Sunday, September 05, 2004

Just a thought…:

While I am on the issue, I am going to continue with the topic of gender that I brought up last post. And let me interject some social science and family law issues into the mix (parenting, divorce, and custodyship over children) as well.

Among the many issues that Rhoads discussed were the need of a child for two parents in the home and the problems that occur when one parent is absent. And in this society, we are invariably talking about absent fathers. This culture realizes that mothers are necessary for children and we do so probably more profoundly than we realize the necessity of fathers. When parents get divorced, as far as I remember back from my family law class in law school (and if this has changed, please let me know), mothers almost always are granted primary custody of the child (unless there is something seriously wrong with the mother, and even then, a mother is still probably going to get custody—there’s got to be something really wrong). Many folks, especially expositors of traditional gender roles, believe that mothers, more so than fathers, are naturally geared towards being the “primary caregivers,” (and I think it’s the legal rule that says “the primary caregiver ought to get custody of the children” that women are invariably granted primary custody). That a child who loses his mother—perhaps a mother that tragically dies, or walks out on the family, “a motherless child,” if you will—is in a worse position than a child growing up fatherless.

Now, I’m not sure how strongly I wish to endorse the notion of mothers being more suited at raising—nurturing—children than men, but let me assume arguendo that this is true, that all little children need a mother’s nurturing that a father cannot provide, and that if one parent has to raise the children in the house, and one parent cannot be there (because of a divorce, or something along those lines), it ought to be the nurturing mother who gets the children. That she has a bond with the child that the father just doesn’t have. Oh sure, a good father will have a very strong bond with his children. But, as I understand the sentiment, because the children literally come out of the mother, her bond with the child differs in kind from his—the children are literally hers in a way that they are not his.

But now let’s also interject the issue of “fatherlessness” into the mix. And indeed, these same social traditionalists, who might argue that mothers better nurture young children, also have been sounding the alarm about fatherlessness. Now, as much I, as a libertarian, have taken umbrage with social conservatives on this site, I tend agree with social-con thinkers such as James Q. Wilson, about the problems in society relating to out-of-wedlock births and fatherlessness. But one need not consider himself a social conservative to be so concerned. Charles Murray, a self-described “libertarian,” has similarly sounded the alarm for many years. And moderate lefty-liberal William Galston has done so too.

[Note: Rhoads, on the CSPAN show I saw, stressed much what I am about to write. But I’ve also read the same facts from others, Wilson, Murray, et al.] Single parent/fatherless homes tend to have children who are much more likely to be involved in poverty, crime, sexual promiscuity, and a whole plethora of other social pathologies. And the most serious of these problems start to manifest when the children become teenagers or young adults. A father in the home makes a girl less likely to get pregnant before marriage and will make a boy less likely to get in trouble with crime and treat women in a sexually irresponsible way. Fathered homes have children who study harder and achieve better academically.

I have even seen evidence that shows that motherless households do not tend to have these same problems as do fatherless households. (Who knows why this is so? Because there are so fewer of them? Because society realizes that a motherless household is a tragedy and the community steps in and pays more concern to those children?)

So what is all of this leading up to? If social science shows that fathers are necessary in households, especially during the years where adolescents transition into adulthood (and especially for young men, whose life might start to go astray—problems with the law and all that—at that time…but also for young girls—who make the ultimate choice as to whether to bear a child out of wedlock—as well), why not make fathers, at that point in the child’s life, the presumptive primary caregivers (or in other words, give them primary custody of the children)?

Assuming that young children need a mother’s nurturing and caregiving more so than a father’s, mothers would still get primary custody of children, say, up until the age of 10 or 11. At that point, the child would have gotten the needed “motherly” nurturing, that a motherless home would not be able to provide. But for children 11 and over, the father would be the presumptive parent—because social science shows that fathers more so than mothers, are necessary for children to make that transition into responsible adulthood.

This would also make the child custody system seem fairer. I know many fathers who feel screwed by divorce. The women get the children permanently and they only get custody on every other weekend—up until the children are 18. Yet, they still have to pay full child support. And if the divorce was nasty (as many of them are) that gives the mothers a lot more time to brainwash the children against the fathers (in fairness, many of those nasty divorces are precipitated by the father’s irresponsible behavior, like cheating or leaving the wife). Presumptively giving the first 10 years of life to the mother, but 11-18 to the father would probably give more of an even period of primary custodyship to both parents.

So what if the child was 7 years old at the time of the divorce? Then the mother would get custody of the child until the child turned 10 or 11, then over to the father. What if the child was 13? Then he or she would go with the father. What about multiple children? I don’t know. Would splitting the children up based on this “age-line” cause problems (the children, 10 and under, with the mother, 11 and over, with the father)? And of course, the parents would be free to work things out by agreement.

Now this is just a thought. I haven’t really fully thought through this. And I am by no means a family law scholar (I don’t plan on writing any law review article endorsing this notion). And I haven’t even had time to verify all of the social science assumptions that this commentary rests on. I would welcome any thoughts—comments, criticisms, or corrections, in emails.

One problem that I anticipate is that much of the problem with fatherlessness that I reference comes from out-of-wedlock birth scenarios where the father was never there to begin with. But my proposition deals with a divorce scenario where the children began with a father and where a father will most likely take an active role in their lives. Moreover, many divorced families have two-parent homes: Stepparents. And the presence of a stepfather may obviate many of the problems caused by single parent/fatherless homes. To compound the matter further, I have seen conflicting social science on how divorce impacts children. I know divorce has a psychological impact on children. But I have seen data that says on the one hand, if a child begins life with 2-parents in an intact marriage, which subsequently breaks up, that he or she has no higher a probability of suffering from social pathologies—crime, out of wedlock births, high school dropouts and educational failure—than children whose parents stay together. On the other hand, I have seen data that say just the opposite. Anyone care to clarify this for me.

I would especially appreciate the female or the feminist perspective on this. In law school, on this issue, and on the issue of alimony, I felt as though many of the feminist students didn’t know how to come down. On the one hand, primary custodyship and alimony are big time gender double standards (something that feminists are supposed to be against -- but what about gender neutral alimony? I remember one female student who noted that she was projected to make much more $ than her husband and would die before giving him alimony if they ever broke up), but on the other hand, if women lose their alimony and their primary custodyship, women will actively lose something very important to many of them (and feminists are not supposed to be for women losing important ground in society).


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