Authored By: Christopher Pearsall, RI Divorce Attorney
a.k.a. " The Rhode Island Divorce Coach ℠ "
It's supposed to be a world of equality where men and women are treated equally under the same circumstances. Yet, unless you reach an agreement with your spouse in a divorce that both parents will enjoy shared placement and equal time with the Minor Children, typically the result is anything but fair for the father. The vast majority of the time the mother becomes the placement parent either because the court makes that decision after trial or the father may choose that it is not in his children's best interests to go through a custody battle where heightened tensions between the parents which spill over to the children. It's extremely rare that the father ends up as the placement parent even if he is the best qualified parent to end up with placement of the children.
Why? There still exists this underlying notion that a mother of children has a special bond with children because she carried the child within her, or because mothers are presumed by their very nature to be more nurturing than men. Thus a conclusion is too often made that children should be with a mother because she is the nurturer. This reasoning of course has no basis in fact but rather comes about because of societal notions of the man as the "bread winner" and the woman as the one who "cares for the household and the children." It is an antiquated notion to say the least in today's society.
Equality for fathers in the Rhode Island family court system is sorely lacking when it comes to placement of children when faced with antiquated concepts such as "giving birth to the child" and the presumption of "superior maternal nuturing." After practicing exclusively in the family courts for 16 years I have seen fathers relegated to an "extra" whose rights as a parent are relegated to a part-time babysitter. Fathers who during a marriage were an integral part of their children's lives are now typically given "every other weekend" and "one evening during the week" to exercise as their "parenting time." This is true even though these father's once spent every weekend and sometimes every evening with their children. In family court mediation fathers are often told, "father's typically get every other weekend and one night a week" which is sometimes used to justify that a father should be happy if he gets an extra evening conceded to by the mother of the children. In one case I recall a client walking out of mediation only to breakdown and cry on me in the parking lot. When I inquired about it he said that he told the mediator that he spent more time with the children than the mother but when he told the mediator he wouldn't settle for anything less than equal time with their children he was told by the mediator "It's never going to happen."
Regardless of whether a mother be awarded placement of the children or not, the family court is seldom the place where fathers get the equity they deserve. While equitable does not mean equal, it begs the question as to why men who as fathers in an intact family have equal rights with the mother, yet when there is a divorce they are denied the time with their children that they previously had regardless of who filed for or who caused the breakdown of the divorce.
How is it that in severing the marital contract fathers rights are somehow reduced to less than the time they had with their children? Most assuredly in many cases this is not only penalizing the father but the children as well. Most certainly the court does not take the position that in a divorce a party who makes a claim or counterclaim for divorce is also divorcing the children and yet the reduction in a father's rights in our courts seems to give evidence that a father who is not a placement parent is, in fact, divorcing himself to some degree from his children.
Yet admittedly there are many cases that are settled by agreement of the parties. In these cases, surely the court should bear no fault for fathers having reduced time with their children if these men agree to that arrangement. This was something I have pondered at length and it is something that deserves response if only to understand why our legal system needs to change.
In many agreed upon cases before the court, through public or private mediation, or by virtue of the assistance of attorneys, it is the too often the repeated standard to fathers that they will usually only receive "every other weekend and one evening per week" that becomes the crux of the problem. This is because it is this very unwritten standard that causes the injustice. This unwritten standard is the responsibility not simply of the Family Court, but of the entire judiciary.
Where this standard came from and why it has been used and in existence for the entirety of my 16 year divorce practice is beyond comprehension. Yet simply put, if there is to be any standard at all it should be the presumption that each parent is entitled to equal time with the children and any reduction for either party should be addressed from there. Without setting this as the beginning point, this unwritten standard continues to devalue fathers and wrongfully remove them from their children's lives when they may well have been active participants in their children's daily lives. To do anything less is to deprive fathers of not only their rights but serves to punish the children of the relationship and create too great an opportunity for the evergrowing problem of parental alienation which threatens to destroy the family unit.
As a father, I was subject to this "every other weekend and one evening per week" standard 18 years ago before I was an attorney. If there is to be true justice and equality on the issues in the family court at all father's rights need to be recognized before this court not by some amorphous standard that has no basis in law or in fact, but with the understanding that without fathers the child would not exist and that without the father in the life of the child both the father and child are denied the enrichment that is necessary to provide a balanced life, especially for the children.
Fathers need to know that they do not have to simply accept the trademark unwritten standard for a father's parenting time, but rather they should be aware that they have the right to fight for equal time with their children either by placement or through extensive parenting schedules.