Suits Say 'Child's Best Interest' Violates Parent Rights

December 17, 2004

Seeking class action status in federal lawsuits filed in 46 states, an Indiana fathers' rights group charges that gender bias against men influences custody and child support rulings.

Drafted by the nonlawyer president of the Indiana Civil Rights Council, the complaints argue that fit parents have a constitutional right to equal custody, but the "child's best interest" standard used by the courts often violates that right. Also, the complaints argue child support guidelines are unconstitutional.

"The state, as a whole, and by misusing the vague and inferior 'best interest' notion, has been engaging in a standard practice of unlawful takings of the various rights to custody that should be constitutionally shared equally between natural fit parents who do not remain together," contends the complaint filed in U.S. District Court for the Southern District of Indiana.

The author of the complaints, which are mostly identical, is Torm L. Howse, a former project manager. He is also the pro se plaintiff in the Indiana filing. The states, rather than state officials, are named as defendants.

"No one is wanting to automatically elevate any parent who has a substantial documented history of abuse or neglect. That would not be reasonable or prudent," says Howse, himself a noncustodial parent. "But every parent in future cases should have their constitutional rights protected."

Howse says the cases were filed pro se because "we're very leery of involving professionals. Attorneys generally do not stand up for our rights." However, he says the group may retain counsel in its New York filing with a law firm that specializes in national class actions. Howse would not reveal the firm's name.

Lawyers interviewed for this story don't give Howse's lawsuits much of a chance for success, but they say he has raised some important issues.

Generally, if a father has good facts supporting that he is a primary or equal caregiver, courts award him primary or equal custody, says Robert B. Guyot III. However, he also says that men often have to work harder than women to prove that in court. Guyot chairs the custody committee of the ABA's Family Law Section.

"Anything that men's rights groups do to bring their plight to the attention of the courts is great," adds Guyot, who practices in Traverse City, Mich. "Even if they don't prevail ultimately, it's not bad to bring the issue to the forefront."

That being said, courts are getting better about recognizing men's roles as fathers, according to Guyot. He mentioned a former male client who was a long-haul truck driver and on the road five days a week.

On the weekends, the man would come home and perform all the household chores, Guyot says. That included fixing family meals ahead of time so the family could eat when he was on the road.

"He raised the kids while the other parent sat back eating bonbons," Guyot says. "He got custody, and it was clear that he was the primary parent."

Alternatively, some family law attorneys find the complaints troubling because, they say, the arguments put a parent's constitutional rights ahead of a child's.

"I think they have an underlying grievance with gender bias, but I do not think they have a complaint that there is a constitutional right to 50-50 custody," says Laura Morgan, a Charlottesville, Va., lawyer who is editor of the Family Law Section's Family Law Case Update.

"I think that's absurd," she adds. "Children are not community property."

Gerald L. Nissenbaum, a Boston lawyer and former president of the American Academy of Matrimonial Lawyers, agrees.

"Look at it from the kids' point of view-if the father wasn't the equal or primary caregiver before the marriage dissolved, it doesn't make sense to put the father in as an equal or primary after the marriage has dissolved," he says. In his experience, he says, many men ask for equal physical custody so they can pay less child support.

A few years ago, a fathers' rights group in Wisconsin succeeded in getting a bill through the state legislature that mandated equal custody placement, but the governor vetoed that portion of the bill in 2001. It was replaced with a standard requiring courts to consider placement that provides as much access to the parents as possible, and creating a presumption for joint legal custody.

"I've always agreed with the idea of joint legal custody, but placement is a different issue," says Linda S. Balisle, president-elect of the American Academy of Matrimonial Lawyers' Wisconsin chapter. In placement decisions, she says, children's needs trump parents' desires.

"Children already are the roadkill of divorce, and parents need to do anything they can to minimize that," says Balisle, who practices in Madison.

Besides advising clients on the situation, Balisle has personal experience with equal placement. She and her ex-husband decided to share custody of their son in 1979, when the boy was 3 years old.

The arrangement was somewhat revolutionary at the time, Balisle says, and took a fair amount of work. Both parties agreed to live within 10 minutes of each other so that their son was able to walk between their homes. To comply with the arrangement, Balisle had to move twice.

"We just tried to make it as least complicated as possible," she says.

  2004 ABA Journal