Imagine a society in which when a couple separates or divorces, it is always the father who receives custody of the children. No matter how caring the mother is, no matter how much she wants to remain part of the children’s lives and no matter how much the children want the same thing, she is cut off from them–except to whatever degree the father is willing to let her see them. All this happens, that is, unless the father is utterly dissolute–in which case the courts will then give custody to the mother.

What a terrible place such a society would be! How cruel to women! How cruel to children! What a blessing we don’t live in such a society! Actually, up until sometime in the 19th century, that was the pattern in our society. The immediate reason for this system was economic: the best financial interests of the children were seen as being served by leaving them with the parent who had the financial resources–and that was the father. We might give this judicial doctrine a name. We might call it the “Father-Breadwinner” test for determining which parent gets custody of the children.

Then, gradually, things changed. In part, they changed because the injustice and cruelty to mothers began to be recognised. Then, by early in the twentieth century, the situation had been completely reversed: women were always given custody of the children when a couple separated or divorced. This happened, that is, unless the mother was found to be “unfit”, in which unusual case the father was awarded custody by the courts. After all, mothers are the natural nurturers, are they not? And fathers are the natural providers, are they not? So just give her the kids and have him give her the money to meet their financial needs. We could also give this doctrine a name. We might call it the “Mother-Caregiver” test for assigning custody of the children.

Then, things changed again. Partly because technology kept eroding away the rigid sex roles, people began to see the injustice of automatically cutting fathers off from their children in this fashion. After all, men are not all alike, women are not all alike. Men, too, can and do nurture; women, too, can and do provide financially. The laws were changed so that either parent could get custody of the children. But the judges didn’t change very much. Overwhelmingly, they continued awarding custody to mothers, in spite of the law. We might label their motivating doctrine in this the “Covert Mother-Caregiver” test for deciding custody awards. This regime still exists. Under it, sociological research has found, the large majority of divorces are initiated by women–after all, they are the ones who stand, under this system, to come out of divorce with everything they want.

Out of all of this injustice was born the divorced fathers’ movement. It developed largely because, by this point in history, there had come to be so many divorces: far more individuals were suffering the effects of the Covert Mother-Caregiver doctrine than had done so under the earlier doctrines. So, do the activists in this movement want a return to father preference? Interestingly, they do not. A few ideologues on the fringes argue for a return to “patriarchy”; but overwhelmingly, what the fathers’ rights activists argue for is a new concept designed to be fair to both parents and to the children: shared parenting after divorce.

The Shared Parenting Ideal

The shared parenting concept is comprised of two parts. First, joint legal stewardship of the children. This involves each parent making important decisions for the children’s lives, especially during the separate times when they are residing with that parent. It can be called “joint legal custody”–though as such phrases are standardly interpreted today, far too little decision-making power is given to one of the parents. Second, shared residency, sometimes labeled “joint physical custody”. Ideally, this means spending about equal amounts of time with each parent–although in practice, variations from the ideal are often warranted. Some of the experts who have studied the matter urge that at least 30% of the time be spent with each parent. At last, a system which does not rip one of the parents and the children away from each other. Everyone wins–including the children.

During the period of overt and covert mother-preference, modern feminism was born. This movement professes equality between the sexes, focusing on traditional discriminations against women. It professes rejection of gender stereotypes about how men and women behave, recognising that many of the choices the two sexes make merely reflect conditioning into societal roles. How would they respond to traditional discriminations against men, then, including mother-preference in divorce?

Many feminists–let us call them “egalitarian feminists”–have replied that equality means just what it says; hence, they were willing to share their former advantages with men, just as they expected men to do with them. Consequently, the egalitarian feminists embraced shared parenting. Indeed, they could point out, equality in parenting is merely the other side of equality in paid employment. For just as women were traditionally kept out of the paid workforce so they would stay home and care for children personally, men were pressured out of the home and into the paid workforce so they would provide for children financially. In fact, the egalitarians have pointed out, eliminating mother-preference through shared parenting promotes equality for women as well: mothers whose ex-husbands do around half of the childcare will be freer to take their place in the paid workforce. In the US, the National Organization for Women officially endorsed a judicial presumption of joint custody.

Unfortunately, only in the early years was the feminist establishment controlled by the egalitarians. Feminist organizations and government agencies have long since been dominated by the sexist feminists: though they continue using the rhetoric of equality, their actual motive is promotion of women’s self-interest (as they perceive it), not justice. Not only have they worked hard to retain traditional discriminations against men, they have often fought to increase them. On the matter of parenting in particular, they have opposed elimination of mother-preference with every weapon they can muster. No flaming male chauvinists could have been more reactionary in defending their traditional privileges than the sexist feminists have been.

One especially revealing Canadian example lies in the efforts the feminist establishment made, a few years back, to retain the governmental parental-leave benefits which had previously been limited to women. To understand this situation, we must be clear that under Canada’s system of national health insurance, there are no grounds for having a separate category of leave for pregnancy and giving birth; these can be treated the same as any other type of medical leave, on the instruction of a doctor. What parental leave should be for, then, is childcare–and childcare, unlike pregnancy and childbirth, can be performed by either parent. So, then: did Canada’s feminists say to Canada’s government: “Make whatever money can be spared for this purpose equally available to men and women”? After all, given current societal patterns, equal opportunity for parental leave would still be taken advantage of, to a strong degree, mostly by women. Or did the feminist establishment, committed as it has long been to “affirmative action” in the workplace, say anything like “Set up quotas for parental-leave funding, so we can be sure enough men will take advantage of it”? Not on your Nelly, McClung. “We won’t give up a penny of what we’ve had in the past!”, they raged at the federal government. And, of course, the feds caved in, giving fathers a pittance they hoped would satisfy those few in the judiciary who actually think equality means equality.

An American example reveals the sexist-feminist agenda more broadly. Remember Marcia Clark, the O. J. Simpson prosecutor? She needed to put in more time on the job. So did she propose to have her ex-husband, who had much more time available, spend more time taking care of the children? Not on your Emily, Murphy. She applied to get more child support money from her ex-husband, so she could park the kids in daycare and have strangers look after them. When her ex objected to this gross injustice by applying for custody himself, the feminist establishment rose up as one woman and screamed outrage. So there you have it. Sexist feminists, in the familiar phrase, “want to have it all”, the children and the money. It follows that they want fathers to have nothing, other than what individual mothers deign to allow them.

De Facto Discrimination

Sexist feminists are not always this blatant in their bias. Sometimes they are much more subtle. To introduce a key example of this, let me review the difference between de jure discrimination and de facto discrimination. Suppose they passed a law which decreed that descendants of slaves could not vote. Now, this would not be de jure discriminatory toward black people. After all, it doesn’t even mention race or skin color. And besides, some whites are also descendants of slaves, and so they could not vote either; and some blacks are not descendants of slaves and so they could vote. But of course, the great majority of persons thus prevented from voting would be black. Such a law would discriminate de jure against descendants of slaves–it would treat those persons differently from everyone else, and would do so without any morally legitimate reason. But in addition, it would discriminate de facto against black people, for they would be disproportionately harmed by this unjust law.

Similarly, the old custody laws discriminated de jure against mothers, and later against fathers. Today, the law is de jure gender-neutral. Yet overwhelmingly, it is fathers who lose custody in divorce. Does this mean there is some kind of unjust discrimination against men? Not automatically. For all that statistical fact all by itself can tell us, there might be some legitimate reasons for women getting custody much more often. Other evidence reveals that the judges are in fact strongly biased, overall, against fathers. But that is a subject for another time. Today I want to discuss a criterion for deciding custody which many judges employ, regarding it as not discriminatory toward fathers. Now, at present they have no authorization under Canada’s law to use this criterion. But many in the feminist establishment support them in doing so–indeed, they have been pressing for years to have it enshrined in law.

I speak of the “primary caregiver” doctrine: the claim that sole custody–or else “primary control”–should be awarded, and should be given to the parent who has provided the most care to the children during the marriage. De jure, the criterion is gender-neutral; it explicitly mentions neither mother nor father. But is it wrongfully discriminatory de facto? After all, it seemingly would guarantee, in present societal conditions, that mothers would get custody far more often. Is it fair? Or have the sexist feminists and the sexist chivalrists merely discovered a more subtle way of treating fathers unjustly? Let us see.

Cheating Interpretations

To begin, it is worth remarking how specific proposals for determining who is the “primary caregiver” often reveal their authors’ ulterior sexist motives. For in telling how to add up the time to compute which parent is the primary caregiver, they often exclude activities which “give care” to a child–that is, which promote the child’s wellbeing–and which fathers tend to engage in much more frequently. For example, guidelines for computing caregiving time commonly include that spent shopping for the child–as if shopping counts as “child care” whereas making the money required to do the shopping does not. And they standardly include housecleaning, but not repairs and maintenance on the house, yard and car which benefit the child similarly.

This kind of cheating is not crucial to the issue before us, however. For even if the explication of “primary caregiver” should be limited to direct, hands-on nurturing, the criterion is still sexist. “How could that be?”, one may ask. “Not only does the presumption not explicitly mention either sex, but childcaring activities are something which either gender can perform. If fathers have performed them less often, that has been their own choice, not someone else’s biased treatment of them.” Here again the hypocrisy behind the criterion shows through. For just recall how strongly Canadian feminists objected to fathers getting an equal opportunity for childcare leave paid for by the government. It’s a cozy racket: first prevent men from spending as much time with the children, then punish them for not having spent as much time with the children.

The problem goes far deeper than the specific matter of childcare leave, however. For well over a century, social forces have pressured and conditioned fathers to leave the hands-on childcare to mothers–just as they once pressured and conditioned mothers to stay at home out of paid employment. The “choices” men and women have made in this regard have been very far from free choices, even when explicit rules have not coerced them. Recognizing this in the case of women, feminists have not blamed women for failing to “do their share” on the paid-labor front. Instead they have demanded, and gotten, hundreds of millions of dollars for programs to encourage women into, and guide them through, the careers once held mostly by men. But no such efforts have gone into helping men become more socially free to provide, and more capable in providing, hands-on childcare. We don’t hear demands for government programs to get fathers more involved in primary caregiving–just threats to deprive them of their children if they do not.

This point about “affirmative action” programs (to get women into jobs formerly held just by men) leads to another hypocrisy of the “primary caregiver” doctrine. Among the main targets of these job-programs have been women who have already been out of the paid workforce to raise children. Are these women told that their earlier choice is now cast in stone? On the contrary, former primary caregivers are given special help and encouragement to adopt a new role. In stark contrast, the whole point of the “primary caregiver” doctrine is to tell erstwhile breadwinner fathers in divorce that they are NOT now allowed a new role–not allowed to be more of a hands-on caregiver. The message “You made your choice, and you may not change it with changing circumstances” is to be given only to men. (Recall that the mother is to put the kids in daycare, rather than let them be with their own father, during the time when she is at her new job. Also note that in many marriages, the primary caregiver is the daycare!)

Yet a further point can be made about the fraudulence of the “primary caregiver” doctrine. In almost no marriages does the father spend no time at all with the children; in most, surveys have indicated, his direct interaction-time with them is fairly close to that of the mother–and certainly up to that 30% time-level mentioned earlier. (Hence those lists of “childcare” activities that are loaded against male-typical ones.) But the proponents of the doctrine don’t believe in partial credit; to them it’s all or nothing. If you didn’t make it up to that 50% level, you lose custody. This is what logicians speak of as black-and-white thinking. It is the defining characteristic of extremism: not seeing the world in all its shades of gray, just the two extremes. But once we do take account of matters of degree, then even by the “primary caregiver” proponents’ own basic assumptions, an appreciable degree of shared stewardship follows–in flat contradiction of the “primary caregiver” doctrine as they promote it.

The Fundamental Injustice

Even all this fraudulence on the part of “primary caregiver” proponents, however, is not the most basic problem with the concept; it is discriminatory at its very core. The fundamental problem is the criterion’s assumption that men and women must behave just alike, in the caregiving respect, in order to be treated equally in regard to child custody. To begin to see why this is wrong, let us reflect on a parallel idea, one which I label the “primary breadwinner” presumption.

Under this doctrine, upon divorce or separation, all of the monetary assets and property of the couple would go to the parent who has contributed the most financially during their time together. Think about it. Would the feminist establishment consider this non-discriminatory? Not on your Irene, Murdoch. But this time, they would be right. The reason: marriage is supposed to be an equal partnership. In a traditional marriage, the mother’s staying at home with the children left the father free to pursue financial gain; hence she has indirectly contributed to that gain as well, and by all rights, it also belongs to her. By the very same token, however, the father’s going off to work has left the mother free to care directly for the children; hence he likewise has an equal moral right to the fruits of her labors. The two contributions to the children do not have to be the same in kind in order to be equal in value for the children. (If I were inclined toward irony, I’d call this the “parental pay equity” principle.)

Now we can state more clearly than ever the crass hypocrisy of the feminist establishment in this matter. In divorce and separation, they don’t want the mother to wind up with the fruits of her direct labors and the father to wind up with the fruits of his direct labors. They want the mother to get them both: the children, and the money earned for them by the father. As noted earlier, they want her to “have it all”. But as has now been revealed, “having it all” means having it both ways.

One final point. In this talk, I have focused on gender equality. That is not the most important issue in custody issues, however; the wellbeing and rights of the children are. Though this is a subject for another speech–at least–one important point can be made here. It is that from focusing on the children, the same conclusions follow: children possess a moral right to have both parents as stewards of their wellbeing. The ultimate fraud of the “primary caregiver” doctrine is its violation of that right.