NEWS RELEASE, 1/28/99
Modern custody disputes favor father's rights
over child's welfare, according to UC Berkeley study
By Patricia McBroom, Public Affairs
Berkeley -- The modern drive to expand fathers' rights in custody cases has resulted in a significant decline in decisions made in the best interest of the child, according to new research by a University of California, Berkeley, professor of family law.
States now give higher priority to blood ties than to parenting and children can be ordered to live with biological fathers they have never known, said Mary Ann Mason, a lawyer and professor of family law at the UC Berkeley's School of Social Welfare.
"An unwed father who has never seen his child will be given custody in most states in preference to unrelated individuals who have done the actual parenting," said Mason. "Unwed fathers now have the same rights as married fathers - a major historical change of the past two decades."
She added that such disregard for children's needs also occurs in divorce cases where courts "have rushed to 'divide the child,' by insisting on joint custody and ignoring what we know about early child development."
Children are not being represented in court or given a voice of any kind, Mason says in a wide-ranging analysis of custody law published this month (February) as a book.
In "The Custody Wars: Why Children Are Losing the Legal Battle and What We Can Do About It" ( Basic Books, N.Y.), Mason evaluates the contemporary and historical status of custody decisions, demonstrating that modern-day courts have regressed in their concern for child welfare.
This has happened, in part, because states - now wanting to encourage unwed fathers to pay more child support - offer unprecedented rights to them as parents based purely on biology, not actual parenting, said Mason. In another arena, she added, parental rights have been expanded via joint custody decisions - unwise in the case of very young children who need stability in their lives.
"Young children's best interests are largely ignored in joint custody decisions," said Mason. "If very small children could speak, they would not choose to divide their lives in half. It is just not developmentally appropriate."
Courts have known this about small children, ages six and under, since the turn of the century when the "tender years doctrine" became law. Today, nearly 100 years later, the doctrine - which favors a primary parent - is being ignored in a "politically correct" move to joint custody, she said.
But it is in the case of new rights for unwed fathers that Mason finds the most egregious examples of a legal system that disregards the welfare of the child.
Until a Supreme Court decision in 1971, unwed fathers had no rights to child custody based on the genetic relationship. Now, most states have given unwed fathers all the rights of a married father.
"In the case of unwed fathers," said Mason, "states have abandoned the child-centered 'best interests' test. Today, it must be shown only that it would be harmful to the child to live with the biological parent, not merely in that child's best interest." She said this means that a young child can be taken from an adoptive parent with whom he or she has a strong attachment, as in the celebrated case of Baby Jessica, because the biological rights of the father have become paramount.
In Michigan, four-year-old Baby Jessica was raised by adoptive parents only to be given in a custody dispute to her biological father. The father was not married to Jessica's biological mother and the child had never seen him.
"If our first concern was truly the best interests of children, we would look at unwed fathers in a different light," said Mason. "We would look, first of all, to whom is performing the actual parenting."
In a current California case, an unwed father was allowed to make a paternity claim for a child being raised by his former girlfriend and her husband.
In the past, such a claim would not have been tolerated by courts because their primary intent was to preserve family stability. This time-honored tradition, in which the married father was always the legal father, also protected the child.
But no more, said Mason.
By allowing this paternity claim, the California court "paid little attention to the rights of Brian, now age four, or even to his needs. His best interests were not considered at all," she said.
If paternity tests bear him out, said Mason, the unwed father may sue for custody and sink that family into dispute, with serious psychological risks for Brian.
"Countless studies, focusing both on married and divorced families, indicate that conflict produces serious negative results in children who need the stability of a primary parent," she said. "We should not be making the rights of parents, whether the mother or the father, paramount in custody cases."
Mason argues strongly that children need advocates in court and that most custody disputes should be settled on the basis of the needs and wishes of the child involved, with changes depending on age.
Until they are adolescents, children should be represented not only by attorneys, but by child advocates, Mason recommends. Currently, psychological evaluations in custody cases test only the personality fitness of the parents, through tests that detect psychotic tendencies. They give little weight to who is doing the parenting, and the evaluators rarely listen to what the children want.
As a result, it is common for children to be forced to divide their lives or spend time with parents they don't want to see, said Mason.
"This is not a child-centered policy. The equal rights of the parents, not the best interests of the child, are the guiding principle," said Mason. She recommends that the United States follow the example of English courts which have provided all children in custody disputes with two advocates -- a legal and a personal representative -- since passage of the Children Act of 1989.
"The philosophy of the Children Act is that children are usually the least powerful party in any dispute and need the greatest protection," said Mason, pointing out that children get far better representation in U.S. criminal courts than in family courts.
Mason believes the wishes of mature children over the age of 13 should prevail in a custody dispute, unless they are at risk of being harmed by their choices.
In addition, she calls for regular reviews of custody arrangements to adapt to the changing needs of children as they grow. And, she urgently endorses a return to the policy of favoring a primary parent, during the tender years.
"The fundamental concept of attachment, introduced after World War II by John Bowlby has withstood a new generation of researchers," said Mason. "For children under six, it can be very destructive to disrupt their bond with a primary parent."
"There must be a place where children are heard and their changing needs are addressed," she said, "a place where judges are educated in child development; a place where the rule of law, while flexible, truly promotes the best interests of the child rather than catering to gender politics."
Added Mason, "Children are not property to be exchanged."
Send comments to: email@example.com