The Truth About Feminism and Child Custody Discrimination

Child-Custody

Whenever I read about claims that feminism has spurned a modern era of “misandry” and sexism against men, the practical evidence always boils down to custody battles and a “financial rape culture” which forces men to pay child support.

Now don’t get me wrong. There are lots of men (and some women) also raging about how man-hating has become socially acceptable; how feminists can go to extreme lengths to oppress men without any word from the government or society at large; how men are assumed to be evil, useless, or perverted until proven otherwise; and even (yes, I laughed too) how television shows are unfairly portraying men in tropes such as abusive father, silly dad, pedophile, bullying big brother, etc.

But when push comes to shove and somebody asks for some real life evidence of this supposed phenomenon, the battle cry resounds: The feminists have used their empowerment to take away our children and our livelihoods! This is proof that they are ruthless oppressors!

I decided it might be worth looking more closely into divorce and child custody laws and customs. As it turns out, the history of child custody has gone through many phases and philosophies and has been influenced very little by feminist goals, but when it has, it has arguably been a positive change for fathers.

In very early U.S. history, we’re talking late 1700’s and early 1800’s, children were always considered property of the father, and since women at the time had no legal right to own property, a child could be legally willed to another relative or friend of the father’s after his death even if the mother was still alive. Fathers played what was considered the most important role in their children’s lives, taking responsibility for their education and religious upbringing, as well as preparing them for work in the community. 

According to Joan B. Kelly, Ph.D., “in divorce, until the mid-nineteenth century, fathers had a near absolute right to custody, regardless of circumstances,” and as Mary Ann Mason writes in her summary of the history of child custody, “no known English court gave custody to a mother over an unfit father until 1774.” Even then, instances were rare.

This began to change in the late 1800’s, especially during the Industrial Revolution, as men began working further away from home and women became the primary caretakers of children. As Kelly writes:

The paternal preference was gradually replaced by a maternal preference, based on the “tender years” presumption. [This doctrine] was originally invoked to determine temporary custody arrangements in English law, giving mothers custody of infants only until they were ready to be returned to the father.

This temporary arrangement gradually gave way to a permanent one, however, as “motherly  love” became more and more idealized, and the biological bond between a mother and child more strongly preached by both men and women. Freudian developmental psychology enforced this belief in motherhood by focusing entirely on the relationship between mother and child and ignoring the father’s contributions.

By the 1920’s, the maternal preference for custody in English and American law, regardless of the child’s age, became as firmly fixed as the earlier paternal preference, and was encoded in statute in all 48 states.

So we have two major eras in child custody so far: that of preference to the father and that of preference to the mother. In the 1970’s however, things began to change again, and a third era was introduced: that of the best interests of the child. Due to growing complaints of sex discrimination from men, the feminist movement, concerns for equal protection under the constitution, and a large number of women entering the workforce, it was decided that rather than base custody decisions on the gender of the parent, it would be more apt to consider the best interests of the child. This led to the next trend: joint custody agreements of various forms. 

This standard of determining custody agreements prevails to this day, but has often turned into, as many have noted, a “best parent” contest.

It would be un-true if I said this was never gender-biased. Almost everything is in some way or another. But if any discrimination does occur, and that is a strong if, it is most certainly NOT because of feminism, but because of the assumptions and expectations about gender institutionalized by men a long time ago.

I share this history of laws and customs in order to demonstrate the palpable difference between the “discrimination” men are complaining about now and the kind that actually existed in the past. The fact is, the current legal system is much less biased than it used to be, and it is one in which every case is allowed to be extremely different. The outcomes are completely dependent on individual circumstances, as opposed to the gender of the parents.

Most (if not all) states allow the parents to work out a plan together and then make their case in front of a judge. If the parents cannot cooperate well enough to reach an agreement and it becomes an actual custody “battle,” there are bound to be consequences that one party will not enjoy, but those are more likely to be determined by the quality of attorneys and of the relationship than by gender.

As far as money is concerned, just because men often end up having to pay more child support than women does not spell discrimination. Taking care of a child costs money, and whoever has more money has the responsibility of paying up! If the mother has a higher income, she will have to pay higher child support. It is a matter of mathematics, not gender.

Obviously, I have no way of knowing whether or not certain men have been discriminated against, but I do know that discrimination against men is not built into any system in the same way that it is for women.

When it comes to legal conflicts, sometimes men get screwed over, and sometimes women do too. Howver, generalizations about the issue based on gender are all bull-shit, and blaming it on feminism is even more ridiculous.

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23 responses to “The Truth About Feminism and Child Custody Discrimination

  1. I understand your angle. Why are feminist blamed for the “financial rape” of men in regards to child support expenses. I appreciate the stance you take, however…I think it’s more complicated than you assume. I understand that there is limited space in a blog to go into intricacies….but I think a more broad question is: Why are women immediately given preference over a man when it comes to time spent with the child? This is a question even I cannot answer. As you said, every situation is different, unique and individual. However, going through divorce and the child custody battle myself, I found myself conflicted in these questions. If I were the man, would I not want primary custody? Would I not feel resentful of paying (for instance) a thousand dollars a month when I would be able to care for the child, to spare myself the financial ruin and further establish myself into the child’s life? Trust me…this is not coming from a place of personal sentiment. I am incredibly glad I am able to see my daughter every day, and assume the responsibility of primary care taker and provider. However, when considering my ex husbands situation I also realize that the fact that I have been in school for the past two two and a half years after our divorce and only working part-time (unable to substantiate an equal amount in child care costs) would be frustrating and foster a sense of helplessness and lack of power if I were in the man’s shoes. When I was in school and with him, our households were combined, funds were shared and reciprocated. However, after a divorce and having to mitigate the financial hurdles that occur when there are two separate households to support and maintain, the waters get murky. Should the mother stop her pursuits of education in order to be able to provide more for the child? We often (in family law) see cases where the mother purposely does not work in order to get more child support. We often see cases where the mother does everything in her power to prevent the child from seeing the father based on personal experience and emotions.
    I think you are successful here in establishing that feminism is certainly not the root cause of disgruntled and broke fathers. However, I did not see exactly where your opinion lies in preferences of the mother over the father, or perhaps even questioning the entire child support worksheet that is commonly used when establishing childsupport. For instance, regardless of what expenses the father has, based on his gross income, he is forced to pay a certain amount. However, the mother can decide to integrate enrichment activities for the child that may be out of her budget, (and the fathers) The court include that in the CS worksheet. The mother may want to send the child to a private school, where the best education can be had. The courts include that expense, and where a child support payment may have once been 500, it grows to 1,000.
    This is an incredibly ambitious topic that you decided to focus on, and I think you did it well, however I would be more interested into knowing exactly WHY you found yourself frustrated at the issue. Perhaps, even conceptualizing some of the ethical questions of why the mother is better suited, now. In modern culture. It’s just an awful situation, (divorce, kids not knowing their parents, father not being able to afford child support based on cultural differences/lack of education/wrong priorities.) I think this perspective is GOOD, but it lacks other perspectives. Perspectives that are relevant to minorities, or lower income or lesser educated individuals.

    Perhaps there are no answers.

    • I can appreciate your attempt to try and show nuetrality but you are not beng honest with your own facts.
      First off It is never in the ” best interests of the child.” Mom is chosen by the by the courts and then Dad has to prove Mom is unfit, not just a bad parent. I was home taking care of the kids driving them to school for years, taking kids to Dr. appointments 48 times etc. watched them 90 percent plus time they were sick etc and my lawyer at best said our chances were 60-40 against or worse. When I aksed him if the Laws were sexist he said I didn’t say that, then proceeded to tell me how a Male client of his got his kids becuase Mom went to Prison. The minute she got out after 2 years she sought custody and won. He proceeded to tell me countless stories like this. He also told me how he won tons oc cases but was trying to point out how difficult it is.

      The U S Census does not lie, less than 2 Dads in 10 have custody in an age where Women make up half the work force and make almost equal or equal pay as Men. In the past 25 years Womens rights have increased in all areas while Men are the same as they were custody wise. This in itself shows the incredible bias Men face. In 25 years you cannot show positive traction in custody for Dads, the reason is bltant sexism.

      BTW my ex makes 60,000 more than me and I pay chld support, oh and when she got a new boyfriend and gave up the kids on Halloween, Christams eve, Easter ( gone for a week there) , snow days at school equaled at least a month of extra there I still got no relief. She hutr the kids in a fight with her sister so I went back to court and the GAL said well yes she fought with the kids causing my Daughter to be Hospitalized eventually, she just can’t stay with her sister. A social worker report I have had her locking the kids in their rooms as toddlers yet still Mom gets a pass.

      and before you dare even ask the question I must have done something to not get them you better think again. I have been an amazing Father, I work with kids all day, no drugs no drinking. I just did both kids science fair becuase they asked me. When my Daughter wanted to get her first Bra she asked me not her Mother.

      My sole crime is being a Man in Family court

  2. Great argument! But you missed a part – if it’s truly the interest of the child, and not gender-biased, then why do only 17.8% of fathers gain custody? (Census Bureau, 2011)

  3. Read through the archives of this site and you will find documentation of the major feminist organizations such as NOW oppose virtually every single suggestion for improving fathers rights and supporting virtually every single suggestion for improving fathers rights. Same thing in every country I know about in Europe. THe pattern is completely consistent.

    http://www.fathersandfamilies.org/

  4. I’ve personally benefited from the more gender neutral child custody legal environment that we now experience. When my wife left me when our first daughter was 18 months old, we were both working full time (when she was born I was able to take 4 months of paid accrued leave from my job, while she only took 6 weeks off). My wife, at the time, made a few thousand dollars a year more than I did. I demanded and received joint custody and equal time share (actually about 55% time with me while 45% time with my wife) of our child. There was never any question that I would pay any child support and I waived the small amount that I would have received from my wife. I have always recommended to my younger male friends that they only consider for mates women who make the same or greater salaries than themselves for this reason. Another great benefit for men in modern times is that, in many states, it is now no longer presumed that any child born in wedlock is the responsibility of the husband since DNA testing trumps legal marriage. Alas, this came too late for a friend of mine who, many years ago, had to pay child support to two different women for children who bore no resemblance to him whatsoever.

  5. You seem to be intentionally ignoring the question. How can you hand wave away decades (and millions of dollars) of feminist advocacy?

  6. I’d like to add my own experience to the discussion. Anyone who steps blindly into marriage in this new environment created since most law has become gender neutral is foolish. When I married late in life and started a family in the mid-nineties, I made sure of two things: one, my wife not only worked, but made a few thousand dollars a year more than I did. Thus, when she and I separated when our first daughter was 18 months old (both of us had taken a limited time off when she was born, a month for her, 4 months for me), I demanded and received equal legal and physical custody, actually more than half time for me since I lived closer to her day care facility. I agreed to not press my advantage of being the lower wage earner and having the most
    physical custody of our daughter by not asking for child support myself. The upshot is that, since I had owned a home long before my marriage and it was my sole property (with very little appreciation during the short time we had been married), while my ex had to rent, she requested that we restart our marriage after a year. If I had, rather, married someone who stayed home without working after our child had been born, I would certainly been stuck with child support payments and, thus, little motivation for my spouse to try to work things out. Just a word to the wise: Don’t bitch about feminist changes in the law, make them work for you.

    • Don’t bitch about feminist changes in the law, make them work for you.

      So as a man I should live in a teeny tiny box that this window of opportunity you address creates. I should aim to shape my entire life around this? WTF!!!!

      • All I’m saying is that it is your choice to marry a woman who has significantly less income than you or none at all. Either that or get a pre-nuptial contract. Marriage is like any other contract. Read the fine print. There are many ways in which gender neutral laws have resulted in positive outcomes for men. I had children because I wanted to participate in raising them. In the old bad days, I would have found it very difficult to demand equal time share for my infant daughter because there was a presumption of mother care being superior There is no question that now, in California, with both parents working, I have a solid legal basis to demand it. If you don’t want to have full equal access to your children in the future should the marriage not work out, make damn sure that you aren’t supporting a stay at home mom in the meantime.

        • In the bad old days children defaulted to their fathers. One more this seeks to erase 30+ years of feminist advocacy which is well documented and on-going.

          • Joel, I was talking about the more recent past, like the 50’s and 60’s, when physical custody, especially for young children, was given preferentially to the mother. I MUCH prefer the current trend toward gender neutral law because It protects me as a parent who intends to NEVER to be forced to give up my equal share in child rearing.

          • ddadyoyo-Your experience is the exception to the rule not the norm. In 90+% of cases where both parents seek custody the mother wins due to feminist advocacy. Few if any family court judges have not been visited by members of feminist groups and the excepted belief among judges is ruling fairly in such cases will get them branded “anti-women” and ruin their careers. There are many well documented cases of this occuring.

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  8. In az In cases where there is no marriage decree the woman almost always is given free legal aid, granted sole custody and the state goes after the father for support all without the woman having a say in the matter so long as she applies for welfare. Even if the man has physical custody the State still demands child support payments and the mom an can still get benefits for the children not in her home. If the man complains the mom takes the kids. I know. I’m that dad.

    • California may be different than Arizona. See my posts above about my experience. A brief check online, however, confirms that Arizona law is supposed to be gender neutral in regard to custody. I know that in California, if you do have joint custody, the percentage of time each parent has physical custody goes into the calculator and no time with the child means no support to that parent.

  9. The Feminist perspective be more like enabling the father to be involved as caregivers so that women can become free to get on with their careers. Childcare, after all, takes time away from things like education and career advancement…and is the reason that women require support money to keep them and their children from living in poverty. Feminism isn’t about hating and disabling men. It’s about equality in opportunity.

  10. Joint custody does not have to be presumptive in order to be gender neutral. Gender neutrality was established in Watts vs Watts, 1973. For example, in California joint custody, as it is in nearly all states, is an option, but not presumptive. Best interest of the child is considered. Nonetheless, when my wife and I separated in 1997, I demanded and received joint custody, both legal and physical, with equal time sharing, in spite of the fact that our daughter was 18 months old. Here’s why it wasn’t that hard: We both worked a 40 hour per week job. If a man supports a woman who doesn’t work to stay home and take care of children, he shouldn’t be surprised if the courts think that it makes more sense for her to have sole custody. My wife and I had nearly identical incomes as well, so child support wasn’t paid in either direction.

  11. Pingback: To What Extent Does Growing Support For Women Degrade Men? – afeministspeakscom·

  12. I have repeatedly requested shared custody of my children, but my family court judge has refused, stating that ‘children belong with the mother’.

    I have also requested to use a child support trust in the form of a shared checking account that both parents contribute to in order to share the responsibility for providing for my children’s needs.

    The same family court judge stated that my ex-wife (NOT our children) ‘deserves that money’ and then said that she was not going to allow me to become a ‘deadbeat’ before ordering me to pay the maximum amount of child support allowed under my state’s child support ‘guidelines’.

    So yes, life experience has taught me that gender bias and treating non-custodial parents as though they are the custodial parents indentured servant, whose only contribution to their children’s welfare that has any value is a support check is alive and well in ‘family courts’.

    We won’t get started on the lack of visitation enforcement. I have yet to find a family court judge or local prosecutor with the …courage to enforce a non-custodial parents access to their children because they are terrified of the political consequences associated with sanctioning a custodial mother.

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