I’ve had not a few things to say about the family law system in this country, and in this state, over the years. The disintegration of the family is a plague on the society – and needs to be addressed.
But while we’re working on fixing that, there’s some slightly-lower-hanging fruit to deal with; the divorce and child custody systems.
As I noted earlier this week, there’s a proposal in the Senate to create a “rebuttable presumption” that joint physical custody is, in fact, in the best interests of the children in divorces.
Joe Doakes – a lawyer – writes:
I was a divorce lawyer for a dozen years in the late 80’s-early 90’s. My experience and research is 20 years out of date but I think [the proposal to create a presumption of joint physical custody] is still good law.
Minnesota divorce law contemplates two kinds of child custody: legal custody (which parent makes decisions about the kid’s religion, education, medical attention) and physical custody (which parent does the kid live with).
Legal custody is usually shared because even if Mom and Dad can’t live together, they generally can set aside their differences long enough to make important decisions about health and education. The proposed law would not change that.
Minnesota’s physical custody statute 518.17, 2011 Minnesota Statutes, sets forth a list of detailed factors the Court must consider before awarding physical custody to one parent or the other when joint custody is sought. The fundamental test is “best interests of the child.” One of those factors is “primary caretaker” and the factors to determine who that was, were set forth by the Minnesota Supreme Court in Pikula v. Pikula, 374 N.W.2d 705 (1985) as:
“ . . . (1) preparing and planning of meals; (2) bathing, grooming and dressing; (3) purchasing, cleaning, and care of clothes; (4) medical care, including nursing and trips to physicians; (5) arranging for social interaction among peers after school, i.e. transporting to friends’ houses or, for example, to girl or boy scout meetings; (6) arranging alternative care, i.e. babysitting, day-care, etc.; (7) putting child to bed at night, attending to child in the middle of the night, waking child in the morning; (8) disciplining, i.e. teaching general manners and toilet training; (9) educating, i.e., religious, cultural, social, etc.; and, (10) teaching elementary skills, i.e., reading, writing and arithmetic. . . . “ Pikula, at 713. [case attached]
For convenience, I’ll call this the “primary caretaker” system as that seems to be the emphasis.
And these factors that undercut the notion that “the system is biased against men” – it’s really a matter of counting up how many factors each parent “wins” – and points you to the truth; it’s biased against traditional male gender roles. Parents can be “tied” on every single factor in determining custody – every single factor – but if the children spend four days a week with Mom as the main caretaker, and three with Dad, then that’s the factor that’ll settle custody.
From what I’ve read in the news accounts, there doesn’t seem to be any dispute about the basic facts: the primary caretaker system gives Mom custody 85% of the time; single-mother households struggle with poverty; and children raised in poverty in single-parent households fare less well than children raised in poverty from two-parent households.
Mothers are different than fathers; there’s a reason humans evolved to have one of each in the “ideal” household. Girls who grow up with impaired relationships with fathers statistically grow up with self-respect issues, depression and all sorts of trouble finding surrogate daddy figures in their lives. Boys without fathers simultaneously grow up unable to process anger effectively and, perversely, risk averse; mothers are not generally temperamentally the physical risk-takers among kids’ parents.
There doesn’t seem to be any dispute with the conclusion that the primary caretaker system is an abysmal failure for many children.
From those facts and that conclusion, it seems fair to say that the primary caretaker system is NOT in the children’s best interests.
Now, saying the primary caretaker system is bad doesn’t mean this proposed legislation is good. But if we’re convinced the primary caretaker system is not in the children’s best interests, then it follows that we have a moral obligation to junk it. For the children.
There are arguments against the presumption of joint physical custody. Feminists insist that it’ll allow “abusive fathers” to raise children; the law would, in fact, allow proof of abusiveness to “rebut” the presumption – which would give men actual legal rights, which irks feminists. Currently, as many as half of all allegations of abuse during divorces are shown to be false, raised purely to affect the custody process. And it works. Requiring allegations of abuse to meet a legal standard to rebut the presumption of joint custody would be a huge step forward. That’s why feminists hate the proposal.
The “family law” lobby’s objections, if anything, are more cynical. Their line is “if a couple can’t get along well enough to settle their differences enough to stay married, how can we possibly expect them to act in their kids’ best interest?” Of course, one of the reasons divorces are so ungodly emotional is because it’s a winnter-takes-all system that costs hundreds of dollars an hour and ends with one party – usually the father – exiled from the kids’ lives. The system – and the worst of the lawyers who earn their living from it – carefully fan that fear.
Any legislator, GOP or DFL, who opposes this proposal is going to get a molten-hot earful from me.