Facilitating Paternal Involvement
In a post last week, I discussed some of the reasons why so many noncustodial fathers disengage from their children. I received many thoughtful comments, some of which discussed the law’s unstated preference for maternal custody and mothers’ interference with visitation. Admittedly, some mothers do interfere with visitation and courts should do more to enforce fathers’ rights. However, we cannot ignore the opposite problem—fathers who do not see their children even when there is no one preventing them from doing so. There are many fathers who see their children less often than the custodial mother would like and less often than they are entitled to under the custody and visitation order. However, while residential parents may not legally interfere with the other parent’s access to the child, there are no legal or social sanctions imposed on fathers who fail to pick up their children for the evening or weekend as scheduled. Some mothers have actually gone to court asking the judge to force their child’s father to exercise his visitation rights only to be informed that there is nothing the law can do.
I disagree. The law can do something. The social and legal forces I discussed last week may have pushed some fathers away from their children. Thus, the law has a responsibility to facilitate paternal involvement. Unacceptably high rates of paternal absence call for drastic measures. That is why I propose that the law attempt to bring fathers back into their children’s lives by adopting a presumption of joint legal custody and requiring that they participate in their children’s upbringing.
Some fathers fail to exercise visitation rights because they have internalized the message that their role after divorce is primarily economic. These fathers do not realize the importance of their presence and involvement to their children’s well-being. A presumption of joint legal custody would signal to fathers that the law and society respect their rights and responsibilities as parents. It clarifies that fatherhood entails more than just financial support and includes responsibility for the child’s upbringing.
Furthermore, there is some evidence that fathers with joint legal custody see their children more frequently and have more overnight visits than fathers who lack the legal right to make any decisions about their child’s upbringing. Thus, a presumption of joint legal custody might increase paternal involvement.
Many states already have a presumption or preference for joint legal custody and this is quickly becoming the most common custodial arrangement in many jurisdictions. However, joint legal custody is not enough. Currently, joint legal custody grants nonresidential fathers the right to participate in major child-rearing decisions, but imposes no duty on fathers to provide physical care to their children. Fathers’ responsibilities to their children, other than child support, are voluntary. If the law is to recognize nonresidential fathers as full parents, they must behave like parents and actually help to raise their children. The law must stop treating visitation as a right and treat it instead as a legally enforceable duty.
One of nonresidential fathers’ major complaints about visitation schedules is that they do not allow them to spend enough time with their children to enable them to be effective parents. When children spend only one evening and alternating weekends with their fathers, fathers feel the need to entertain them and children perceive their time together as fun and games. If fathers had residential custody for two months during the summer, long weekends, one week during Christmas, one week for spring or winter break, etc., they might be able to develop a more “normal” parent-child relationship with their children.
No standard visitation schedule will accommodate all families. Thus, each parent should be required to submit a detailed parenting time schedule. The court could adopt or modify the schedule that best provides each parent with enough time to maintain a significant relationship with the child and allows each parent to be actively involved in the child’s upbringing. Once the schedule is set, both parents (not just the primary residential parent) would be legally required to follow it.
Although legally enforceable parenting schedules may lead to greater paternal involvement, there will always be some parents who will not see their children as often as they should. The law cannot and should not force an unwilling parent to spend time with his children. However, it can impose public penalties as a means of shaming nonresidential parents into parenting their children. Courts can impose a few hours of community service when nonresidential parents fail to pick up their children for the weekend as scheduled (with no good reason, of course). When parents in Virginia fail to pay child support, the child support enforcement agency places a boot on their cars. The boot not only prevents the parent from using his vehicle; it also alerts the community that its owner has failed to pay child support. Community service for absent fathers might have the same effect–it would alert the community that the person sweeping the park wearing a uniform with a photograph of a child is an “emotional deadbeat.” Courts could also impose many of the same public penalties that we currently impose on parents who have not paid child support–posting their names on government agency websites, in post offices, family courts, and other public buildings. It could also impose minor fines that could be used to create billboards asking “Have you seen or called your child today?”
Prosecutors are unlikely to pursue fathers who fail to maintain contact with their children. Thus, these legal enforcement mechanisms are primarily symbolic. However, by making paternal involvement mandatory and legally enforceable (at least theoretically), the law might be able to create or facilitate a social norm of involved fatherhood.
According to social norms theorists, many of us recycle, pick up after our dogs, and wear seat belts, for example, not because we fear legal sanctions, but because we want to avoid community disapproval. By the same token, by making paternal involvement mandatory, the law would signal that good fathers remain involved in their children’s upbringing. Is it possible that, in time, neighbors, colleagues, family, and friends would express disapproval of fathers who do not participate in their children’s upbringing? Fathers who now believe that they are good parents because they support their children and see them sporadically would get the message that good fathers are involved fathers. They might eventually internalize this norm of involved or nurturing fatherhood and see their children more frequently.