The Bias on Men Concerning Child Maintenance, Legal Children Guardianship, and Negative Effects of Parental Differences

Abstract

This paper identifies the legal challenges that fathers face, especially discrimination from courts. Fathers are discriminated against in cases of child support, child custody, and face dangers from paternity fraud.

The legal system of the United States is looked up to worldwide, and domestically is viewed as the ultimate upholder of peace and justice; but what happens when that justice is violated through means of bias? Carnell Alexander, a Michigan man, knows. In the 1980s, a former girlfriend of Alexander had a child, and in order for her family to collect welfare, the girlfriend had to provide a name for the father (Russell 2015). Not knowing the identity of the father to her child, she wrote named Carnell Alexander the father, which she knew to not be true. The state of Michigan then began to build up a paternity case against him. He has been arrested and has lost his job because of this, and Judge Kathleen McCarthy is now threatening him with jail time, and is forcing him to pay $30,000 in child support for a child who through DNA tests, has been proven to not be his. This is not an isolated incident. Along with paternity fraud, men are also discriminated against in cases of child custody, child support, domestic violence, sexual assault, prison sentences, and through the gender bias of jurors.This paper reviews the legal discrimination against fathers in United States courts in cases of child support and custody by exploring the following topics:

1. What is the extent of paternity fraud, and what kinds are there?
2. How are fathers discriminated against in cases of child custody?
3. What disparities are there in payments for child support?
4. What can be done to solve this discrimination?

Although the United States legal system claims to strive for equality, judgments in cases of child support, child custody, and divorce show otherwise, with the court system showing bias against fathers, resulting in life-altering financial ruin, unwarranted jail time, destruction of families, and feelings of hopelessness and uncertainty.

What is the extent of paternity fraud, and what kinds are there?

Many people would agree that what happened in the Carnell Alexander case is outrageous, but there are plenty of other cases that are very similar, and it isn’t always the mother’s fault a father is paying child support. For Lional Campbell, it is the Wayne County court that is at fault for owing 43 thousand dollars for his son Michael who died twenty-three years ago, at the age of three even though he has been paying child support for Michael for the last twenty-six years (Craig, 2013). After several audits and appeals, he still owes six thousand dollars, but is closer to solving the problem. Many other cases of paternity fraud still exist according to a leading advocate and researcher in men’s rights. There are approximately 90,000 men each year who are victims of paternity fraud and end up having to pay child support for children that they did not father (Corry). Later in the article, Corry defines paternity fraud as when a mother names a man as the biological father of a child, even though she knows or suspects that he is not the biological father (which can lead to him paying child support). This is usually done for financial gain, either through child support payments, or to receive welfare. This falls under the legal definition of fraud which is:

Fraud is deliberately deceiving someone else with the intent of causing damage. This damage need not be physical damage, in fact, it is often financial. There are many different types of fraud, for example bankruptcy fraud, credit card fraud, and healthcare fraud. The precise legal definition of fraud varies by jurisdiction and by the specific fraud offense. (Cornell Law).

Cases like these can be avoided through court-ordered DNA testing. The tests are affordable, usually costing around 30 dollars (Diamond, 2014). They also do not even require a sample of blood (Patidar, Agrawal, Parveen, & Khare, 2015). The also may reduce the time and money spent in court. Instead, many fathers are paying child support for children that are not even theirs, whom they may have never even seen before, or know of their existence.

How are fathers discriminated against in cases of child custody?

Cases of child custody show increased amounts of discrimination against fathers when comparing the genders that receive custody. According to D. Benatar, nearly 75 percent of child custody cases result in the mother receiving custody, compared to just under ten percent for fathers (pg.50, 2014). Benatar also highlights that in 90 percent of cases where the mother is seeking custody, with no opposition, she will receive it, while only 75 percent of cases of the same nature for fathers result with fathers receiving custody (pg. 51). Although it is possible that in some individual cases the father was unfit to receive custody, that theory does not explain the large disparity between genders. It is possible for a mother to be an unfit parent as well. Some people could also argue that this occurs because it is in the best interest of the child that custody be granted to the mother. However, this is not always the case. According to a report released by the United States Department of Health and Human Services (USDHHS), nearly 40 percent of child maltreatment cases are committed by just the mother, while only 20 percent are committed by fathers (pg. 22, 2012). The Child Abuse Prevention and Treatment Act, as cited in the USDHHS report, defines child maltreatment as: “Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation; or an act or failure to act which presents an imminent risk of serious harm” (pg. vii). The same report also found that 27.3 percent of child homicides are committed by the mother acting alone, compared to 14.8 percent of murders committed by fathers (pg. 57). Therefore, it is not necessarily always in the best interest of the child for custody to be granted to the mother.

What disparities are there in payments for child support?

Disparities can also be found in child support payments. According to the Census Bureau report, 54.9 percent of custodial mothers receive child support payments, compared to 30.4 percent of custodial fathers. Of those who receive child support custodial mothers receive on average 700 dollars more per child support payments than the custodial fathers, and only 10.7 percent of child support recipients are fathers (Grall, 2011, pg. 6). Even though the amount of the average child support payment due from mothers is half the amount due from fathers, mothers are twice as likely as fathers to default on those payments (pg. 8). Despite that fact, fathers are 97% of child support collections prosecutions (pg. 7). For a legal system that claims to be equal, these statistics show otherwise. Fathers going through family court systems are being discriminated against, with mothers being favored instead. A more recent study done by the University of Wisconsin confirms this by concluding that fathers are much more likely than mothers to pay child support, and mothers rarely ever do pay child support (Meyer and Canican, pg. 867, 2014). Some people speculate that this is because mothers are more likely to get custody, however that can still be seen as discrimination against fathers.

What can be done to solve this discrimination?

Multiple different approaches can be taken, but it should be remembered that replacing a bias with another bias. Steps need to be taken in creating equality for fathers in the court system, and the two parties who are best suited in securing this equality are judges and lawmakers in state and federal congresses. Lawmakers need to make laws that:

1. Protect fathers from paternity fraud.
2. Ensure that fathers will receive child support payments equal to what mothers receive.
3. Work with judges to make sure that rulings cannot be based off of gender.

While judges need to make decisions that:

1. Result in both fathers and mothers having custody rates that are closer to equal.
2. Grant child support payments for both fathers and mothers at equal amounts.
3. Make decisions regardless of gender.

Doing so will result in an equal court system in terms of gender. The following paragraphs expand into detail of how this can be done.

Steps should be taken towards making the rates of custody between parents closer to being equal. This can be done through judges disregarding the genders when making decisions on who gets custody. Judges should instead focus on which parent would be a better parent, through testimonies from psychologists, and by looking at parent’s income. Otherwise, mothers or fathers, who are unfit to be parents may be given custody, resulting in a dire situation for the child. Fathers should also be given rights and support ways similar to the support mothers receive.

To prevent cases of paternity fraud, legislation should be passed to make it illegal. Therefore, suspected fathers can pursue charges and compensation against the mothers that defrauded them. According to Draper, a researcher in medical ethics, most victims of paternity fraud should be compensated when they have no fatherly relationship with the child in question, but are still paying support (pg. 476, 2011). In the case of Carnell Alexander, DNA wasn’t enough evidence because he filed his appeal after the deadline (Russell 2015). Currently a parent must submit a motion to dismiss parentage before the child is three years old. However in Alexander’s case, he had no prior knowledge that there even was a child that was supposedly his. Therefore, DNA evidence should be an acceptable piece of evidence, no matter how far past a deadline the appeal is filed, and for that to happen, judges need to work with lawmakers.

Conclusion

In conclusion, the United States legal system discriminates against fathers in alarming ways. This continuing trend has, and will continue to, destroy the lives not only the fathers, but their children as well. Through the evidence examined, it can be determined that cases of paternity fraud are not extremely rare occurrences, and that family courts throughout the United States discriminate against fathers. Lawmakers and judges should work toward creating true gender equality. In family courts, judges should be ruling in non-discriminatory fashions, while lawmakers should be passing laws that are equal to both men and women. Lawmakers should also pass laws that protect the fathers in family courts, especially in cases of child support, paternity fraud, and child custody. Most importantly, judges and lawmakers need to work together to make sure both fathers and mothers are treated fairly in courtrooms. During this process, judges and lawmakers need to be cautious in making sure that they do not replace the already existing bias with another bias.