Recently, I had occasion to take exception to the claim of Dr. William Fabricius that family courts aren’t biased against fathers in custody cases. His sole evidence consisted of a survey he did of 30 Arizona family court judges and commissioners. Their responses to the hypothetical cases he asked them to decide are strikingly at odds with custody decisions nationwide and in Arizona. In his hypothetical cases, 90% of the judges said they’d award equal custody.
But of course neither they nor the rest of the family court judges across the country and throughout the English-speaking world do anything like that. His theory that if fathers just bargained harder for equal custody, they’d get it, is directly refuted by data from Washington State that shows that contesting cases results not in more equal parenting time for dads, but less.
Now, as if to add an exclamation point to the matter, this case tells us that a family court judge in Arkansas did exactly what Fabricius doubts family court judges do; he discriminated against the father because he’s a man.
The case is short on facts, but it appears that the father, LaTroy Hamilton was found to be the father of a seven-year-old girl. Where the mother is remains unknown. The girl has been taken care of by her maternal aunt, Janet Easter, since birth. Hamilton has been found to be a fit father and has undertaken all of his parental responsibilities. Still, when Hamilton asked the court to place his daughter in his custody, he was denied because doing so would not be in her best interest.
The appellate court found
We agree that the trial court improperly considered the sex of the parent in awarding custody. The trial court found that appellant satisfied all of the statutory criteria set out in Ark. Code Ann. § 9-10-113 (Repl. 2009) except for best interest. The determination that it would not be in the child’s best interest for custody to be awarded to her father was based expressly on the finding that appellant is a man and the child is a girl…
Oddly enough, the trial court’s “reasoning” went as follows:
This . . . is so important because while [appellant's] grandmother is in his home, there is no mother figure with whom D.D. is familiar to answer the questions her body will be asking her in the near future. There is only the one to whom she has looked up to as mother and custodian, her aunt, [appellee] Ms. Easter.
Stated another way, a father can’t talk to his daughter about puberty, menstuation, ovulation, sex and pregnancy; only a woman can do that. I wonder how many mothers are denied custody of sons because of the need to talk to them about puberty, sex, condoms, pregnancy and the like.
The overt bias of the trial court judge is the more remarkable because it’s explicitly prohibited by Arkansas law. Arkansas statutes make it clear that the sex of the parent may not be considered in awarding custody. So, given that the prohibition is there in the law in black and white, the power of the urge to discriminate against fathers is there for all to see, at least in this case.
Of course, this case alone means nothing about other cases elsewhere. But when a judge faced with a clear prohibition against discriminating on the basis of a father’s sex does so anyway, is it not entirely possible that similar things occur regarding different issues in family courts across the country? In other words, whatever the specific situation, there are plenty of excuses to find it in the “best interest of the child” to give custody to Mom and not Dad? After all, we’ve been at 85% maternal custody at least since 1993, and before that it was even more radically skewed against fathers.
I’ve said before that I don’t believe that judges march into court every morning with the thought “how can I discriminate against dads today?” I don’t think their bias is conscious. My guess is that if we were to ask the trial judge in LaTroy Hamilton’s case if his decision was based on anti-father or anti-male bias, he’s indignantly deny it. He’d tell us that he’s just trying to do what’s best for the child.
And it just so happens that that truly genuine desire on the part of judges results in maternal custody 85% of the time. They’re products of a culture that believes women should be mothers and men should be breadwinners. Until someone shows me something that compels a different conclusion, that will continue to look like bias to me.
So here’s a prediction: the appellate court remanded Hamilton’s case to the trial level to revisit the issue of the best interest of the child and to make a custody ruling on that basis. My prediction is that the court will once again decide that the best interests of the child require her to stay with Janet Easter. The judge will just prudently refrain from mentioning anything about the sex of the father, and it’ll all be nice and legal.
My prediction is made advisedly. Here’s what the appellate court told the trial court:
For the guidance of the trial court, however, we note that parental preference does not apply with equal strength in cases where a child has been entrusted to the custody of another and familial bonds have been allowed to develop.
For that proposition the court cites a 1955 case. If that’s not a signal to deny custody to the father, I’ve never seen one.
It’s the old situation in which a man learns about his child months or years after the fact, by which time “familial bonds have been allowed to develop.” So the theory is that disturbing those bonds would be too upsetting for the child, so once again, Dad’s out of the picture.
That of course raises the issue of how it came to pass that LaTroy Hamilton came into his daughter’s life so late. Did he not know about his child? I’d bet on it. Otherwise, why would the court say that he’s a fit father and has “undertaken his parental responsibilities?”
Here’s my second prediction: the mother or the aunt decided to raise the child without Hamilton’s knowledge and received Temporary Aid to Needy Families (TANF) from the state. The Office of Child Support Enforcement got involved to get reimbursement of the state from the dad, at which point, for the first time, LaTroy Hamilton was informed he had a daughter. That’s why the OCSE is a party to the case.
That happens a lot in this country in which over 40% of children are born out of wedlock and in which some 7-10% of children are fathered by men who don’t know about their children. When a man’s parental rights depend on his knowing about his child and no law requires the mother to tell him, this sort of thing is bound to happen often.
But never to mothers. It biologically can’t happen to mothers, only to fathers. So the laws that allow the development of “familial bonds” in the absence of the father which then deny him his parental rights, begin to look like discrimination against fathers.
Which of course they are.
Thanks to Tony for the heads-up.