Fathers Deserve Equal Justice in the Courts

FOR the past six months, Fathers for Equality and Justice has been conducting a study of divorce records in Dane County, Wis. The findings were presented June 1 to Wisconsin's Equal Justice Task Force, which has been seeking evidence of gender bias in state courts. They represent solid evidence of de facto discrimination against dads, the same kind of discrimination that prompted the establishment of affirmative-action programs for others. We discovered that of the 252 cases examined, 99 percent were settled out of court by agreements between the parents, including questions of custody, contact with the children, child support and maintenance. Only 9 percent of the fathers emerged from divorce with a primary role in their children's lives. The rest settled for various forms of sole and joint custody which left them in a subordinate position with regard to the care and custody of their children.

University of Wisconsin researchers Sara McLanahan and Karen Booth concluded in their own research that ``evidence overwhelmingly suggests that children who grow up with both parents are better off as adults than children who live apart from one parent.'' The typical divorced Dane County father, however, is not going to the mat to give his children that important edge in life. We have no reason to believe that fathers in other communities try harder.

Cynics may argue that men simply don't care and are content to let their children go for selfish benefits. We don't believe that. Our experience in counseling thousands of men over the past 2 1/2 years indicates that men surrender without a fight because they feel the system is stacked against them. A majority of these men would be living with and raising their children if they had confidence the courts would give them an equal opportunity.

Evidence of judicial gender discrimination also appeared incidentally during our study. In a 1987 decision which led to an appeal, a circuit-court judge said, ``All other things being equal, children normally go to their mother.'' Another judge, according to the trial transcript, laid the problem open for men by stating, ``We're really unfair to men. We treat women differently. We treat them with kid gloves.''

The message that men can't win in divorce courts is passed on to already discouraged men by their lawyers. What sensible father will risk thousands of dollars and the welfare of the children he loves in a hopeless custody battle?

Gender discrimination in family law is the insidious counterpart of gender discrimination in the workplace. Even when legislators write gender-neutral laws, they can be twisted and interpreted in the courts according to longstanding, subjective notions of how men and women should behave.

Discrimination lurks in language and customs. For instance, the word ``nurturing'' suggests female parenting. Behavior more typical of mothers, such as emotional support, is commonly used as a primary criterion to evaluate fathers contesting custody, thus devaluing the uniqueness of father love and care. The very word ``fathering'' suggests only the act of creating a child, requiring men to prove that they can ``mother'' to qualify for custody or significant time with their children.

Most family-law professionals will admit that it simply isn't enough to be a good dad. For a father to win a custody battle, the mother must be proved unfit. Since most parents are as fit as anyone can judge, mothers who want custody almost always get it.

Why not have laws that prohibit taking away custody except when a parent is proved unfit? Then the natural state of joint custody would be presumed, and good parents would never be deprived of the responsibility and the right to care for their children. Putting the burden of proof upon those who seek to exclude a parent from a child's life would mean far fewer children growing up without two contributing parents.

If fathers can't or won't do it, what about society's stake in the psychological health of its children? If, as representatives of society, we accept the premise that two parents are very important, what laws, rules, and practices should we favor to promote continued joint custody and care? How can scared, unprepared, or overwhelmed fathers be helped to go on trying for the love of their children? Today, there is no carrot for fathers - only the stick. The same philosophy that says that women are needed in the workplace should say that fathers are needed in the home. Both sexes should be actively assisted to cross gender barriers.

Judith Wallerstein, who in ``Second Chances'' recently reported a poor long-term prognosis for children of divorce, wrote: ``To state it plainly, we are allowing our children to bear the psychological, economic, and moral brunt of divorce.'' The divorce system is broken. More mother custody won't fix it. Children need their fathers, and fathers will respond when they are assured of equal justice in the courts.