In the Best Interest of the Child

When a marriage fails, today’s fathers are more likely to seek custody. Many of them will encounter a child custody evaluation.

by Dean Hughson

There’s an old civil rights story that goes like this:

Alabama, 1930s. A retired doctor from the North returns to his old hometown after many years. He walks into the local county courthouse and asks if black people can register to vote. He’s told yes, they can. But they must first pass a literacy test. He says no problem. They produce a Chinese newspaper, hand it to the doctor, and say, “Can you read this?” He looks at it for a moment and responds “I sure can. It says there aren’t going to be any black folks voting in this county.”

For many men the first time they learn that they are not going to be custodial parents is when they experience divorce court and learn what happens in child custody disagreements. Of course, many men never get far enough to experience this because they just cave in and figure they have no choice but to be the non-custodial parent. Those who do want custodial parenthood quickly learn, like the retired doctor in the above story, that despite constitutional guarantees of equality, some people are less equal than others.

A child custody evaluation is a gut wrenching process. Especially once the parent realizes that their daily access and ability to help rear the child is at stake. Usually you are informed that you are to come for a meeting with the court evaluator or psychologist once by yourself and then once with your children. Then a joint meeting is held with you and your ex-to-be.

In your first meeting alone with the evaluator, you are asked questions like:

  • “Have you ever left your work to pick up your child when the child became ill at school?”
  • “If the child gets hurt at home, who do they turn to as the caregiver?”
  • “Do you think the other parent is a good parent?”
  • “Are you willing to put your child’s needs before your own needs in your career?”

Your attorney usually tells you that despite your desire to explain the personal problems of your ex-spouse, take the high road and admit that they are a good parent also, like you. Your job is to convince the evaluator that you can do the job of parenting, and that the children would do well with you. Of course you would like to encourage quality time for your children with the other parent.

It is questionable whether the evaluation process can be fair or rational, constructed as it now is without standardized testing or other benchmarks.

In the old days, the courts used “the best interest of the child” as the explanation for why they gave custody to one parent or the other. Old Bureau of Census statistics indicate that in the early 90s the custody continued to be 90% to the mother, 9% to other family members or child shelters, and 1% to the fathers. Usually, “best interest of the child” was shorthand for “the kids go with mom and dad gets to see the kids ever other weekend, split of the holidays, and a week or 2 in the summer.”

In those days, it was exceptional for even those fathers whose ex was verifiably drug addicted, alcoholic or mentally ill, to win custody of his children. (To be fair, it should also be said that some fathers got the court to believe this even when it wasn’t true–I have met many women who didn’t have custody, who didn’t seem to fit any of these categories.)

There are perhaps a few women who voluntarily give up custody because they want to marry again and the new guy doesn’t want the kids around. Perhaps some just don’t enjoy parenting. Today though, women increasingly find themselves at risk of involuntarily losing custody of their children, just as men have for the past 50 years.

The courts in the old days weren’t particularly shy about what they were doing with custody. One judge in the South was quoted on the record as saying he never gave custody to fathers because in his experience on the farm he had never seen a calf follow a bull around in the pasture; the baby calves only followed their mothers. Most judges these days depend on custody evaluations. Of course, the evaluators find it easiest to say the expected things. They are likely to conclude that the children have been raised by the mother and presume that life with her would be more stable.

I am waiting to hear a new argument and I believe it will come. You often see the argument that women should not lose financially as a result of divorce because they have put their careers on hold for the good of the family. I am waiting for a court to say that men should not be penalized for having spent less parenting time with their kids than their wife did because they were working outside the home. It is usually in the best interest of the children for them to continue to have a close relationship with both of their parents.

For we “dummies” who on the advice of our attorneys gave up custody without even trying, it is too late. It is not too late for men and women divorcing today.

When custody is contested, today’s family court often depends on a “custody evaluation.” We must not permit the custody evaluation to be used as a tool for maintaining a tradition of discrimination. Like our black doctor facing the literacy test, you must be on guard for any custody evaluator with an attitude which you feel will result in a report that says, “There aren’t going to be any male parents taking custody in this county.”

First, learn what the responsibilities of the evaluators are. I have an article entitled How To Prepare For A Custody Evaluation at my Ask the Divorced Guy site, where you can study the evaluators’ code of ethics. I also advise that before you begin, you inquire as to which associations the evaluator belongs and that you make note of what their written role is in the custody evaluation process.

Our children’s futures depend on developing better ways to help families after the disaster of a divorce.

Dean Hughson,