End Gender Profiling in Family Law

By Mark Charalambous, February 17, 2001

As the father's rights movement gains momentum and some much-needed recognition, it's instructive to periodically articulate the fundamental problem: Gender-profiling in family law, which virtually ensures that children lose any chance of a meaningful post-divorce relationship with their fathers.

Opponents of fathers rights continue to disguise their antipathy to it by hiding behind the "best interests of the child" mantra. The courts are not biased against fathers, they say, they merely follow the law, which mandates that custody decisions be made in the "best interest of the child." Moms usually get custody, they argue, because they are the primary caretaker or "nurturing parent" in the family. Ignoring for the moment that even when fathers are the primary caretakers they still somehow end up as non-custodial parents, this primary caretaker policy is a holdover from the "tender years doctrine," which is no longer coded in Massachusetts family law.

Because of the trend towards making the law gender neutral, it has become necessary to replace gender-specific language with politically correct code words, like "best interests of the child," "nurturing parent," and "abusive parent"

Personally, I believe the tender years doctrine made sense. But I'm one of those old fashioned people who actually believes that there are real differences between the sexes, and that in general, men do not provide the same care to infants as mothers. Can you say, "breast feeding"?

However, the social politics of the day dictate that the law recognize no difference between male and female. What's good for the goose should be good for the gander…

Though the tender years doctrine may have been expunged from the letter of the law, the policy not only survives, it thrives. The rule-of-thumb age of three has now been extended to twenty-three, the age at which child support ends for "children" in college.

The mistreatment of fathers, by virtue of their status as non-custodial parents, has become so punitive that the courts are loath to subject women to the same predations, further compounding the natural bias for maternal custody. Rather than division of family assets and alimony, it is the custody of the children that now determines the "winner" and "loser" in divorce. Because the stakes are so high, divorce battles spiral out of control, often resulting in the outright criminalization of the "loser" parent, along with his financial ruin and psychological and emotional destruction¾ and even suicide.

Any rational person who really places the needs of children above the politics of gender revenge must clearly see that our present method of dealing with divorce and family breakup is an unmitigated disaster. And it is too easy to simply wash one's hands of the problem by arguing for marriage-strengthening and divorce-discouraging remedies, though this is certainly a step in the right direction. Sorry, but divorce is not about to disappear anytime in the foreseeable future.

The only real solution is a radical change in how we deal¾ legally¾ with family breakup. The high stakes, winner-take-all paradigm must be abandoned. The adversarial trial system may be the best method to deal with torts and violent crimes, but it is the very worst way to reconcile differences between parents when children are involved. The only sane strategy is to enact laws, policies and procedures that discourage conflict. Due in large part to the billion-dollar domestic abuse industry, the present system not only encourages conflict, it even criminalizes communication between the estranged parents ¾ the worst of all worlds for the children caught in the middle.

As long as mom knows that divorce court will allow her and the children to move away from the family's former community, freeing her of the nuisance of dealing with her ex, and with her new lifestyle choice financed by him, the incentives for her to divorce will remain potent.

While it is true that the original sin belongs to the parents and not the courts, since by choosing to divorce they are implicitly asking the state to resolve their dispute, this does not mean that the state should abdicate its responsibility to arrive at a decision that minimizes the harm to the children¾ even if it means imposing a decision on the parties.

Family law must be changed so that divorcing parents know at the outset that the "winner" will not be empowered to discard the other parent. The guiding rule must follow the admonition, "You made your bed, now lay in it." Each divorcing parent, when electing to not work on their marriage and stay together for the sake of the children, must prepare for a post-marriage life where cooperation between the parties is expected and custody of their children is shared.

They must know that the law will not permit them to unilaterally move away from the family's community, unless they are willing to abdicate their custodial rights.

They must know that if they make spurious allegations of "abuse" they will be considered the parent acting contrary to the true best interests of their children, and can expect to be punished by losing their custody rights. With the growth of the domestic abuse industry this particular reform is of the greatest urgency.

And lastly, each parent must know that they will not be given a free ride from the other parent's "child support," which with Massachusetts child support guidelines' levels rising to over 40% of the non-custodial parent's gross income, has become little more than a euphemism for politically correct alimony. In an age where more women than men graduate college, and girls in general outperform boys scholastically, there is no longer any excuse to infantalize women further with excessive child support entitlements. Both parents must expect to bear the responsibility for financially supporting their own new household.

In short, "best interests of the child" must cease to be synonymous with "wishes of the mom."

When our approach to dealing with family breakup is changed along these lines, not only will children of divorce benefit from not losing one of their parents, but a greater commitment to making marriages work and consequent lower divorce rate is virtually guaranteed.