The Thinking 

Presumptive Custody for Fathers

August 25, 2010


IN TOLSTOY’S famous novel about female betrayal, the title character, Anna Karenina, is forced to abandon her young child in order to live with her lover. The tension between maternal love for her son and sexual passion is a running theme throughout the book and ultimately contributes to her death, wherein the beautiful Anna throws herself under the wheels of a train, a woman destroyed by her impulsive nature.

The end is extreme but this was once the only choice for a woman leaving her husband: her lover or her children. In colonial America, as well as nineteenth century Russia, a father had presumptive custody of his children. Divorce was rare and was not even recognized in most of the colonies or early states. However, a woman had no legal claim to her own children, who were considered the charges of fathers.

Today, in an age when mothers are overwhelmingly favored for legal custody of children, this seems unimaginable. But given the vast system of abuses perpetrated by family courts, the epidemic of female abandonment of husbands, the arrests and restraining orders against fathers, and the general decline of marriage, the old way more and more makes urgent sense. Children, when in dispute, should automatically go with their fathers, not their mothers, as is commonly assumed. A father, as head of the household, should have the right to award custody to a mother. But no court should usurp his powers and authority over his own children.

Some of the greatest injustices in the modern world are committed against fathers. Their basic rights must be restored. State-imposed destruction of the institution of fatherhood is nothing less than tyrannical and benefits women not at all.


                                                                                              — Comments —

Robin writes:

I certainly agree in theory. My husband was one of four children raised by his single father after their mother chose her career (which included flirtation, if not infidelity) over her husband. He never asked for “child support” from her, and succeeded in sacrificially rearing these children to the best of his abilities, never surrendering them to her because it would have been easier for him. 

However, what is to be done in cases of unrepentant infidelity on the part of the husband? What is to be done in cases of severe physical abuse on the part of the husband? There are two women that come to mind right now: the first was expected to tolerate her husband coming home from dates with his mistress when their child was but six weeks old. She tried counseling; he would not give up his mistress. He emotionally and physically abused his wife when she tried to speak to him about his affair. She moved out with their child when the child was sixteen months old, (as he threw items at her father in the driveway), and he lay in wait for the opportunity to take advantage of her in court and take this tender child from his mother. He paid a paltry $700 in child support before he succeeded in getting a “men’s rights” judge and a lawyer of the same mindset to see his plight: he made the money, so he deserved the child. He created false witnesses who spoke of her non-existent drug abuse in court, and he won. The second woman fled to another state after leaving her physically abusive husband, and he was awarded custody for this reason. Had she gone through the “proper channels” in the government system, she would have likely been killed before she could make her escape (he threatened to place her dead body in a wood chipper after placing his booted foot in her pregnant belly, causing preterm labor). 

Now, I am certainly not suggesting that these women’s cases are the norm, nor am I a feminist by any stretch of the imagination. I simply do not think this blanket approach will work any more than the blanket approach currently in place to award custody to mothers. There are many fathers today who would use this to control and manipulate the divorced woman for the rest of her life, in the name of “equality”. The two women that I mentioned earlier have suffered the effects financially that most divorced MEN are suffering today. They lose one-fifth of their income to child support which is paid to men who are earning six figures and homeowners, remarried and feel “entitled” to this money from the evil women that got away from them; the ones they could not control. These women have spent tens of thousands of dollars in the “family” court system trying to regain custody. 

I just wonder if this would work today, in an era of bitter men who are angry at feminists, even if their wives were NOT of the feminist mindset. Perhaps presumptive custody of fathers would work if there were a mandate that there would be no child support owed in either direction. 

What are your thoughts in these types of scenarios?

Laura writes:

It seems that in cases of a proven pattern of infidelity, abandonment or insanity, custody should then automatically go to the mother. But the presumption should be that the father is fit to oversee his children’s care unless proven otherwise. Remember, men who are inclined toward infidelity or desertion are less likely to want custody of the children to begin with. A man who wants to abandon his wife typically does not want the children. But, a woman who wants to abandon her husband does want her children too. Needless to say, whatever standards exist for marital dissolution, perfect justice is not possible.  

Jesse Powell writes:

I believe the shift away from presumptive father custody started with the Tender Years Doctrine that began around 1850. From the middle of the nineteenth century, to the 1950s, and to a lesser extent up to the modern day it is women who are assumed to be the best ones to receive primary custody of the child, given their usual role as the primary caretaker of the children. It should be remembered, before the 1850s, premature death of the marriage partner was more common than divorce, and the literal survival of a child into adulthood was in question. 

In the modern environment the concerns are very different. Families are not broken up due to the death of a spouse but due to divorce, the parents splitting, or the parents never getting married in the first place. After a marriage is established, it is the woman who usually initiates the divorce. I don’t know if this is because the woman has less to lose financially and emotionally then the man, or if it is due to women not being able to think long term and abstractly about the full consequences of what divorce will really mean, or if it is due to sex role differences in which sex is more likely to initiate a break up, or if women are just more inclined to pull the the trigger and officially end a marriage that both parties know is in trouble. 

Overall, in modern society, men are most definitely the ones who are marginalized and pushed out of, or choose to abandon, family life. 

I would like to know what the rationale behind presumptive father custody was before the 1850s and what changed in the middle of the 19th century to shift the presumption of child custody to the mother. Are the current problems with family life more analogous to the time before the 1850s when father custody was the norm? Mother custody was around a long time before feminism showed up. Is the best approach to bringing men back into family life really a radical increase in the powers given to men in regards to child custody? 

Presumptive father custody is certainly a radical idea. Would it work? Would it improve things? Is the idea that men should have presumptive custody in an ideal social environment or is the idea that changing the custody presumption to favor the man will force men to take responsibility and force women to go along with a new more benevolent patriarchal order?

Laura writes:

You say, Mother custody was around a long time before feminism showed up.

Actually, the shift to maternal custody perfectly parallels the influence of feminist ideas. Feminism is not a creature of the twentieth century, but of egalitarianism forged in the Enlightenment and already very apparent by the late eighteenth century. The breakdown of patriarchy, in essence a revolt against all authority and hierarchy, would have heavily influenced the trend away from paternal authority in the family in the nineteenth century and encouraged the view of family as purely an emotional unit serving the individual, rather than as a small political and hereditary commonwealth.

Would it improve things? Men do not marry simply because it feels good. They marry to assume their natural role as the head of their families, as leaders. We are doomed unless this role is restored. If men were to impose this as a condition of marriage,women would go along with it. But our current government would not go along with it. It would require some break from state control of marriage. In early America, the government had nothing to do with divorce or marital dissolution and it has since usurped the authority of fathers. This freedom is our heritage, not tyrannical family courts which are not motivated by the best interests of families. 

Peter S. writes:

Are you familiar with the writings of Daniel Amneus, which address this matter in some considerable detail: The Garbage Generation, The Case for Father Custody, The War Against Patriarchy?  Of these, the first is perhaps the best.  A brief biography and remembrance of Amneus may be found here.  He may be counted as a leading theoretician of these issues.

Laura writes:

Thank you for the links. I have not read his work.

Brendan writes:

I think it would probably be enough to move the presumption to joint physical custody as the norm.  Yes, that involves hemming in both men and women, but it mandates that people take parental responsibility.  And, importantly, it cuts down on the incentives for both women and men to divorce.  A University of Michigan study demonstrated that the filing for divorce in the United States is generally done by the person who expects to get awarded custody of the children (which explains well the female-heavy divorce initiation rate).  If we shifted this to default shared physical, it would decrease divorce rates (it’s not nearly as attractive having to share parenting time and decisions and so on equally with your ex-husband … sounds a tad too much like being married to him for many women, which will make divorce less whimsical) and improve things for children substantially, and I think is better for kids than mandating one or the other having sole physical custody.  This is particularly the case when the children are beyond the most “tender years”, and even if the divorce happens in the tender years, the custody should be normally shifted to this once that stage is finished (something which happens far too seldom — it’s stupid that custody determinations are generally made once and for all time at the time of the divorce, even though kids have changing needs in terms of parenting as they age, with the tend away from Mom and towards Dad, over time).  
Laura writes:
I disagree.

I will have to read that study carefully but I do not understand how it could be proven that the filing is done by whomever has presumptive custody given that the trend has for so long been for maternal custody. When men did have presumptive custody, divorce was almost non-existent. I realize marriage was viewed differently in that era, but there is substantial evidence that men and women view divorce differently even when they have the benefit of child custody. 

The whole point of presumptive custody for fathers is to bring down divorce rates, which are bad for children no matter what the custody arrangements are. The fact is, men file for divorce less and want divorce less often and women have a major incentive to divorce for frivolous reasons when their ties to their children are not disrupted. The evidence is fairly clear at this point: a significant minority of women do not take the long view when it comes to marriage and let their emotions get the best of them. Again, this was not the case when paternal custody was presumed. For hundreds of years under paternal authority, there was little divorce. 

Joint custody is great for parents, but not for children. Some involvement by both parents is important, but the whole trend toward children living in two places has suited parents, not children. Joint custody is generally an effort to make divorce seem non-traumatic for children, which it never is, and a way of pacifying fathers for their loss of authority. It is not good for children because it deludes parents into denying the realities of divorce for children. It is very difficult for adults to live in two places, let alone children.

James P. writes:

Robin writes,

” What is to be done in cases of unrepentant infidelity on the part of the husband?”

Unrepentant infidelity on the part of the wife is not held to be an obstacle to the mother obtaining custody, so it is difficult to see why this should be an obstacle to the father obtaining custody. Furthermore, the entire divorce industry exists to defraud and defame innocent men, so one example of a woman who was defrauded and defamed during a divorce is hardly compelling.

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