I’ve written before about how sole maternal custody laws are unfair to unwed fathers. And many people have written about how sole custody is bad for children. People don’t often stop to consider how sole maternal custody laws harm unwed mothers, though.
The unwed mother’s statutory right to sole custody
In many states, an unmarried mother has the sole and exclusive right to custody and contact with her child even if there is no doubt about who the father is. Statutes in these states specify that a father does not have any rights to custody, contact or parenting time (or “visitation,” as it historically was called) even after there has been a final adjudication of paternity. Nor does he acquire such rights by signing a valid and enforceable acknowledgement of paternity. Instead, he must initiate a court proceeding and convince a judge that that he is a suitable person to be “granted” the same parental rights that the mother is automatically granted by operation of law.
Needless to say, the havoc these laws have wreaked on fathers has been extreme. In some cases, it has led to the termination of parental rights due to the mother’s unilateral decision to put the child up for adoption before the father has been able to get a hearing on whether it is in his child’s best interests for him to have the legal rights of a father or not. Having exclusive custodial rights, mothers have been free to relocate to different states, or even foreign countries, frequently leaving fathers with no viable means to establish and enforce their rights. Fathers have good reason to be angry about these laws. As it turns out, single mothers should be angry about them, too.
The primrose path to a mother’s loss of rights
When a statute automatically gives a mother sole legal and physical custody of a child upon birth, the father is without any legally enforceable rights unless and until he commences a legal proceeding and persuades a judge to “grant” him rights. In the meantime, the mother is under no legal obligation to allow the father to have any contact with the child at all, much less let the child stay at the father’s home for a weekend. She can legally tell the father that she will not let him even talk to their child on the phone until he gets a court order requiring it.
As the custodial parent, she is responsible for the welfare of the child. She could reasonably believe it would be irresponsible to leave the child in someone else’s physical care, at least for an extended period of time.
She could also reasonably believe that preventing access might help protect her right to custody in the event the father files a motion for custody rights. Generally speaking, the longer a parent goes without maintaining regular contact with a child, the less likely he is to win a battle for custody.
Taking these two things into consideration, it would seem to be in a mother’s best interests to exercise her exclusive right to sole custody to the fullest extent the law allows.
The problem is that most courts, when called upon to decide a custody case, will consider a parent’s willingness to allow and encourage the other parent to maintain a meaningful relationship with the child.
This is a relatively recent addition to the “best interest” calculus. Ten years ago, not many judges gave this factor a whole lot of consideration. Today, though, a growing number of judges do. In fact, some judges assign a great deal weight to the negative effect of gatekeeping on children.
This means that a mother who exercises the legal right that a statute expressly gives her may very well find herself facing the prospect of losing custody of a child because she exercised it.
This trap for single mothers would not exist if, instead of a maternal sole custody statute, states had statutes providing for shared custody rights immediately upon paternity being adjudicated or the joint execution of an acknowledgement of parentage. Then both the mother and the father would immediately be put on notice that they each need to respect a child’s right to a relationship with both parents.
Fostering cooperation instead of acrimony
A statute that respects the parental rights of both mothers and fathers can also be expected to foster more cooperative parenting rather than the divisiveness and acrimony that all too often plague unmarried parents who are living separate and apart from each other. If parents understand that they each have enforceable legal rights of contact, then they may be expected to be a little more circumspect in their dealings with each other. They will also have a greater incentive to work out a schedule between themselves.
Acrimony and bitterness make people’s lives miserable. Single mothers are no exception. They are people, too.
Moreover, the longer a couple goes without trying to work together on a parenting plan, the harder it gets to begin. Therefore, starting the process as early as possible is critical.
Better voluntary compliance with support obligations
As proponents of shared parenting have pointed out, a parent with joint custody statistically is more likely to voluntarily support a child financially than a noncustodial parent is. This is largely because noncustodial parents, not surprisingly, feel disenfranchised. When a parent is treated as an equal, given the respect that is due a parent, and allowed to be actively involved with a child for substantial amounts of time, s/he is a lot more eager and willing to see that the child is thriving, including taking care of the child financially.
Lightening the load of parenting responsibility
Custody isn’t just a right; it’s also a responsibility. A parent with sole custody is solely responsible for getting the child to doctor and dentist appointments, helping with homework, attending to the child’s other needs, and caring for the child in innumerable other ways every day of the week. It’s a strenuous and demanding job for a stay-at-home mother. It is at least as difficult for a working mother. Why should the law excuse the father from those responsibilities simply because he is not married to the mother of his child?
Time for a change
Maternal sole custody statutes are unfair to fathers, unfair to mothers, and unfair to children. The time has come for states to replace them with laws giving both parents shared custody rights and responsibilities upon either an adjudication of paternity or the parents’ joint execution of an acknowledgement of paternity.
My book, The History of Custody Law is available in paperback or as a Kindle e-book at Amazon.com:
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