One only needs to look at the outcome of child custody proceedings to realize that there is a great dichotomy between those results and the statutes which govern them juxtaposed to the parental behaviours of married parents. The law says there is no preference favouring either parent in a custody proceeding.[en1] Likewise, we see that the parents who accompany their children to school events, sporting or extra-curricular practices or doctor visits are not defined by birth sex. The results of judicial decisions which are not aligned with the statutes, behaviours, or biology can only be labeled an injustice. The indubitable assumption is that a bias based upon birth sex of parents exists. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Martin Luther King observed such an injustice when it came to the contrast between racial neutrality of the United States Constitution[en2] declared in the 1860s and the inhumane practices of various state actors 100 years later. It was that sharp contrast which drove him to expostulate on the iniquity of the state of racial status in the United States.
Concurrently women who went through a similar catharsis by the early part of the century had gained their civil rights upon the demonstrations of leaders such as Susan B Anthony and Margaret Sanger. Their rationations against excluding women from enfranchisement elevated their status to that of voter and office holder.
Out of the turbulence of the 1960s evolved a new political culture in which women and racial minorities were not only provided with an equitable structure for achievement but the equal opportunity was transformed into preferential treatment. The preferential treatment for racial minorities would eventually be declared to contradict the constitutional protection against racial discrimination.[en3] And so evolved the Father’s Rights movement to fight the injustice of birth sex discrimination in child custody cases.
Here I expostulate on the Father’s Rights movement through use of portions of King’s disputations or writings. It is my intent to demonstrate that the struggle for parental parity in child custody cases is analogous to King’s struggle for civil rights and should mimic that course or reasoning.
I think it is pertinent to open with a philosophical statement.
“Not ordinarily do men achieve this balance of opposites. The idealists are not usually realistic, and the realists are not usually idealistic. The militant are not generally known to be passive, nor the passive to be militant. Seldom are the humble self-assertive, or the self assertive humble. ...truth is found neither in the thesis nor the antithesis, but in an emergent synthesis that reconciles the two.”
King is saying that effective leadership comes from a passionate, rational mind that seeks not to reverse the balance of power but to create a new power dynamic. In seeking to establish a just process to protect the rights of our children we cannot let the conversation be driven by a boisterous irrational few but neither can the rational idly sit by and observe. All must concentrate their thoughts on a universal effective approach.
“Rarely do we find men who willingly engage in hard, solid thinking. There is an almost universal quest for easy answers and half-baked solutions. Nothing pains some people more than having to think.”
In the realm of personal liberties, sacrifices, and opposition to oppression one’s thoughts may be driven by emotion. A resulting polemic breeds not conciliation but, more likely, entrenchment. The “solutions” often proffered as a result of these emotionally driven conflicts while seeming plausible fail to reflect the considered judgment of deep thinking. One must not think of “my rights” but instead of the rights of all.
“An individual has not started living until he can rise above the narrow confines of his individualistic concerns to the broader concerns of all humanity.”
By thinking beyond one’s personal vested interest in the application of a policy or cultural growth he can escape the trap of calculating his losses and gains.
“Man must evolve for all human conflict a method which rejects revenge, aggression, and retaliation. The foundation of such a method is love.”
In speaking with the multitude of policy makers and influencers throughout the state I hear them lamenting the vitriolic platitudes heard from parents on the losing end of a custody battle. Suggestions motivated by revenge are readily dismissed. To effectively advocate for the rights of our children we must operate from the foundation of love for the children. But more than that we must also understand that our love for the other parent shall not be extinguished. The person to whom each of us carefully considered would be the pinnacle of all and the one who would best fulfill the role of partner in parenting a child together must not be loved any less because of a failure to meet our expectations. To aid that parent is to aid ourselves. To forgive that parent is to forgive our judgment. To do both is to love our children.
“Another way that you love your enemy is this: When the opportunity presents itself for you to defeat your enemy, that is the time which you must not do it. There will come a time, in many instances, when the person who hates you most, the person who has misused you most, the person who has gossiped about you most, the person who has spread false rumors about you most, there will come a time when you will have an opportunity to defeat that person. It might be in terms of a recommendation for a job; it might be in terms of helping that person to make some move in life. That’s the time you must do it. That is the meaning of love. In the final analysis, love is not this sentimental something that we talk about. It’s not merely an emotional something. Love is creative, understanding goodwill for all men. It is the refusal to defeat any individual. When you rise to the level of love, of its great beauty and power, you seek only to defeat evil systems. Individuals who happen to be caught up in that system, you love, but you seek to defeat the system.”
The temptation of retribution is great. To stand on the backs of fallen enemies enticing. To bask in the glory and praises of victory compelling. But all are defeating. Those allow the system which deprives children of parental bonds, that perpetuates conflict, that enriches the profiteers to remain intact. We are not confronted with the injustice of mothers nor the victimization of fathers. We face a system that has evolved into a machine that deprives children with the security of lasting parental bonds. This is in the interest of mothers and fathers with neither standing higher in status than the other.
“I always contended that we as a race must not seek to rise from a position of disadvantage to one of advantage, but to create a moral balance in society where democracy and brotherhood would be reality for all men.”
If the conflict is couched as mothers holding supremacy over fathers and that fathers must receive special consideration to counter that imbalance then we are caught in a trap of perpetual imbalances. Instead we need not break down the power of mothers derived from favourable presumptions nor empower fathers through the grant of special considerations.
“One of the greatest paradoxes of the Black Power movement was that it talked unceasingly about not imitating the values of white society, but in advocating violence it was imitating the worst, the most brutal, and the most uncivilized value of American life. American Negroes had not been mass murderers. They had not murdered children in Sunday school, nor had they hung white men on trees bearing strange fruit. They had not been hooded perpetrators of violence, lynching human beings at will and drowning them at whim.”
Martin Luther King is viewed as probably the most effective leader of gaining civil rights for black people. Certainly, the most influential in motivating the call of the masses for change. In his disputations for granting civil rights to blacks he is not heard advocating for “black rights” but rather he repeatedly called for “all men” to be judged by the same standards. The black power movement, while internally providing a sense of worth within the black community, was less effective in procuring the change initiated through King. King did not seek to create a privilege for blacks, to elevate the black race over the white race, but instead to eliminate race as a consideration. Fathers have suffered the result of the reversal of a hierarchal power structure they created based upon birth sex. King saw this folly and took the moral high ground in seeking to eliminate the power structure which had abused his people while resisting the temptation to use the same power structure as a tool of retaliation.
“Lamentably, it is a historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals.”
Securing our role parental role as moral certitude dictates will not be one embattling each other. I have counseled hundreds of parents through custody battles, mothers and fathers, each lamenting the costs associated with the battle. Each proclaiming their interest in the welfare of the child. Each acknowledging that the children are losing precious time and resources from each parent. But each always poised to keep battling until achieving a new cognitive perception of the battlefield. In recognizing that parents, neither mothers nor fathers hold privilege in the child custody arena we will be able to reclaim what was usurped by those who now hold privilege. But we must first convince them that they are not entitled and this system shall be changed. That it is the right of our children for which we as unified parents are apt to facilitate and they deserve a new dynamic in their custody proceedings.
“The soft-minded man always fears change. He feels security in the status quo, and he has an almost morbid fear of the new. For him, the greatest pain is the pain of a new idea.”
Familiarity breeds contentment while uncertainty leads to anxiety. Thus there is a natural predisposition opposing change. Have the outcomes for infants in motor vehicle collisions improved through the use a car seats? Was there opposition to their use and especially mandated use? Absolutely. What is the car plunges into water? What if the car is on fire? But in practice, once the change occurred, we do not see these fears manifest in the outcomes. The status quo must be changed as all parties involved have a moral obligation to advocate not for their personal interest but for that of the only victims and losers in custody battles -- the children.
“Morality cannot be legislated, but behavior can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless.”
It’s a common refrain that I hear from legislators and judicial officers -- morality cannot be legislated. Fundamentally morals must be unique to every individual as morality is an element of character. An imposed moral is nothing but a stricture with either a pronounced or implicit consequence for transgressions. Instead of legislating that parents must elevate the interest of children over themselves we must strive, as a community, to imbue that spirit within every parent and a love for each other as parents of our mutually conceived children.
In closing I provide another philosophical statement;
“As my sufferings mounted I soon realized that there were two ways in which I could respond to my situation -- either to react with bitterness or seek to transform the suffering into a creative force. I decided to follow the latter course.”
I contend that all children are entitled to a presumption that they are wanted, loved, and supported by both parents; that this desire, affection, and contribution to them is not determined by the birth sex of either parent and the measure of these should not be judged by the nature of their parents’ birth sex but by their actions and expressed behaviours. Thus there should be a presumption upon the initiation of a child custody case that the child has a relationship equal in binding elements with each parent. To do any less is to deny to the child his right to his parents.
1] Indiana Code 31-17-2-8 The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent.
2] The Equal Protection Clause itself applies only to state and local governments. However, the Supreme Court held in Bolling v. Sharpe, 347 U.S. 497 (1954) that equal protection requirements apply to the federal government through the Due Process Clause of the Fifth Amendment.
3] Gratz v. Bollinger, 539 U.S. 244
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