Kevin Lowry’s attorneys told him he had no chance to get custody of his children, now 8 and 9 years old, in the wake of his divorce in 1999.
“‘The mother always gets custody,’ they told me,” the 52-year-old Alexandria resident says.
In Mr. Lowry’s case, this held true. He says the court order gives him visitation with his two boys every other weekend and every Wednesday.
“But I have daily contact with them by phone just to tell them I love them,” he says.
The court order will be in effect until the boys turn 18 years old, the age of majority in Virginia, unless it is appealed.
About 85 percent of custodial parents in the United States are mothers, according to a 2001 report by the U.S. Census Bureau. Custodial parent means the parent with whom the children primarily reside.
The fathers’ rights movement says this is unfair and is aiming to change it, says Mike McCormick, executive director of the American Coalition for Fathers and Children, a nonprofit District-based group.
“We believe the baseline should be equal time,” Mr. McCormick says. “We’re encouraging states and courts to see there’s a need for equality,” he adds, referring to custody rulings.
Glenn Sacks, a fathers’ rights advocate and talk-show host, agrees.
“A lot of dads feel as if they become visitors in their own children’s lives,” Mr. Sacks says. “They feel pushed to the margins of their kids’ lives. … And we all know that kids need their dads.”
However, Naomi Cahn, a law professor at George Washington University, says the 85 percent statistic is misleading.
“In most of those cases, the divorce is settled out of court and the father is not seeking custody,” Ms. Cahn says. “But in the cases that fathers contest, they actually win either joint or sole custody in about 70 percent of cases.”
Randall Kessler, chairman of the Family Law Section’s Family Courts Committee at the Chicago-based American Bar Association, says there definitely is a trend of growing numbers of fathers seeking and receiving joint or even sole custody of their children.
“It’s a big trend,” says Mr. Kessler, who has been a domestic relations lawyer in Atlanta for 17 years. “More and more men realize the possibility that they can be involved. … It’s not that they didn’t want to be involved — or share custody — in the past; they just didn’t think they had a chance.”
Mr. Lowry says he and other fathers with whom he’s in touch through fathers’ rights groups have not seen a change in court rulings and judges’ attitudes.
“I see a lot of men who throw in the towel and just quit,” Mr. Lowry says. “They feel like they’re just a check. … It makes it easy to be a bad, uninvolved dad, and it makes it hard for those of us who really want to be involved in our children’s lives.”
Divorce is nothing new, but the way custody is awarded has changed through the years, Ms. Cahn says.
“Up to the early 19th century, fathers were entitled to their children the way they were entitled to all property [in a divorce],” she says. “In the early 19th century, the courts adopted what was called the ‘Tender Years Presumption,’ which meant they felt children needed to be with their mothers.”
Finally, about four decades ago, courts and states started using a different yardstick — that the decision should be based on what is in the best interest of the children — Ms. Cahn says.
This often means trying to keep the children’s lives as intact and consistent with the pre-divorce scenario as can be — in other words, to uproot as little as possible, she says.
So when judges decide to whom to award custody, they often look at the pre-divorce situation: who of the parents spent the most time on child-rearing, making doctor’s appointments, going to school functions and engaging in other daily chores.
Traditionally, mothers have been more likely to be home raising the children. So, shouldn’t they be the ones to receive sole custody on the basis of pre-divorce conditions?
“But that’s less and less true. More than 60 percent of children grow up in households where both parents work full time,” Mr. McCormick says. “So, that argumentation is a little passe considering where we are culturally.”
Ms. Cahn, however, says even in this modern era of two-income households, women do more at home.
“Studies show that mothers, even in two-income households, do about two-thirds of child care and household work,” she says. “So the question is, what is equality?”
Mr. Sacks says this kind of thinking puts fathers at a disadvantage.
“There’s a lot of prejudice against dads who aren’t the primary breadwinner,” he says. “They feel like they’re damned if they do and damned if they don’t” stay home with the children.
Mr. McCormick says that sometimes the divorce is a wake-up call — a second chance — for men to become more involved in their children’s lives.
“It’s a real recognition by men. They realize their role with their children is very important,” he says.
Few would disagree that children need fathers in their lives.
Kenneth Hart, a divorced father in Baltimore who sees his two sons six out of every 14 days, says he is the best male role model his children can have.
“Raising children, especially boys, without fathers will have adverse effects. We know that. … When I fight for my rights, I fight for my kids,” Mr. Hart says.
“I’m an equal parent. Why does the government have a right to infringe on my constitutional rights? If it was any other fundamental right that was violated, half the population would be up in arms,” he adds.
Ms. Cahn agrees that research shows children benefit from a father’s involvement.
“But the role of equality is complicated. Is parental equality always in the best interest of children?” she asks.
Susan, a divorced mother of two in Northwest, says she thinks the notion of fathers changing their ways after a divorce can be misused by men who just want to wield power against an ex-wife.
“My ex and I have a 50-50 split. But rarely, since it was imposed, has he done a whole week. It’s more like a 70-30 split. The kids are with me 70 percent of the time,” says Susan, who says she doesn’t want to use her real name for fear of legal repercussions. She says her ex-husband abused her.
“He did this at an enormous expense — emotionally and financially — just to prove he could. It was about exerting power. … But if you’re a man, as long as you say you’re going to evolve, the judge will listen to you.”
At the same time, Susan says, she can’t complain about getting to see the children more. She says she just wishes the court order would reflect reality.
In the District of Columbia, there is a “presumption” for joint custody, which means the law recommends joint custody unless there is a history of abuse, Ms. Cahn says. In Virginia and Maryland, it’s up to the judge to decide, she says.
Joan Meier, a lawyer who represents women in domestic abuse cases, says judges tend to rule in favor of dads who contest, even when there are allegations of abuse toward the mother and/or the children.
“No one wants to believe that battering and sexual abuse actually happens, so the court would rather believe that the mother is lying,” says Ms. Meier, who is also a professor of law at George Washington University.
“But batterers are twice as likely to contest as non-batterers,” she says. “And they often win sole or joint custody. … It’s stunningly shocking.”
She calls the notion that women have an unfair advantage in child custody cases “a myth.”
As strange as it sounds, many mothers and fathers in custody battles have some common ground.
Neither side, for example, seems to like the term “fathers’ rights.”
“I don’t like fathers’ or mothers’ rights,” Mr. Lowry says. “I’m fighting for responsibility among parents to take care of the rights of children.”
Mr. Hart agrees.
“We want to promote equal parenting, not fathers’ rights,” he says.
Mr. Hart has been fighting to get a 50-50 split for about five years. Although he has joint custody with his ex-wife, he doesn’t get equal time.
“We shouldn’t get too caught up on the terminology, which differs from state to state,” Mr. Kessler says.
“Technically, you could have more time with your children through visitation than with joint custody,” he says. “It’s all about the details in the [court] order.”
They also don’t like the term “visitation.”
“That’s understandable,” Mr. Kessler says. “Sounds like you’re visiting a parent in prison …”
Also, neither side has kind words for the legal system.
“Wherever people come out in this debate, all sides agree that the family courts are not working,” Ms. Meier says.
Mr. Lowry, Mr. Hart and Susan all say the legal system is too adversarial.
“The courts should facilitate a conversation between the parents,” Mr. Hart says, “but instead they facilitate conflict, not healthy behavior.”
Mr. Lowry says the entire focus of the courts is wrong.
“Courts are so busy finding someone guilty or at fault, and then punishing them,” he says, “but is that in the ‘best interest of the children,’ to punish a parent?”
Susan agrees that what’s best for children should be at the forefront.
“I pray and hope that we truly start seeing this issue through the eyes of children,” she says.
Mr. Hart, who says he filed for bankruptcy last year because of high child-support payments and legal fees, says the legal system is just out to make a profit.
“Courts profit from conflict,” he says. “The judicial system doesn’t have a particular bias, but if you have enough money, you can really hurt the other person.”
Ms. Meier says she would like to see the courts improve in their research and evaluation processes, making sure their experts, such as child psychiatrists, are unbiased and competent.
Repeated phone calls requesting comment from Fairfax County Juvenile and Domestic Relations Court went unanswered.
Calls to the District of Columbia Family Court for judges’ comments also went unanswered. However, a spokeswoman responded by saying the District of Columbia Family Court does not track whether there is gender bias or whether there’s a trend of increasing numbers of fathers seeking and/or winning custody.
Judge John O. Hennegan of the Family Law Division with the Circuit Court of Baltimore County says he’s definitely seeing a growing number of fathers who want to remain active in the rearing of their children after a divorce.
“It may not be through joint custody, but more and more men want to stay involved with their children,” Judge Hennegan says. “It’s their right, and I respect it.”
Another point of agreement between both sides is that though their marriages ended up not being an eternal promise — the way they initially had hoped — parenting is.
“I tell my boys, ‘Mommy and Daddy are not wife and husband anymore,’” Mr. Lowry says, “but we’re still your parents, and we will always take care of you and love you.”
“Child Custody Made Simple: Understanding the Laws of Child Custody and Child Support,” by Webster Watnik, Single Parent Press, 2003. This book contains information about the laws and court structures that affect custody decisions. It gives advice on how to avoid court battles and how to set up living arrangements and schedules. It also has chapters on going to court when custody cannot be settled amicably.
“Child Custody: Building Parenting Agreements That Work,” by Mimi E. Lyster, Nolo, 2002. This book aims to show separating or divorcing parents how to overcome obstacles and build their own custody agreements. It includes checklists and work sheets and covers custody law in all 50 states.
American Bar Association, 321 N. Clark St., Chicago, IL 60610. Phone: 800/285-2221. Web site: www.abanet.org. This national nonprofit organization, with more than 400,000 members, offers services such as providing continuing legal education and informing the public about the legal system. Its Web site provides information on family law, such as custody laws in different states.
American Coalition for Fathers and Children, 1718 M St. NW, Suite 187, Washington, DC 20036. Phone: 800/978-3237. Web site: www.acfc.org. This nonprofit group works to establish parental equality in custody cases. According to its mission statement, it aims to eliminate gender bias from family law and from future legislation.
Children’s Rights Council, 6200 Editors Park Drive, Suite 103, Hyattsvile, MD 20782. Phone: 301/559-3120. Web site: www.childrens-rights.org. This national nonprofit organization strives to ensure that children continue having meaningful contact with both parents regardless of the parents’ marital status.
Justice for Children, 2600 Southwest Freeway, Suite 806, Houston, TX 77098. Phone: 713/225-4357 (D.C. office: 202/462-4688). Web site: www.jfcadvocacy.org. This national nonprofit organization aims to further children’s rights and protect children from abuse.
The Men’s Resource Network (www.themenscenter.com) is a nonprofit group providing online resources on a range of men’s issues, such as fathers’ rights.
Women’s ENews (www.womensenews.org) covers news of particular concern for women. It has articles on topics such as custody battles.