When should fathers have custody?

Child support vs. child custody

• The duty to support children financially -- who has it, and why?
• The privilege of custody -- who has it and why?

Possible standards for deciding who must pay child support

1. Genetic standard -- genetic parents must financially support their children (problems:  rape, purloined sperm, donor egg, donor sperm)
2. Responsibility standard -- persons responsible for the existence of a dependent child must financially support the child (problems: too many responsible parties)
3. Voluntary standard -- persons who voluntarily commit themselves to supporting the child must continue to support the child (problems: too many unsupported children)
4. Others....

 Abortion and child support (continued from last time)

• Suppose we use the responsibility standard
•  If mother has choice to terminate, and father declares lack of interest in having a child, does that eliminate his responsibility for the existence of the child and thus eliminate his duty to support the child?
• We will discuss some analogies

Custody battles

1. between biological mother and church/state (movie Philomena)
2. between biological mother and father after divorce
3. between biological mother and father -- unwed parents, newborn baby -- both want custody (Friday--Bode Miller case)
4. between biological mother-- unwed parents, newborn baby -- mother has adoption plan, father wants custody

Custody battles, type 3

Baby Richard Case, 1990, Illinois

Baby Jessica Case, 1990, Iowa

1. Baby Richard case -- after years of litigation, adoptive parents lose baby to biological father
2. Baby Jessica case -- after years of litigation, adoptive parents lose baby to biological father

Fathers' rights legal history -- well into 19th century -- fathers prevail

• "Under the common law a man had complete custodial authority over any children born of his wife, even if they were sired by another man, yet he had no legal relationship at all to children he sired out of wedlock.... The husband's authority over the marital child was an extension of his authority over his wife....
• While the father was shielded from financial responsibility for his 'spurious' offspring, a woman who bore children outside of marriage was 'ruined'....
• To keep children off public support, Poor Laws assigned mothers financial responsibility for their offspring and gave them custodial rights as long as they could support them." (Shanley p. 49-50)

Fathers' rights legal history -- 19th into 20th century -- mothers prevail

• laws passed giving husbands and wives equal custodial rights
• in case of divorce, mothers start to be preferred as custodians
• trend toward gender-neutral standard--"best interests of the child" 

But what about unwed fathers? -- Supreme Court decisions starting in 1972 (Stanley)

• trend toward greater rights for unwed fathers
• but unwed fathers have to be "involved" to have rights
• Lehr v. Robertson:  "the Supreme Court declared that an unwed biological father's rights are a function of the actual responsibilities he shoulders" (Shanley p. 53)
• Baby Richard and Baby Jessica awarded to fathers by lower courts, based on "fitness standard"

Possible standards for awarding custody

1. Fitness standard -- father presumptively has custody, so long as he hasn't been proven unfit; same with mother
2. Best interests of child standard -- a court should figure out where the child would be better off
3. Maternal autonomy standard -- considering the 9 months of gestation, it's the mother's right to decide who has custody, at least for some time, assuming both parents are fit (see pgs. 59 - 61: Rothman, Erickson, Becker, Fineman)

Shanley supports "a new model" of fathers' rights because of problems she sees with these three standards.

1.  Fitness standard doesn't recognize difference in maternal and paternal involvement
2. Best interests standard will favor privileged parents
3. Maternal autonomy standard shortchanges men and reinforces gender stereotypes

Shanley's "new model"

1. Prenatal involvement -- like mother has prenatal involvement with future child, father should have to as well, to be awarded custody. (see p. 64).
2. Knowledge -- it's up to the father to know about the pregnancy, 
3. Deception -- if mother deceives father, his involvement can begin later
4. Fathers could show involvement by putting name in "putative father registry"  -- these registries do exist
5. Time limit -- at some point it's too late for father's claim to be heard
6. Fitness matters, not best interests

Applied to Baby Richard and Baby Jessica

• right to award custody to fathers in these cases
• but not for the courts' reasons (they employed simple fitness standard)