Ireland: Two Dads in 493 Got Joint Custody

June 29, 2014 by Robert Franklin, Esq.

As always, this year’s Father’s Day was an occasion for some to honor fathers, others to bemoan the rampant injustices fathers suffer every day in family courts and still others to denigrate fathers and ignore the many benefits they confer on families, children, mothers, themselves and society generally. Yes, New York Times, I’m talking to you.

But few of the articles were as straightforward, fact-based and unabashedly pro-dad as this one by Lorraine Courtney (Irish Independent, 6/16/14). Of course she’s writing about fathers’ situation in The Emerald Isle, but what she says applies to essentially every country in the world. For example:

The lack of justice for fathers is one of the biggest social scandals of our time.

Thank you for saying so. It’s long been one of the strangest aspects of fathers’ treatment by courts, governments and popular culture, that it’s almost invariably marginalized in public discourse. From where I sit, the marginalization of fathers in children’s lives is the single greatest problem we face. That’s right, the greatest problem we face. Why? Because the fingerprints of fatherlessness can be found on a host of other societal problems that pretty much everyone agrees are dire.

We talk about crime and our enormous prison population, but we rarely mention how many of those prisoners come from fatherless homes (between 60% and 72%). We wring our hands about poverty, but it never occurs to anyone to point out that single-parent families are far more likely than dual-parent ones to live in poverty. The figures are 44% vs. 12% respectively, according to the U.S. Census Bureau. We’re rightly concerned about the growing divide between rich and poor, but rarely mention that a huge part of that gap is the one between intact and non-intact families. We wonder, in George W. Bush’s timeless iteration, “why our children isn’t learning,” but seldom notice that children in two-parent homes do better in school than do those raised by single mothers. The list goes on and on. Drug and alcohol abuse, domestic violence, child abuse and neglect, teen pregnancy, high school drop outs, unemployment and many more, are grave social and economic issues that would all be dramatically improved if we made a single change – keeping fathers in their children’s lives.

Thirty years ago, it was popular to pretend that fatherlessness was simply a proxy for other “real” causes of those many social and personal deficits. Class, race, income, education, etc. were claimed to be the true underlying causes. But social science soon began revealing that, for example, when poor black children were compared with other poor black children, those with two biological parents tended to do better on a wide range of measures than did their peers in single-parent homes. It was a simple matter of comparing like to like, poor whites to poor whites, middle-class to middle class, college-educated to college-educated, etc. And when that was done, one thing stood out; children with two biological parents do better than those in any other parenting arrangement.

More recently of course, social scientists have turned their attention to the children of divorce, and there too, the children who keep real relationships with both parents post-divorce, do better on a wide range of measures of child-well-being than do those in sole or primary custody.

All of those deficits that are strongly associated with fatherlessness are not only bad for the individuals involved – fathers, mothers and children – but bad for the public treasury as well. Imagine how much we spend to incarcerate inmates, deal with alcohol and drug abuse, violence in schools, domestic violence, child abuse, and so on. All of those expenditures could be greatly reduced simply by ensuring that children maintain relationships with their fathers.

So it’s passing strange that, in countless ways, our public policies separate children from fathers. Child custody, meager visitation arrangements, the non-enforcement of visitation, child support, child welfare agencies, adoption laws, etc. all play major roles in separating fathers from children, to the detriment of all. It’s as if we’re content with all the problems we gripe about every day.

Now of course, some fathers may truly want nothing to do with their kids, but much social science says the great majority are powerfully attached to their children and find the full realization of themselves in their parenting role. And in any case, we can only fix what we can fix, and, as a practical matter, that means family courts and laws, and the various organizations that feed their propensity to marginalize fathers. So you’d think we’d be doing everything we can to keep fathers in children’s lives, but in fact we do the opposite.

It’s doubly so in hide-bound Ireland. Perhaps the most remarkable two sentences in Courtney’s article are these:

Family law researcher Roisin O'Shea observed 493 judicial separation and divorce cases in 2010 which are ordinarily held in private. She didn't find a single case where the wife was ordered to pay maintenance for children or a spouse and had only seen the courts order joint custody in two cases.

Two cases in which Dad got meaningful time with his kids, out of 493. Amazing. And of course all that’s done in “private” (which is another word for “secret”), so the public can’t know what’s really going on. Here’s how it works in Ireland.

Here in Ireland, a father needs to be married in order to get automatic guardianship of his children. When a couple isn't married, the mother remains the sole legal guardian until the father looks for guardianship. However, if the mother objects to this, the father must apply to his local district court to be made a guardian. It's an all too common scenario now since 33pc of all children born in Ireland are to unmarried parents. Married men are entitled to guardianship of their kids but this can all change horribly when marriages fall apart. A father might believe he has rights but then can find that he's expendable and faced with a horrendous and expensive legal battle on separation. A father has to fight bitterly to get what is automatically awarded to mothers. And if he doesn't have the cash, he doesn't get to see his children. But even fathers who can afford it are stripped of their assets by costly legal battles and then might be told that they can't have their child to stay overnight because their humble bedsit isn't suitable. In more unpleasant separations, a man might be falsely accused of all kinds of physical or sexual violence so that the court case drags on unnecessarily while this is investigated.

So if a dad is married, he’s presumed to have parental rights, but as O’Shea’s data demonstrate, in the event of divorce, it doesn’t matter. His marital status doesn’t matter, his love for his children doesn’t matter, his hands-on child care doesn’t matter, his hard-earned income doesn’t matter. She gets the kids. Period.

Unmarried fathers have to work harder to get the same result. They have to go to court to establish paternity, neither an easy nor an inexpensive task. If they do, they get the same result as married fathers if they try to establish any sort of real relationship with little Andy or Jenny. Nice.

Tina Rayburn, co-author of 'I Want to See My Kids! A Guide for Dads Who Want Contact with Their Children After Separation', writes: "Until people acknowledge the current system is flawed and has an overriding female bias, it will be difficult to see anything changing. There are two core problems. I don't think the courts recognise a child can live happily in two homes and they are loath to take a child away from its mother. There is still a perception that these guys have done something wrong and they don't deserve to see their children."

She said a mouthful. First is the fact that courts believe, against all the social science on child well-being following divorce, that children should only have one home and one primary “psychological” parent. Amazingly, that belief comes directly from the books of Goldstein, Solnit and Freud published in the 1970s – 1990s. They were, at the time they were published, known in academic circles to lack any empirical basis and have since been completely debunked. Astonishingly, the only respect they get anywhere is from the courts that decide custody cases every day. The idea that children need only one parent – their mother – is simply false, but courts in all parts of the English-speaking world warmly embrace it.

Rayburn’s second point, that courts assume that, since Mom is divorcing them, the dads and they alone must “have done something wrong” is not only true, but it’s deeply sexist. The idea of men as active and corrupt while women as passive and innocent has always been a fairy tale, but it’s one many people really seem to like. “Mommy, read me the one about Evil Prince and the virtuous maiden again.”

But what’s utterly strange is that those same courts never seem to pause to ask “so what?” After all, what if, in every single case of divorce there were one bad actor and one innocent party – a scenario no adult believes? And what if, in every single case, the bad actor were the father? Does it then follow that the children of those divorces should lose all real contact with those dads? It does not.

The truth is that children form attachments to both their parents within the first few months of their lives. Those attachments are among the most important things in children’s lives. If they’re firm and the child learns to rely on them, the child is well on its way to a physically and emotionally healthy life. When courts break those attachments, as they do in the case of fathers, the blow to children can be a lifelong trauma.

No adult is perfect and we shouldn’t expect them to be. Fathers with flaws, like mothers with flaws, are still necessary to children and shouldn’t be removed from their lives unless they pose a real danger to them, as few parents do.

We have a legal system that is utterly out of touch with the way we live now in a world where dads change nappies, push buggies and spend hours cuddling their children in exactly the same way that good mothers do.

When a court removes a father from his children’s lives, it’s wrong regardless of how much diaper changing he did. It’s wrong unless he truly is incompetent as a father or dangerous to the child. The simple fact is that children form attachments to their dads in countless ways. Feeding, bathing and diapering can be part of that, but so can play, reading, cuddling, roughhousing, etc.

Fathers have stepped up their game, but courts haven’t followed suit. Throughout the nations of the Organization for Economic Cooperation and Development, fathers and mothers in paid work spend almost identical amounts of parenting time. When all parents are considered, fathers do about 40 – 42% of parenting. Astonishingly, they’ve done this in the face of courts that routinely send them to the sidelines when parents split up.

How is it that society tells fathers they’re vital to their kids’ well-being when they’re married to Mom, but when she files for divorce, all of a sudden they become non-persons?

That’s one courts never get around to answering. Nor do the legions of ideologues opposed to children having a dad in their lives. They’re all too busy nattering on about the best interests of children which essentially all the research on the issue concludes is the exact opposite of what they’re promoting.

Irish Dads have it worse than most. Lorraine Courtney is doing her part to make it better.

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