In June 2010, Ned Holstein, the president of the national group Fathers and Families, appeared on a Boston call-in radio show to promote a child-custody bill before the Massachusetts legislature. “The message is so simple, he said.
We’re fit parents, most of us. We just want to be involved in helping to raise our children…. [Divorced] children have a hole in their heart. The average child would crawl over broken glass to see their absent parent.…. [This bill] is a very mild nudge in the direction of getting both parents to be involved.[i]
This mild-mannered approach to child custody, a major issue in contested divorces, hides the real agenda of Fathers and Families. What appears at first glance to be an honest plea for fairness is in fact a backlash movement against changing gender-role norms and family structures—cultural shifts that have been influenced by feminist thought and action.
Although Holstein sounds as though he is promoting a new initiative, some form of joint custody bill has been filed in the Massachusetts legislature every year since 1983. Since the 1970s, certain conservative men’s organizations, commonly called fathers’ rights groups, have been seeking to increase their visibility and influence over divorce-court proceedings. While their tactics have changed, they remain a threat to women’s hard-won gains.
Fathers and Families, one of the hundreds of fathers’ rights groups that has sprung up in the past 35 years, uses language that is far removed from the angry pitch of early movement spokespeople. For example, in 1986, the journalist Greg Weston paraphrased the feelings of such fathers:
They are tired of being legally castrated by what they perceive as a sexist judicial system that almost automatically hands sole custody to women for no other reason than the archaic and unproved belief that children are better off with their mothers.[ii]
In 1989, a divorced father was quoted as saying, “We’re sick and tired of being considered no more than walking wallets and sperm donors.”[iii]
From the fathers’ rights point of view, the wave of no-fault divorce laws that swept across English-speaking countries in the 1970s made it too easy to file for divorce. The groups correctly point out that most of the time, women do the initial filing,[iv] but they go farther, claiming that fathers usually lose in divorce courts. They base their organizing on the anger and resentment of a million ex-husbands a year.
Although some groups continue to use rancorous, misogynist language, the most influential organizations have modified their tone. Sounding reasonable gains them mileage and has the added benefit of masking their true agenda.
The Demographics of Fathers’ Rights Groups
Fathers’ rights groups are diverse, ranging from one-man websites and grassroots support networks to national membership organizations. They share some common characteristics, though. According to Jocelyn Elise Crowley, a political scientist at Rutgers who studies fathers’ rights groups, these organizations tend to attract men (and a smattering of second wives) who are more highly educated, more often White, more conservative, and more highly politicized than the general population[v]—although the movement also includes African Americans such as the lawyer Jeffery Leving and the author Eric Legette. Fathers’ rights groups organize against what they perceive to be a court system that unfairly penalizes men during contested divorces and custody battles, leaving them without adequate contact with their children and with burdensome financial obligations.
These groups tend to be driven by a charismatic leader’s personal, negative, experience with divorce and as such display a high level of emotional content. This appeal to emotion can be an effective organizing tool. The rhetoric of fathers’ rights tends to represent women’s and men’s rights as mutually exclusive; if the woman gains benefits in a divorce proceeding, then the man loses. According to “Christian,” a member of a fathers’ rights group,
Since the 1960s, we [have] had tremendous progress, if you will, in terms of obtaining equal rights between the genders and among the races, but few have realized how much the pendulum has swung the other way in terms of the role women have in the family court system versus what men have.[vi]
The movement has continued to grow, so that there are now several groups in every state. Along with U.S. groups, such organizations have simultaneously developed over the past 35 years in Canada, the U.K., and Australia. They all share a common complaint: divorce must change.
Making Sense of Marriage
“Making sense of divorce requires making sense of marriage,” say the legal scholars June Carbone and Margaret Brinig.[vii] What they mean is that the rankling disputes over divorce gain meaning when we look at society’s various expectations for marriage. For social conservatives, the institution of marriage is both a symbol of traditional gender roles and a basic economic structure. A smoothly functioning family should be a self-sufficient economic unit that does not need to rely on charity from private or state sources. Thus, marriage is characterized as the building block of society.[viii]
In addition, some traditionalists assert that marriage “tames” the man and makes him more responsible, to both his wife and his children. Marriage, then, is a behavior regulator and guarantor of civilized behavior. People with these views claim that challenges to conventional marriage are deliberate attempts to destroy our social structure. Divorce, they believe, signals the disintegration of a sacred institution. Mike Duff, the president of United Families International, a conservative anti-abortion, pro-traditional family advocacy group, says:
Experiencing life in a natural family becomes absolutely fundamental to the preservation of society….A culture that does not value marriage will eventually replace civil society with tribalism.[ix]
The most visible current “enemy” of traditional marriage is same-sex marriage. Strategists have skillfully used existing homophobic attitudes to encourage opposition to any alternative to a heterosexual family structure. In the past, single-parent families with nonnmarital births were the main targets. Female-headed households were seen as incomplete and devoid of a moral compass. Daniel Patrick Moynihan famously promoted this idea in his 1965 government-funded report, The Negro Family, which excoriated African Americans:
There is one unmistakable lesson in American history: a community that allows a large number of young men to grow up in broken families, dominated by women, never acquiring any stable relationship to male authority, never acquiring any set of rational expectations about the future—that community asks for and gets chaos. Crime, violence, unrest, disorder—most particularly the furious, unrestrained lashing out at the whole social structure—that is not only to be expected; it is very near to inevitable. And it is richly deserved.[x]
In recent decades, defense of so-called family values has become one of the Right’s most reliable frames. Organizers have been able to use the issue to pull voters to the polls in support of conservative candidates.
Current political interest in marriage has focused on encouraging some people, such as poor, heterosexual women of color, to marry, while forbidding others, such as LGBT people. But marriages can be fragile things, and there is additional controversy over how society handles the other end of the marriage contract, divorce. The fathers’ rights movement has taken full advantage of all these social anxieties.
Divorce in the United States
Divorce has long been stigmatized by religious and social conservatives as a personal, moral flaw. Until the 1970s, this notion was reinforced by state requirements that couples seeking a divorce produce a valid reason for terminating the marriage, such as a spouse’s adultery, abuse, or abandonment.
Because marriage is a legal contract, divorce requires the intervention of the state to witness its dissolution. In the United States, there are about one million divorces a year. The rate of divorce spiked after no-fault divorce was introduced but has since declined and leveled off to about forty percent of marriages. You would never know that, though, if you listened to people like Stephen Baskerville, a national marriage promotion leader:
The decline of the American family has reached critical and skeptical proportions….The breakdown of the family now touches virtually every American. It is not only the source of instability in the Western world but seriously threatens civic freedom and constitutional government.[xi]
Divorce laws and their reform have largely been the purview of state legislatures. In 1970, California began offering no-fault divorce, which now exists in all fifty states. No-fault laws indeed make it easier to divorce, because neither party needs to prove the other is at fault. If both agree, the process can be relatively smooth. In contrast, contested divorces are expensive. The cost of repeated trips to court in lawyers’ fees, court costs, child support, and settlement arrangements can add up to hundreds of thousands of dollars.
While the division of material property plays a part in many of these disputes, the battle is most often about custody and financial support of the children. Where the children live and who pays for their expenses are two interdependent aspects of divorce. Usually, one parent is appointed the main physical custodian, and the noncustodial parent pays child support. If the divorcing parents cannot agree, a court decides who will gain custody of children and the amount of child support to be paid. Government enforcement agencies monitor how often and how much child support is actually paid. In 2007 a little more than sixty percent of child support money was actually paid.[xii] The courts and enforcement agencies have the authority to order noncustodial parents to pay or to seize the money out of their paychecks. This is a major source of anger for fathers’ rights advocates, who resent state interference in their finances.
Giving custody of children to their fathers is a major plank in the fathers’ rights platform, but an inspection of group members’ language reveals that they are often more interested in asserting power and control than in providing for “the best interest of the child”—family courts’ usual standard for assigning custody—or the strengthening of the father/child relationship. A self-help website, “Divorce Advice for Men: How the System Really Works,” recommends,
Demand primary custody of your children even though you would have agreed to a joint custody or visitation arrangement. You spouse will probably be terrified by the thought, and he or she might agree to an unfair agreement.[xiii]
Usually, a judge determines where the children will live, based at least in part on evidence of which parent has better cared for the child. In many cases, because the mother has already provided more hours of direct care, she receives custody. Fathers’ rights groups have focused their recent lobbying efforts on what they call the “presumption of joint physical custody,” which makes both parents more or less equal partners in direct, day-to-day care.
Fathers’ rights groups recognize that a joint physical custody standard can give them more time with their children without prolonged courtroom battles. For example, the Boston Globe quoted “Brian Ayers, a part-time police officer who juggles two jobs, [and] is the proud father of a fourteen-month-old son.”
He…says he wants to build the same kind of close relationship he enjoys with his [own] father…. But Ayers does not share joint physical custody of his only child…. “I was very upset,” said Ayers, 30. “I thought, in this country, you wouldn’t have to necessarily fight to spend time with your child.”[xiv]
Another reason to favor joint physical custody is one these groups rarely articulate: an award of joint physical custody usually reduces the amount of child-support paid by the noncustodial parent. Stephen Baskerville, a spokesperson for the fatherhood movement, describes state-mandated child support as a political underworld where government officials are feathering their nests and violating citizens’ rights while cynically proclaiming their concern for children…. The divorce industry, in short, has turned children into cash cows.[xv]
Since one-third of court-ordered child support is never paid, avoiding the court involvement, expense, and the tarnishing of reputation that may occur because of nonpayment is a priority for some fathers’ rights group members. Of course, speaking openly about this aspect of the connection between custody and child support is not an effective way to build support for fathers’ rights, since it hints at selfishness.
The fathers’ rights rhetoric that the legal scholars Miranda Kaye and Julia Tolmie analyzed in Australia is similar to that in the United States.[xvi] In general fathers’ rights groups appeal to familiar, esteemed values such as the protection of families, the guarantee of equal rights, and the welfare of children. These powerful rhetorical devices link the desires of divorcing fathers with established norms, making their arguments appear plausible and rational.
Often fathers’ rights groups illustrate their claims and demands using stories about individual incidents. These accounts create an emotional link between the public and the fathers who seek support and understanding of their loss. For example, the Boston Globe reported:
For one divorced father of four who requested anonymity because his case hasn’t been settled, the crumbling economy has had consequences beyond the emotional and financial. His $1,400 weekly support payments, plus additional expenses like health insurance and tuition, had been based on a court judgment in 2007. The man works for a realty business, and since the real estate market has frozen, his income has plummeted. Earlier this year he fell $23,000 behind in what he owed, including attorney’s fees to his ex-wife’s lawyer. With his modification petition still pending, he was handcuffed in court and put in jail for 30 days.[xvii]
In response to the Globe article, “Skyhawk85u” wrote:
I’ve been divorced for a few years, have my children about 50% of the time, yet still pay hundreds in child support every week. Why? I don’t know. As I am self-employed with wildly variable income I often have weeks when my support payments are far more than I’ve made. And I still have my kids 50% and pay for everything while they’re home with me (yes, “home” not “visiting”!) It’s ridiculous, and all the ex wants is more. Everyone should support http://www.fathersandfamilies.org/[xviii]
Anecdotes can be powerful rhetorical tools. However, as sociologists are fond of reminding us, “anecdotes are not evidence.”
Fathers’ rights groups claim that fathers are discriminated against in divorce proceedings because they are not treated “equally”: they may end up spending less time with their children or paying more child support than the mother. But the notion that “equality” requires an identical division of benefits ignores the differences between men’s and women’s roles in marriages, the reality of women’s greater responsibility for childcare, and their lesser economic strength compared to men. Calling for equal rights in this context is a co-optation of the language of liberal social change. Nevertheless, such demands have successfully appealed to an American sense of fairness. For instance, in 2004, voters in Massachusetts were presented with a ballot question about child custody. The nonbinding resolution read:
[I]n all separation and divorce proceedings involving minor children, the court shall uphold the fundamental rights of both parents to the shared physical and legal custody of their children and the children’s right to maximize their time with each parent, so far as is practical.[xix]
Most voters probably saw nothing problematic with such language; 86 percent of those voting on the measure supported it. But the nonbinding referendum obscured the fathers’ rights strategy of moving toward legislation that would require equal distribution. The resolution gave fathers’ rights groups in Massachusetts a powerful addition to their toolkit.
Fathers’ rights groups often claim that their members have been denied their rights by a state that intervened in their private lives with restrictions on their income, freedom of movement, and freedom of association with their children. A father who was imprisoned for not paying said,
My fellow fathers…..even though you’ve been a great citizen for all of your life, if you are captured by the child-support Gestapo, you will no longer be treated as human beings. You will be housed with murderers, three-strikers, lifers … the real scum of the earth.[xx]
Describing divorced or single fathers as targets of government-sponsored discrimination can appeal to the public’s sense of fairness, especially in a climate where trust in government has plummeted. But the feminist legal scholar Selma Sevenhuijsen argues that “rights” in our culture were founded on a “property model,” in which “ownership, entitlement, interest, and control” are central concepts.[xxi] She suggests that the rights that fathers’ rights groups seek are associated with the traditional, privileged position of men in our society.
Fathers’ rights groups often portray their members as victims, either of an uncaring court system or vindictive women. The fathers describe themselves as having lost control over their lives because of an external source. Occasionally, they combine women and the courts into a melded opponent, claiming that the courts have been influenced by feminist thought, which they believe is necessarily biased against men.
Appealing to “Science”: The Myth of Parental Alienation
Over the last two decades a distressing pattern has emerged in divorce settlements: women who claimed that the fathers had abused their children ironically began to lose custody, in favor of the alleged abusers. It turned out that fathers’ rights groups had developed a persuasive argument in family courts across the country, enabling them to win custody of their children more often. The fathers hired expert witnesses trained in identifying a disorder in children called Parental Alienation Syndrome, or PAS—a phrase coined in 1985 by the psychiatrist Richard Gardner, who gave himself a new career in the process. He claimed that children of divorce could be alienated from one parent by the other, thus transforming what most experts acknowledge may be an occasional phenomenon into a full-blown, although unproven, theory. Gardner further insisted that any associated charges of child abuse were unfounded and due to a spiteful attempt by one parent to alienate children from the other.
Scientists’ reaction to Gardner’s considerable influence has been harsh. “This is an atrocious theory with no science to back it up,” says Eli Newberger, a professor at Harvard Medical School and an expert on child abuse.[xxii] “No data are provided by Gardner to support the existence of the syndrome and its proposed dynamics,” says Kathleen C. Faller, a professor at the University of Michigan.[xxiii] Gardner regularly published his own writing, avoiding the peer-review process. The American Psychiatric Association does not include PAS in its Diagnostic and Statistical Manual of Mental Disorders (DSM), the gold standard of mental-illness definitions. Despite the theory’s lack of scientific credibility, Gardner continued to publish extensively until his death in 2003, and the PAS argument has been used in hundreds of divorce cases, almost entirely by men who are trying to increase their changes of receiving custody of their children. In Massachusetts, fathers now receive primary or joint custody in more than seventy percent of contested cases.[xxiv]
PAS claims can obscure legitimate accusations of child abuse and violence against women. Sadly, disputes in a divorce are not always verbal; domestic abuse occurs in 25 to fifty percent of custody cases.[xxv] Feminists began to point this out in the 1980s, and since that time sociologists and psychologists have continued to document the problem. Domestic violence remains a major problem for women and children in this country. A conservative estimate is that more than 1.3 million women per year are attacked by their male partners.[xxvi] Three-quarters of visits to emergency rooms by victims of domestic violence occur after a separation, making the divorce process one of the most dangerous times in a woman’s life.[xxvii]
The tactic of claiming PAS is used to distract courts from an accurate understanding of claims for divorce; accusing women of making false allegations of child sexual abuse is another. Some fathers’ right groups use the term “abuse-excuse” to trivialize accusations of violence against women. In fact, multiple studies have shown that up to twenty percent of child sexual abuse allegations made during custody disputes are falsely initiated; but the evidence shows that these false allegations are most often made by men.[xxviii] By deliberately spreading misinformation, father’s rights groups have managed to shift the grounds for discussion about violence against women from a feminist challenge to men’s physical power to a male-centered attack on women.
Some fathers’ rights groups make the specious claim that women abuse men as often as men abuse women. The fathers’ rights group RADAR [Respecting Accuracy in Domestic Abuse Reporting] claims to have weakened four pieces of legislation about violence against women, including the reauthorization of the groundbreaking federal Violence Against Women Act (VAWA).[xxix]
Fathers’ Rights and Domestic Violence
A growing segment of the fathers’ rights movement consists of fathers who never married their children’s mothers. A man who does not marry his child’s mother lacks visitation or custody rights when the relationship ends unless he secures a court order, and he is required to pay child support, even if the mother receives TANF (Temporary Assistance for Needy Families) funding. This lack of legal rights can create resentment among fathers that may transform into anger.
Applying for TANF creates problems for low-income women. To receive support, they must provide the father’s name to TANF officials. Fear that the agency may track down an angry father and require him to pay child support may prevent them from applying, since it may result in their becoming victims of violence.[xxx] Recognizing the problem, TANF created a Family Violence option for applicants. But according to a study conducted by Legal Momentum, the women’s legal defense and education fund, this option is inadequate and creates its own problems.[xxxi] Women must submit burdensome documentation proving they are victims of violence in order to receive a waiver from providing the father’s name. Many TANF-eligible women fear that state child protection agencies will become involved if they provide evidence of domestic violence. These obstacles have prevented some women who need TANF from applying for it.
Get Involved to Prevent Havoc
Despite their use of questionable tactics, fathers’ rights groups have succeeded in influencing public policy through testimony before commissions and other state bodies, lobbying for changing family law through legislation and case law in the courts, and creating an echo chamber in the media to broadcast their views.
Additionally, they have built a movement by providing supportive spaces for fathers who experience anger, resentment, and loss at the ending of their relationships. After all, sympathy for those involved in contested divorces is widespread and understandable. Such reactions create a climate in which fathers’ rights groups can gain a listening ear, if not actual policy change. Some leaders have used the movement to fuel both their anger at a loss of male power in a relationship and their resentment in the face of state interference in what they consider a private family matter.
Practitioners of feminist family law are, of course, already aware of gender bias in the courts and the stealth tactics of fathers’ rights groups. The rest of us would do well to get up to speed. Fathers’ rights groups are not a short-lived or a trivial phenomenon. To hold fathers’ rights advocates accountable and restrict their illegitimate grab for power, activists should scrutinize state-level ballot questions and proposed pieces of legislation about child custody and violence against women. They should support public education campaigns about the actual agenda of fathers’ rights groups. And, they should alert progressive judicial watchdogs to scour the courts for changes in patterns of legal judgments. Such vigilance will reduce the amount of havoc such groups can inflict on women, children, and the culture as a whole.
Rights for Mothers is a blog that provides “Resources and Support for Noncustodial and Custodially-Challenged Mothers.” http://www.RightsforMothers.com
The Leadership Council on Child Abuse and Interpersonal Violence is an educational and advocacy group of professionals including scholars, lawyers, and scientists who provide reliable information on family structures and domestic violence. http://www.leadershipcouncil.org/index.html
National Organization for Women Family Law Ad Hoc Advisory Committee Newsletter provides articles and resources for women and their advocates involved in family courts. http://www.nowfoundation.org/issues/family/family_law_newsletter_summer2010.pdf
[i] “Radio Boston,” WBUR, June 18, 2010. http://www.wbur.org/media-player?source=radioboston&url=http://www.wbur.org/
[ii] Greg Weston, “Divorced Dads Tired of ‘Sexist’ Judicial System,” Ottawa Citizen, January 23, 1986, p. A4.
[iii] Kris Wells, “Divorced Dads Tell Their Side of the Story,” St. Petersburg (FL) Times, May 15, 1989, p. 1D.
[iv] According Margaret Brinig and Douglas Allen, 60-70% of divorces are initiated by women. “These Boots are Made for Walking: Why Most Divorce Filers are Women,” American Law and Economics Review, (2) 2000, p. 127.
[v] Jocelyn Elise Crowley, Defiant Dads: Fathers’ Rights Activists in America. (Ithaca N.Y.: Cornell U. Press), 2008, p. 45.
[vi] In Jocelyn Elise Crowley, “Adopting ‘Equality Tools’ from the Toolboxes of their Predecessors: The Fathers’ Rights Movement in the United States,” Fathers for Justice: Fathers Rights Activism and Law Reform in Comparative Perspective, ed. Richard Collier and Sally Sheldon, (Oxford: Hart Publishers) 2006, p. 96.
[vii] June Carbone and Margaret F. Brinig, “Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reform,” Tulane Law Review, (65) 5, May 1991, p. 954.
[viii] See Allan Carlson and Paul Mero, The Natural Family, A Manifesto (Dallas: Spence Publishing) 2007.
[ix] Mike Duff, “The Age of the Uncivilized,” United Families International Weekly Alert, August 17, 2010; email newsletter on file at PRA.
[x] Daniel Patrick Moynihan, The Negro Family: A Case for National Action, (Washington, D.C.:U.S. Department of Labor) 1965.
[xi] Stephen Baskerville, Taken into Custody: The War against Fatherhood, Marriage, and the Family (Nashville: Cumberland House) 2007, p. 11.
[xii] “Custodial Mothers and Fathers and Their Child Support, 2007,” (Washington D.C.:U.S. Census Bureau) November 2009, p. 1. http://www.census.gov/prod/2009pubs/p60-237.pdf
[xiii] “Divorce Tips,” Divorce Advice for Men, http://divorce-advice-for-men.com/88/divorce-tips-learn-the-dirty-tricks-that-may-win-your-divorce/
[xiv] Brian MacQuarrie, “Fathers Back Bill on Rights of Parents,” Boston Globe, July 5, 2010. http://www.boston.com/news/local/massac
[xv] Stephen Baskerville, “Appetite for Family Destruction,” Washington Times, June 17, 2001, p. B5.
[xvi] Miranda Kaye and Julia Tolmie, “Discoursing Dads: the Rhetorical Devices of Fathers’ Rights Groups,” Melbourne University Law Review, 22 (1998), p. 162.
[xvii] Joseph P. Kahn, “Amid Layoffs, Child Support Pacts Fraying,” Boston Globe, April 13, 2009. http://www.boston.com/news/local/massach
[xviii] Reader comment to Kahn article, “Amid Layoffs.” http://www.boston.com/news/local/massachus
[xix] Ballot question on presumptive joint custody, Massachusetts 2004, http://www.boston.com/news/special/politic
[xx] Christopher Robin, Sr. “Adventures of a Father’s Right Activist in Debtor’s Prison,”
Fathers for Life.org; http://fathersforlife.org/articles/robin/adven
[xxi] Selma Sevenhuijsen, “Justice, Moral Reasoning, and the Politics of Child Custody,” (1992) 1 Social & Legal Studies n. 48,p. 92.
[xxii] Jamie Talan, Newsday.com, July 1, 2003, “The Debate Rages on…In Death Can He
[xxiii] Kathleen Coulborn Faller, “The Parental Alienation Syndrome: What is it and What Data Support it?” Child Maltreatment, (3)2, May 1998, p. 112.
[xxiv]Lynn Hecht Shafran, “Gender Bias and Family Courts,” Family Advocate, Summer 1994, p. 26.
[xxv] Commission on Domestic Violence, American Bar Association, “10 Custody Myths
and How to Counter Them,” Quarterly
E-Newsletter, 4, 2006, July. http://www.abanet.org/domviol/enewsletter/
[xxvi] “Domestic Violence Facts,” http://www.ncadv.org/files/DomesticViolence
[xxvii] Stark, Evan and Anne H. Flitcraft,
(1988). “Women and Children at Risk: A Feminist Perspective on Child Abuse,” 1988. In E. Fee and N. Krieger (Eds.), (1994) Women’s Health, Politics, and Power: Essays on Sex/Gender, Medicine, and Public Health. (Amityville, NY: Baywood Publishing,1994), pp. 307-331.
[xxviii] The Leadership Council on Child Abuse and Interpersonal Violence, “Are Allegations of Sexual Abuse that Arise During Child Custody Disputes Less Likely to be Valid? An Annotated Review of the Research,” http://leadershipcouncil.org/1/pas/ap.html
[xxix] See Kathryn Joyce, “‘Men’s Rights’ Groups have Become Frighteningly Effective,” DoubleX, November 5, 2009, http://www.doublex.com/print/9316.
[xxx] Martha Fineman, J.E. Jackson and A.P. Romero, Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations, (Ashgate, Farnham, Surrey UK) 2009, p.330.
[xxxi] Timothy Casey et.al., “Not Enough: What TANF Offers Family Violence Victims,” 2010; http://www.legalmomentum.org/assets/pdfs/not-enough-what-tanf-offers.pdf .