parent. Mothers make up five of every six custodial parents, with the system essentially telling fathers that their worth is that of check-writer.
Why is a father who gets up and goes to work every day in order to provide his children with a decent standard of living seen by the courts as less nurturing than the parent who stays home, enjoying the fruits of that labor?
I see both acts as at least equally caretaking. Yet due to a series of unwritten and unspoken gender-related assumptions, family judges tend to give mothers both decisional control over the children and financial support after a family breakup. This gives women an incentive to dissolve their relationships, as demonstrated by the fact that women initiate divorce in about 70 percent of cases.
I can imagine what dads must feel in receiving "visitation" with their children. The very notion that fathers are just "visiting" is deeply disturbing, suggesting that a father's company is like a trip to grandma's.
In a 1998 Florida State Law Review article on gender bias in family court, editor in chief Cynthia McNeely wrote: "If the treatment fathers receive in family court occurred in the workplace, an affirmative action plan would likely be implemented to rectify the pervasive discrimination and barriers fathers encounter as they seek meaningful access to their children."
Interestingly, this is one form of sex discrimination that is not only accepted but jealously guarded by feminist groups such as the National Organization for Women. In a memorandum written by NOW's government relations director in 2000, the organization denounced "men's custody groups" such as the nonprofit Children's Rights Council, because they aid "noncustodial dads in reducing their child support obligations and (in) taking away custody from moms." (According to its Web site, the mission of the Children's Rights Council is "to assure a child the frequent, meaningful and continuing contact with two parents," a dangerous notion to those feminist groups that want fathers to pay up and shut up.)
When men gain reasonable access to their children, women's groups cry foul. Last month, the California Supreme Court ruled that a divorced mother who had been awarded primary physical custody of two young sons could not move them to Ohio with her and her new husband.
In an eminently fair and reasonable decision, the high court upheld a lower court determination that moving the children so far from their father would preclude them from having an ongoing relationship with him. The Contra Costa County Superior Court had said the mother could move but she would have to relinquish custody to the father.
The California Women's Law Center called the Supreme Court's ruling "a huge step backwards" and said that a "legislative fix" is needed that would return to custodial parents a presumptive right to move away and take the kids.
Talk to Dan Montagna and the real costs of a policy like that become clear. A Pinellas County charter fishing boat owner, Montagna has been battling his ex-wife for years to prevent her from moving to California and taking their 7-year-old daughter. He says he is deeply involved in his daughter's life, accompanying her to school and gymnastics training. "She's everything," he says of his little girl.
Montagna's lucky. Since 1997 the law in Florida has been changed to end the courts' prior practice of favoring relocation for the custodial parents. So far, with help from attorney Peter Meros, Montagna has been able to keep his daughter here. But not every state has progressed to recognize that children need their fathers as well as their mothers to be part of their day-to-day lives.
Part of the problem is the legal standard used to resolve custody issues, where judges apply a "best interest of the child" analysis and thereby allow their inherent biases toward maternal nurturing to seep in. To ward against that, I suggest the adoption of a new standard recognizing that the children's interests are no more important than the constitutional rights of both parents to actively rear them.
Fathers are becoming an endangered species in part because the family courts don't fully appreciate their equal claim to their children. Sexist notions of gender roles inform too much decisionmaking, transforming too many men from engaged parent to alienated visitor.