Getting Custody In The 1970'S:

How And Why Fathers For Equal Rights Came Into Being

By

Leigh Travis, Ph.D.

It is Fall, 1972.

You are in the worst emotional pain of your life, confused and lost in a vast city teeming with people who seem to look like human beings, seem to talk like human beings, seem to act like human beings, but somehow, strangely, you discover, are not what they look like they are but are, rather, strangely sleepwalkers with their heads and hearts in another, fictional, world.

You go to see one of them, a man who is a lawyer, for help:

"Bruce," you say, "my wife has just filed for divorce against me and got an Ex Parte Order of Custody: what does that mean?"

"Don't worry about it. Trust me."

"But I want you to help me get custody of my son!"

"How old is he?" Bruce asks.

"He's three."

Bruce laughs:

"Three? He belongs with his mother: only mothers know how to raise children under the age of twelve!"

"Is that the law?" you ask, stunned and flabbergasted.

""Yes and no: but, that's how the judges think."

"What training do judges have in developmental psychology - I mean, where do they get that idea that 'only mothers know how to raise children under the age of twelve'?"

Bruce frowns at you, looks exasperated:

"It's 'The Tender Years Doctrine,' been in the law since around 1920. It's a reality, based on something Sigmund Freud wrote, I believe."

You go from person to person in the endless, gloomy, city, from lawyer to lawyer: they all say the same thing: "only mothers know how to raise children under the age of twelve." You go to see psychologists: they all say the same thing: "only mothers know how to raise children under the age of twelve."

You ask them all the same question:

"How do you know that 'only mothers know how to raise children under the age of twelve'?"

They all say:

"It's a reality. Everyone knows it."

You say:

"Just because 'everyone believes - knows - it,' doesn't make it true: for centuries people believed - knew the world was flat, and today everyone knows it isn't flat."

They all laugh at you, or walk away from you, as if you were diseased, some kind of a societal leper. You persist, keep asking them all the same question, keep getting the same answer. You go back to see Brace:

"Bruce," you say, "Look, my son's mother is physically sick, she's a 'brittle' diabetic, is insulin dependent, has insulin reactions which she can't control: her body has been coming apart on her since the birth of our son three or so years ago in 1969. She's constantly in the hospital: she can't control her own body, can't care for herself, much less take care of a rambunctious three-year-old boy!"

Bruce shrugs:

"She's the mother, isn't she?"

"Yes, but so what?"

" - She just knows how to do it, it's instinctive in women, you know."

"How do you know that?" you ask, frustrated.

"It's a reality, everyone knows about the maternal instinct" Bruce replies, looking smugly confident in the absolute validity of his folk wisdom.

I

And that was just one small corner of the vast, empty, city called "domestic law" in the 1970's, a city full of blind, ignorant, people, whose folk lore ignorance of psychological realities tortured and sometimes destroyed fathers and children, willy-nilly. It was a horrid city, full of despair and disillusionment, all carried out in the name of "law." For example: in the 1970's, before Father's For Equal Rights came into being (in 1979):

- approximately FIFTY (59%) PERCENT of the jail population in Michigan was fathers who couldn't pay child support because they were laid-off from work or had otherwise lost their jobs, or who refused to pay their child support because of visitation denials ("no kid, no cash," they said, and wound up behind bars as if they were common criminals);

- men could be jailed for, say, ninety (90) days, and the second they were released from jail be arrested again, this time for the child support arrearage that accumulate while they were languishing in jail;

- women "shopped" from county to county in Michigan, taking their children with them, for the county with the highest child support (there were no State-wide child support guidelines in those days, as there now are);

- only the father's income was used to calculate his child support amount; even if his ex-wife, the mother, was independently wealthy, her income was irrelevant to the calculation of child support;

- approximately NINETY (90%) PERCENT of all child custody awards went to mothers;

- Judgments of Divorce routinely awarded fathers "reasonable" rights of visitation, which meant, all too often, that the custodial mother was "able to give reasons" to deny her ex-husband visitation with his child or children, and there was nothing he could do about it;

- there was no such thing as "joint custody," either legal or physical, in Michigan in the 1970's: it was a "winner take all" situation (Michigan passed the second Joint Custody law in the nation, following California, in 1982);

- there were virtually no Ph.D. psychologists who knew anything about divorce law or how to do a child custody evaluation, although the law was there permitting them to so do (MCLA 722.27[d]); and

- the prevailing cultural ethos was that "men work, women raise children," period, "because" women had the "maternal instinct," men did not. Anyone who thought otherwise was a nut, a weirdo, a rebel without a cause.

II

In the Fall of 1979, a small group of men then calling themselves "Equal Rights For Fathers" burned their jock straps on national television in front of the Oakland County Court house in Pontiac, Michigan, vehemently protesting what they claimed were the blatantly sexist attitudes of the people who ran the Michigan court system, in particular, the judges. A couple of years or so later, the name was changed to Fathers For Equal Rights because the new name sounded more pro-active ("fathers for") than did the original name.

Since that time, because of all the efforts of FER, law after law in Michigan has been changed:

- child support guidelines are now state-wide;

- men (or, rarely, women) jailed because of arrearages in their child support have what is called "the freedom of the jail" during the day to search for or go to work;

- the income of both parents is used to calculate child support (as well as many other factors);

- Michigan has a joint custody law;

- Michigan has the only intra-state felony kidnapping law in the nation;

- visitation awards at the time of the Judgment of Divorce, or afterwards, are more often than not extremely specific because of the 1988 Specific Visitation law FER pushed through;

- there are now hundreds of clinical psychologists, or psychoanalysts, who are also either attorneys or know sufficient domestic law to perform a professional child custody evaluation;

- between 1985 and 1989 men in Michigan won custody approximately twenty-one (21%) percent more of the time than before; and

- no longer is it the prevailing ethos that "fathers work, women raise children," for the reason it is simply no longer true, and was, anyway, essentially dead wrong from the beginning. And we today all know that a fatherless child is a ship without a rudder, heading aimlessly towards a disaster (don't we?).

III

Finally, intensive scientific research by men such as Kyle D. Pruett, MD(The Nurturing Father [1987]) and Richard A. Warshak, Ph.D.(The Custody Revolution: The Father Factor and the Motherhood Mystique [1992]), has shown, as Kyle Pruett wrote, that there is not "a single factor that renders men inherently incapable of nurturing" (op. cit., p. 230). There is no such thing, in other words, as a "maternal instinct," that somehow magically insures that children will be raised competently by a mother (there is considerable evidence, as a matter of fact, to the contrary: 72% of juvenile delinquents come from mother-custody homes, up and down the socioeconomic scale, for example): the "maternal instinct" just doesn't exist, period.

Both men and women, are perfectly capable of raising children, if necessary, by themselves, and to presume otherwise is to render oneself just as sexist, and as incompetent and benighted, as were oh so many people way back then, in the barbaric world of domestic law in the peachy-keen 1970's.