AS A FATHER’S ROLE HAS CHANGED, SO HAS THE LAW


It’s Father’s Day, and I plan to celebrate.  My children are now grown, but while they were growing up I was the type of father who changed diapers, stayed up with a sick kid in the middle of the night, attended every school conference and event, and went to all doctors’ appointments.  I helped with homework, coached my kids’ baseball and softball teams and, regardless of my workload, I made sure to spend lots of time with my family, including one-on-one time with each of the children.

I’m not alone.  There are plenty of dads out there who do the very same thing for their children.  And the courts are beginning to take notice.  Over the past year, Arizona and many other states have made revisions to their Family Law statutes to make it easier for involved fathers to obtain equal decision-making and parenting-time rights with their children.  

For decades, courts across the country almost automatically gave custody of young children to mothers, often applying what was known as the “Tender Years Doctrine” – a sexist legal theory based on the philosophy that mothers are, by nature, nurturers and fathers are breadwinners.  This viewpoint was not only flawed – it was discriminatory against both sexes.  It was unfair to the many loving, nurturing, fathers who were involved in every facet of their children’s lives, yet were not given equal parenting-time and decision-making rights.  It was also unfair to mothers, since this ignorant belief was used as a basis for oppressing women and depriving them of formal education and equality in the workplace.   

But society is changing.  Today’s fathers view themselves differently than fathers of past generations.  More and more, fathers today see themselves as equal partners in parenting their children. Fathers of my generation were locked into their role as providers.  They worked all day, and often late into the night, to support their family.  When they came home, they typically played with the kids and helped with discipline, but it was the mother’s responsibility to raise the children.  However, many of today’s fathers are different – they still play with their children and discipline them when necessary, but modern fathers also nurture their offspring and share in child care responsibilities.  A recent Pew Research study determined that there are currently more than two million stay-at-home dads in America — a number which is certain to grow as women continue to achieve equality in the workforce.  And that figure is dwarfed by the number of fathers who care for children in nuclear families, and single (divorced or never-married) fathers who co-parent with the children’s mother.

Study after study has been published over the past several years demonstrating the importance of fathers in their children’s lives.  Children without the benefit of involved fathers have a higher incidence of poverty, criminal activity and mental health problems.  Children whose fathers are part of their lives tend to graduate from college in higher numbers.  The importance of a father’s impact on his children cannot be overstated. 

Increasingly, today’s fathers are stepping up to the plate and sharing the responsibility of raising their children — and in response, modern divorce and custody laws are changing to reflect a father’s contribution.  Now, when fathers have been significantly involved in their children’s upbringing, they are much more likely to be awarded equal decision-making and parenting time by the courts.

Happy Father’s Day! 



Gary J. Frank is a Family Law Attorney, a litigator, and a mediator with over thirty years of experience in dealing with divorce, paternity, custody, and parenting issues. For many years he acted as a Judge Pro Tempore in the Maricopa County Superior Court, which gave him an insight into the inner workings of the courts that many attorneys lack.  In addition to representing Family Law clients in litigation, we are also willing to help people by working with them on a Limited-Scope or Consultation-Only basis.  Our office is located in the Biltmore area of central Phoenix, with satellite offices in Scottsdale and Paradise Valley, Arizona.  We can be reached by telephone (602-383-3610); or by email at gary.frank@azbar.org.  You can also reach us through our website at www.garyfranklaw.com.  If you are in need of a consultation regarding any area of Family Law, contact us today.  We’d be happy to help.

IF OUR LEGAL SYSTEM WAS A GAME OF PING PONG, CHILDREN WOULD BE THE BALL

Ever since the Arizona legislature passed its new law replacing “custody” with “legal decision-making” and “parenting time” something has been bothering me that I couldn’t quite put my finger on — until today.  In reviewing the development of custody law for an upcoming trial, it occurred to me that the history of Family Law in America has always been a battle between “Mothers’ Rights” and “Fathers’ Rights.”  . . . But what about Children’s Rights?  Who speaks for them?

From the time this country began until the late 1800’s children were, from a legal standpoint, treated as property of their father.  Women had few legal rights, and when a divorce occurred, legal custody of the children was almost certain to be awarded to the father (despite the fact that the children had been raised by their mother).


That all changed at the beginning of the 20th Century. It was during this era when courts began accepting the view that children of tender years need the nurturing that only a mother could provide.  The vast majority of mothers, during that time period, remained in the home to care for children as their primary responsibility. (Of course, this was not necessarily by choice — social and legal barriers were entrenched in our society and women had few opportunities in the workforce.  As late as 1970 only 27 percent of women with children under the age of three were working.)  The “Tender Years Doctrine” almost assured that mothers would receive custody of young children in a divorce proceeding. However, it ignored the fact that fathers could be nurturers, too; and that in any particular case, the children’s father might be the better parent.


The Civil Rights and Women’s Rights movements of the 1960’s created a sea change in our society.  Barriers that had existed for centuries began to slowly crumble. Women were accepted into college and entered the workforce in increasing numbers.  As opportunities for women grew, it became more common to see families with two working parents, and by 1985 more than 50% of mothers with children under three were working at jobs outside the home.


In the 1970’s the concept of “Joint Custody” was introduced into the Family Law lexicon.  Joint Custody assumed that divorced parents should share the rights and responsibilities of raising their mutual children.  The law provided that, in making its decision, the Court was to consider the “best interests” of the children based on a laundry list of factors contained in the statute.  As joint custody gained acceptance and eventually became the norm, fathers were given a greater role in making legal decisions for their children.  The “Tender Years Doctrine” was shelved by the courts.  


Now it is 2013 and a seismic shift in Family Law has once again taken place.  Arizona has amended its statutes to remove the term “custody” altogether.  That term has been replaced with the words “legal decision-making” and “parenting time.”  This sounds innocuous, but the effect may well be that in every contested “custody” proceeding, a judge will start with the assumption (although not a legal presumption) that the parents should be awarded equal time and decision-making rights with respect to the children.  The Court is still required to make its decision based on the “best interests” of the children — but it could be assumed (unless proven otherwise) that it is in the children’s best interests to divide parenting time and decision-making equally between the father and mother.


Is this fair?  I say no.  Determining what is best for a child does not lend itself to a “template” decision-making process.  Every family is unique.  Every case is different. Therefore, every case involving children should be determined on its own merits.  Mothers should not be favored.  Fathers should not be favored.  Instead, the Court should look closely into the facts and family dynamics of each individual case to determine the outcome that best meets the needs of the children.


The children.  

What is in the best interests of THE CHILDREN? 

That should be the compass that guides the Court in making its decision.


 

Gary Frank, has been a courtroom litigator in the Family Law arena for over thirty years, and is a strong and committed advocate for his clients.  In addition to being a litigation attorney, Mr. Frank has acted in the capacity of a Judge Pro Tem in the Maricopa County Superior Court.  This has given him an understanding of the inner-workings of the court, and a unique perspective  that most attorneys lack.  He has also acted, for many years, as a professional mediator of Family Law disputes.   We handle a full range of Family Law matters, including divorce, custody, spousal and child support, division of property and assets, modification and enforcement actions, as well paternity/maternity cases, grandparent or non-parent custody and visitation actions, and relocation/move-away cases.  If you are in need of a consultation regarding any area of Family Law, please do not hesitate to give our office a call today at 602-383-3610; or feel free to contact us through our web site at www.garyfranklaw.com; or by email at gary.frank@azbar.org.   We’d be happy to help you.