Wednesday, January 24, 2007

The fallacy of child custody

Among others, Glenn Sacks has been commenting on the same-sex child custody case in Vermont in which the biological mother has used the courts to exclude her ex-partner from the life of their child. Glenn rightly points out that this is not an issue of gay rights, although it is usually discussed as such. It is an issue of non-custodial parent's rights since many failed "normal" marriages result in similar problems for the non-custodial parent. Understandably, Glenn sees some irony in the situation, but there really isn't any because the situation is completely predictable, even inevitable.

The equation is very simple, but poorly understood and fundamentally flawed.

In the event of conflict in a separation or divorce, the court seeks “the best interests of the child”. It has long been a core theory of child development that a child must have a strong parent/child relationship with at least one parental figure (it doesn’t even have to be a natural parent). This theory is apparently trivial, except that it does not tell the whole story. It reduces what can be a very complicated, 3-or-more-point problem, to a black-and-white issue of one child/one parent. It is based on very dated, largely Freudian theory, on experience with refugee children from two world wars and on prejudice deriving from societal conditions vastly different from those we have today. There is no comparable body of thought arguing that the child needs a relationship with more than one parent, nor even with natural parents, the clay feet of the accepted theory notwithstanding. Note the phrasing "no comparable body of thought", by which I mean that work has not been done, not that it is not true.

The law and the courts are not, ultimately, complicated thinkers, they take the minimalist step which goes with the flow. They ask a simple question: “what is in the best interest of the child?” and get a simple answer: “one parental figure”. But that is a non sequiteur, it is the answer to a subtly but importantly different question: "what is in the minimum interest of the child" and the result is that custody is reflexively assigned to one parent. If there is conflict, the courts will harden on that position for fear of disrupting the overriding motivation that the child have one parental figure in his or her life.

This logical fallacy is so entrenched, it has become axiomatic.

Thus all the custodial parent has to do to achieve full control of the child and freeze out the other parent, is engender conflict. This is positive feedback, all roads lead to the custodial parent and the slope gets steeper at their will. The non-custodial parent is automatically completely helpless. Fighting back will only make things worse. There is nothing the non-custodial parent can do to make them better. The gender of the non-custodial parent is not relevant.

A presumption of shared parenting is the only way out, and it is no good just showing that it is to the child’s benefit. One must also attack the existing theory and show that it is based, as it is, on bad science and foggy thinking. Many of our world’s worst atrocities have been motivated (or excused) by bad science and distorted reason, especially that which appeals to ignorant prejudice.

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Anonymous said...

I'm the mother of two teenagers. How about the story from the other side of the fence.
I found out a little over a year ago that the father of these two was using meth when he OD'd on it. I gave him the choice to get clean or get out, at which time he threatened to kill me, which of course left me no option but to have him removed from the home by the local law enforcement.
Little did I know at that time that he had also introduced my eldest to the substance.
She's spent time in juvenile hall for illegal behaviour to buy the drugs then was placed in a group home. She was placed there because he was still in the home, a decision of the court based upon information I didn't know about at the time. He'd also introduced both children to marijuana.
Wouldn't it be protective to both children for me to have full custody of them?
I work full time as an RN. I've been paying all the bills, and I was doing so while he lived in the house too, despite what he would tell other people. I have no legal problems other than those created by dealing with him and the results of his decisions.
Oh...and for the record, he has a warrant out for his arrest for repeatedly violating the restraining order. He's also convinced the girl that running away with him was in her best interest, so now there's an additional warrant out for her arrest.

John Doe said...

Dear Anonymous, your tale is unfortunate and you and your children have my every sympathy. However, and I mean this most respectfully, you are mistaken in thinking that you are coming from the other side of the fence. That is true only in that you are a mother and I am a father. The fence is illusory, for we are both caring and concerned parents with difficult (although quite different), problems to face regarding our children. In that sense, we are surely united.

The difference which concerns me is that the law, all other things being equal, and for all its inadequacies as you have experienced them, operates very much more in your favor than it does in mine. I imagine you may have difficulty seeing this and you may have asked yourself many times: "could it get any worse?" I hope that it doesn't, but I do know one way in which it could have been worse from the start - if you were the father and your spouse the mother. Under those circumstances, "the system" would likely be even less inclined or able to help.

I am not so foolish as to suppose that equal parental rights are appropriate regardless of circumstances. Not every parent is adequate to the task by reasonable standards, but one parent is automatically considered more relevant than the other by our current system.

Tell me, should the misbehavior of the father of your children mean that I should also be treated with suspicion just because we are both men?