From: gcf@panix.com (Gordon Fitch)
Subject: Re: Affirmative Action on Custody
Date: Sat, 9 Jan 1993 12:56:45 GMT
Organization: mydog in exile

gcf@panix.com (Gordon Fitch) writes:
| >I think this is a sort of answer to my "what happens down
| >at the courthouse" query in a related thread....

beaver@castor.cs.psu.edu (Don Beaver) writes:
| >| >>>>1.  Presumption in favor of the father, until such time as fathers
| >| >>>>receive 49% of sole/primary custody awords.

gf:
| >A beginning, anyway.  What's "presumption"?  I'm familiar
| >with legal terms like _prima_facie_ which relate to 
| >presumption, but in this case I'm not sure how it would 
| >work -- or whether it would solve the problem.  Does it
| >mean that custody would be awarded to the father 
| >regardless of the apparent welfare of the child, or
| >what?  What if not enough fathers sought custody, would
| >the courts be required to recruit -- draft -- them?

db:
| I was going to find Black's Law Dictionary last night
| but I forgot -- so here's an unguaranteed definition:
| a presumption essentially means that it is up to the
| other person to show why the presumption shouldn't hold.
| Some presumptions are called "rebuttable," and that's what
| I intended.
| 
| In this case, the presumption in favor of the father would
| mean that, unless the mother gave reasons that the presumption
| should not hold, the presumption would take force.  The presumption
| is irrelevant if there's no action -- hence, there's no issue of
| "drafting" fathers (unless, perhaps, the mother *didn't* want 
| custody, in which case there's no reason to draft her, either).
| Any problems with the "apparent welfare of the child" would 
| certainly argue against the presumption.  The presumption does 
| not override other concerns unilaterally; it acts as a kind of default.
| 
| But I never went to law school, so let's take a look at Black's
| before etching this into stone...
| 
| (It is, at least, an explanation of what I *meant*.)

This is fine, I just wanted to understand the meaning of 
the word as it was used.

As I said in another article, one of the problems with
this proposal is that the courts are supposed to consider
the welfare of the children as the primary, if not the only
concern in custody assignments, and that each child and 
each familial situation is supposed to be unique.  I think 
these are important parts of the public ideology.  

A second problem is the proportion of applicants.  According
to some mail I received on this subject, the courts have 
held that the unwillingness of women to perform certain
tasks may be a valid excuse for failure to achieve gender
balance in a given area.  (The same is not true for racial
balance.)  In order to achieve a 51:49 ratio in assignment
of custody, there would have to be enough male applicants
for custody to make up the 49%.  Are there?  Without Karl
Denninger's mystical access to what lurks in the hearts of
men, we don't know -- as Miriam Nadel observed, many men
may believe that they could not get custody, and so do not 
even apply.  Then again, they may just not want it.

However, _all_other_things_being_equal_, it is certainly a
kind of inequity if mothers are given preference in custody
over fathers.  (I'm not yet sure that they are; I suspect
that respectability and wealth have more to do with the
habits of the courts.)  If such an inequity exists it is a 
reactionary kind of inequity, because it obviously derives 
from the theory that women ought to be home with the 
children and vice versa.  

So I would say that the most logical feminist position, at 
least for liberal or reformist feminists, would be that 
custody should be assigned without respect to the gender 
of the potential custodial parent.  My guess is that you 
will get a difference among feminists on the issue, with 
some believing that they should look out for the presumed 
interests of women involved in custody disputes, while
others look to the larger issue of socially-imposed
gender stereotyping implicit in things as they supposedly 
are.  (Please note that I'm not speaking here at all to
the problem of unequal justice due to unequal wealth,
social position, and so on.)

Before presumption and quotas were applied, however, I 
think one of the milder forms of affirmative action would 
be an appropriate pass at a remedy.  That is encouragement
rather than requirement; as an example from another area,
many affirmative action programs specify only that a company
shall take certain steps to recruit or facilitate minority
employment, but not that they must make a certain quota.  In
the area of custodial equity, the courts would be required
to encourage and facilitate male custody.  Those who are not
libertarians might even want see a certain amount of 
government participation -- like funding -- for such 
programs.

I think even a mild form of affirmative action like the
above would cause much writhing and groaning in the body
politic, especially among conservatives concerned about the
feminization of men, but it would cause less resistance than
quotas, which are generally political poison and would be
very hard to implement at the case level.

Actually, I believe the children should be the ones to make
the decision about who they are entrusted to, unless it can
be demonstrated in court that they are incompetent to do so.
But I suppose that's off the subject; much of this seems to
be about people's egos, not their children.
-- 

 )*(    Gordon Fitch    )*(    gcf@panix.com    )*(
( 1238 Blg. Grn. Sta.,  NY NY 10274 * 718.273.5556 )
Newsgroups: alt.dads-rights,alt.child-support,soc.men