At this moment in the early 1980s public debate about the family was dominated by the confluence of several unhappy realities: Families were breaking up. Divorce for those who bothered to get married was becoming the new normal. More and more children were born out of wedlock, and most of these kids grew up with no adult males in their homes. Single mother heads of households were said to be drifting into lives of poverty. And the cost to taxpayers of family support systems was rocketing out of control.
What could society do?
Some people claimed to have found the answer to the financial and social costs of family breakdown. Their answer picked up on trends in social thought which were well on their way to acceptance for their own reasons. The proposed answer then topped off these trends with a new twist.
All over the contemporary landscape, the role of morality in public life was under growing suspicion. In the past a result of the influence of religion on American thought was a decidedly moralistic view of certain family-related practices. Some activities were thought of as good, so were deemed worthy of encouragement. Other activities were bad and brought down chastisement on those who practiced them. Having children out of wedlock was definitely bad. The English language has an ancient and pejorative b-
word name for the children of the unmarried. Traditional society had a very narrow view of the women who engaged in the ‘sin’ of bringing these so-called b–tard children into the world.
But by the 1980s these ancient attitudes were past their sell-by dates.
The trouble with taking the classic moralistic position toward out of wedlock children is that the innocent offspring suffer when society attempts to punish their ‘straying’ parents. In the 19th century and before, the accepted way of dealing with children born out of wedlock and their mothers was to push both to the fringes of society. As the 20th century progressed, religion-based morality and moral judgmentalism lost their stranglehold on the imagination and values of society. The up-to-the-
moment 20th century citizens flaunted their decidedly more tolerant attitudes.
In the name of lifting the ancient stigma off the innocent children so they won’t suffer from the so-called misbehavior of their parents, a truce on punishing both children and mothers was called. Distinctions between children born inside and outside of wedlock were erased for all practical purposes. As the century proceeded fewer people and fewer social institutions cared about the marital circumstances of the mothers at the moment of the children’s birth. The only issue that seemed to matter
was the well-being of the children, not the vestigial remains of the social institutions – such as marriage – supposedly invented to sustain children.
Where once fate was harsh to the mothers and offspring of out-of-wedlock birth, the modern, enlightened approach was to find ways to support these citizens by sprinkling a drizzle of societal largess on them. Ostracism was out, material manifestations of compassion were in. Assistance for Families with Dependent Children (AFDC) – the welfare payment intended for unmarried or post-married mothers – was invented and encouraged to make survival a little more likely and life a little less bleak for its recipients.
AFDC eventually became a dominating presence in the lives of many such newly-defined single-mother families. And as part of the design of this welfare regime, it was conscious, deliberate policy to segregate fathers out of the lives of the children. These men were assumed to be exploiters of the weaknesses of the mothers, and undeserving of the usual rights of fatherhood. Mothers on welfare eventually got the point of the
system: men should be pushed out the back door. AFDC-receiving mothers discovered that keeping the steady presence of a man in their lives can be an unnecessarily costly extravagance, since it was welfare policy that having a man in the house when the inspector knocked on the door caused the checks to stop coming in.
Properly-married mothers who never dreamed of being on welfare might also slip into the wide, embracing arms of the welfare system. As the divorce rate ratcheted up, many fathers disconnected from their families and didn’t stay around to pay for the support of their offspring, which in turn caused many of their divorced former wives to show up at the doors of welfare establishments. Divorce created welfare cases out of
mothers who might once have believed they could make it on their own after divorce, but didn’t.
As traditional religious thought lost its power in the popular mind, moral
relativism stepped in to fill the void. Religions judged; moral relativism disdained judgment. The morality of anything mothers did or didn’t do mattered less and less to society and its social welfare institutions. The lens was focused on the well-being of the children, who presumably need society’s help. The obligation of the state to pay for the welfare of children gradually evolved from a temporary, emergency handout to an
‘entitlement’ virtually constitutionally due to its recipients. As long as mother was using her money to take care of the kid or kids, how she wound up being eligible for her payments and the rest of what she did or didn’t do was no one else’s business.
There were occasional debates about whether some women were taking
advantage of the welfare system by, as some wags claimed, making a career of having babies. The standard answer to anyone accusing mothers of this form of deceit was to point to the relatively meager payments mothers could expect. AFDC didn’t pay so very much per child after all. Whether or not this answer satisfied the critics, the total amount paid in welfare grew almost geometrically from year to year. At the dawn of the 1980s society was on the hook to pay staggering amounts of money for family-based entitlements well into the future.
Around the time my wife and I started shuffling in and out of court, social
thinkers began to tackle the issues of the accelerating breakdown of the family, the climbing divorce rate, and escalating welfare costs. Virtually all these analysts took it for granted that the institution of marriage was slipping into obsolescence and had little hope of ever making a robust come-back. The public debate seemed to center on ways to retool the parts of the welfare system that were thought of as socially beneficial – such as the need to insure that innocent children didn’t start out in life with a financial handicap – without the frightening economic costs to society.
Early signs that there might be a perfect solution began to emerge in the public arena of ideas in the 1980s.
An editorial in the New York Times on April 29, 1983, boldly proclaimed that
“Women’s Issues Are American Issues.” An important government agency recently reported to the country that there was a pronounced increase in the number of poverty-stricken households headed by single females. The divorce rate more than doubled and the rate of never-married mothers increased over 350% in the previous decade, the 1970s. Divorce and never-married motherhood were becoming synonymous with poverty, the writers found. Many other statistics about poverty were cited in the editorial, including the dire prediction that if trends continue, by the year 2000 “the
poverty population would be composed solely of women and their children….” The editorial was true to its title when it concluded that the nation must recognize that poverty in America is becoming a women’s issue.
The following day there was a letter to the editors of the Times by a professor of economics titled “Children Are Not for Women Only.” The writer asserted that the problem of the feminization of poverty had a discoverable cause. “One of the factors contributing to this situation [the feminization of poverty] is that fathers leave mothers with the responsibility of providing care for their children and also fail to meet child-support requirements.”
After suggesting that fathers-to-be should be asked to make down-payments on the costs of day care, the writer concluded that “The problems of children and their working mothers, with or without spouses, can never be ameliorated as long as the myth that children are only a maternal responsibility prevails.”
Even at this early point in my multi-year marathon struggle to insure my place in the life of my child, and having witnessed more than my fair share of the foul stench of either hostility or indifference with which fathers’ claims to parental status were met, the quick two-day editorial and letter-to-the-editor flurry hit a raw nerve. It seemed to me that these two pieces were misreading social trends and were jumping to flawed conclusions. I dashed off a letter which was published by the Times on May 1, 1983 under the title “The Child Custody System Does Not Work.”
Your April 29 editorial “Women’s Issues Are American Issues” interprets some recently published statistics indicating a growing proportion of below-poverty-line homes headed by divorced mothers as evidence of inequity toward women. [Economist-author’s name]’s letter the next day takes up the same theme, going on to advocate greater vigor in the enforcement of child-support obligations against fathers.
To my mind, the same statistics can be read to have quite the opposite force. Even in the post-“Kramer vs. Kramer” era, these days when there is an expectation of equality of the sexes before the law, courts are still cranking out the same old kind of custody justice they always have: give the kids to the woman and make the man pay.
To conclude that fathers are nasty beasts because they do not comply with this sad, rigged game is to fall prey to the ugly stereotype that woman are always genetically better mommies and that men are nothing but economic machines.
If present trends continue and woman are (rightfully, I believe) given greater access to domains traditionally reserved to men, while men are axiomatically excluded from the traditional domain of women – the upbringing of children – it would not be untoward to project that even larger numbers of fathers will catch on to the cynicism of the child-support system and choose to vote with their feet to abandon it. An institution such as the family – and society itself – cannot long endure if it makes virtual slaves of fathers, giving them no say even if they do pay.
The Times needs to be reminded that the law in New York State
mandates sole custody. In practice, that has come to mean that if the mother is not an addict, a violent criminal or a brute to her children, she’ll get the kids, the house and about a third of the father’s income.
Joint custody is granted only in the enlightened minority of cases in which the couple agree on it. Read: if the mother does not object, for in fact legal precedent is interpreted to mean that if a father fights for his children, he is a contentious father, and if he is a contentious father, he does not deserve the children.
What the poverty statistics show is that the present child-custody system does not work. The more pressure put on one party in this system – that is, pressure on the fathers to pay more while suffering through token visitation and input – the less the system will work. Punitive, one-sided, blind, partisan actions like that miss the core of the problem, which is that fathers are human beings, not money machines.
And as parents they can and do love their children as much as mothers. To assume anything else would be to be guilty of sexism. And to base a system of law on any assumption other than the equality of parents – and the equality of love and concern for their children – is to breed contempt for the law.
My letter was answered by another letter to the Times editors ten days later,
entitled “Why Custody Goes Mostly to Mothers,” written by a New York State Senator.
The Senator’s letter began by stating that, according to a recent opinion of the New York Bar Association, judges in New York have the discretion of awarding any form of custody they desire, not just sole custody to the mother. The author then cited a few statistics from a University of California study claiming that even when fathers are offered the option of sole or joint custody, they turn this option down in large numbers.
The reason men don’t want to be saddled with their kids, according to this study, is money. The authors speculated that parents with custody wind up with higher bills than non-custodial parents, so fathers step away from the extra burden of custody to make life easier for their pocketbooks. The letter scolded those fathers who “vote with their feet” – echoing the phrase I used in my letter – by abandoning child support payments.
Such shirkers might aim to hurt their ex-wives, but they wind up damaging their kids, so the Senator is against them. The letter ended with a ringing invocation of the mantra of the law of custody in the modern era: we all should do “what is best for the child.”
Having stepped into the middle of a debate about a hot social issue, perhaps I should have met the challenge the Senator threw down before me by writing an answer to her letter. I was unaware of the Times‘ policy about perpetuating extended debates in the editorial page letters section. Would they print another letter by me in response to the Senator’s letter which was in response to my letter?
I assumed the Times wouldn’t let their editorial pages be turned into our private debating society, so I allowed the exchange to fizzle out. But had I responded I would have written something like the following:
“In response to my claim that custody justice is routinely and unfairly doled out in New York, the Senator’s letter cites a Bar Association opinion stating that judges have complete discretion to award any form of custody they care to. Her citation of this opinion was surely prompted by my overstatement that ‘the law in New York State mandates sole custody.’ The Senator and the Bar Association are more right than I am.
“Judges do indeed have discretion to make choices other than sole custody; the law does not mandate sole custody. I concede that my use of the word ‘mandate’ was technically incorrect.
“But only technically.
“While the letter of the law does not specifically mandate sole custody, anyone with experience with judges in New York knows that awarding sole custody to the mother is practically a foregone conclusion. The Senator wins debating points for slapping me on the wrist for overstating my case. But if the reader comes away from the Senator’s letter with the impression that many creative and sensitive forms of custody are dispensed by the bench in New York such a reader would be untethered from reality.
“It is worth pointing out that the Senator does not bolster her case with supporting statistics. In case anyone is curious about how often alternatives to sole custody actually survive the judicial process, the answer is: hardly ever. My letter’s comments about local custody practice were prompted not only by common experience any New Yorker can verify by asking neighbors, visiting the courtroom or reading published cases, but also by a recent review in the New York Law Journal, the semi-official newspaper all City lawyers swallow whole.
“The NYLJ review states on no uncertain terms that sole custody is the chosen baseline assumption of New York judges. It is the square one from which judges start their thinking, and from which they stray only on rare occasions. As my letter clearly states, judges in New York listen to alternatives to sole custody only when both parents come to court with an agreement in hand.
“Claiming that in theory judges have the ability to award any form of custody is reminiscent of the old maxim that the law forbids both rich people and poor people from sleeping under bridges.
“The Senator’s citation of a University of California study is equally disingenuous. The Senator seems to have reached into the vast grab-bag of social science studies and found one that appears to support her side of the argument. As any academic researcher can verify, social science journals are filled with studies that purport to claim all sorts of things – often, contradictory things.
“Let’s leave aside other studies which might reach conflicting conclusions, flaws and limitations of the California study, and differences in the letter and practice of family law in California vs. New York. Let’s go to
the heart of my objection to the Senator’s argument.
“The Senator claims that the California study proves that ‘maternal custody is a result of preference by husbands.’
“What we have here is one study done in one place, California, at a particular moment in history, in the then-prevailing social, cultural and economic climate. The Senator chooses to highlight one result of this study: divorcing fathers didn’t speak up in California courts in the 1970s to try to claim custody of their children. I find it ringingly disingenuous of the Senator to use this unique result to try to make the sweeping
generalization that maternal custody is what fathers ‘prefer.’
“Instead of the California study’s fathers’ custody preferences, suppose some researchers set out to study mothers’ preferences about employment. What if this study were done in the 1950s in America. Married American mothers in the 1950s almost universally wound up raising the kids at home and almost never considered looking for jobs outside the home. Would the Senator jump on the results of a hypothetical 1950s study to herald the conclusion that mothers forever and under all circumstances ‘prefer’ to stay at home rather than to work outside the home?
“The Senator mistakenly assumes that results found in one obscure study in one year in one place stop people and societies from being different at different times and places when beliefs and circumstances change.
“Let’s try another hypothetical example. What if studies found that members of one gender did not score as well on school achievement tests as members of another gender. Would the Senator claim the lower-scoring gender ‘preferred’ their low scores?
“If the Senator were perfectly consistent with the attitude she expressed about fathers and maternal custody, she would look at the different test scores and say ‘there’s no sense trying to do anything about the low-scoring test results because that’s what the low-scoring gender prefers. They had a chance to do better but blew it, and nothing will ever change.’
“When society chooses certain ideals – for example, trying to eradicate
differences in test scores between genders, or trying to change attitudes about women working outside the home, or trying to make custody assignment equitable – society mobilizes forces to bring about change when it wants to.
“All the California study shows is that at a particular moment in history the
fathers who were counted in one particular study didn’t rush to the courts to claim sole or joint custody of their children. It must be remembered that the data for this study were collected at some time in the 1970s. At that time, the message that mothers can or should work full-time at paying jobs outside the home was still novel. Some women ventured into the new waters; many stayed at their home kiddie pools. Some mothers who worked outside the home earned decent compensation; many did not.
Under these historic conditions, it makes sense for a newly-divorcing father to conclude that he’d better keep his full-time job and let Mom have the kids because Mom’s new historic experiment working outside the home wasn’t earning nearly as much money as he was earning at his job. Dad might not have ‘preferred’ letting Mom have the kids after divorce, but he probably preferred that he and the kids eat regularly. The alternative money-earning arrangement would have caused impossibly lean economic times for everyone – kids included.
“Or perhaps these 1970s fathers knew something about family law history. For more than a century before the study was done in 1970s, courts all over the US ground out that old Mom-gets-the-kids / Dad-pays law. Perhaps the recently-divorcing 1970s fathers hadn’t gotten the message yet that after a century of doing things one way all over the country, courts in California were supposed to be driving in a different direction.
“Probably these fathers had trouble believing that if they went to all the trouble and expense of asking the court for custody, they’d have a snowball’s chance. Those 1970s fathers could be considered the equivalent of the first generation of mothers who tried to get responsible jobs outside of the home. Lots of those pioneer working mothers in the 1970s discovered to their disappointment that women in the workplace were not immediately taken seriously or treated fairly just because they gave their new roles their best shot.
“On top of these possibilities, there are other reasons to hold off judgment.
Even the selective statistics reported in the Senator’s letter indicate that in California, a state that heralded its progressive attitudes toward fathers at the time of publication of the Senator’s favorite study, the percentage of fathers who were eventually awarded physical custody of their children could be counted on the fingers of two hands — not much better than fathers in more ‘backward’ states would fare. Not good odds — a few
shades less than one in ten — if you’re a man inclined to add a custody battle to all the rest of the emotional and financial burdens of divorce.
“The Senator’s misreading of the statistics would stop any possible societal
evolution dead in its tracks.
“Not satisfied with stomping on the hopes of those fathers who might care to actually have an active role in raising their children, the Senator goes on to lecture on the topic of what motivates men. She wonders aloud why fathers don’t seek custody.
“Turning back to the California study, she cuts and pastes that study’s authors’ conclusion that men bow out of the custody race because custody costs too much money. ‘Thus a husband would probably be better off financially without the custody of his children,’ the Senator scolds.
“If it’s true that the custodial parent gets saddled with far greater economic costs than the non-custodial parent, why do the courts of the states of New York, California and all the rest insist on dumping the kids with their poorer moms ninety-something percent of the time? Wouldn’t it be smarter and more economically equitable if the courts taught those greedy fathers a lesson or two, imposed custody on them, and made the bastards pay!
“Why do the Senator and those of like mind allow all those financially-stressed mothers to be taken advantage of so their men can be let
off the hook at lower cost? The logical consequence of the Senator’s complaint would be a law which freed mothers of those burdensome extra costs by dropping the kids in fathers’ laps, thus making those cheapskates do twice the work!
“Somehow, I don’t think this is the solution to the custody problem the Senator got on her soapbox to advocate.”
This brief exchange of opinions on the top and the bottom of the New York
Times editorial pages catches some of the contemporary deployments in the eternal battle of the sexes. As would become abundantly obvious as time went on, the messages on the editorial page chronicled that something very new was happening. My side – which once commanded the higher ground – was losing the battle of the sexes, and was well on its way of losing the battle ignominiously.
Before we return to the flow of life as lived by twenty-first century readers, let’s step into the Wayback Machine back to the Industrial Revolution, which began in earnest in England, and was chronicled by the eminent philosopher and historian David Hume.
Before those grim days family life for almost everyone but royalty and nobility was a constant struggle for survival. If crops and the weather were good, life could be passingly enjoyable.
Marriage was always, until recently, assumed to be as important for men as for women. Life gives no absolute assurances, but within a marriage a woman gains a reasonable probability of material support from a man while she gives birth to and raises his children. A man gains the comfort of a reasonable assurance that the children his wife bears are indeed his own, so his efforts to enhance the welfare of his family are directed toward something that is an unquestionable extension of his being.
When everyone lived on farms, taking care of the children was within the grasp of either parent. Then times changed. Since the Industrial Age – for families that moved off the farm, at least – the labor of caring for children tended to be emphatically divided along gender lines: Mom stayed home to take care of the brood, while Dad went out into the world to toil for wages. Not everyone was ecstatic with this arrangement, and it didn’t always express itself in its ideal form. But since everyone ate out of the same pot, marriage flourished as a way of life.
Since the late 1960s and early 1970s, a new message was heard across the land, a message about the place of women in society. Your world can be much bigger than your mother’s and your grandmother’s worlds, women were exhorted. Open your eyes and minds to all the choices life offers. Dare to dream. Women shouldn’t be satisfied with a life of changing diapers and reverently waiting for their men to come home from their day’s labors. Women can and indeed should be out there in the world acting in every way as equals to men, not locked into iron domestic cages.
From halting beginnings as the object of scorn and satire – such as being called ‘bra burners’ – the women’s movement did indeed gain many recruits and did steer large populations of women in new directions. In the space of one generation, women in most advanced industrial societies redefined and broadened their social roles and goals with great gusto.
In its early days during the decade before my wife and I stepped into court, the women’s movement felt it was necessary to try to offer an inducement to men to abandon any lingering resistance to women’s emerging social program, and to join them in their project of change. At least some of the spokespersons of the women’s movement held out two carrots. One was the prospect that the new, liberated woman would be a more lively, vital, engaged and knowledgeable companion than her dull, drab, limited older home-body sister. What man would prefer to come home to a woman whose horizon was narrowed to diaper-changing and detergent shopping, as
opposed to the possibility of coming home to a companion who drew from the full palette of life’s experiences?
The second incentive was the promise that men too would be liberated from the narrow roles society had up to then straight-jacketed them into. Think of practical problems such as the burden of earning money. Wouldn’t it be a relief for hubby to know his solitary money-earning burden will now be shared more or less equally with the wife?
Moving on to other realms, think of emotional expression. In the new era of
relations between men and women, men would be free to explore and exhibit aspects of their nature and of life they had been discouraged from venturing into in the past. The cliché example often used was the limitation put on the expression of emotions by men: What in the world is so wrong with seeing a grown man cry, for goodness sake?
The promise and temptation of the women’s movement was the prospect that life could be made as equal as possible for these two genders.
Yet no matter how many laws and customs and economic roles change, there are still some stubborn limits to reality’s flexibility. Neither medicine nor law can make women and men precisely equal in everything.
Bearing babies is a part of life that plays by its own unequal rules. Biology is what it is, and its glaringly unequal procreation arrangements hardly need an introductory lecture by this author. Culture is more flexible than biology, but it too has its stubborn boundaries. In the new era of liberated women and men, quite a few customs about having and raising babies changed. But the new changes weren’t distributed precisely equally to these two genders.
Back in the old days, especially the morality-laden old days, mothers proudly walked around as respectable members of society only when they had their children as part of an officially-recognized Mom-Dad family. In the new era of changes, especially in a morally relativistic culture, women had many more choices.
A woman could become a mother inside a marriage, inside a committed relationship, outside a committed relationship, after the most casual of casual relationships, or under forced circumstances. Whether she chose to become a mother in any of these circumstances certainly had important implications for the mother and child. But, mostly, society left the choice to women. And pretty much regardless of how a late 20th-century woman
had her babies, she could still be considered an upstanding citizen and could be recipient of various forms of society’s approval and treasury – as long as she refrained from abusing the kids.
Choices about having children were and remain different for men. A century ago and before, no one thought twice about how a man had a child. The only proper, honorable thing a man could do was to marry. The ubiquitous religious institutions of the day pounded that message home, and most everyone fell in line. On the off chance the parents-to-be were not married, either of the families broke out the shotgun and Daddy-to-be miraculously did his duty by making mother-to-be an honest woman.
In the new era, a man could become a father under almost as wide a range of
circumstances as a woman could become a mother – but only if the woman goes along with the program. The final word on pregnancy, by virtue of both biology and common custom, is the mother’s. Especially if mother takes advantage of society’s newfound leniency toward birth control and abortion, she can make a unilateral decision denying the man his opportunity to become a father. A man forcing the woman to start or end a
pregnancy against her will is virtually unanimously judged to be socially and legally unacceptable.
As it happens, I was a first-hand witness to another milestone in the history of the relationship between women and men in the 1980s. The issue: what happens when an unmarried woman has a child against the wishes of the child’s unmarried father?
A case was argued in the Appellate Division of the court of New York pitting a woman friend of mine against a male public figure with an international reputation honored in a very popular film. She had the couple’s child, even though the father insisted he never wanted children.
My woman friend had a son almost exactly the same age as my son. During the period of time after I was served with divorce papers but before I left my marital home, my friend, our kids, their gigantic safety seats and I frequently piled into my car on Saturdays and set out on outings together. Our favorite entertainment was driving the back roads of New Jersey, where we wandered from yard sale to yard sale picking up castaway bargains.
My friend’s son’s father took my friend to court to be freed from the obligation of paying child support. He argued that he never intended to become a father, and that my friend’s pregnancy was the product of deception. He alleged she had assured him she was on birth control. Since he felt he was deceived, he was adamant he should not have to pay.
I recall going to the courthouse of the Appellate Division near Madison Square to hear this fascinating case argued before a bench of judges. Unlike any courtroom I had seen before, the Appellate Division courtroom was an architectural gem. A classic lead-and-glass dome let in rays of light, which sparkled onto the inspirational gold-leafed inscriptions on the walls. The black-robed judges kept the room full of dark-suited lawyers moving along swiftly by a system of clocks and severe looks.
The court eventually decided that whether or not my friend deceived the father, he is responsible for paying child support. There is a child in the world who needs to eat, which trumps any pillow talk or allegations of broken promises. In essence the Court said that if a man wants to play, he must be prepared to pay. This much-heralded decision tightened the screws on all reluctant fathers everywhere in the state.
And reminded everyone that equality in life’s essential events can go only so far.
Divorce is another critical experience in all too many lives that can never be
made precisely equal. In bygone days, there was a hard-and-fast rule about what happened to the children in the then-rare instance a marriage ended in divorce. Unquestionably, courts placed the children of divorce with the father. That choice, which survived in Western law in an unbroken chain all the way back to Roman times, makes eminent practical sense in an era when father could keep the children on the farm with the rest of his extended family, which was where and how the overwhelming majority of humankind lived until a relatively recent times.
To the modern sensibility the concept of fathers having such a dominant position in the household is depicted as backward and arbitrary. But for much of human history this family arrangement had its logic and defenders. Survival was a difficult struggle for almost all humanity in the past. Survival of mother and children was thought of as father’s responsibility. Being the father meant more than feeding, clothing and
sheltering the children and their mother, as hard as that was. It also included making provisions for inculcating the children with vocational skills, instilling them with moral and religious values, and in more enlightened times teaching them the elements of reading and writing.
Remember, this was father’s responsibility before anyone came up
with the idea of public schools. In return for all these responsibilities – for which the father was held accountable by authorities – society rewarded him with enhanced rights.
The father-always-gets-custody rule prevailed in all European countries where family law was based on Roman law. A subsequent historic development trumped Roman law; namely, in European countries where the Roman Catholic Church dominated, divorce was not permitted, so the question of judicial preferences about parental custody was not in play.
Later, after Protestantism shook things up, divorce was granted in many countries. But not often. In England, the home of Common Law, the basis of most law in the US, divorce was not granted by courts until 1857. Prior to
the passage of legislation in that year, divorce was possible only by acts of Parliament, which meant it was an indulgence not designed to fall within the price range of the average English working bloke.
Americans did things their own way, as they often do. Divorce was permitted in several colonies. For example, our Puritan forbears, despite their reputation for religious zeal, permitted divorce.
Geography and industrialization accelerated the spread of marital breakdown in the New World. The ties that kept past European generations chained to their birthplaces became irrelevant, and industrialization shuffled time-honored family arrangements.
Before the New World was discovered, the option of a European family picking up and moving to another geographic location to establish a new family address was about as unthinkable as the Earth revolving around the sun. For the overwhelming majority of Europeans, by choice or by law, just about everyone was tied to the immediate vicinity of the spot where they and their ancestors were born. Picking up and moving – and leaving the protection of family, church, community and local rulers – was out of the question.
Then America beckoned. People moved, first over seas, then perhaps a few
times more as new frontiers opened. At the same time as horizons moved to the new continent, then further West, styles of earning livelihoods evolved. Unlike the era when almost everyone’s livelihoods were directly connected with the land, the Industrial Age saw fathers spend their days toiling long hours in shops, factories and offices removed from the farm and home.
The opportunity to move relatively freely as the frontier advanced created an opportunity for parents to do something which until that time had been a rarity: voluntarily abandon their families. Statistics on past marital practices are neither reliable nor straightforward, so any representation to statistical authority or finality has to be taken with a generous grain of salt. From the authorities reviewed – most of whose accuracy can be questioned for one reason or another – it seems that of the instances of family abandonment, which doesn’t seem to have amounted to more than a few
percent of marriages, sixty percent of the time fathers were the leavers, while forty percent of the time mothers flew the coop. But don’t quote me.
Divorce – meaning a family dispute brought to a court and decided by a judge, as opposed to informally running out the back door or negotiating a marital dissolution with the aid of third parties such as the local church – rose steadily in frequency in the 1800s. One US Census Bureau study released in 1909 claimed that at the turn of the 20th century the divorce rate – including couples both with and without offspring – was around one in 14 marriages, and climbing.
American courts in the 19th century broke ranks with the past by beginning to award custody of children of divorce to mothers. When the 19th century dawned in America, it was considered “natural” for children to be looked at as father’s responsibility. By the end of the century, all courts throughout the land unquestioningly gave the children of divorce to the mothers.
Many courts in the 1800s invoked a doctrine called ‘tender years’ to justify the new practice of awarding custody of young children to mothers. This doctrine claims it is essential for children to spend the first six or so years of their lives in mother’s care.
It wasn’t until quite a while after the courts initiated the ‘tender years’ practice that legislatures bothered to fix this concept into law. In this legal revolution, my profession, Psychology – and, if one name has to be highlighted above the rest, Freud – had a decisive hand.
Early in the 20th century, the message began to be spread that there are deep, always delicate, sometimes mysterious forces at work in the minds of children that cause them to react in almost unexplainable ways to their parents. Children need more than food, clothing and a roof over their heads. Psychologists were throwing around terms like Oedipal conflict, neurotic complex and separation anxiety. All these new and exotic ideas fit in very neatly with the movement to revise legislation about children.
For millennia, the law of custody had been clear. Automatic custody to fathers had always been rationalized by declaring children the property of their fathers. In Common Law, the foundational law in most English-speaking countries, marriage created a family unit which had one head recognized in the law, the father. The legal identities of all other members of the family were subordinated to that of the father – or, to use the appropriate legal term, their identities and rights were ‘covered.’ In this family context, the term ‘property‘ can be misleading. Fathers did not have the same right to dispose of children-as-property as they had to dispose of other property, say, a cow or a house, which they had an unquestioned right to kill or burn on a whim. But fathers clearly had a lot of power – on paper – in early Common Law.
It is virtually impossible to bring up the topic of the seemingly total authority of fathers in past law without mentioning the notorious doctrine of ancient Roman law called Patria Potestas – paternal authority. Fathers under that regime had the right to actually kill their children. There’s nothing more absolute than that!
The problem with trotting out this notorious, radical example of the power of fathers in families is that its exercise was very likely more theoretical that real. At the remove of a couple of millennia, it is impossible to know how often children’s lives were terminated by Roman fathers. People who wrote histories during that era focused their attentions on rulers and wars and such. Sociological and demographic studies of the everyday lives of non-nobles just weren’t done. No statistical records of the frequency
of Roman filicide survive.
The indirect references to patria potestas in written records which survive casts doubt on how frequently it was consummated. For example none
of the hundreds of letters of Cicero describing the daily life of Romans mentions any instances of the exercise of this awesome power.
We do know of a tiny handful of recorded instances of Roman fathers killing their children. The few known examples always involve notable warriors or noble fathers killing their offspring for acts of disloyalty to Roman authority or codes of the Roman nobility – or in one case preserving a daughter from the possibility of violation.
Gibbon, in the first book of his magisterial six volume history, The Decline and Fall of the Roman Empire, tells the story of a father who desired to put his son to death. The father could not simply execute his son, as stereotype would have it. He had to go through a complicated series of applications by letters and visits to higher powers in Rome before he could get approval to put his plan in effect. The same man had no need for approval from higher legal authorities before he engaged in the equally horrendous act of dispatching his wife.
Not having trustworthy records of child murder among everyday Romans, but knowing something about human beings, it is this author’s speculation that microscopically few Roman parents went to the brutal extreme of killing their children. It is my guess that the power of life and death over their children was vested in fathers in the letter of Roman law not to enable fathers to dispose of bothersome children who didn’t clean their rooms. Rather, this power was given to fathers to enable the state – which was constantly at war – to put pressure on fathers to force their children to
comply with the will of the Roman rulers. It probably went like this: imagine the state saying to a father, ‘If your son doesn’t show up for military duty on such-and-such day, we, the government, will lean on you, his father, until you make the kid show up – or you have to kill him.’
An equally skeptical eye can be cast on the notion that Common Law placed
fathers in a dictatorial catbird seat in all family matters. There probably were exactly as many husbands and fathers who had minimal control of domestic matters under their own roofs back in those bygone days as there are today or were at any other moment in history. Despite the dire implications some modern critics draw about the letter of Common Law in the old days, it appears that wives back then could be just as forthright
and assertive as many wives are today. Witness the following advice rewritten into modern-day English from a book originally printed in 1682 and directed to men contemplating marriage:
You get married, and thereafter you are at the mercy of your wife, who will indulge your wishes or not as suits her mood. Your house will be all awry if she has but a slight headache. When the baby comes, the place will be filled with old women and baby-linen and medical apparatus, and you will have all the anxieties of a father added to the discomforts of a neglected husband. For the rest, your wife will know how ‘to cuckold, jilt, and sham’ as well as any gay lady of Covent Garden.
Returning to the plot line – which got diverted in the middle of exploring the changing standards of custody practice in the US – the final straw that broke fathers’ domination in the domestic realm arose from the formal study of Psychology.
Lincoln freed the slaves in the 1860s, but the letter of American law still
denominated children as fathers’ ‘covered’ property until about the 1920s. That legal anomaly must have sat rather uncomfortably in the craws of many. When Freud and his fellow psychologists came along and talked about the psychological needs of children – even though Freud talked about some needs that weren’t at all obvious, and he never wrote directly about the law of child custody – a new door suddenly opened. Legal minds rushed through the door with a new method of justifying family law.
State laws were written which placed children’s “best interests” ahead of fathers’ “property rights.” It’s as if lawmakers spontaneously decided to say ‘Let’s finally get rid of the children-as-property concept, which makes us look formalistic and insensitive, and switch over to a children-as-tender-growing-things model, which makes us look as if we care for the
children more than we care for those old-fashioned rules.”
By 1930, in all 48 states of the United States, in the space of about a generation – between the moment Freud’s ideas first hit American shores to the time they contributed to changing the basis of judicial decisions – the letter of the law of custody assignment made a definitive U-turn. In the event of divorce, fathers didn’t have a ghost of a chance. Mothers almost always got the kids. Things said in the name of Freudian science were the final kick that sent fathers out into the cold.
I write these words on the changes in custody law wrought by the indirect
influence of Freud with distinctly mixed feelings. As a psychologist, I have an extremely high regard for Freud. Freud blazed a brilliant trail leading to a better understanding of the workings of the human mind -as well as some byways which are better left forgotten. On the other hand, Freud’s work has been used by others to justify many things which would make the good Viennese doctor blanch. Most of the things said and done about sexual practices in his name would probably shock the straight-laced gentleman. And, to repeat, he never said a word directly about custody preferences and the law. Nevertheless if it were left to me, I would still have every student of human behavior thoroughly study Freud despite his and his interpreters’ extravagances.
Freud’s name and the influence of his ideas – whether correctly or incorrectly interpreted – are brought up at this point to throw light on two points. Getting away from the concept of children as property might be worthy and humane, but switching into an alternate model based on children as tender objects who need to remain justthisclose to their mothers has its perils too. The tender years and maternal preference doctrines might not have been possible if they didn’t fit so neatly in with the changing gender roles in industrializing 19th century America, spiced up with a
hefty dose of 19th century sentimentality about motherhood, fortified with a few hearty helpings of Freudian theorizing. There never were groups of children separated from their mothers in their tender year who later in life rose up to form parties which marched in the streets to trumpet to the world that their lives had been ruined by their distance from their mothers. It was never demonstrated dramatically and conclusively that children separated from their mothers had different paths in life, degrees of success in life, or impacts on society compared to children not separated from their mothers – or children separated from their fathers, for that matter.
Those parts of the movement to change the basis of the law of custody placement attributable to Freudian theory were based on idealistic notions derived from texts which speculated about what might or might not lurk deep in the minds of children. Maybe separation from mother before age six years makes a difference over the long run, and maybe not.
It seems no one stopped to warn legislators that perhaps the portion of the tender years debate based on the work of Freud might have been misunderstood or wrong or just plain wild guesswork.
A likely reason the Freudian part of the tender years and maternal preference doctrines carried the day so swiftly in legislatures is that it was sold to the public as the product of Science. Science and technology clearly changed the shape of human life over recent centuries. In the beginning of this transformation of the West thanks to Science and Technology, the study of human behavior including Psychology was always considered a branch of Philosophy not Science. In the university, the study of psychology was invariably housed within the Department of Philosophy.
There came a time when that practice changed. Beginning toward the end of the 19th century – if a date has to be chosen, 1875, the year William James established the first Psychology laboratory at Harvard University – psychologists vociferously trumpeted a change of their identities. Henceforth they insisted on being referred to as Scientists. With this
change in nomenclature, psychologists wanted their work to be treated as seriously and reverently as the work of recognized scientists, like physicists and biologists. Early 20th century lawmakers apparently bought whole-heartedly into Psychology’s new exalted status.
Evaluation of Freud as a Scientist has gone through an interesting cycle over the past hundred years. Freud was clearly aware of and observant of the rules of Science as it was practiced in his day -mostly the end of the 1890s and first decades of the 1900s. More than a few people were offended or put off by his bold notions, but it was generally accepted that the methods used to form and shape his work followed the prevailing scientific modes.
During the period of time when psychologists’ work influenced the tender years and maternal preference doctrines in American law, legislators and judges must have listened because what they were hearing emerged
from experts who abided by the latest Science fashions.
Not until the middle of the 20th century did a significant number of psychologists who called themselves Scientists put up flashing warning signals. Due to the evolution of thought, including the rise of the methodological challenge called either Positivism or Empiricism, serious doubts were raised about Freud’s methods and his status as a blue-
blood scientist. A library of books by fellow psychologists took hostile aim at Freud, frequently questioning whether Freud and other prominent psychologists of his vintage deserved a serious hearing any longer. Up to the 1960s most academic departments of psychology in universities and medical schools had more than their share of professors who swore total allegiance to Freud and his methods. By the 1970s the works and
methods of the classical dynamic psychologists, including Freud and Jung, were actively and often unceremoniously being ushered out the academic door.
Freudianism as a serious intellectual genre underwent a similar downward
curve outside the academy’s walls. Until the middle of the 20th century a reader could hardly pick up a serious intellectual publication that did not attempt to interpret events from a Freudian perspective. By the 1970s interest in Freudianism as an intellectual temple approached a vanishing point outside the confines of the Freudian orthodoxy. Freudianism became little more than an interesting intellectual footnote by the end of the 20th century, when it got pushed way to the back of the academic and public stages under a cloud of suspicion.
Put another way, what was once advocated in a clear voice as the product of
Science is nowadays dismissed in most universities and medical schools in America as something other than Science. To cite one memorable example, after World War II some very interesting research was done in England on children separated from their parents during the hostilities. Two of the most famous names associated with this research are Albert Solnit and Anna Freud, Sigmund’s daughter. The study concluded that that not only is the mother-child bond during the tender years essential for healthy growth, but that unhindered attachment to mothers throughout the growing years is essential.
Some jurists in America took this research to mean that not only should mothers have sole custody of growing children of divorce, but that access of children to their fathers should be left totally at the discretion of the mothers. If Mom didn’t want Dad to see the kids, too bad for Dad. That’s what Science said.
Any up-to-date scientist / psychologist who is the product of training in an
American university or medical school after the 1970s can shoot holes through Solnit’s study; they can effortlessly point out limitations of the study which severely restrict its value as a factor in the consideration of the Law. Solnit and company’s conclusions, which were once accepted as scientific orthodoxy by social scientists of their time, no longer pass the Science sniff test today.
Nevertheless, despite the fate of interest in Freud, the ball of maternal custody preference already had a rolling head start, and was not to be stopped. Add to that an inertial factor worth considering: whatever other drawbacks or virtues maternal custody preference had and continues to have during its long-run domination of custody law, it makes life easy for judges. Since most fathers worked outside the home and most mothers were available to stay at home with the children – until very late in the 20th
century – few judges sweated custody assignment decisions. A day on the bench is much easier when a decision can be made so automatically and so apparently in tune with the intellectual authorities of the times.
One nasty by-products of the long run of maternal preference decisions of the courts was noncompliance of fathers in the trend. It was and is common for quite a few fathers to either vanish entirely or refuse to pay child support after divorce court awards custody of the children to Moms.
How to account for this wholesale, scoundrelous defiance by fathers of the wills of the legislatures, the courts and Science?
In all recorded history, in all human societies that knew about the birds and the bees, it has been assumed that fathers play a vital role in the survival and upbringing of the children that can be identified as their children. Unlike some animal species, one of the characteristics of the human species is that, left to their own choices, human males remain a significant feature in the lives of their offspring. Dad may be away from the homestead for long periods of time doing things like sailing the seas or soldiering or
laboring in far-off places. But even in the event that Dad didn’t change the diapers or take out the garbage, he willingly carried his share of the parental load. He labored long and hard at sometimes arduous or life-threatening jobs not merely for the sake of his individual, paltry survival, but more than anything else to bring bigger and better things back to the homestead to sustain and nourish his family.
With few exceptions, having children, and concomitantly having more mouths to feed, was a burden married fathers willingly and unflinchingly shouldered. Man as father and breadwinner was synonymous with the social order. Becoming a father was the simplest, most direct way for the average guy to find fulfillment, meaning in life and standing in the community.
Before the 19th century, reliable records hardly exist of significant masses of fathers in any stable, peaceful Western society consciously and willingly running away from their legitimate children and the mothers of these children, most especially when the children were propagated for the purpose of carrying on the family name. Scattered individuals ran away from their children here and there, of course. But significant masses, never.
Herodotus, the great historian of ancient Greece, mentions a group of Egyptian soldiers, whom he calls ‘The Deserters,’ who abandoned their lives and families in Egypt to live in Ethiopia. The soldiers served more than four years on the border of the two countries, and seem to have felt forgotten and mistreated by their military superiors back home. Herodotus tells the story that when one of the soldiers was asked how he felt about leaving his family in Egypt, the soldier pointed to a particular part of his anatomy and declared that wherever this part is, there his family will be.
Another ancient Greek author, Plato, proposed an Ideal Commonwealth in which the link between parents and their children is erased. The children are to be reared in common; parents are not to know who are their children, and at the same time, the children are not to know who are their parents. Simultaneously, ties between wives and husbands are to be abolished; all wives and husbands are to be common property.
This fanciful scheme is not at all the same as parental abandonment, even if it proposes the dissolution of family ties. Plato’s form of ideal republic is not known to have ever been practiced, although study and contemplation of its merits – if that’s the appropriate term – has been a part of classical education for over two thousand years.
The earliest modern reference which this author found which bucked the
otherwise universal mother-father-family trend was a group of studies of middle 19th century America. These studies found that during one particular period of hard economic times the rate of family abandonment by fathers was as high as ten percent in a single one of the several ethnic groups studied. None of the other ethnic groups studied had a father abandonment rate higher than five percent. But this exceptional
finding has been challenged as a statistical quirk. One critic suspects that the supposed ten percent father abandonment number could easily be the result of faking. Applicants might have figured out that telling social welfare agencies heart-wrenching stories of fathers running away produced sympathy and readily-dispensed goody-baskets. The real rate of family abandonment by fathers might not have been reported so close to ten
percent after all if the agencies would have done more thorough verification.
- No literature this author is aware of yields any other records in pre-19th century Western societies – or any other societies anywhere else in the world, for that matter, as far as my research has taken me – in which men en masse voluntarily walked out of the lives of their own children and wives, even in the face of catastrophes.
- No matter which historic records one looks into, it is very atypical to find stories of fathers stiffing their legitimate offspring.
- There is no great work of literature about a father struggling over the issue of voluntary abandonment of his legitimate children.
- There are no male folk heroes who earn the praise and honor of his people because of or in spite of practicing or advocating the practice of abandoning the children.
- There are no songs glorifying fathers who turn their backs on their offspring.
- No historic figure rose to power or prominence as a result of or in spite of publicly skipping out on his kids.
- There are no statues in public parks dedicated to outstanding runaway Dads.
One world-famous exception to the dotted list above is Shaka Muni, also known a Gautama Buddha. He abandoned his family to go off to meditate. But his family line was royal, so neither his wife nor kids suffered economically during his absence. His kids’ Father’s Day card have not survived, so we don’t know the psychological damage – if any – they suffered.
Even among the most downtrodden and defeated people – as exemplified by Mark Twain’s fictional runaway slave Jim of Huckleberry Finn fame – fathers were willing to endure sometimes unspeakable degradation and suffering as a price of asserting their patrimony. The species would never have survived if its male half didn’t play a constructive role in family life.
For the sake of crossing all the t’s and dotting all the i’s of scholarly research, I ask indulgence while I make a momentary side-excursion into obscure historic facts to try to add a few more ounces of weight to my case.
There is a sad, perhaps-better-forgotten history in Europe of abandonment of children. Records prior to the 1600s are meager, but what records there are show that abandoning children was a common practice all the way back to Roman times.
The ugly words ‘abandoning children’ almost certainly evoke a picture of parents sneaking to the hills out of town in the middle of the night to leave wailing bundles under trees and bushes, where they will likely die of starvation or depredation by hungry beasts.
While this scenario no doubt happened, the far more common sequence was
parents deciding they couldn’t feed all the mouths in their household, followed by leaving the poor excess children somewhere in a public square in town, where, in turn, people who knew the customs and were seeking bodies scooped up the abandoned individuals to use them for their own purposes. Fortunate children might be adopted, in law or in spirit. Less fortunate children might meet a less happy fate: they might be turned into sexual or non-sexual slaves, or otherwise exploited in foul ways.
It wasn’t until relatively late in the Middle Ages that orphanages sprang up, usually under Christian church auspices. But whatever their fates, it was commonly assumed that the chances of survival of abandoned children were mathematically slightly better than chances of survival if the children were left to struggle and starve in their homes-of-origin. Europe was very poor during most of its history.
The reason for the abandonment of children in Europe was almost always
economic. Life was harsh and short, and few families could afford to feed many mouths.
Sometime during the eleventh and twelfth centuries there were religious
movements on the European continent that encouraged abandonment of children for the sake of a certain kind of religious purity. But this form of religion-inspired abandonment, in which both mothers and fathers engaged, was a relatively short-lived exception to the rule.
The historic record clearly shows that prior to industrialization and opening of the American frontier around the 18th and 19th centuries, when abandonment was practiced it was a matter of both parents as a family unit abandoning the unfortunate children, rarely a matter of father running away and abandoning mother and children.
Perhaps the most prominent European exploiter of the option of abandonment was the philosopher Jean-Jacques Rousseau (1712-1778). While married and living with his wife – and, for a while, his wife’s parents – Rousseau fathered five children. In each instance, within a month of their births, he brought his children to orphanages to be raised. They were lost to him and his wife, and no records of their fates exist. It is likely they succumbed to the same nearly-always-immediately-fatal fate as the majority of children abandoned to orphanages in France at the time.
When the record of Rousseau’s abandonments was made public by his rivals, including Voltaire, Rousseau tried to excuse himself by swearing he could not afford to raise his children on his limited income.
Whether or not this explanation was valid, at least one prominent historian, Paul Johnson, in his book Intellectuals credits the trauma of abandoning his children and being publicly exposed for abandoning his children for inspiring Rousseau’s later, influential political philosophy. Rousseau made his mark in the history of political philosophy by advocating that each individual should envision his or her role in life as citizen of a State, a State which is of greater moral and political importance than the individual. The State allows parents to keep children in their custody, but the real owner
of the children is the State. The State is the ultimate Father, and we should all strive to find our places in the State’s system of order, according to Rousseau.
It’s one step from saying the State is supreme to the next step of saying that the State is really more responsible for raising and educating children than the individual parents. In practice Rousseau took this latter way out; he considered it only ‘natural’ to leave it to the State to do what he could not afford to do: care for his biological children.
This excursion into historic obscuritanism has a point: abandonment of children by families that were intact both before and after the act of abandonment is not an unknown Western historic experience. Frequent or large-scale or systematic abandonment of both children and mothers by fathers has never been a notably common experience in Western society.
Until 19th and 20th century America, when the mold was smashed. When what was once unusual became common. Fathers in numbers worth noticing started walking, then running away from their children and their wives, judges, the law and Science.
As divorce became more democratic and available, American marriage became less enduring and sacrosanct. Divorces happened at a comparative snail’s pace prior to and during the 19th century, and at a comparative slow trot during the first decades of the 20th century. When it struck, divorce was treated as an embarrassment to be hidden behind curtains, and certainly not a subject to be brought up in polite society. As courts and legislatures chugged along with the scheme of giving mothers custody of the children of divorce, an unknown number of divorced fathers kept faith with their children by staying in the kids’ lives and paying child support. And an unknown number of divorced fathers ran away from their families or didn’t pay child support. Exact numbers and aftermaths were not recorded at the time and may never be known, except by the individuals involved.
Despite the previously-cited 1909 Census Bureau report claiming that a hundred years before this writing the divorce rate in America was as frequent as one marriage in 14, most citizens and most legislators chose to perceive divorce as a social issue in which the state cannot or should not play more than a minimal formal role. The general attitude seemed to be: getting married is a choice people make on their own without government meddling, so it’s only consistent and reasonable to keep government as far back out of the picture as possible when people choose to get divorced. If fathers did not act as honorably as courts ordered them to act, most official institutions more or less winked and turned the other way. Divorced mothers didn’t put up a public fuss about run-away fathers probably because mothers couldn’t shake the dark cloud of suspicion falling on them inherited from the days when divorce was considered religiously and morally suspect.
If there ever was a centripetal force in nature that held marriages together, that force went absent without leave in the 1960s and 1970s. The rate of divorce exploded in those years, and ultimately the sound of marriages splitting became thunderous. Word on the street has it that in the 1970s the rate of divorce was equal to one marriage in two. For technical reasons, that reading of the numbers is a bit of a distortion on the high side. In any case, there’s no denying that marriage took a colossal hit. Its viability came into question. Serious people talked about whether the antique, rigid institution of marriage would go the way of high-button shoes.
A great number of the divorcing fathers of the 1960s and 1970s took as their
role models those ignoble predecessors of the previous decades who, when their marriages ended, walked away from their children and their wives, and didn’t look back.
For at least the first five or so decades of the 20th century, divorcing fathers who didn’t pay child support effortlessly slipped undetected under the radar of the law. Their 1960s and 1970s non-paying counterparts might have assumed they could follow in their sly predecessors’ footsteps and escape unwanted consequences.
To the uncounted number of fathers jettisoning their marriages – or the
expedient equivalents of marriages for those who never scrupled to get a license – have to be added the many fathers of children whose never-married mothers found their way onto AFDC lists. Efforts to identify and bring to account the fathers of children on welfare had always been perfunctory at best. Rousseau probably never imagined he would have so many 20th century cheap knockoffs.
But all those schemes of safe evasion were not destined to last another fiscal
era. A couple of powerful, undeniable elements hastened a change of public attitudes about fathers not paying to support their children. Government found itself on the hook for frighteningly large sums of tax money to pay for welfare-dependent children. And the number of former husbands who couldn’t be found when it came time to pay child support took a quantum leap skyward because the divorce rate took a quantum leap skyward.
Putting two minus one and two minus one together, heads began to converge around the 1980s on the brainstorm that the culprit in the wreckage of the contemporary family is the runaway father. And the neatest and quickest way society can pay the mounting bills for its father-absent children is to stick it to those cowardly snakes.
For a very long time in history – even as recently as the early years of this writer’s lifetime – fathers were high on the list of good things. No one ever gave a second thought to associating the word “fathers” with the words “children” and “growing up.” Fathers could be given credit for knowing something. Some intrepid souls even went so far as to suggest that father knew best. But a major paradigm shift in thinking about fathers got underway once the rock was lifted and these non-child-supporting fathers were exposed to the light of day.
One of the most prominent public debates of the 1970s was over the competing claims of Nature versus Nurture. It was often asked: How much of our behavior is built into – or hardwired into – our brains, thus a product of our nature, and beyond our choice? And how much of our behavior is chosen, therefore subject to change if we make other choices and if we educate the next generations to make other choices?
One of the most critical issues in contention at the time was the role of nature versus nurture in shaping our roles as women and men, mothers and fathers. Could girls play with chemistry sets and boys with dolls?
To reach into the hat and pick just one representative spokesperson for the
Nature side of the debate, the classical legal scholar Blackstone in the late 18th century wrote about the then-accepted common wisdom about the nature of parents and their obligations to their children:
The municipal laws of all well-regulated states have taken care to enforce this duty [of parents to support their children]: though providence has done it more effectually than any laws, by implanting in the breast of every parent that natural stogi [Greek for ‘strong affection’ or ‘attachment’], or insuperable degree of affection, which not even the deformity of person or mind, not even the wickedness, ingratitude, and rebellion of children, can totally suppress or extinguish.
Blackstone apparently believed parents are by nature disposed to care for their children, and parents would probably do a decent job of expressing this care regardless of what local laws might suggest. Blackstone is considered one of the outstanding advocates of Natural Law, the most popular approach to legal interpretation in America at the time of the writing of the US Constitution. As law, Natural Law strives to express
universals of ‘human nature’; indeed, law is not worthy of being enacted according to the Blackstones of the legal world unless it conforms to the laws of Nature and of God, and unless there is an instinctive inclination of the human spirit behind it.
Obviously, something happened between the time Blackstone did his writing and our frenetic era. The number of fathers abandoning their children around the 20th century seems to make Blackstone’s ‘insuperable degree of affection’ phrase sound outlandishly ridiculous.
A critical thinker from the nurture side of the nature-nurture debate might care to observe that fatherly affection is not such an invariant ‘natural’ phenomenon after all.
Perhaps in Blackstone’s time fathers could stay close to home and philosophers could talk about ‘natural man.’ But for over two centuries since Blackstone the bonds that held fathers near their children were rearranged, and the ephemeral character of that thing once called ‘human nature’ was revealed. Change the circumstances and watch
human performance change, it would seem.
In the centuries since Blackstone, quite a few circumstances surrounding
parenthood changed. Fathers were dethroned as unquestioned heads of households. Tasks got divided: men went to work outside the home, women stayed home and took care of the kids. Courts discovered that maternal custody is “in the child’s best interests.” Science discovered that mother knows best. Moral stigmas didn’t apply to mothers anymore. All these factors put together – plus all the scare stories divorcing men heard about the unfriendly treatment men received in domestic courts – might just
have conspired to make men stifle the last vestiges of the “insuperable degree of affection” they were once said to have for their offspring. And just might have conspired to make a sizable batch of them willingly alienate themselves from their progeny.
When the bills came due in the early 1980s for the children whose fathers left the scene, and when the gender-based political finger-wagging was finished, fathers were knocked off the top of the hill. Any traces of lingering sentimentality about fathers and fatherhood disappeared. Uttering the words “fathers” and “children” in the same sentence became a sign of eccentric thinking. Unless the topic was money and how Dads didn’t pay enough.
Anyone who started to say the word “Dad” was tempted to morph their lips into the dread phrase “Deadbeat Dad.” To its many vocal detractors, the masculine ideal degenerated. Deep in his heart every man was supposed to dream of being a playboy who just wants to get laid, to impregnate a slow-moving female, then wants to zoom away in his sports car to find a younger, prettier tootsie.
Society is such a wondrous invention.