Civil Liberties

Quis Custodiet?

Equal access to children after a divorce


We now interrupt this presidential mud-wrestling match to talk about an election-related issue that has nothing to do with the war on terrorism, the war in Iraq, or the economy—but is nonetheless of vital importance to all too many people: shared parenting after divorce.

On Nov. 2, voters in 36 legislative districts and one Senate district in Massachusetts—more than a quarter of all voters in the state—will be able to vote in a nonbinding referendum instructing their representatives to vote for legislation that creates a presumption of joint legal and physical custody and equal access for both parents, unless one of them is unfit.

In the recent heated debates about same-sex marriage, gay rights advocates have rightly deplored the fact that same-sex partners lack basic rights in many areas, including custody rights when they separate after raising a child together. Yet even with the benefits of full civil marriage, an uncivil divorce can often leave heterosexual parents, especially men, feeling that they have few rights and few protections.

At present, 11 states and the District of Columbia have a legal presumption in favor of joint custody; another eight states apply such a presumption when both parents are in agreement. Massachusetts has neither. Fathers' rights groups such as the Fatherhood Coalition and Fathers and Families, which have succeeded in placing the joint custody referendum on the ballot, point out that the overwhelming majority of divorces involving children result in full physical custody for the mother.

When Joseph McNabb, professor of health care education at Northeastern University, analyzed custody decisions from Worcester Probate and Family Court in 1994-95, he found that fathers won sole physical custody (usually with shared legal custody) in slightly fewer than 9 percent of all cases. An additional 6 percent got shared physical custody.

Disparities—be they in the workplace or in child custody—are not automatic proof of discrimination. Men and women still tend to have different parental roles; many men never seek custody, because they don't trust their parenting skills, or because they feel that a child belongs with the mother, or because they're comfortable with the "weekend visitor" role. Others are persuaded, sometimes by their attorneys, that seeking custody would be too costly and painful to all involved. But bias in the courts plays a role as well.

Some feminists who see the fathers' rights movement as a patriarchal backlash like to cite the 1989 Gender Bias Study of the Massachusetts SJC, which reported that fathers who sought custody got it 70 percent of the time. But that includes contested and uncontested cases. The same study showed that mothers who filed for sole custody received it 75 percent of the time (with the rest usually getting joint legal/primary physical custody); the "success rate" for fathers was 44 percent. It also mentioned, when explaining why few noncustodial mothers pay child support, that "women who lose custody often do so because of mental, physical, or emotional handicaps." Fathers may need to be far more fit to prevail.

Many noncustodial fathers are able to maintain a close, loving relationship with their children. Too many others end up feeling, in the words of Arizona State University psychologist Sanford Braver, like "parents without children"—disenfranchised, hurt, and angered by being denied a meaningful role in raising their children. The answer is not to give fathers an equal opportunity to "win"; it's to ensure that both parents after divorce can remain parents, not winners and losers. Joint custody is not a panacea, and it may be harmful in a minority of extremely high-conflict divorces. But the evidence so far suggests that it's a good start. Not only does it alleviate the harmful consequences of divorce for parents and children; in some cases, it may prevent divorce.

Studies by George Mason University law and economics professor Margaret Brinig and other scholars have found that, state by state, high rates of joint custody awards are correlated with lower divorce rates. One possible explanation is that when both spouses know they will have likely have to cooperate with the other parent after divorce, they're more likely to make an effort to make the marriage work.

Not even the best policy can make divorce pain-free or problem-free. But we will make a step forward if we start to seek solutions based on a presumption of equality—the presumption that both parents need their children and that children need both parents.