Dads as Caregivers: Applying Gender Equity to Child Custody Decisions

On behalf of Samuel Siemon

Waves of social change have rolled over America in the last few decades. Our society’s assumptions have changed about a host of topics, from gender roles to environmental awareness and many other issues. Much that seemed socially solid has melted into air, or has been transformed in ways that until recently would have been practically unimaginable.

For some people, these changes have come too fast; for others, they come too slowly. But change has come, like it or not.

Fairness for Dads in Custody Decisions

On the question of gender roles as a factor in child custody decisions, however, social change has fallen short of what it should be. Far too often, the “best interest of the child” standard in custody cases is applied in a way that is not really fair to men.

This happens because the “best interests” standard is usually applied in a way that tends to favor the primary caregiver, who is still usually the mother. Dads may get visitation time, parenting time, or whatever a particular state calls it. But primary custody tends to stay with moms because, more often than not, they have been the primary caregivers.

In a society whose legal system is committed to equal rights for both genders, this is not an equitable outcome for fathers. After all, more and more modern dads are embracing caregiving roles.

A lot has happened since Michael Keaton made his “Mr. Mom” movie a generation ago. It should no longer seem exceptional for a father to be seen as someone who delivers top-notch, frontline care for his children. The duties could include going over schoolwork assignments, taking care of pediatrician appointments, washing dishes, and so on and so on.

A dad who can do things like these should not immediately be given short shrift when there is a question during a divorce proceeding about primary custody. Yet that is what the “best interest of the child” standard allows all too often.

Limitations of the “Best Interest” Standard

The underlying problem is that the “best interest of the child” standard in child custody cases is so vague. It is essentially a broad, catch-all term for the decision-making process courts use in making a judgment call on what a child needs and who (which parent or parents) is best suited to providing it.

The criteria that are supposed to guide the determination remain ill-defined. This, in turn, throws the decision about custody back on the discretion of judges. No one doubts that judges try to do the right thing. But in so frequently giving primary custody to mothers, judges often perpetuate the sexual stereotypes of the past.

The data on how often mothers get custody is quite striking. A Canadian researcher, Paul Millar, recently documented that in Canadian child custody cases, primary or sole custody goes to mothers 90 percent of the time. The American figure is nearly that high as well, at 84 percent.

Even more surprising perhaps, is that these figures have remained constant for nearly twenty years, even as gender-neutral roles have become more accepted in society.

Getting Beyond Stereotypes

The “best interests” standard in child custody cases needs to be rethought. To be fair to fathers, gender should not be used as a proxy for capacity to care for children. Courts need to dig deeper and really examine all of the relevant factors regarding what is likely to be best for the kids, not merely default to the view that they are better off with mom.

There are times, after all, when father knows best.