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Over the years, the laws regarding child custody have taken many changing faces. Way back in America’s history, the courts ruled in favor of fathers in the event of a divorce; thus, the children were perceived to be identical to any owned property. Typically, in any case, when a husband and a wife divorced, the husband was the one entitled to receive the property, for instance, the land or the family business. In addition to the property, the father also received the custody of the children. This was attributable to the concept that the care of the child was naturally considered to be an addition of the fatherly duties which involved supporting and providing good education to the child. Throughout the early 1960s, men came forth and decided to break out of traditional male roles and experience individual growth by creating local groups. The social and economic changes during the 1960s and 1970s influenced adoption and custody law in comparable ways. Due to the fast rise in the divorce rate throughout the late 1960s and 1970s, the Father’s Right Movement was initiated with the aim of increasing legal rights to custody and visitation. During the 1970s, the Fathers Rights Movement was formed across the Western world and effectively advocated for joint custody laws. It has helped divorced fathers who felt stigmatized in terms of legal and social recognition by granting them liberal access to their children
The Father’s Rights Movement is a group of organizations that was mainly focused to cease gender bias in divorce and custody proceedings. The movement was mainly as a result of men’s interest in becoming more caring and expressive individuals in order to solve the emerging problems from societal beliefs. This movement also emerged due to the huge impact of the loss of men’s financial, psychological, and emotional involvements to the family. The increase of divorce rate in the 1960s and 1970s motivated men to create organizations aimed towards reforming child custody laws. In 1977, the fathers’ rights group was scattered in more than 30 states. They were focused on fighting against sex discrimination in family law and seeking the maternal preference in custody decisions and the ways in which courts computed child support and maintenance. The Fathers Rights Movements advocated for equal rights and drew attention to the stigma experienced by fathers upon divorce. Many of them supported patriarchy to feminism as they argued that the latter promoted women to depart from their husbands in search of self-fulfillment. The Feminist movement led divorce courts to gradually grant custody of children to the mothers. Hence the Father’s Rights Movement was based on the premise that restoring men to their rightful place as the heads of their family by means of amended custody and child support laws would provide children’s requirements.
The custody law embraced shared parenting which was founded on the ‘tender years’ doctrine. It presumed that, in most of the cases, the mother was the best parent who was prepared to bring up the children. With regard to the preference, the mother of the child was bound to receive the custody of the child as long as she was well thought-out to be minimally fit. This is to say that, in case the issue of the custodianship of the child was contested in the courts, the mother had the advantage of landing the custody of the child, unless there was a serious problem with her, in terms of health; for instance, the mother did not have the custody of the child, if she had a mental disorder, if she was a drug addict or alcoholism, and if she and the child were in an abusive relationship. The courts, however, did not pay much attention to the parental skills of the father .The continued routine preference for the mother in terms of the custody of the child proceeded up to the 1960s and the 1980s. However, the preference varied from one State to another. Later in the years, the laws were restructured in a way to foster equality between the parents. During the 1960s and 1970s, the State Legislators started to question the gender prejudice that was inherent in the ‘tender years’ doctrine, and thus revised the law to incorporate a new, primary caretaker assumption. The ‘tender years’ doctrine was discarded when several court verdicts considered that gender based custody decisions were an unconstitutional breach of the equal protection clause with regards to the Fourteenth Amendment of the Constitution. Under this new policy rule, judges were authorized to grant the children to the parent who was acting as the primary caretaker preceding the family disintegration. Lawmakers claimed that this law would offer the children, the greatest steadiness in their lives during the phase of an impending turmoil. Gradually, the courts shifted away from the assumption that mothers were inevitably better parents when compared to the fathers. They begun to claim evidence of the “best interest of the child” and not automatically select mothers as custodial parents.
Starting in the 1970s, the notion of joint custody was addressed by a combination of forces that incorporated the newly founded Fathers’ Rights movements. The Fathers Rights Movement strongly objected to the decrease in fathers’ parental rights basically because they had become divorced. As a result, new law of joint custody was viewed as a solution to upholding the parental rights, position, and tasks of both parents. During 1970s, the society begun to admit that fathers were unnoticed contributors to children’s welfare and improvement. As a result, they supported the benefits of joint custody in family systems. The courts decided to revisit the maternal preference in custody determination and other raised issues such as constitutional protection for equal rights, sex discrimination in custody determinations, and the feminist movement, among others. As a result, the Michigan Child Custody Act of 1970 was formed to address such concerns and fulfill the ‘best interests of the child’.
Joint custody was intended to reduce the stigma that fathers faced and focus on child nurturing practices, communication skills, and father-child attachment, among others. The Father’s Rights movements sought to contest what they regarded as anti-male bias in the family courts, and joint custody was eagerly needed in order to fight custodial power from women. Furthermore, the joint custody law was aimed to encourage parents to discontinue competing over their children and to come up with a cooperative agreement where neither emerged the winner. In the United States, the creation of joint custody laws widely promoted a more positive attitude toward better paternal contribution following divorce among parents, judges, mental health professionals, and lawyers. In addition, in order to serve the ‘best interests of the Child’, the National Conference of Commissioners for Uniform State Laws founded a set of standards in 1971 primarily known as the Uniform Marriage and Divorce Act. It was not sided on either the maternal or paternal side but on the providing the child’s legal rights. This new concept was based on the premise that a child should under all conditions preserve a relationship with the biological parents. Hence, the father right concept was temporarily overthrown and substituted with the concept of the unconditional right of a child to keep in touch with the father. In the 1970’s, the Fathers’ Rights Movements aimed towards gender neutral laws that would grant custody in proportion to the ‘best interests of the child’. The Fathers Rights Movement gained a huge triumph with regards to these, as they found a voice supporting and boosting the current authority. In the late 1970s, several divorced fathers requested the legislatures to accept their rights as parents through joint custody legislation.
By the start of 1980s, different states had shifted to yet another type of custody. Lawmakers wanted to offer judges with a broad way of deciding where children should live; hence deciding the primary caretaker would now be only an element of the consideration procedure. As a result, courts started to center on the “best interests of the child” through ensuring that birth parents and adoptees were informed on the rights of a child. The latest, “best interest” of the child standard was proposed. It was meant to consider the child’s mental, physical, moral, and intellectual requirements of the child and the parent’s capability to attain these requirements. Other factors that were taken into consideration by the court with regards to the “best interest” of the child included the child adjustment to his/her residence, learning institution, and community, the desires of the child with regard to his/her custodian, the desires of the child’s parent (s) with regard his/her custody, and the interrelationships of the child with his/her parent(s), his siblings, and any other individual who could have notably influenced the child’s best interest. All these factors were relevant in coming up with the outcome of the consideration process. Besides, the court had to ensure that emotional bond and love existed between them and the child, the parties involved had the ability and personality to offer the child love, affection, guidance and educational support, the parties involved had the ability to grant the child basic needs, health care or other remedial care, and other material needs, the child has dwelt in a secure, conducive environment in the stipulated period, and the parties involved had the interest of maintaining continuity in nurturing the child, among other factors. In 1981, mediation was introduced and was supposed to be undertaken by the parent prior to a custody hearing in cases where the parents had disputes over child custody or visitation. However, the most significant change that took place was the adoption of joint custody in many states. It was granted and considered except in cases where the courts realized it was not in the child’s best interests. Joint custody was based on the premise that children were required to enjoy an ongoing association with both parents.
Impact of the Child Custody Laws
What materialized in the end of 1970s and 1980s were two apparently opposite approaches to child custody determinations. One approach was the preference for joint custody and a shared parenting program, anchored in the belief that children gain from making the most of their time with each parent. On the other hand, the other approach supported the primary caretaker as the custodial parent for minor children and claimed that sole physical custody was aligned to children’s best interest. In the light of these, the Joint custody laws enhanced women’s financial problems as the children lived with their mother, despite the fact that the custody arrangement granted the fathers an equal say in all major decisions affecting them. In such conditions, the courts placed child-support payments at even less than the usual inadequate standard, on the supposition that the father would pay directly for some of the children’s expenses, but often he gave little or nothing. In most of the cases, children remained in the custody of the mother as judges remained confined to the traditional methods of accessing custody claims. Hence, these practices tended to be repeated and reified across the fifty states in the United States. As a result, in 1981, the State Supreme Court in 1981 established a law that permitted and granted child custody to the party who had offered most of daily child care; usually the mother. The society argued that the male-governed legislatures and the primarily male judiciary had formed a system which was prejudiced against women and that brought out the worst in several men. In 1980s, the child support was different in various countries, for instance it was better in the west compared to the United States. Several European countries were automatically subtracting payments from the father’s wages to support the child. In other countries, the State paid the support directly to the mother and subsequently collected it from the father. In countries such as West Germany, Sweden, and France, child support increased automatically with regards to the cost of living.
During the late 1980s, the states created their own original set of child support laws. By the mid 1980s, joint custody laws ensured that both parents were legally allocated responsibility for their child. This was regarded as an accomplishment by equal-parenting advocates who permitted and appreciated the change since it would eliminate differences and stigma between different sexes. For instance, in 1984 and also in 1988, the Congress passed bills that strengthened child-support implementation. The new federal laws made several enhancements as they subtracted automatically from the non-custodial parents paycheck, starting instantly after the divorce. The states were necessitated to establish formulas which clearly stated how much support a judge should categorize for one child, two, and so on. The courts were instructed to appraise and amend the awards every three years for families on welfare and the rest who appealed for such an appraisal. The States that did not adhere with the federal requirements would lose their welfare funding. The principal style of child custody was sole custody, with the non-custodial parent mainly the father visiting the child for restricted periods. The central aim of these early policymakers was to make certain that fathers supported their children financially to the extent that they were able to ensure that every mother-headed household remained financially practical.
On the other hand, the joint custody laws were not backed up by a number of women’s advocacy groups or feminist-oriented scholars. From the 1970s, there have been four fundamental disputes against joint custody. First, they argued that joint custody eroded the customary responsibilities of women as the prime caretakers of children. Second, they claimed that the directives of joint custody handled men and women equally in imbalanced conditions. Third, they argued that fathers were not concerned in care-taking since they were reducing their child support payments and fourth, they stated that the aim of divorced men was to take advantage and control their ex-wives. However, the joint-custody in statute was addressed in several states in U.S. such as Texas, Kansas, North Carolina, Wisconsin, and Oregon. It broke new ground with regards to custodial arrangements in California in 1979. Since the early 1980s, parents have shared tasks subsequent to divorce; however, if the parents were not legally married, it is presumed that the mother is the guardian except in cases where parents request for joint custody.
Preferences for the Mothers or Fathers
Formerly, the State gave less assistance to the court with regard to child custody. Hence, judges’ verdicts were based on individual beliefs or prejudices, with widely unstable results. As a result, women faced automatic custody, with the omission of mothers whose lifestyles were regarded as unusual. The introduction of joint custody in 1980 was advantageous as both parents legal authority was preserved with physical custody being shared amid them. Hence, the child benefitted since divorce of the parents did not cause a separation from both parents. Actually, in all the states, the laws provide for both the mother and the father of the child to have equal rights with regards to the custody of the child. Therefore, the courts should not take for granted that the child will automatically be under the care of the mother in the event that a divorce occurs. Whenever the custodianship of the child is contested in the courts of law, both the parents have an equal chance to receive the custody of the child, thus, it is incumbent upon the court judges to look into the best interest of the child before passing the judgment. No favour should be given to either parent because of the fact that the future of the child is extremely important. However, there are a few states that still favour the mother of the child; but it is worthy to note that the fathers can as well gain the custody of the child when the case is contested in the courts. Other states that regard that both parents have equal rights still down play that notion by considering the age or the sex of the child as a determinant for custody, thus, the mother is granted the custody of the child, if the child is extremely young or female. It is worthy to note that the fathers can as well gain the custody of the child even if the mother is fit. It is required for the judges to be very neutral when it comes to deciding the cases in the courts, but in some states they are seen to be so biased. It is very advantageous to have a lawyer who is well experienced in issues regarding family laws because the lawyer will be able to know whether the court judge is biased or unbiased. Thus, the lawyer will only submit the evidences that are strong and appealing to the courts so as to draw the attention of the judge. However, in various states, there is a possibility that a court judge can be changed, if at all the lawyer sees him to be biased. This process of changing the judge is normally called a change of venue. The change of venue is normally done before the judge makes any major decision with regards to the case.
The change of venue can only be done once due to the fact that the courts are so reluctant to offer a second change of venue because they do not want the parties to be seen as bouncing cases among various judges .However in some instances, the courts can allow for a second change of venue, if at all the judge shows an extreme level of biasness with regards to the case. A comparison between the 1960s and now shows that today’s judges are seen as less biased in deciding the custodianship cases than before, but in some instances, the biasness can still be felt. Actually, judges who have a certain background experience may tilt their judgments to favour the mother to the father or vice versa. When such judges take those views to the bench, the father or the mother can have a lot of difficulty in getting access to the custody of the child. A typical example occurred in Louisiana, where the judged offered custody to the mother by arguing that it is naturally psychological that a girl child should be with her mother since it makes no big difference. These sentiments were considered to be so much biased and eventually, the court order was reversed and the judge was dropped from leading the case. It is, however, very hard to obtain a reversal of the case when no sign of biasness is displayed by the trial judge. In another case in Iowa, a father was granted custody over two of his sons aged 9 and 11 years providing the reason that the father was more likely to connect with the boys and participate in various activities with them; for instance, fishing, swimming, athletics, and any other activities that interested the boys. But in contrast, the sentiments that the judge provided did not stand up to critical examination as the father had no relevant experience in fishing, swimming or athletic, and similarly, the boys had no interest in the same. Actually, it was their mother who had once taken them for fishing trips or swimming lessons, yet she was denied the custody. As a quick response, the case was reversed and the boys were put under the custody of their mother. Therefore, the burning issue should not be the sex of the parent but rather the ability and the interest of the parent to offer better custodianship for the benefit of the children.
In many cases, prejudice in favor of fathers is seen as to be a prejudice against mothers. Working mothers have a slim chance in securing custody of their children because the judges consider them to lack sufficient parental skills. Therefore, when the working mothers are involved in any contest in the courts, they do not stand a better chance especially when the judges are biased. Many people point to the fact that working mothers find it very hard to make time for their children, thus, fathers who exhibit an above standard parental skills are regarded to be the best qualified parent to gain custody of the children. In the likelihood of a divorce, if a parent is considered to be spending a lot of time with the children, then such a parent will have an added advantage in the court as he/she will be freely granted the custody over the children. Presently, joint custody is utilized in several states with different approach.
Child custody plays a very important role toward the development of a child. When a child gets a good custodial parent his/her life will change on a positive note and vice versa. The concept of child welfare, with its huge concern on children’s needs, and the acknowledgment that poverty did not exclude capable parenting, introduced the concept of child support orders and enforcement. The laws regarding the custodianship of the child have changed so much between the 1960s and the 1980s and have consistently maintained to take a new dimension in the latter years. Since the 1960s, various changes have transpired with regards to child custody in American society. In the past 50 years, a wave of reform have affected the family law, most notably being the laws pertaining to joint physical and legal custody of children mainly after divorce. The Fathers’ Rights Movement has worked towards ending stigmatization faced in divorce and custody proceedings. Since mothers were not considered to be more able to provide for their children than fathers, the tender years doctrine and maternal preference was replaced with the ‘best interest of the child’ standard. It became the standard to notify judicial decision making and has been espoused by all U.S. jurisdictions.