It was with great interest that I read the commentary by Ms. Estrich. (Custody Battle Fatigue: Children Being Sacrificed on Altar of Father's Rights, Daily Report, June 15, 1999) She has come to the conclusion that custody of minor children is some sort of divine birthright placed upon women, simply because of their gender. In her analysis the feminist movement is to blame for fathers having the audacity to take the initiative to fight for the custody of their minor children. Ms. Estrich would have us believe that a divorced father's parenting role should be limited to writing a child support check.
Her scope and understanding of the history of child custody is skewed. She gazes back only so far as the so-called tender years doctrine, a theory that came into vogue during the industrial revolution, as society was moving from an agrarian to an industrialized society. During this time there was an ever-increasing urbanization taking place. It was necessary for fathers to leave the home to earn a living for the family, while the mother stayed home to care for the children. Previously, in an era of an agricultural and rural society it was commonplace where a divorce occurred for the father to be awarded custody of the children, as they were needed to work around the family farm.
Unfortunately, and contrary to Ms. Estrich's beliefs, for the most part in Georgia, fathers are not even accorded their rights under O.C.G.A. Section 19-9-3 (a) (1), which states In all cases in which the custody of any minor child or children is at issue between parents, there shall be no prima-facie right to the custody of the child or children in the father of mother. In one recent case where both parents were shown to be capable of caring for the needs of their son, the juvenile court judge, in open court, told the father that he would award him custody when the calf follows the bull. In another instance the mother was awarded sole physical custody, where it was conclusively proved at trial that she was a regular user of cocaine and marijuana in the marital home; had driven the children in the car while smoking marijuana; was maintaining an adulterous affair in the marital home in a bedroom within immediate proximity to the bedrooms where the two minor children of the parties were sleeping with her drug supplier. The court in its order awarding the mother sole physical custody, noted the conduct of the mother, but rationalized that the mother had successfully hidden the drug use and adultery from the minor children. The court refused to allow into evidence a videotape showing the parties' 18-month-old son walking into the master bedroom where the mother and her paramour were in bed. The derogatory evidence against the husband was that he spent more time at home with the children than at work and was in substantial debt as a result of the marriage. Interestingly, the court required the mother to be drug-tested on a monthly basis for two years; and in this case she was the multi-millionaire with huge sums of money to expend on her behalf.
One can only imagine that if the father had conducted himself in the same manner as the mother, he would be required to have supervised visitation upon his release from custody.
Every element of research that we have shows that children without substantial involvement from fathers are: more prone to drug usage, acts of violence, sexual promiscuity at an earlier age, lower grades and lower self-esteem. Until the courts realize, understand, and treat fathers with equality in custody disputes children will continue to suffer, as will their best interests, one point Ms. Estrich and I agree upon.
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