The inferior rights of men

Historically, children were regarded as the father’s pre-industrial assets and custody was out of question. Consequently, the `tender years’ doctrine dictated that young children be kept with their mothers (Newsweek, [Online], 1995). But as perceptions about parenthood changed, fathers have become just as much involved as mothers in nurturing their children. For this reason, today, many fathers are seeking primary or joint custody of their children when a marriage breaks down. However, it is questioned whether the court system is biased against men in matters involving custody and access to children when family breakdown occurs. It can be argued that, when deciding custody and visitation, a court gives the best interests of the child the highest priority and not gender (Levin ; Mills, [Online], 2003). Apparently, it is clear that in most custody cases; approximately 90% of the time, primary residential custody of children is awarded to mothers (McNeely, [Online], 1998), thus indicating the presence of gender bias in the family courts.

One of the things propelling prejudice against men in family courts is the basing of decisions on stereotypical attitudes and beliefs. Most judges in the family courts center their decisions on their own understandings and beliefs (Coleman, [Online], 1999). McNeely also writes that, `Many judges raised in traditional homes consisting of fathers as breadwinners and mothers as caretakers have resisted letting go of the `tender years’ doctrine, (Online, 1998). That simply shows that some judges still believe that children below the age of five need their mothers to grow hence the reason why such judges award custody to women. In support to that, Henry further contends that, a West Virginia Supreme court justice was quoted saying; `We do the standard drill. She gets the children.

Men don’t care, basically, about anything other than money’ (Online, 1998). Other myths in courts systems are that men are not usually capable of being custodial parents as are mothers etc. Such hackneyed beliefs of most judges in family courts have been discriminating against men and damaging towards child-parent relationships as most men are separated from their children via unfair court decisions.

Regardless of constitutional pledges of equality, some people are less equal than others. This is the message passed on to men when custody is awarded to women after a custody evaluation. At many times, courts request forensic evaluators to do custody recommendations after doing an evaluation of both parents. Nevertheless, A. Cowling writes that, `in most cases, the `experts’ who handle these assessments are not anymore competent in making noble custody decisions than a knowledgeable family court judge’. He further adds that even reputable evaluators find themselves favouring a particular parent in a custody dispute for reasons that have little to do with the quality of parenting offered (Online, 2003). Therefore, it can be noted that even in these evaluations to determine `the best interests of the child’, there is the possibility of favouring the mothers by evaluators hence making the court decision biased. Hughson also argues that there is doubt on whether the evaluation process can be fair or lucid because it is constructed without a standardized testing or benchmarks. In addition, he says that `usually, “best interest of the child” is the shorthand for “kids go with mom and dad gets to see the kid over the weekend .” (Online, 2003). Bringing it to a close, it can be said albeit the use of custody evaluators in a custody case, there is still some existence of bias against men as some evaluators tend to favour mothers.

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Posted by jonjayray on Wednesday, December 29, 2004 at 06:12 PM in Law
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Comments:

Posted by Mark Richardson on December 29, 2004, 09:30 PM | #

This is another of those liberal inconsistencies. Liberals generally argue that gender roles are oppressive social contructs which we have to overthrow in the cause of individual freedom and equality.

However, when it comes to deciding custody issues, the liberal establishment keeps to a more conservative view, that mothers are the natural primary carers of young children. Suddenly, this maternal role is no longer treated as a mere “gender stereotype” or “social construct” but is treated as a really existing part of human nature.

Having said that, the issue of custody is a tough one for conservatives. In general there does exist a special relationship between mother and child, and it’s understandable that the courts don’t want to sever this important relationship.

On the other hand, there is a deep injustice to fathers in current no-fault divorce arrangements. A wife can divorce her husband without him having done anything significantly wrong, and he is likely to find himself separated from his own children, and yet still expected to spend his life working to provide for a family he has been removed from. The legal protection for men within marriage seems grossly inadequate.

I’ve written a short article on this very topic titled A victory for the family?

Posted by Braveheart on December 30, 2004, 06:48 AM | #

In Belgium the Walloon/left-liberal establishment is more consequent about this, see below. Why? Because they want to preserve the rights of Muslim fathers?

In Belgium a new law will soon be introduced that imposes 50% custody to each parent gender, in fact taking to a large extent the decision out of the hands of the judge, except for the case that there is a mutual agreement, to arrange it otherwise. But people in the field are not happy with this new development.

Also to note: the rights (mainly of the father) can under the new legislation be claimed with additional enforceable procedures.

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