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The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam in the whole volume of nature, by the hand of the divinity himself; and can never be erased by mortal power.
Alexander Hamilton said that in 1775.
Two hundred and twenty years later, a divorced father's final few words to a family court judge distilled Hamilton's sentiment to its visceral essence.
"A man has the right to be his children's father," the man asserted. His simple, heartfelt statement clearly defines the acknowledgment, validation, deference, and protection that divorced fathers (and all fathers) feel they have a right to demand from our legal system. And the body of family law does indeed attempt to affirm the inviolate nature of the father-child relationship—primarily, and most relevantly, in statutes addressing issues of custody, support, access, alienation, and authority.
Our judicial establishment's efforts to understand and formalize the complex and primal bond between parents and children would, I suspect, disappoint and perhaps alarm Alexander Hamilton. The faded parchments and musty records he deplored have evolved into massive libraries of rules, orders, procedures, and formulas. In the ornery, litigious United States of the present, a father seeking enforcement of the natural rights Hamilton viewed as sacred will find knowledge more useful than moral force.
The following review provides a basic introduction to family law, an essential guide to the statutes most likely to assist, or hinder, your efforts to remain a father to your children as your legalrelationship with their mother is dissolved. If a fight is necessary, these statutes are your only weapons.
It's important to keep in mind that the legal safeguards and remedies provided to fathers by our domestic relations laws are also available to mothers. (In fact, as we'll demonstrate in chapter 3, mothers are far more likely to benefit from the judiciary's protective arsenal than are fathers.) It's also essential to remember that this review shows the law at its best, as it should be, as the Constitution promises it will be—free of the antifather contempt and bias that infects so many family courts.
Under the law, custody has two distinct components. Legal custody gives a parent the legal authority to make decisions about a child's upbringing. Physical custody is the right of a parent to maintain physical control of a child. The children of a divorced couple live with the parent who is awarded physical custody. An award of sole custody grants control of a child's life to one parent. That parent's home becomes the child's legal residence, and the child becomes that parent's legal responsibility. Divided custody is an arrangement allowing children to live with each parent for part of the year. The parent with whom the children are residing at any given time has legal custody. Split custody is an allocation of parental rights in which each parent is granted sole custody of some of the couple's children. Joint custody theoretically grants both parents equal legal rights and responsibilities. A variety of residential options are possible under joint custody, including bird's nest custody—an arrangement allowing the children to remain in the family home while the parents take turns moving in and out.
Until about twenty-five years ago, custody of a divorcing couple's children was, by statute, presumptively awarded to the children's mother. The "tender years doctrine," a tenet of family law for more than 100 years, required that young children (of tender years) be kept with their mothers after divorce. The basis for this mandate was the widely held belief that women were more "naturally suited" to parenthood than men. It was not until the early 1970s that a political commitment to racial and gender equality forced repeal of the tender years doctrine (unfortunately, the overt gender bias inherent in the concept has survived). New custody laws enacted across the United States declared that "the best interests of the children" must be the primary consideration in custody decisions.
"The best interests of the children" is a highly subjective standard touching all aspects of a divorcing couple's relationship with each other and with their children. Typically, family law requires the court to consider "all relevant factors" when attempting to fashion a custody arrangement that truly accommodates a child's best interests. Most family court judges rely on some combination of the following criteria:
The Parents' Wishes. A court will almost always approve custody provisions that the divorcing couple have designed themselves. Parental agreements do not, however, deprive a family court of its power to act in the best interests of the child. Occasionally, courts use this power to alter or overrule a divorcing couple's custody arrangements. Not surprisingly, a judge is unlikely to award custody to a parent who is not prepared for custodial
responsibilities or whose stated desire for custody seems to be based on financial gain or personal satisfaction rather than a child's interests.
The Child's Preference. A child's wishes are given more or less weight, depending on the child's age, education, and demonstrated maturity. In some states, a child's custodial preference cannot be considered unless the child is at least twelve years old. In a few states, a child's preference must be honored if the child is fourteen or older.
Siblings. While courts overwhelmingly prefer to keep siblings together, circumstances frequently arise that warrant split-custody decisions. Siblings who constantly fight are often separated at the request of their parents. To honor children's wishes, a father is sometimes awarded custody of an older son while his daughter continues to live with her mother.
Environmental Stability. A child's comfort in and satisfaction with home life, school, friends, and daily activities are significant considerations for most family court judges. Divorce itself is a traumatic disruption to children's lives; courts are reluctant to approve custody requests that are likely to result in additional anxiety and destabilization. A child's "established living pattern" in a familiar home, school, community, and religious institution should be altered only if there is a compelling need to do so.
Violence or the Threat of Violence. No family court should knowingly allow a child to be exposed to domestic violence or the threat of violence. It doesn't matter whether the violence, or the threat, is directed against the child or against someone else. A potential for violence based on past conduct is usually considered a valid indicator of future danger.
Mental and Physical Health. If a child suffers from a mental or physical disability, the court must decide which parent can best meet the child's special needs. The physical and mental health of the divorcing parents also comes under close scrutiny. Mental illnesses or physical impediments severe enough to endanger a child or debilitating enough to deprive a child of a parent's care and companionship will almost always hamper a parent's chances for custody in the eyes of the court. Evidence of rehabilitation can mitigate these concerns.
Lifestyle. A family court evaluates a wide range of factors in its attempt to determine the effects (both positive and negative) that parents' lifestyles are likely to have on the well-being of children. Courts do not generally look kindly on parents who engage in criminal activity, substance abuse, sexual misconduct, promiscuity, or homosexuality. Cohabitation is viewed harshly by some courts, barely noticed by others. The time that each parent's lifestyle leaves available for child-rearing activities is also closely examined. A parent willing to revamp a daily work schedule to devote more time to child care has a clear advantage over a parent whose days and nights are consumed by the demands of a career. Because medical science has recently made clear the dangers of secondary smoke, a nonsmoking parent is often preferable to a smoker.
Everything Else. The majority of family court judges will consider any and all information presented to them in their attempts to determine what is—and what is not—in the best interests of a divorcing couple's children. Best-interest factors cited by one court or another in recent years include: