Tuesday, June 24, 2008

What To Do About Custody

I recently heard a report about legislation proposed in New York regarding parental rights in the case of divorce. 

The legislation proposes that in divorce cases, joint custody should automatically be granted.  Fathers' Rights groups are pushing for the law while Mothers' Rights groups are adamantly opposed.  Who's right?  From where I sit, both.

Let's look at the mothers' side for a moment.  Arguments from one group center around domestic violence.  We certainly know that most  domestic violence occurs on the part of the man (but by no means all.  There are many studies that show men suffer domestic violence far more than previously thought but are less likely to report it).  The argument is that, if you grant automatic joint custody, there's little protection for children who are at the mercy of violent fathers.  

Domestic violence is a serious matter and certainly cannot be overlooked.  It harms children (and spouses) in so many ways, not the least of which is to often turn those children into future batterers.  Regardless of how the legislation goes, there must be sure and certain protections against abuse.  Period.

Too often, when there is violence, mothers and children are forced to leave their homes -- often forced into battered women's shelters -- while the batterer stays in the house.  Too often in divorces where there is no issue of domestic violence, women are still the ones who leave the marriage with little or nothing and making it difficult to care for children.  The situation is changing for the better, but it needs to improve dramatically.

Likewise, on the fathers' side, much can and should improve.  Orders of protection are routinely placed against fathers whether or not they have ever struck anyone in their lives.  They are routinely told their existence only matters for their ability to produce child support.  They are routinely told that children need mothers, that fathers aren't really necessary.

Obviously, the best path lies somewhere in the middle.  As a pastor, I have had many divorcing parents in my office, and I see the pain that both feel.  In most cases fathers and mothers alike desperately want what is best for their children.  In most cases, neither parent is an abuser and each longs to play a vital role in their children's lives.  The courts need to start out with those assumptions.

So, my humble suggestion for this legislation is that joint custody should be the default setting in divorce cases based on the assumption that a consistent living pattern with both parents is crucial to a healthy childhood.  

Of course, if one parent, under oath, accuses the other of domestic violence, then temporary custody should be granted to the accusing parent, while supervised regular visits should still be available to the accused.  Depending on the age of the child(ren), their input should be taken into consideration.

Once an accusation is made, however, there needs to be a heavy burden of proof on the accusing parent.  The potential for abusing the system with false accusations is high, and emotions get hot in divorces, especially when children are involved.  Should it be proved that the accusation was false, there should be legal ramifications.

The last suggestion I would make is that both parents be required by the courts to attend counseling or classes -- not to try to save the marriage, but to learn how to effectively parent together in this new and unsettling way of life.  Even if they can't stand each other as spouses, they must learn how to be partners in childrearing.

There are many websites for Fathers' Rights and Mothers' Rights groups.  They have legitimate complaints but some are blind to the obvious.  Children need both parents.

Divorce is necessarily messy and painful.  It's one more sign of our imperfection as human beings, exposing the ugliest facets of a relationship and raising countless complex issues.  There will never be perfect resolutions.  But making joint custody with mandatory "divorced parenting classes" the default setting is a start.