Child Custody Rights for Fathers

Until the changes in the U.S. divorce laws during the 1970’s, a father’s role was limited to financial support and the occasional visitation with his children. This was accepted as the norm.
This article discusses the onset of child custody rights for the father, child custody battles and joint child custody. 

By Dr. Reena Sommer

In the past when a couple divorced, a father’s role was limited to financial support and the occasional visitation with his children. Until the changes in the divorce laws during the 1970’s, this state of affairs prevailed and for the most part, was accepted as the norm. Custody battles were almost unheard of and the status of fathers as “weekend Dads” went virtually unchallenged.

In the 1970’s divorce laws in many western countries underwent a major overhaul. One of the most significant changes was making both parents responsible for the care of children following divorce. This single change had tremendous implications for people with children getting divorced. While the financial implications of shared parental responsibility were overtly obvious, there were also important considerations regarding how children would be parented post divorce. For the first time, the courts recognized “joint custody” as a symbol of parents’ shared responsibility toward the care of their children. With this change, it became apparent that fathers were now recognized as “functional” parents and not just a source of financial support.

An important fall-out of the changes to the divorce laws that formally recognized fathers as real parents, was the emergence of custody battles. As noted previously, they were uncommon up until this point. However, with the changes to the divorce laws, disputes over custody became a growing phenomenon. While children are generally the focus of these very nasty fights over custody, in most cases, it is money that is at its root.

Many would argue that this simply is not so – those battles over custody have to do with the respective abilities of each parent to provide safe and nurturing care for their children. However, a closer look at the dynamics of custody battles reveals that sadly, the children become a bartering mechanism where access time is traded for a financial settlement.

The most obvious question is “why” should money and children become the driving forces behind custody battles? The answer lies in these two related issues:

• The provision for child support relies on the amount of residential time share each parent has. Thus, if the time-share is almost equal, theoretically little if any, child support is due. Similarly, if the primary breadwinner was to have a greater proportion of the time-share, then the same principle would apply. Finally, if a parent who had been a stay at home parent was no longer to have primary care and control of the children, then not only would child support be a limited issue, but so would the obligation to pay large amounts of spousal support.

• The provision for differential joint parenting arrangements provides the impetus to negotiate an unequal division of assets. Whereas in the past, when mothers’ sole custody and/or status as the residential parent were rarely in dispute, opportunities to include property and asset issues in negotiations were almost non-existent. With the changes in the divorce laws, it is now possible for the parent with the larger share of assets to offset his or her divorce liability by using custody and access as factors in divorce negotiations.

Overall, the changes in the divorce laws have done much to recognize childrens’ right to have both parents in their lives. It has also come a far way in recognizing fathers as being more than a meal ticket by advancing fathers’ custodial rights. On the other hand, the downside of these advances is resistance to the change and opportunities to use children as pawns for financial purposes.