A topic or term known to perhaps every divorced (or unwed) father in the United States is “fathers’ rights”. Gather a group of fathers together and perhaps there would be no agreement on the precise definition and how this term would, could, or should play out in the divorce or paternity. However, they would agree, on the whole, they believe they are getting “screwed” by the system.
Such term, in fact, conjures up discussions ranging from the child support formula (unreasonable amounts it computes for non-custodial fathers) and denial of parenting time to tactical use of protective orders. This is not what this blog post is about.
Instead, in this blog post, Bryan Ciyou, attorney at Dixon & Moseley, P.C., sets forth narrowly what is perhaps the most update-to-date scientific and legal research on point for a court to order (exact) joint legal and physical custody, week-for-week, 3-2-2-3, or 5-2-2-5.
This blog is not intended to generate controversy, but instead, potentially refine and inform key points in this debate; and every point in this blog embodies an important concept under the umbrella of a child’s best interests, the focus of every court now and for the foreseeable future, from America’s courtrooms to the backwater judicial proceedings in certain countries, notwithstanding how the term is actually applied.
The current constitutional holdings by the United States Supreme Court1 inferentially support Fathers’ Rights to joint physical and legal custody; they hold raising one’s child with a minimum of government interference is among the oldest and most recognized rights in the Constitution, likely underpinned in natural law.2
This is not to say without exceptions as set forth infra an infant’s brain would not “rewire” itself, much like that of a stroke victim, if placed directly with a Father or any other third party (there is no long term science on this point at this point, save perhaps imprecise extrapolation of surrogate mothers’ data). It probably already does rewire itself, creating different neuropathways.
Ultimately, it is foreseeable future (as is the case now in many courts with presumptions to the contrary) that joint legal and physical custody will become a strong presumption in child custody litigation, after a very early age (3-6). It is unlikely there will be a joint equal presumption from birth to this early age because of fundamental and primarily bonding that begins in utero with the mother and continues for a few years. Obviously, where drug use or other mental or physical impairment exists with a Mother, the best interest standard would override this presumption to custody in fathers.
While this blog could generate controversy, modern psychological research, and legal precedent support this view.
Moreover, so do our everyday experiences. This fact there is not precise equality in every aspect of life is again not really a determinative or important factor in this dialogue. What is key is the best interests standard. Thus, again, if a baby is born drug dependent, it may well be the case the Father should have custody and the mother supervised time.
This may not be fair or right but is consistent with law and science. And given studies of children adopted at birth by gay and lesbian couples, these children who are removed from mother’s at birth will be normal, well-developed children, excepting perhaps what small gain may be had by being raised by an adjusted mother without any profound physical or mental limitations.
Thus, it is likely the United States Supreme Court1—or at least state Supreme Courts—will take up this important legal issue in the near future. Joint legal and physical custody is likely to become the norm under the fundamental constitutional right to raise one’s children.
This blog post was written by attorneys at Dixon & Moseley, P.C. who handle constitutional challenges in all Indiana counties and are able to handle appeals through the Indiana Court of Appeals, Indiana Supreme Court, and the United States Supreme Court. This blog post is not intended as a solicitation for legal services or a solicitation for legal services. It is an advertisement.