A Study of The Dissolution of Marriage and Legal Children Guardianship

If divorce isn't stressful enough among couples, when children are involved, it adds a whole other level of stress and emotions into the mix. Parents will often loose sight of what is in the best interest of their children. Where do the children fit into this whole new life that is being created? Unfortunately children often become financial pawns in a divorce when child custody issues are being decided.

When dealing with child custody there are four different types. The first type is legal custody where the parent has the right to make decisions about the child's upbringing, the second type is physical custody where the parent has the right to have the child live with him or her, the third type being sole custody where one parent has both legal and physical custody of a child, and the fourth and last, joint custody, both parents will share legal custody, physical custody, or both. If for any reason some circumstances arise and either parent is unable to care for the child, a grandparent or other relative may be awarded custody. The parent who is unfortunately was not awarded physical custody of their child or children may be entitled to visitation rights, which are ultimately based solely on the courts. The three types of visitation rights include: reasonable visitation which is a form of child visitation that involves reasonable times and places that are determined by both parents. Another is fixed visitation, the court orders times and places for child visitation. Finally, supervised visitation is the last which states that an adult supervisor must be present during visitation (Einstein Law Inc, 2002, para.5) Child custody laws vary by state. There are many websites on the internet where you can find out what the laws are for child custody based on the state that you live in. http://www.divorcehq.com/index.html is a good website that offers a lot of quality and diverse information, everything from child support-to-child custody-to-child's rights, even has a visitation section along with a calculation tool that will help calculate what child support might cost. It offers tons more information that is worth to check out.

As the years go by the divorce rate is increasing at an astounding rate, For instance, in 2003 there were 3.8 divorces for every 1000 people in the U.S. The "crude" divorce rate is calculated on the basis of the number of divorces per 1000 population. This provides a better measure of the divorce rate because this allows us to compare the rate over time and across the country by taking into account the size of the population (number of people). However, there will never be an accurate divorce rate because this number has a problem in that it uses the entire population (including children), some of which cannot get divorced, for its calculation. Also, since different communities and at different times in history there may have been more or less children in the population this number may misrepresent the divorce rate (Hughes Jr., 2005, para.3). Close to 50% of children are growing up in a single parent environment. Children need their parents in order for them to develop physically, mentally, and emotionally. If the bond between the parent and the child is broken, negative consequences can be a result and can be traumatic for a child (Divorce Source Inc, 2005, para.1).

Why when a married couple decides to have a child and raises that child together, those in court, in the middle of a divorce trial the judge will decide to side with the mother rather than the father when it comes to a custody battle? Like everything else it all reverts back to stereotypes and what society sees to be "right." Men's rights are abridged by judicial views of women as being the primary caretakers of children, views that are expressed in the presumption that women should have custody of children if divorce occurs. Thus, it is difficult for a father to gain child custody even when he might be the better parent or may be in a better situation to raise the children. Women now more than ever are trying to vanquish the thoughts and presumptions of what and who they are suppose to be but why has this been left alone and not changed (Wood, 2005, p29)? "For example, a Stanford study of 1,000 divorced couples selected at random found that divorcing mothers were awarded sole custody four times as often as divorcing fathers in contested custody cases. A study of all divorce-custody decrees in Arlington County, Va., during an 18-month period found that no father was given sole or even joint custody unless the mother agreed to it. According to Frank Bishop, the former director of the Virginia Division of Child Support Enforcement, almost 95 percent of custody cases in Virginia were won by mothers (Thompson, 2002, p45)." This is not something that just happens in the United States but all over the world. All a father wants to do is be apart of his child's life but most of the time the mother is out to hurt the father and her way of doing that is taking any rights away from the father to have anything to do with their children. It ends up putting all of the control in her hands. The father ends up being at the mercy of the mother and the courts. When will fathers finally stand up together and say that this is enough and start to put an end to the separation and custody laws that are stacked against them? The best thing to do is to calmly like adults work it everything out amongst themselves so that there will be no reason to take it to court and have anymore stress on the whole divorce then there has to be. In Britain fathers are finally starting to be fed up with the system favoring mothers during a custody battle. In 2004 a group formed in Britain finally fighting for father's rights and authorities are starting to listen. In July of 2004

Blair's government issued a paper recommending several reforms, from more extensive government-sponsored mediation before divorces hit the courts to speeding up proceedings once they do. It also proposes penalties for parents who flout court rulings. The punishments--ranging from community service to compensation payments--would be less damaging to the child and would allow judges to be more impartial (some say less sexist) in their rulings (Foroohar, 2004, p31).

If there are more and more fathers that are willing to stand up together and fight for fathers rights all over the world then maybe one day the courts will no longer side with the mothers but yet hear out what would be best for the children and rule based on that rather than just giving custody to the mother. What is astounding is that in the 19th century, in nearly every case the father was given custody of the children. Due to once again stereotypes and "the way it should be", children were seen as being the "property" of the father because most mothers could not afford to care for the children. In the early 20th century, however, children's aid societies, welfare bureaus and charitable organizations worked to change the legal position of women with respect to child custody. The only reason a father could gain custody of his children was under extraordinary circumstances, such as in the case of the mother's death or her poor mental or physical health. So, by the 20th century all rights of a father to their children had been taken away and now given to the mother. Only in the past 20 years have the tables begun to turn, with fathers regaining some parental privileges. In sum, the past 10 years, some fathers are awarded residential custody simply because the courts believe that they are the more capable of the two parents. Most states have instituted sex-blind custody laws. These laws were instituted to help ensure that the children of divorce or separation will be placed with the parent who has the time, stability and desire to be a responsible parent and good role model. Fathers are still a long ways from being equal as far as custody battles go and need to come together now more than ever to indeed reverse the trend of mothers gaining custody rights based on sex (Grant, 1994, p16).

Dads are not the only ones that are having difficulties when it comes to child custody. Gay couples are also having troubles with the courts when it comes to child custody. When presented with a case legal experts will divide gay custody battles into two different types: cases between gay couples and cases between married couples where one spouse is gay. In North Dakota, Valerie Damron had to fight for custody over her two daughters after the state supreme court overturned a ruling that had denied her custody because her relationship with a woman gave her the "wrong moral character" to be a mom. An appeals court in Tennessee overturned a ruling that Joseph Hogue's would not get custody due to his the court ruling that his son would be harmed if exposed to his father's "gay lifestyle.' In another case, Rachel Dickens was denied custody for the fact that she was living with her same-sex partner. Though, Rachel Dickens will be getting another shot at custody of her daughter after the state appeals court ruled that an earlier decision was wrong in denying her custody based on that sole reasoning. Although gay parents rights are increasing it is still an issue that needs attention (Christensen, 2004, p27-29).

I think that there are many issues facing us in the world today but one of the issues that has been easily overlooked is child custody not only for fathers and how they have been mistreated for only wanting to be apart of their children's life but also for gay marriages where a parent will be denied the rights to their child based on the sole reason of them being gay or living with their same-sexed partner. Whether the reasoning behind the courts rulings are thought of as authenticate or not it is time that we start to think about what is best for the children rather than what is best for us as parents because in the end the children are the ones who are truly suffering in this battle for custody. Stand up and be adults about it, work it out amongst yourselves and be civilized so that the children do not have to go through and endure the stress and emotions that go along with divorce and custody battles.