PARENTING AFTER SEPARATION – DIVORCE: CUSTODY


parenting after separation

This week, Post Divorce Point of View discusses parenting after separation.  We are candid and frank in our discussions and hope that you will be candid and frank when telling us your point of view of parenting after separation.  If you missed last week’s discussion on Child Support, we encourage you to take a read and leave a comment.

Michael’s Point of View regarding custody:

When it comes to child custody, I am a staunch advocate for shared-parenting. Specifically, I believe that there must be a presumption of equal child custody for children and parents under the following conditions:

  • Both parents are desirous of 50/50 child custody.
  • Both parents are fit, loving parents.
  • There are no provable issues of abuse of the children on the part of either parent.
  • There are no provable issues of substance abuse on the part of either parent.
  • When the dust has settled from the divorce, both parents have the minimum necessary housing and other provisions to meet the children’s basic needs and it is logistically feasible.
  • Parents who choose, of their own free will, to make other parenting arrangements can and should do so.

I make a point of highlighting the term “provable” with a specific purpose. It almost goes without saying that the false accusation of domestic violence is the number-one tool in the arsenal of a disgruntled ex-spouse. The overwhelming majority of allegations of abuse during child custody proceedings are levied by the mother. The typical result is that a father is barred from the marital home and prohibited from seeing the children except under infrequent, supervised parenting time, if any at all, for an indeterminate amount of time. Generally, fathers are at a decided disadvantage in family court without such accusations looming over their heads. When these accusations do come, it only makes matters worse for them, and their ability to obtain meaningful parenting time with the children becomes almost impossible.

In the earliest days of contested child custody, “The Tender Years Doctrine” generally governed child custody decisions. In short, up to the age of thirteen years old, the presumption was that children were better off with the mother. Thus, mothers almost exclusively were awarded primary or sole custody of the minor children. Viewed as a violation of the 14th Amendment of the United States Constitution regarding equal protection under the law, The Tender Years Doctrine was soon replaced with “The Best Interests of the Children.” While this was supposed to level the child custody field for fathers, a simple review of Census Bureau Statistics reveals that this was little more than window-dressing to get around the concerns about automatically giving child custody to mothers. Even since the advent of “The Best Interests of the Children” – children are still overwhelmingly placed in primary or sole custody of the mother in contested custody cases, even when a father is fit, ready, willing, and able to parent the children in every meaningful capacity that a mother can, even at the youngest ages.

Rather than start with a divorced father’s perspective on child custody, I will begin by donning my “childhood cap” and offer a perspective that few often honestly do in the midst of a contested child custody case – the perspective of the child. I do so given the five criteria that opened my point-of-view:

  1. I love both of my parents with all of my heart and soul. They are my leaders, my guides, my caregivers. I love them both. I need them both. I want them both.
  2. My comfortable, safe world of an intact family has forever been shattered by my parent’s divorce. I’m afraid. I’m uncertain as to what is going to happen next. I know I won’t see them both as much as I once did forever. I wonder if this is somehow my fault.
  3. Both of my parents take care of me and our entire family in sometimes the same way and in sometimes different ways. Neither is more important or better for me than the other. Without both of their hard work and effort, whether working or not, my life would not be as complete.
  4. I know that they are both my primary caregivers. When dad goes off to work to make money, fixes things around the house, mows the lawn, shovels the snow, reads me books, helps me with homework, tousles my hair and kisses me on the forehead at bedtime – he is doing so as a primary caregiver. When mom stays home, makes my meals, washes my clothes, sees me off to the school bus, gives me a bath, cleans the house, helps me with homework, arranges my play dates with friends – she is doing so as my primary caregiver. And if their roles were reversed or their roles were the same – they would both be doing it as my loving parents and my primary caregivers.
  5. I have no idea why they are fighting over who should have me. I love them both so very much and I am confused as to why one wants me more than the other. They’ve never done anything wrong for me. I know things will be different, why won’t they just stop fighting over us and figure out how we can see both of them as much as possible?

This is just a small sample of what everyone might imagine is rolling through a child’s head, assuming that they can get over what is an intense fear for their future in the midst of a divorce and broken family. However, high-conflict parents can rationalize just about anything to justify using their anger and rage at their ex-partner for whatever transgressions were perpetrated on them – real or imagined.  They do this so that they can leverage the only weapon left in their arsenal to get back at them – the children. They often speak so eloquently for the children, as the children sit in the background silently, praying to themselves for an end to their parent’s madness. The “wronged” parent cannot separate their experiences in the failed marriage from parenting. If they’ve been wronged, then the children must have been wronged, too, and therefore, dad isn’t fit to have equal custody. It never dawns on them the long-term ramifications, almost all of them decidedly negative, for the children. Their zeal to punish their target is simply too overwhelming. They have all the justifications, rationalizations, and excuses to do what it is they do.

This, of course, brings me to my perspective. I believe that my case is one among many that will clearly demonstrate just how stacked the deck is against willing, fit, able fathers who want nothing more than equal custody once a divorce is a foregone conclusion. My child custody case is 7-years long and counting. It is a very contentious one with one of the most high-conflict personalities in my ex-wife that there is includes:

  • Being sued for primary/sole custody no fewer than six times.
  • More than 50 court related events (hearings, conferences, custody evaluations, etc.)
  • Not one, not two, not three, but FOUR custody evaluations. Three of these were through the court-connected program and one was a private evaluation.

Unless you know me personally, you only have my word that the following is the truth: I have always wanted children from the time I was a youngster. I was and currently am a very involved father. I’ve always known how to cook… clean… changed innumerable poopy diapers… got up in the middle of the night regularly to tend to the babies… my children couldn’t pee on me too many times when I danced around the house with their naked little baby bodies to music on the stereo… I worked hard… I was a homebody (generally)… I loved my family and I loved my life… except for the hell that my ex-wife regular put us all through. Even when divorce was imminent and after all of the nightmares I had to endure throughout my marriage with this high-conflict woman, I was able to separate that from what the children’s needs were. Those needs were both parents in their lives for the maximum amount of time. That’s just what we originally agreed to – an equal parenting arrangement that we would adjust as circumstances required for our respective work schedules. That plan lasted for roughly 5-months after when she filed for divorce.  That’s when a negative advocate attorney promised her a windfall that simply didn’t exist and she wasn’t ever going to get. For her, what was best for the children wasn’t best for her, and what was best for her (in her mind) was the primary motivator and continues to be so.

Then, there are our custody evaluations. In brief, though not a single one of them ever found a shred of a problem with my parenting abilities – not a single one of the first three ever recommended anything less than mother primary custodial parent and father non-custodial parent. This was the case even when there was high praise for my parenting skills and abilities within the reports. Worse, despite my bringing to the table mountains of actual evidence of her instability, her parenting problems (including documenting wanting to relinquish custody to me on several occasions because she “just couldn’t handle it”), and overt parental alienation attempts – not a single one would recommend equal custody, nevermind giving me primary custody. The fourth one recommended maintaining our court ordered 50/50 custody arrangement, even though I was able to prove that her latest petition for sole child custody was entirely lies (against the law to file unsworn falsification to authorities, something she does with much regularity without sanctions), and expose a long-time substance abuse problem that was now affecting the children. Despite all of this, the custody evaluator made a recommendation to maintain 50/50 child custody.  As an aside, with each one, it’s absurd how obvious the anti-father bias is when many details of her unsubstantiated allegations against me are included within the report.  Noticeably absent, details regarding my supported concerns about her issues and all of her lies or much of anything negative about mom that would override all of the conjecture about dad.

Over the years, I’ve been clearly able to demonstrate why equal custody (at a minimum) was in the best interests of the children. More recently, I’ve been clearly able to demonstrate why a change in custody to me as primary, even if only temporarily while my ex-wife finally gets some of her issues addressed, was in the best interests of the children. Yet, the court and it’s “hangers on” simply cannot bring themselves to take child custody time away from a mother. It really takes something so egregious, so heinous, so beyond the court’s ability to ignore it for a shift to primary or sole custody to a father.

Mothers always can find a way to claim that what they do is primary care giving and what the father does isn’t quite primary care giving. The court buys into this mindset as well. How convenient. Of course, this sets up the highest possible child support order as in most cases, the father is making more money than the mother. The truth is that for the many high-conflict mothers and for certain – the states – the issue isn’t about “tender years” or the “best interests of the children” – it’s first and foremost about the best interests of the money. More custodial time with mothers means more money for mothers and more federal matching funds for states. More custodial time with fathers means less money for mother and less money for states. The financial incentives for this arrangement are far too powerful to deviate from. You need not look any further than the details in my article Greatest Motivator for Child Support Compliance is Parenting Time Compliance where I mention an excerpt from a 2006 issue of Children’s Voice Magazine:

The government spends roughly $4-billion on child support enforcement while at the same time it spends only $10 million on visitation enforcement. The government, using all of our tax dollars, spends 400-times more money on collection efforts than it does making sure that children get to spend time with the parent, usually a father, when the other parent is willfully violating custody orders.

In the event it’s not clear to you why this is – you need not look any further than the money. There is no financial incentive to enforce child custody. There are perverse financial incentives to child support receivers and the states for enforcing child support orders. There is simply no doubt that this is the answer to the question: Why do we spend 400-times more on child support enforcement as we do for child custody enforcement?

It’s all about the money.

In conclusion, when state child custody guidelines operate under the premise of creating a rebuttable presumption of shared parenting as the default custody arrangement – meaning 50/50 or as close to it as is feasible – only then will they be starting to operate with the best interests of the children in mind.  Not only does it disincentivize the financial aspects of child custody litigation, it stifles the high-conflict personality from using the children as a pawn in their game of obtaining tax-free money and attempting to hurt their ex-partner by minimizing the time that they get to spend with the children.  Carrying a child for 9-months no more entitles you to more child custody time than him earning the primary income entitles him to most of the money and property.  The fact that you have a vagina doesn’t entitle you to more child custody consideration.  Being a stay-at-home mother and doing all the things you do doesn’t make you any more a “primary” caregiver than what dad does by going out to work and all of the other things he does around the house.  Changing more diapers doesn’t make you a better parent.  Cooking more meals doesn’t make you a better parent.  Taking the children to more extracurricular activities and other appointments doesn’t make you a better parent.  When you get divorced, things change in both households.  Each parent has to position themselves to do better in every category and what your roles were during the course of the marriage does not define what you will do and how well you will do it after divorce.

The children want both parents in their lives for as much time as possible.  Are you going to allow that for them?

Michael Ambrose is a divorced father of two young children and is a shared parenting advocate.  He operates the website Mr. Custody Coach to help parents in high-conflict divorce and custody situations to better prepare to obtain more meaningful child custody – regardless of gender – for parents who are fit, ready, willing, and able to be an integral part of their children’s lives.

Lee’s Point of View regarding custody:

Obligations and rights.  These two ideas are what surround a divorce.  Child support is considered an obligation.  That obligation is to give financial support to raise your children.  Custody and visitation are considered rights.  Rights to see your children, parent them, raise them, nurture them, teach them and be a valuable part of their life.  These obligations and rights are both separate and equal.

Support and custody are equal in most states because the amount of support paid or received is a direct reflection on the amount of custody that each parent has.  In fact, this spurs on the big debate over mother’s saying a father wants more parenting time to lower support payments and father’s saying the mother wants primary custody to receive more support.  In some states, where there is a flat rate, the two are sort of equal, in that a calculated amount is used, but the court has the authority to lower the amount paid based on the amount of time the children spend with each parent.

Child support and custody do part ways jurisdictionally and become separate and individually enforceable.   For instance, the custodial parent may not withhold contact of the children to “punish” a noncustodial parent for failing to pay some or all child support required. Conversely, a noncustodial parent is required to pay child support even if they are partially or fully denied contact with the child.  And, a non-custodial parent is responsible for child support payments even if they do not wish to have a relationship with the child.

The question is why isn’t the right to parent separate but equal?  It seems as if the growing trend among fathers is the right to have shared custody or a 50/50 split of time with the mother.  Although this trend is growing in the men’s rights movements, it is not growing very quickly in the courthouses across the country.  It is a well known fact that the divorce process favors the mother in custody situations; it is also a well known fact that a child of divorce is better off emotionally when both parents are equally involved in parenting that child.  Children need their fathers just as much and sometimes more than their mothers.  Once again, why isn’t parenting separate but equal?

Custody does not start out on equal footing from the beginning.  Unless the circumstances are extreme, such as physical abuse, sexual abuse or severe mental abuse, custody always starts out as one parent having primary custody, while the other parent has visitation.  Visitation, when standard, is every other weekend and usually one night during the off weeks.  And, usually, it is the father that ends up with standard visitation.  I have heard attorneys say to their male clients, “Even if your wife is a crack whore who sells her body on the streets and shoots heroine in front of the children, you won’t get sole custody or even shared custody.”  And, you know what, that is generally true.

Custody in the courthouse favors the mother.  It favors the mother even if the father is a stay at home dad and the mother works.  It favors the mother even if the mother alienates the children against the father.  It favors the mother even if she abuses the children.  It is not difficult to put on your best suit and go in front of a judge and play the injured party as a mother to get custody, especially when the odds are already in your favor.

Is visitation a right though, or is it a bone that is thrown out to the non custodial parent as appeasement?  For those fathers that want shared custody, it is a bone.  Why don’t the courts start out as standard visitation being shared equally?  The mentality that the child is better off with the maternal figure is not as true as it once was.  Back in the 1950’s when most women were housewives, perhaps, but standards have changed, while the laws regarding custody have not.

It is a fact that not all parents are cut out to be parents and sometimes it is not best for one of the parents to have shared custody.  Sometimes it is best for the children to reside full time with one parent and have visitation with the other that consists of a few hours per week to a few weekends per month.  But, this is the exception rather than the rule.

If you look at custody from a selfish perspective, it makes life easier when custody is shared.  Not only are the expenses shared, but the everyday parenting responsibilities are shared.  Being a single parent is tough, and it helps you to rejuvenate when there is an extra set of hands to take over, whether it is for a week or a weekend.

Something else to consider is what do the children want?  Is it best for them to go from one house one week to another the next, or spend half the week at one home and the other half at another home?  That depends on the parents and whether or not they parent on the same page and can put aside their differences and do what is best for the children, making that transition easy and smooth and not interrupting their everyday activities, play dates and school life.

Most children will voice their opinions when asked, and sometimes not asked as to what they want, but then you run into the issue as to what age is the right age they can make that decision?  In a heavily contested divorce, a judge might speak to the children and ask them what they feel would be the best situation for them custody wise.  Is that the best course of action?  Is a child capable of making that decision, which is a big one and can make them feel as if they have to choose which parent they want to live with?

There are just as many factors that go into deciding custody as there are deciding child support.  If you end up in the court house for these decisions to be made by a judge, it would be so much more productive to look at each family on a case by case basis instead of starting from a “standard” that does not work for everyone.  But, if you and your spouse can decide custody together, without court intervention, then there is no question you will be better off in the end.  Not only that, your children will be better off in the end.

And, my point of view for women out there that have ex husbands that want shared custody…you are lucky and your children are lucky.  Give the poor guy a break already, because the alternative of having a father or ex that isn’t interested really is the pits.  Think of how much better off your children will be and how much healthier when they see you can work with Dad.  You will be much healthier and happier too.

For men that want shared custody….it’s hard for a mother to give up their children for half the time.  I know it is hard for you too and that you can handle it, but those babies came out of our bodies.  You don’t have to kiss our ass, but let us know that you are going to let us talk to the kids and that you will keep in touch during those weeks.  Let us know our babies will be taken care of.  Make us feel better about sharing those precious children and keep reminding us that you love them too.

You can find Lee Block blogging at Huffington Post and Post Divorce Chronicles. She is a Post Divorce Consultant and founder of the soon to be launched Post Divorce Dating Club. You can follow her on twitter @PostDvorceCoach.

What’s your point of view?

*This column is about point of view.  Michael and I will not always agree and we will not always disagree.  The purpose for this column is so that both men and women, mothers and fathers, will get to see what the other side is thinking about these issues.  We also want to know your point of view, and we encourage you to express it in the comment section.  With that being said, this is not a forum for personal attacks or critiques on our writing.  This is a forum for ideas, thoughts and who knows; maybe even ways to change the way divorce is handled from the justice system and from personal thinking.  You don’t have to agree with either of us, but if we feel your comment is off-topic it will be deleted.  We appreciate all the participants and hope that it grows and continues to flourish.

Sarah Bates

During my 5 years in the divorce industry, I gained a lot of knowledge.  Knowledge of the court system and how it works, knowledge on how to let go of the anger, knowledge on how to communicate and most importantly, knowledge on how to empower power people to stay out of court.

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