Joint Custody

Class-action lawsuit seeks to make joint custody the first option judges consider

How custody is decided

*Judges decide custody matters. The friend of the court and domestic relations referees can only make recommendations for orders to judges.

* By law, judges must make decisions based on the best interests of the child.

* If parents disagree with the judge's decisions, they may appeal to a higher court. Appeals in domestic relations cases go to the Michigan Court of Appeals.

* Parents may ask the judge to review a recent custody decision.

* During many custody hearings, judges speak to the children about their preference. Judges will decide who will be present when they interview children. While a record is made of the interview, judges do not have to tell the parents or their attorneys what the child's preference was, only that it was considered.

* The child's preference is only one consideration in the case.

Source: State Court Administrative Office, Friend of the Court Bureau


TROY - Michigan fathers seeking to make joint custody the norm in divorce cases are suing the state in a class-action lawsuit they hope will stop the courts from marginalizing their role in their children's lives.

The suit claims the state's family courts have violated fathers' civil rights by awarding mothers custody and reducing them to visitors. The suit was filed when noncustodial parents in 43 other states filed similar suits, and when fathers are seeking similar parental equity in Europe and Canada.

"What I wanted was for my kids to have as normal of a life as possible," said Troy resident Michael Ross, the primary litigant, whose court order grants him parenting time with his three children every other weekend and a few hours during the week.

"This lawsuit is not about me but what is best for them: substantial time with their mother and substantial time with their dad."

The lawsuit is the latest attempt by Michigan's noncustodial parents, who are overwhelmingly fathers, to force courts to presume that joint custody is in a child's best interest at the outset of a divorce. Judges still would have the authority to decide what's best for the child, but it would reduce some of their discretion. Currently, judges base their decision on what they consider to be best for the children, but fathers argue that those decisions are rooted in cultural stereotypes that mothers are better parents.

Physical custody has long been disproportionately awarded to mothers. Out of the state's 19,108 divorce cases involving children in 2002, mothers were given physical custody in 64 percent of the cases and fathers in 10 percent, according to the Michigan Department of Community Health. Joint custody was awarded in 23 percent.

Additionally, for couples who never marry, Michigan law grants custody to mothers, bolstering fathers' argument that the system is unfair.

Experts say the reason mothers are more often awarded custody of children is because of the cultural history of women being the primary caretakers, said Leighton Stamps, a University of New Orleans professor who has studied the decision-making of judges in child custody cases.

"A lot of the judges' attitudes depend on their age," Stamps said. "Older judges tend to be more traditional. Younger judges tend to be more egalitarian."

However, custody laws like Michigan's, which rest on the best interest of the child, give judges a lot of latitude, Stamps added.

"A judge can pretty much pick out any aspect of the family situation in making these rulings," Stamps said.

Fathers have lobbied the Michigan Legislature twice in the past eight years and have launched a petition drive to get equal parenting rights, efforts that have been largely unsuccessful.

However, some observers argue that joint custody is not a viable option in many cases because there are some fathers unable to accommodate the arrangement either because of their job or because they live in another state.

There are other fathers, too, who don't want to be a part of their children's life. And there are situations when the mother and father just can't get along.

"You can't force a joint custody situation on two people who are not capable of getting along, because what will happen to the child?" said Debbie Kline, executive director of Association for Children for the Enforcement of Support. "It takes a lot more cooperation between the two adults, and many divorcing parents can't get along."

Dads demand equal time

Often the animosity of a divorce fuels disagreement between moms and dads when it comes to the children, especially when they are trying to split parenting time. When parents can't agree, the court steps in and typically defaults to a parenting plan that involves every other weekend and some time during the week.

But fathers say that's not enough time to raise their children.

"Just because a family dissolves doesn't mean that it's no longer a family," said Michael Lane of Farmington Hills, who had monthly visits with his now-adult son.

"It's just a family of a different nature. Both parents have responsibilities toward the children and toward one another."

Though the number of joint custody awards has been slowly increasing, which some observers believe is a sign that times are changing, some fathers say they are not being awarded enough. They also say it doesn't always mean they will have equal time with their kids.

Joint legal custody allows parents to play equal roles in making decisions for their child's upbringing such as education, religion and health care. But for some fathers, it doesn't always mean equal time to raise the child.

"It's just unbearable," said Daniel Gee of Novi, who has custody of his 16-year-old son but not his 12-year-old son, whom he sees every other weekend. "This stuff is emotionally devastating, and you go to the courts and they are callous. It's an unacceptable way to treat a parent."

Father's role is vital

Psychologists say children who don't spend enough time with their fathers can develop emotional problems such as low self-esteem, depression and feelings of abandonment. Fatherless children are more likely to act out at school, develop truancy problems and develop unhealthy perceptions about relationships, said Michael Brooks, a Kalamazoo psychologist.

"Both parents bring unique characteristics and aspects to parenting the children," said Brooks, who is a member of the state's Friend of the Court Advisory Board. "But it's difficult to be a parent two days out of 15."

Brooks said a court-ordered parenting plan that only includes every other weekend and a few nights a week could be construed as a situation that creates a fatherless child. This is why he supports the movement that courts should initially presume joint custody for divorcing couples, unless one of them is shown to be unfit.

John Mills, chairman of the family law section of the Michigan State Bar, said mandating a presumption of joint custody would take away the discretion of judges, who are considering each individual case.

"They make the decision on what is best for the children," said Mills, who opposes presumed joint legal custody.

Lawsuit marks new approach

The move for equal parenting time has been under way for some time. In 1996 and 2001, fathers' rights groups got parity bills introduced into the state Legislature, but neither went very far.

Earlier this year, Dads of Michigan sponsored a petition drive to get the issue onto the ballot, but the group couldn't get enough signatures. The class-action lawsuit, filed last month, is attempting to seek change through another avenue that so far has not been explored.

Attorney General Mike Cox, who has earned a reputation for cracking down on parents who don't pay child support, is seeking to dismiss Ross' case on grounds that the state can't be sued in federal court, where the case was filed.

Since the suit claims Michigan has broken laws by violating its citizens' rights, the state is not immune from being sued, said Torm Howse, president of Indiana Civil Rights Council, which is coordinating the lawsuits in all the states, including Michigan.

"This is not about trying to help abusive parents," Howse said. "It's about restoring the equal right of every fit and equal parent to joint or shared parenting."

Ross, the Troy father who filed the lawsuit, says it goes beyond that.

"This," Ross said, "is about a force that is taking place in our culture that is very bad for our society overall."