By Daniel Adair
Any one who has worked in a family office has heard this phrase repeatedly: "I've been a good father and I love my children and you're telling me I can't get custody of them?" For years the court systems in our country have been almost unbelievably prejudiced against the man in custody fights.
There are attorneys who love to quote statistics saying that almost 50% of men who get into custody fights win them. What they aren't telling their clients is that the men in that 50 percentile are spending thousands of dollars on teams of high priced lawyers and private investigators. The average man, with the average income, has had virtually no chance of winning custody, unless his wife was a drug abuser, a drunk, or a prostitute.
Recently, as a result of the men's rights movements, we've seen a shift in the laws in major states such as California and Texas. Both of them have amended their family codes to say that it is in the best interest of a child to have both parents retain custody after a divorce, which is commonly known as joint custody. While this sounds like a move toward a more impartial system, it's mainly smoke and mirrors.
To understand that, you have to understand that when lawyers use the word, "custody," they don't always mean the same thing that normal people do. To a layman, custody means, "getting the kids after the divorce." A lawyer, on the other hand, speaks of custody in terms of physical custody and legal custody.
Now, the person who,"gets the kids," gets both physical custody and legal custody. That means that they have the right to establish the home for the child and have the child at that physical location the majority of the time. And, they have the right to make major decisions about the child's welfare, to consult with teachers and doctors, to seek medical attention for the child, etc. In other words, they have all of the normal legal rights of a parent.
In the bad old days of divorce, the parent who didn't get the kids had neither physical nor true legal custody. He/she was normally allowed to have visitation with the child, but his/her rights to make decisions about the child's welfare or to confer with doctors or teachers were very limited.
The new joint custody laws have attempted to restore legal custody to the parent who doesn't get the kids in the divorce. The decree or judgment of divorce usually states very specifically that both parents are allowed to consult with teachers and doctors, and are required to keep each other informed as to the child's welfare. It's a sincere attempt to keep both parents plugged into the child's life as much as possible.
But, going back to the layman's definition of custody, does it mean that the father will have equal possession of the child? Not at all. And that may not be a situation that any legislature can do anything about. It's just the nature of a divorce.
For true joint custody to work, we'd have to return to the age of our great grandparents, where people were born in a little town, grew up in that town, and lived in that town until they died. If you and your ex-spouse got a divorce, why you could just buy a house a few blocks away and the kids could spend half of their time with you and half with your spouse. Since there was only one school in town, you could drop the kids off at school in the morning and your ex-spouse could pick them up in the afternoon. You could truly have the kids in your life for half of the time, without it causing any strain on them.
But, when you try to translate that scenario in to modern life, you tend to run in to problems. Most of us don't live down the street from our ex-spouses and wouldn't want to if we could. The odds are very high that after your divorce you're going to live a fair distance away from each other and you'll live in different school districts. In this age of multiple careers, it's even possible that you'll get promotions and move to other counties or states. Given that reality, trying to have the kids an equal amount of time turns them into human ping-pong balls, bouncing from one home to the other and spending hours and hours of their lives in the back seat of a car.
And that brings us back to square one. The kids have to live with one parent or the other for the majority of the time, and the other parent will see them on weekends, alternate holidays, and during summer vacations. While most lawyers and judges won't say so publicly, they'll tell you privately that they think most kids are better off with their mothers rather than their fathers.
To a large extent, the new joint custody laws haven't changed much of anything. Women tend to get custody and men tend to get visitation. Whether - and how soon - that changes depends on societal changes that are hard to predict. Will men continue to seek a more nurturing role with their children? Will more women give up custody to pursue careers or education? Will the legal system begin to discriminate between the early years of a child's life when he or she must be with the mother, versus later years when both parents are capable of caring for the child? We have more in-depth discussions of custody issues in [http://divorcecalifornia.biz/index.html ]The California Divorce Course, and this is one aspect of child custody that we'll be watching carefully. Whatever occurs, we'll see society shaping the laws, and not the other way around.
Daniel Adair is the author of The California Divorce Course, an On Line Guide to Filing Your Own California Divorce ( http://divorcecalifornia.biz/index.html)
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