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In the Best Interests of the Child
Modern Custody Disputes Favor Fathers' Rights Over Child's Welfare, Says Family Law Professor

By Patricia McBroom, Public Affairs
Posted January 27, 1999

Photo: Mary Ann Mason

Professor Mary Ann Mason. Jane Scherr photo.

The modern drive to expand fathers' rights in custody cases has significantly diminished decisions made in the best interest of the child, according to the research of a Berkeley professor of family law.

States now give higher priority to blood ties than to parenting, so children can be ordered to live with biological fathers they have never known, said Mary Ann Mason, a lawyer and professor of family law at the School of Social Welfare.

"An unwed father who has never seen his child will be given custody in most states in preference to unrelated individuals who have done the actual parenting," said Mason. "Unwed fathers now have the same rights as married fathers -- a major historical change of the past two decades," she said.

She added that in divorce cases, courts have frequently rushed "to 'divide the child,' by insisting on joint custody and ignoring what we know about early child development."

Children are not being represented in court or given a voice of any kind, said Mason, in a wide-ranging analysis of custody law, published in a new book.

In "The Custody Wars: Why Children Are Losing the Legal Battle and What We Can Do About It" (Basic Books, 1999), Mason evaluates the historical and contemporary status of custody decisions, demonstrating that modern-day courts have regressed in their concern for child welfare.

Because states now want to encourage unwed fathers to come forth with more child support, they offer them unprecedented rights as parents, based purely on biology, not actual parenting, said the professor. Parental rights have also expanded via joint custody decisions -- to the detriment of very young children, who need stability in their lives, said Mason.

Courts have known this about small children, ages six and under, since the turn of the century when the "tender years doctrine" became law. Today the doctrine -- which favors a primary parent -- is being ignored in a "politically correct" move to joint custody, she said.

But it is in new rights for unwed fathers that Mason finds the most egregious examples of a legal system that disregards the welfare of the child.

Until a 1971 Supreme Court decision, unwed fathers had no rights to child custody based on the genetic relationship. Now, most states have given unwed fathers all the rights of a married father, said Mason.

"In the case of unwed fathers, states have abandoned the child-centered 'best interests' test. Today, it must be shown only that it would be harmful to the child to live with the biological parent, not merely in that child's best interest," said Mason. She said this means that a young child can be taken from an adoptive parent with whom he or she has a strong attachment, as in the celebrated case of Baby Jessica.

"If our first concern were truly the best interests of children, we would look at unwed fathers in a different light," said Mason. "We would look, first of all, to whom is performing the actual parenting."

Mason argues strongly that children need advocates in court and that most custody disputes should be settled on the basis of the needs and wishes of the child involved, with changes depending on age.

Until they are adolescents, children should be represented not only by attorneys, but by child advocates, Mason recommends.

Mason points out that children get far better representation in criminal courts than in family courts. She believes the wishes of mature children over the age of 13 should prevail in a custody dispute, unless they are at risk of being harmed by their choices.

Mason also calls for regular reviews of custody arrangements, and she urgently endorses a return to the policy of favoring a primary parent during the tender years.

"For children under six, it can be very destructive to disrupt their bond with a primary parent," said Mason.

"There must be a place where children are heard and their changing needs are addressed; a place where judges are educated in child development; a place where the rule of law, while flexible, truly promotes the best interests of the child rather than catering to gender politics," said Mason.

"Children are not property to be exchanged," she added.


January 27 - February 2, 1999 (Volume 27, Number 20)
Copyright 1999, The Regents of the University of California.
Produced and maintained by the Office of Public Affairs at UC Berkeley.
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