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.

You may also like...

12 Responses

  1. Sigivald says:

    How does the existence of social pressures create a responsibility on the part of law?

    Especially a “responsibility” that forces not just monetary support but involvement, on the part of people? (There must be some few women who don’t want custody/visitation, and presumably gender-neutral law would force them to visit as well.)

    Even if we grant (as I don’t) that law has such a responsibility (and such a power; I’m not sure it’s Constitutional either), I don’t see that the court can force people to care. It might force them to spend time around their children, but it can’t force them to be parents – as you agree. But forcing “community service” as an alternative sounds more like emotionally-based punishment than the proper action of law. Admitting “We can’t force you to do X”, “but if you don’t we’ll force you to do Y” is just a poorly disguised attempt to force X, and the outcome can’t be very good in this case. (Since in this case the desired outcome is emotional involvement, not something that grudging acceptance of the threat of state power could meaningfully achieve.)

    Spending every weekend with a sullen father who doesn’t want to be around them is not going to help children, any more than being separated from one who does will.

    I suggest humbly that the idea that law should be used to mold society in whatever way seems best at the moment should be avoided as more likely to harm than help. (“Society” is capable, after all, of forming and expressing judgments about behaviour independent of the law.

    Or, in other words, just because lawyers have the law as a tool, does not entail that every problem is to be solved by law. Or can be “solved” by the State at all.)

    Don’t people already express disapproval of deliberately-absentee fathers? How would a change in that law make that any different?

    (After all, the decline in modern black fatherhood doesn’t seem to stem from the repeal of any law forcing black men to be good fathers, as there was never such a law.

    If social disapproval can disappear without the law forcing it, I see no reason it can’t reappear.

    Perhaps (for example), if the theories about fatherhood’s disappearance in that culture due to welfare support are true, the fix is to remove that, rather than attempt to force fatherhood on people?)

    (As a radical solution to the problem, perhaps we could just make divorces much harder to obtain again? Then visitation wouldn’t be a problem!

    This honestly doesn’t seem much less awful and invasive than the idea of “mandatory shared custody”. By which I mean, seriously, some problems just can’t be fixed by the power of laws, especially since the current problem seems to have been in large part created by mucking about with the previous laws. It seems irrational to want a pre-no-fault-divorce level of mutual commitment to children, and also have no-fault-divorce.

    Perhaps mutual commitment to children really is predicated on lasting marriages?

    I say this as a more-or-less libertarian atheist who isn’t married, by the way, so I have no dog in this fight. But it seems to me we can’t have “stable nuclear family” cake and also eat the “break up families whenever we want” cake too, and trying to force both with Law is probably worse than either alternative!)

    PS: Selection and copying of text is effectively impossible in Firefox; whoever the resident guru is might want to see about the CSS template or whatever is causing that.

  2. Call Me Crazy says:

    Wouldn’t it be easier just to get rid of divorce?

  3. AYY says:

    “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”

    The first and second sentences contradict each other. If the law can’t and shouldn’t force something, then why should it impose a sanction on parents for not doing what the law shouldn’t force them to do?

    “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”

    So if the father loses his job and falls behind court ordered support payments that are set at his previous income level because he can’t hire an attorney to reduce his child support, the state keeps him from using his car so that he can try to get a job, and tells the community he’s a dead beat. And you see this as just and desirable and something worth emulating? Good heavens!

    As for mandatory participation with criminal sanctions, just wondering if there might be some unintended consequences. There often are when the law tries to coerce matters that are best left to individuals.

  4. Hans Bader says:

    Many, if not most, so-called Deadbeat Dads are actually Dead-BROKE Dads.

    AYY’s description of the way Virginia child support law works — when a father loses his job, the child support agency refuses to reduce his child support payments to reflect the reduced income — is accurate, and typical of child support case law and practice across the country.

    (I am a lawyer, and I live in Virginia. And no, I have never gotten a divorce or been ordered to pay child support).

    Indeed, the Virginia child support web site, when I looked at it last year, warned fathers that when they lose their jobs and seek reductions in child support, the agency may decide either to INCREASE or decrease their support payments.

    The Virginia circuit courts and court of appeals usually refuse to reduce the child support payments of non-custodial parents who lost their jobs and are being financially crippled by child support.

    The fiction behind this court practice is that an unemployed father can easily find another job almost immediately (even if he in fact can’t), and under this fiction, income is imputed to the father just as if he were employed, even though he is not in fact earning any income.

    Liberal and conservative think tanks alike that have studied child support issues have concluded that this is true as a rule of state child support agencies and family courts: when the non-custodial parent loses his job, his child support payments are seldom reduced, turning him in short order into a “deadbeat dad.”

    When a divorced father loses his job, child support payments thus remain the same.

    By contrast, in an intact family, when a father loses his job, spending on every family member — including children — tends to decrease somewhat as a result.

    Even in the rare case that a divorced father can afford to hire a lawyer and get his child support reduced, the reduction is not retroactive, thanks to the federal Bradley Amendment.

    So when a divorced father loses his job, he is in a Catch-22 situation: he can either try to seek a new job rather than asking the court to reduce his child support, building up a huge child support arrearage in the meantime that a court cannot later cancel, even if he does not succeed in obtaining work; or he can immediately focus on reducing child support rather than searching for work, which will probably result in a rejection from the court, which will argue in response to his motion for a reduction in child support that since he hasn’t been looking for work for a long time, he can’t show that his child support needs to be reduced, and thus should have income imputed to him as if he will soon work again at his old salary.

  5. Anonymous says:

    Some courts sort of do this already – during divorce proceedings. There are programs that help parents tailor custody agreements, manage visitation during contentious divorces, and create relationships that lead to workable co-parent agreements. One example: court-mandated co-parenting classes from organizations like Children First in NM http://www.childrenfirstnm.org/).

  6. Deadbeat says:

    Co-parenting classes are a joke and are unrealistic. The issue is about joint custody and as someone wrote the court discourages it. I know because I was in a very stressful situation after being ordered into “homelessness” by the court and faced with paying “temporary” orders. This means I had to unfairly pay for TWO households. I didn’t have the means to fight for a joint custody situation. I was fighting for survival. The woman mediator of the custody arrangement viewed my reasonable request with cynicism. Thus weighting survival over joint-custody I had to choose survival.

    These programs are not designed to resolve anything and are mere window dressing.

  7. Deadbeat says:

    Enforced visitation is really a smokescreen by father advocacy groups who are at a loss to properly articulate the monetary and resource crippling effects of divorce and parental pecuniary. Visitation is really an issue of budgetary constraints after you’ve been stripped of resources, time, and income. The psychological effects on fathers, demoralization, and humiliation are not really measured or even a subject of discussion. Clearly the courts believe crippling exploiting fathers are in the “children best interest”.

    Lawyers even will tell father NEVER compare their own financial needs with their children needs. But the reality is then as a non-custodial father there is a real misalignment of the father needs with that of his own children. This is a situation that didn’t exist when he was living with his children.

    There is only one solution to this situation. We have to face facts that as a society divorce is NOT going to go away. There are very real situations such as battery where a battered spouse needs to escape the relationship for his or her own survival.

    However there are many trivial, adverse and narcissistic reasons why a spouse wants to dissolve a marriage. However since women initiate divorce at a rate of 4:1 over men clearly there is a loophole in the system that grants some women the ability to use the children for self-aggrandizement.

    Such gaps in family law won’t be closed by the bickering that goes on between men and women’s group. AND THIS IS BY DESIGN.

    The only solution is a sort of universal welfare system that is structured as collective insurance against failed marriages. This can actually reduce the number of lawyers now involved in divorces making the situation acrimonious for their own personal gain. It will also reduce the plethora of parasites in the divorce business that gain from the way the system is currently structured.

    Let’s take two examples:

    [1]A family with children a wife (for example) institutes a divorce that in many cases find father order to vacate his home and to pay temporary support.

    [2] Battered spouse

    Let’s start with [2]. Clearly in this case the battered spouse needs immediate shelter. In a society providing free and available housing the battered spouse is able to find temporary shelter with her (a woman in this example) children to escape the batterer. Many battered spouses are afraid to seek shelter because they may not have access to the family funds nor can afford temporary housing.

    In [1], since divorce is clearly supported by the society as a whole then the process of divorce should be collectively supported. The courts are collectivized but their only function is to render judgments and in many cases cause severe injustices.

    In the case of [1] since our society allows couple to divorce, it stands to reason that if a father is order to vacate his home then the state MUST provide him with FREE shelter otherwise he is force to maintain two residences. This places an unfair and undue burden on a father who previously maintained only one residence. In addition, the STATE should provide temporary financial assistance to the mother seeking divorce – as many states support no-fault divorce. Remember since the state ALLOWS divorce it stands to reason that the state should provide FINANCIAL support for activities it permits under law.

    Such universal welfare not only supports divorcing couples it also eliminates the immoral tactic of being legally blindsided by the divorcing spouse.

    It is time, especially for fathers, to stop playing into the hands of both men & women advocacy groups whose bickering prolongs this failed system that functions solely to exploit working families.

  8. the other side says:

    I am on the other side of this issue and I am so tired of father’s accusing mothers of keeping their children from them and whine and blah and moan. I am more than gracious to my abusive ex because I realize as a good mother and human being I don’t have a right to keep my son from having a relationship with his father. it would be harmful to my son and what kind of mother would I be if I harmed my son. I deal with a controlling, manipulative, abusing, angry and vengeful ex that teams up with his equally dysfunctional mother to try and destroy the mother/son relationship I have worked hard to achieve. They have lied, threated, abused and too many other things to name to try and discredit me AND GUESS WHAT I STILL DON’T INTERFERE WITH VISITATION. My ex is the one whom cancels at the drop of a hat on his son then he belly aches “I never get to see him” BOO HOO! Then maybe his father should stop cancelling his weekends. You just don’t know how frustration it is to deal with a father who treats the mother of his child like this and his flesh and blood son. It’s disgusting. THIS IS NOT ABOUT CHILD SUPPORT. I’m so sick of this child support issue. I would give it all back if I knew my ex would do his job as a parent.

  9. Robert Ferrer says:

    Dear “The Other Side”:

    The issue of disengaged fathers as described by Professor Maldonado is not solely dependent on egregious acts of interference or manipulation by overzealous (or even vindictive) custodial gatekeepers. Nor is it soley due to psychologically defective NCPs (narcissistic, abusive, masculinist — see Arendell). These categories certainly exist. However, I trust you believe that these categories do not represent the majority population in question.

    I believe that the custodial/non-custodial dichotomy (and all it entails) en-gender-s much of the observed behavior concerning NCP disengagement. For example, standard visitation (alternating weekends, etc.) that is awarded in the vast majority of contested cases does not provide the type of contact opportunity that allows for authoritative parenting to compensate for the attachment loss experienced by children. I believe that this results in the type of alienation many NCPs experience regarding their children. It also weakens the parental bond that keeps parents engaged. It seems obvious that this leads to disengagement. Interestingly, I remember reading a study (Kurk) that suggests that the more the parent (NCP) was involved with the children during marriage the greater likelihood that the parent will disengage after divorce.

    And if trends continue where both parents are more actively involved with their children than ever before we should all be concerned with the potential outcome unless some fundamental changes are entertained.

  10. another country heard from says:

    The other side speaks for me, though only partly. My threatening, violent, financially devious ex-husband in this joint-custody favoring state, got better than 50/50 time and responsibilities because he and his huge family lied, in flamboyant Bad B Movie style–to the GAL and the judge–better than my friends and my tiny family told the truth.

    The only alienation going on is from the continuing campaign against me and the limited time I have with our son–three long weekends per month. My mistake was simultaneously typical of abuse survivors–i.e. not to have him arrested–and atypical in that my level of education and social class worked against me and I made no effort to pretend to be other than who I was. Apparently, women of a certain demeanor are never abused.

    Mr. Ferrer, your second to last sentence haunts me. I was a 40 y.o. first time mother who quit her long career as a teacher to stay home with our baby, only to find my husband jealous of the baby and eventually abusive to me. I had sole care of the child from day one until the police removed my husband from home two and a half years later. Only then did my husband begin to make good on his threats to keep the chlild away from me forever.

    Though he hasn’t quite acheived this goal, hardly a week goes by that I don’t wonder if our son, now six, wouldn’t be better off if I did disengage, if only to avoid the constant campaigns against me and against any sign from our boy that he loves me.

  11. Robert Ferrer says:

    Dear Another Country Heard From:

    I just read your post. My heart goes out to you for the pain you are experiencing. Please keep in mind that children form close attachments to both parents at a very early age. Your entertaining disengagement will have a serious effect on your child. Please take care of yourself so that such thoughts are not an option.

  12. Samantha says:

    I think it would be ridiculous for the law to force parents(fathers) to spend time with their children. I’m a single mom of 3 girls and their father doesn’t see them, because he doesn’t want to, if you force a parent to spend time with a child they don’t want to be with all you’re going to end up with is a child that isn’t going to be taken care of the way they should be, and a child who feels neglected when they are stuck with this person. It will not do our courts any justice to think that they can control our lives that much more, already forcing mothers to stay in the same state as their childrens father just because he decided that ALL OF A SUDDEN he wanted to start seeing his kids or he tricked the judge into thinking he’s a changed man, it’s insane, the court needs to stay out of it and MAKE us work things out…MEDIATION, things should be taken care of amongst ourselves…I spend way too much time in court!!