Frames:
LAGGING BEHIND THE TIMES: PARENTHOOD, CUSTODY, AND GENDER BIAS IN THE FAMILY COURT[*]

CYNTHIA A. MCNEELY[**]

Copyright © 1998 Cynthia A. McNeely

I. INTRODUCTION
II. THE DEVELOPMENT OF AMERICAN GENDER STEREOTYPES AS APPLIED TO MOTHER-FATHER ROLES
A. From Colonial America to the Civil War
B. The Industrial Revolution
C. The 1920s to the 1970s
D. The 1970s to the 1990s
III. THE END RESULT: CULTURAL GENDER STEREOTYPES AND MOTHER-FATHER ROLES TODAY
A. Lenore Weitzman and the "73% Study"
B. The Massachusetts Supreme Judicial Court's Gender Bias Study of the Court System in Massachusetts
C. Discriminating Against Fathers as Men
D. Protecting the "Weaker Sex": The State as Mr. Right
E. The Court and the Legislature: The Battle to Control Custody Considerations
F. When Fathers Are Marginalized
IV. THE FOURTEENTH AMENDMENT
A. The Equal Protection Clause and Gender Discrimination
1. Intent to Discriminate Is Required
B. Substantive Due Process: Interference With Fundamental Rights
1. The Parent-Child Relationship as a Fundamental Right
C. Procedural Due Process Requires a Fundamentally Fair Hearing
V. FLORIDA'S CHILD CUSTODY STATUTE
VI. THE FOURTEENTH AMENDMENT AND CHILD CUSTODY
A. Challenges From Divorcing or Formerly Married Fathers
B. Challenges From Unwed Fathers
1. Equal Protection Challenges in General
2. Challenges to Facially Discriminatory Statutes
VII. CHALLENGING GENDER BIAS IN CUSTODIAL DECISIONS
A. Bringing an Equal Protection Challenge
B. Bringing a Substantive Due Process Challenge
C. Challenging Fundamentally Unfair Hearings
VIII. RECOMMENDATIONS
A. End "Selective Discrimination"
B. Implement "Courtwatch" Programs to Empirically Examine Contested Custody Decisions
C. Implement a Statutory Presumption in Favor of Joint Physical or Rotating Custody
D. Require Judges to Make Specific Findings of Fact When Determining Custody
E. Require Clerks of the Circuit Courts to Record Which Parent Receives Primary Residential Custody
F. Revise Child Support Guidelines
G. Implement True Parity in the Workplace
IX. CONCLUSION

"When by birth a child is subject to a father it is for the general interest of children and really for the interest of the particular infant that the Court should not, except in extreme cases interfere with the discretion of the father but leave to him the responsibility by exercising that power which nature has given by the birth of the child."[1]

In separate Broward cases, one deadbeat dad was found hiding behind a shower curtain; another in a bedroom closet.

In Daytona Beach, a helicopter and police canines helped track down a father who had fled into woods behind his home when authorities arrived. In Pensacola, one deadbeat dad eluded authorities at his doorstep, only to be captured at the state tax office as he was trying to argue his way out of payments.

"We stalled him until the deputies came to arrest him," [a Florida Department of Revenue spokeswoman] said. "He even tried to run away as he was led out."

. . . .

"The difference with this roundup is that it was statewide, and merely the first in what will be many Florida-wide efforts," [the spokeswoman] said.[2]

I. INTRODUCTION

Society's view of fathers has changed dramatically since the days when courts rarely intervened between the father-child relationship. The transformation can be traced to several sources, most notably the Industrial Revolution, which required fathers to remove their labor from the home to a remote facility.[3] Mothers, viewed as physically and temperamentally weaker, were deemed incapable of adapting to the rigorous demands of the workplace and were singularly charged with the management of the domestic sphere.[4] The feminization of the homefront resulted in mothers replacing fathers as the "primary and irreplaceable caregivers" in both "law and custom," effectively leading to a "progressive loss of substance of the father's authority and a diminution of his power in the family and over the family."[5] The stereotypical images of fathers as familial breadwinners and mothers as domestic caretakers and primary childrearers were born.[6]

With the reemergence of feminism in the early 1970s,[7] many women realized that they needed a man about as much as "a fish needs a bicycle."[8] Justifiably, the male-female relationship was long overdue for a reconfiguration. However, in the quest to throw off the shackles that commonly constrained women in marriage, women, the state, and society overlooked the reality that children needed-and still need-the love and support of their fathers about as much as a fish needs water.[9] Only lately have we begun to understand that children suffer serious negative consequences when fathers are marginalized.[10]

Despite continuous efforts from the feminist and fathers' rights movements to modify these stereotypical images, they still persist today.[11] In no greater sphere do these outdated gender roles persist than in our nation's family court system.[12] There, the state frequently not only denies the capability and desire of many men to participate actively and meaningfully in the care of their children,[13] but also perpetuates the subjugation of women as mothers by deeming them weak and incapable of survival without the support of a man.[14] This state-instituted romantic paternalization of mothers, combined with the narrowed view of the role of fathers, is largely responsible for the wholesale destruction of the post-divorce, father-child relationship.[15] Consequently, the state creates increased psychological, educational, behavioral, and health disorders for children, and crime and violence for society.[16]

Paradoxically, society maintains its insistence that it wants to promote women's independence by setting them free of the constraints of a bad marriage through state-sanctioned marital dissolution,[17] while at the same time operating a system that expects, permits, and maintains the outdated role of women as the weaker and dependent sex, primarily responsible for caregiving and incapable of economic self-sufficiency.[18]

The state's treatment of divorced fathers has become a self-fulfilling prophecy. By sending a distinct message to divorced fathers that they are not essential to the raising of children beyond supplying a percentage of their paychecks to the mother of their children, and perhaps a couple of hours a week of "visitation" with their children, the state has encouraged divorced fathers to abandon true fatherhood.[19] Yet, society looks on with bewilderment and disdain when divorced fathers fade from a meaningful relationship with their children.[20] No one should be surprised that the situation has been reduced to cornering some non-custodial fathers behind shower curtains and chasing them with police dogs and helicopters.[21]

Part II of this Comment traces the origin of gender stereotypes and their incorporation into family law. Part III disputes recent studies used to argue that courts do not favor mothers over fathers in deciding child custody. It also examines current gender-based cultural stereotypes and the state's continued overwhelming placement of children with mothers when awarding primary residential custody, often despite statutes specifically requiring equal consideration of both parents when making custody determinations. Part IV provides an overview of the Fourteenth Amendment, especially regarding parent-child relationships, and Part V reviews Florida's child custody statute. Part VI reviews cases brought by fathers claiming violations of the Fourteenth Amendment. Part VII discusses challenges to the practice of predominantly awarding mothers primary residential custody of children, and whether the practice violates a father's constitutional right to equal consideration as the primary residential custodian, his equally fundamental right to raise his children, and his protected right to a fundamentally fair hearing. Part VIII recommends solutions to genuinely provide for the best interests of children in the post-divorce state by rectifying the disparate treatment of fathers in family court, and of mothers in the workplace. This Comment concludes that in the best interests of children, courts must truly consider both parents equally when making custody determinations, and should seek to maximize the active and substantial involvement of both fits parents in the lives of their children.

II. THE DEVELOPMENT OF AMERICAN GENDER STEREOTYPES AS APPLIED TO MOTHER-FATHER ROLES

Men, more than women, are culture-made. Fatherhood, in particular, is . . . a "metaphysical idea"-an imperfect cultural improvisation designed not to express maleness but to socialize it. It derives less from sexual embodiment than from a social imperative: the need to obligate men to their offspring. Consequently, ideas about masculinity and fatherhood are inextricably rooted in social functions.[22]
A. From Colonial America to the Civil War

The newly forming American society imported English practices regarding marriage and children, giving fathers an "absolute right to custody."[23] As part of the marriage contract, women were legally deemed the property of men.[24] "As Blackstone put it, when a man and a woman married they acquired a 'unity of person.' This 'unity' was interpreted to provide the husband with extensive rights to his wife's property, and to deny the married woman the power to contract or engage in litigation."[25] In exchange for denying women personal rights, women were provided with "male protection" and financial support.[26]

The patriarchal American society mirrored the English practice of designating the father as the natural protector of children because he had the ability to provide for their financial support.[27] Women were seen as incapable of handling legal or financial matters and were believed to lack the necessary sophistication and skill with which to properly school children in practical, worldly matters.[28] American courts adopted these perceptions; thus, in the rare divorce case, fathers were awarded custody of children.[29] Courts, during a time when the culture was agrarian and children worked in the fields, upheld this action by finding that the father's financial support of his children entitled him to the benefits of their labor.[30] Thus, in the extremely rare circumstance that a father did not receive custody, he was not required to financially support his children because he would not benefit from their labor.[31]

By the mid-1800s, society began to perceive children as needing special consideration and treatment.[32] In furtherance of this perception, Congress implemented the Talfourd Act of 1839[33] to legislate the presumption that courts should award custody of children under age seven to the mother.[34] This presumption became known as the "tender-years doctrine," which legalized for the first time the belief that mothers were better suited to raise children than fathers.[35] Courts interpreted the Talfourd Act to be a temporary guideline, and many children were returned to their father's custody once they reached the age of four or five.[36] The Talfourd Act, and the belief that fathers should ultimately have custody of their children, prevailed in family courts throughout the mid-1800s.

By the late 1800s, fathers began working in droves away from the home in the factories and plants of the Industrial Revolution.[37] This unprecedented and significant change facilitated a changed cultural expectation of the role of fathers. Developing family law followed suit.

B. The Industrial Revolution

Post-Civil War America ushered in the age of the Industrial Revolution and showed the door to the agrarian culture. Because fathers usually provided the family's sole income through their employment away from the home, this absence advanced the fathers' "long march from the center to the periphery of domestic life."[38]

Simultaneously, mothers were charged with the role of chief child caretakers and home managers largely because of their cultural and legal exclusion from the workplace.[39] Although society sentimentalized motherhood, the task was nonetheless arduous, as "[m]others bore the weight of this exhausting assignment. The project required them to 'maintain a constant moral vigilance over their progeny from infancy until that critical period when, in early adulthood, they left the parental home.' Moreover, maternal satisfaction in the enterprise was not part of the calculation."[40] Ministers, politicians, journalists, and popular culture warned mothers of the consequences of failing to put children first: "The care of children requires a great many sacrifices, and a great deal of self-denial, but the woman who is not willing to sacrifice a good deal in such a cause, does not deserve to be a mother."[41] Thus, the mother was seen as "[p]ious, inferior, subordinate, and confined to the home . . . . The terms of women's role in the new industrial family ethic elevated marriage, motherhood, homemaking, and the overseeing of family life to new ideological heights."[42]

Experts believe that while no absolute reason can be pinpointed as the cause of the shift toward an indelible preference for mother-custody, the Industrial Revolution figured prominently in this transformation.[43] Requiring fathers to work away from the home ensured the diminution of their role in the family. As the family unit experienced physical separation like never before, the role of fathers as protectors and guides for their children began to diminish.[44] This cultural change, coupled with decades of the tender years doctrine, resulted in an upward extension of the age of "tender years."[45] Eventually, "the tender-years presumption became the rationale for awarding custody of children of all ages to the mother on a permanent basis."[46]

By the late nineteenth and early twentieth centuries, "the legal pendulum swung away from fathers" in custody cases.[47] Moreover, a cultural reverence for motherhood began creeping into judicial opinions in child custody disputes. The Washington Supreme Court observed in 1916:

Mother love is a dominant trait in even the weakest of women, and as a general thing surpasses the paternal affection for the common offspring, and moreover, a child needs a mother's care even more than a father's. For these reasons courts are loathe to deprive the mother of the custody of her children, and will not do so unless it be shown clearly that she is so far an unfit and improper person to be intrusted with such custody as to endanger the welfare of the children.[48]
In 1918, the North Dakota Supreme Court found motherhood to be "the most sacred ties of nature" and declined to disrupt those ties by awarding a father custody only "in extreme cases."[49]

A dissenting justice of the Mississippi Supreme Court was so taken aback by a now-unusual award of custody to the father that he wrote:

The natural mother love of a mother for her child is such, in my opinion, that no other person on earth can administer to the care and welfare of her child the same as she can and would. There is peculiarly no limit to the love and affection of a mother for her child; and I believe that, even though she be handicapped with poverty and human weaknesses, her care and protection of her offspring is more naturally efficient than that of any other person who might be more fortunately situated and endowed. It is harsh and cruel to forcibly separate a mother from her child, and it should not be done, in my judgment, except in certain cases, where there can be no reasonable doubt that the welfare of the child requires such separation.[50]
Such strong societally created sentiments convinced many fathers to forego custody challenges.[51] Furthermore, the inception of child labor laws provided a disincentive for some fathers to seek custody because children could not provide income to their father to compensate for childrearing costs.[52]

Thus, in but a few generations and driven largely by cultural and economic determinations of male and female roles, custody of America's children when their parents divorced changed from decisions based on oppressive economic realities to ones based on oppressive social mythologies. As America continued into the twentieth century, the reverence for motherhood over fatherhood deepened.

C. The 1920s to the 1970s

Along with a fundamental modification of the economic structure and a consequential change in the location where fathers performed their labor, the Industrial Age ushered in an integral transformation in the way mothers and fathers viewed themselves, and how society viewed them. Prior to the Industrial Age, men primarily received self-validation through the successful raising of skilled, morally sound children.[53] The transition to non-agrarian work encouraged men to seek external validation to confirm their maleness.[54] By the 1920s, economic ambition and professional achievement replaced effective fatherhood as the correct yardsticks by which to measure a good father.[55] Consequently, fathers toiled in remote locations not only to support their families but to receive societal validation as good fathers.[56] Woe to the father who was incapable of financially supporting his family, because he would be deemed a failure not only as a father, but as a man.[57] While society permitted fathers economic independence, it ensured that divorce courts stereotypically viewed fathers as devoid of ability and interest in actively raising children, thereby handicapping men in custody considerations and depriving children of meaningful relationships with their fathers.[58]

While men were programmed to equate their external economic productivity with their maleness and value as fathers, middle class women were programmed by society to accept subservient roles and, to be viewed as good mothers, to stay at home to care for their children.[59] Devoting one's life to childrearing ensured external societal validation and, subsequently, personal confirmation of female self-identity.[60] Consequently, although women were denied economic independence in the work force, they held greater leverage in custodial decisions,[61] resulting in financial awards in the form of child support to ensure that they remained out of the employment arena. While effective fatherhood ceased to be an indicator of the validity of one's maleness, effective motherhood continued to serve as the standard by which a woman's worth was measured.[62] Woe to the mother who did not choose to selflessly and altruistically place her children above all else, for she would be deemed a failure as a mother, and as a woman.[63]

These societally imposed roles ensured the continued economic subjugation of women by requiring their dependence on men for economic survival, following divorce in the forms of alimony and child support, as social etiquette demanded that mothers not work.[64] Courts promoted society's prescribed stereotype of the women who did work as weak and in need of state-instituted protection by upholding workplace legislation designed to restrict women from working beyond a certain amount of hours, frequently in industries deemed unhealthy to their alleged gentler constitutions, or from working in particular jobs.[65] In custody decisions, courts continued to promote the image of the mother as venerated and worthy of sentimental safeguarding. Mothers were called "God's own institution for the rearing and upbringing of the child."[66] One court beamed:

[I]n her alone is duty swallowed up in desire; in her alone is service expressed in terms of love. She alone has the patience and sympathy required to mold and soothe the infant mind in its adjustment to its environment. The difference between fatherhood and motherhood in this respect is fundamental . . . .[67]
One court went so far as to poeticize the mother-child relationship by noting that "[t]here is but a twilight zone between a mother's love and the atmosphere of heaven."[68]

By implementing stereotypical ideals of women into their decisions, courts furthered "romantic paternalism"[69] and the "motherhood mystique."[70] Consequently, by the 1920s, mother-custody preference was firmly rooted in the family court system.[71]

In furtherance of these ideals, psychological studies were conducted that purportedly legitimized the special role of the mother in custody decisions.[72] The father's role was not similarly examined, and thus the definition of fatherhood became diffused and unspecified.[73] With greater attention focused on the stereotypical role of mothers, and less attention on fathers, fathers became even more culturally unimportant and relegated to an insignificant and secondary role in the family unit.[74]

Eventually, the tender years doctrine was replaced by the "best interests of the child" standard.[75] This standard purported to focus attention away from the gender attributes of the parents and toward the custody situation deemed best for the child. In application, however, there was little difference in the two standards because of the comparatively low expectations regarding the role of fathers in child rearing and the nearly fanatical mythologies surrounding women's roles in child care. This result should not have been surprising: a test focusing on a child's "best" interests is an inherently subjective test that will naturally include, both consciously and subconsciously, a judge's understanding of the contemporary culture's determination of "best."[76] For example, while stating that the "welfare of the children is the controlling consideration" in custody litigation, the Florida Supreme Court in 1945 held that "[o]rdinarily, in the case of children of tender years such welfare is not best promoted . . . by taking them from the mother, unless it be shown that she is not a fit and proper person to have them."[77] Thus, the "best interests of the children" standard continued to assume it was best for young children to remain with their mothers upon divorce.

Another cultural perversion of the best interests standard arose from the "all things being equal" standard. Courts faced with equally skilled and loving parents continued to firmly apply the motherhood mystique to custody decisions. For example, while giving lip service to the best interests of the children, the Alabama Supreme Court in 1930 concluded: "Other things being equal, this court by numerous precedents holds the mother of infants of tender years best fitted to bestow the motherly affection, care, companionship, and early training suited to their needs."[78]

Ironically, while courts devalued the importance of fathers upon divorce-or followed the cultural devaluation of them-some social policies recognized the critical importance of fathers. In the early years of World War II, for example, fathers were the last men to be conscripted for military service.[79] Moreover, early television programs portrayed the father as-in addition to out of the home during the day-omniscient.[80] A cultural schizophrenia of fatherhood developed: married fathers were revered even though they were mostly absent and disengaged from meaningful childrearing while financially supporting the family; unmarried fathers, however, were positively disposable.[81] That stereotype invaded the family court system, and continues today.

D. The 1970s to the 1990s

The 1970s phase of the women's movement is generally credited with bringing feminist ideals to the forefront of the American culture.[82] As women increased their consciousness of feminist issues, the attendant change in traditional mother roles forced many fathers to reevaluate their positions within the family. Many women decided that they would rather work outside the home than perform domestic labor that forced them to be financially dependent on their husbands.[83] Simultaneously, many women were forced into the workplace due to a change in household economics caused by "the collapse of the fathers' ability to support their families solely on their earnings."[84] As women began to free themselves from stereotypical, secondary, and dependent roles within the family economic structure-whether because of family economics or feminism[85]-men increasingly found themselves judicially "liberated" from the family as women sought divorce in record numbers.[86] This increase in divorce promoted the marginalization of fathers far more extensively than the Industrial Revolution because divorce literally severed the father from the home on a permanent basis. Many fathers resigned themselves to continuing their role primarily as financial providers for their children and their now ex-wives, and adjusted to seeing their children approximately four days each month.[87]

Confronted with the realization that it was very difficult to balance work with parenting, some still-married mothers demanded that fathers share more substantively in child care.[88] The National Organization for Women (NOW) issued a press release that stated child care was not singularly a maternal responsibility.[89] However, this call for sharing parental responsibility did not always include divorced fathers, as a national study indicated that 40% of custodial mothers admitted that they had refused to allow fathers to exercise visitation as a retributive measure, while 20% believed that fathers should be totally cut out of the lives of their children and sought to achieve such an end.[90] Rarely did courts intervene to enforce visitation.[91]

Because they were excised from their roles as family breadwinners and "heads of households," many fathers were forced to seek a redefinition of self-identity. Fathers struggled to understand the societal message that they were still perceived as providers yet without the full-time family and attendant benefits. Frustrated and confused by state relegation to an even-more-undefined existence, some divorced fathers instead chose to cut off all contact with their children rather than deal with the pain of being alienated from them.[92] Like women before them, some formed support groups to deal with the bitterness and anger, and to analyze mixed cultural messages of what their proper roles were to be.[93] Many decided that the traditional father roles taught to them by their fathers were no longer valid in an era of rampant divorce. Some realized that society, particularly divorce courts, nonetheless compelled them to remain in the outdated role as aloof financial caretakers, and they began to question and confront this gender bias.

III. THE END RESULT: CULTURAL GENDER STEREOTYPES AND MOTHER-FATHER ROLES TODAY

As the twentieth century concludes, this country seems no closer to resolving child custody issues free of gender bias than it did in the days of the 1800s when fathers automatically received custody. Despite more than 150 years of evidence that custody decisions have been based largely on prevailing social and cultural roles and mandates for men and women, child custody in America today continues to be decided with only lip service to the holistic needs of children. Unfortunately, the child custody debate is hampered by a second layer of gender bias: gender-biased, results-oriented studies. Rather than contributing to the debate about how best to provide for children of divorce or never-married parents, these studies seek to preserve the status quo by denying the existence of gender bias in the first place or finding that gender bias in family courts is a uniquely female dilemma.

A. Lenore Weitzman and the "73% Study"

The classic example of such a study is the now-discredited work of sociologist Lenore Weitzman.[94] In 1985, Weitzman, reported that women suffered a 73% drop in their standard of living following divorce while men experienced a 42% increase in theirs.[95] Her findings were trumpeted in the news media and various publications as proof that divorce laws actually favored men and that more economic protections had to be given to women of divorce.[96] The problem was that Weitzman's numbers were woefully inaccurate, a conclusion shared by independent researchers, feminist researchers, and, eventually, even Weitzman herself.

For example, as recounted by feminist author Susan Faludi, Weitzman purported to base her study on a methodology advanced by Saul Hoffman, an economist at the University of Delaware, and Greg Duncan, a social scientist.[97] Upon learning of Weitzman's claims, Hoffman and Duncan attempted to contact her to discuss the discrepancies in their own findings that, using the same methodology, post-divorce women suffered a much smaller and temporary decline in their standard of living of 30%.[98] The two also found that divorced women's standards of living actually rose within five years to a figure higher than that obtained while married to their former husbands.[99] After sidestepping Hoffman and Duncan for more than four years, Weitzman finally supplied her data to them, but the data were disorganized and unreviewable.[100]

Accordingly, Hoffman and Duncan ran the data supplied by Weitzman in her book, and they still received a figure closer to their much lower number.[101] When they published their findings demonstrating that the Weitzman figures were "almost certainly in error," "suspiciously large," and inconsistent with her own information, this news was hardly reported by the news media at all.[102] Even as late as 1996, despite the study's refutation, the erroneous figures were still being incorporated into public policy.[103]

The U.S. Census Bureau later confirmed in a study that Weitzman's 73% number was wrong and inconsistent with her own information.[104] Eventually, Weitzman herself acknowledged her study was erroneous.[105]

Yet the damage was done. Many policy makers and judges failed to recognize the clear error of Weitzman's work and conclusions; this failure, in retrospect, made sense: her study told them what they wanted to hear. She confirmed the prevailing cultural bias that women were the "weaker sex" and, accordingly, in need of paternalistic government intervention and protection. She also confirmed the prevailing cultural bias that men did not need such protection. This attitude, demonstrated here in economic considerations, likewise prevails in custody considerations. A 1989 study conducted by the Massachusetts Supreme Judicial Court, which incorporated some of Weitzman's findings, is a prime example.

B. The Massachusetts Supreme Judicial Court's Gender Bias Study of the Court System in Massachusetts

Although allegedly implemented "to determine the extent, nature, and consequences of gender bias in the judiciary and to make remedial recommendations to promote the fair and equal treatment of men and women,"[106] the 1989 Gender Bias Study of the Court System in Massachusetts is a prime example of a results-oriented study ironically reeking of gender bias.[107] Despite evidence demonstrating that mothers receive primary residential custody of children approximately 90% of the time that custody is first determined by the court,[108] this study offered the following remarkable conclusion to demonstrate that gender bias against fathers in child custody determinations was a myth, unworthy of further study or policy changes: "[F]athers who actively seek custody obtain either primary or joint physical custody over 70% of the time."[109] This conclusion is often cited to discredit continuing claims by fathers and fathers' rights organizations of gender bias in child custody matters.[110] An analysis of the methodology underlying this conclusion, however, demonstrates fundamental flaws that seem to confirm a results-oriented analysis.[111]

First, the study=s methodology in the area of child custody was entirely subjective; that is, it was based on interviews rather than hard data from court files.[112] Second, the study dodged the hard questions of gender bias it purported to address. For example:

In most cases, mothers get primary physical custody of children following divorce. In general, this pattern does not reflect judicial gender bias, but the agreement of the parties and the fact that in most families mothers have been the primary caretakers of children. In some cases, however, perceptions of gender bias may discourage fathers from seeking custody, and stereotypes about fathers may affect case outcomes.[113]
Clearly the study missed an opportunity to explore whether out-of-court gender bias led to situations in which mothers were predominantly the primary caretakers, the stated basis for mothers' success in court.[114] It did not look at the forces at play underlying "the agreement of the parties" regarding custody.[115] Most problematic, however, was its total absence of follow up on the speculation of how gender bias discouraged fathers from seeking custody and how stereotypes about fathers affected outcomes.

Thus, ignoring these potential gender biases against fathers allowed the study to conclude that "fathers who actively seek custody obtain either primary or joint physical custody over 70% of the time."[116] However, based on its own data and not ignoring potential gender bias against fathers, the study could also have trumpeted any of the following results, leading to far different conclusions:

Mothers get primary residential custody 93.4% of the time in divorces.[117]

Fathers in divorce get primary residential custody only 2.5% of the time.[118]

Fathers in divorce get joint physical custody only 4% of the time.[119]

Fathers in divorce get primary or joint physical custody less than 7% of the time.[120]

Where fathers actively seek custody, they receive primary residency in less than one out of three cases (29%),[121] and joint physical residency in less than half (46%).[122]

Unfortunately, the preceding five conclusions did not seem to fit with the pre-conceived effort to "isolate patterns of behavior that disadvantage women and to examine the results of this behavior on the economic status of women."[123]

Finally, the foundation for the "70% solution" theory advanced by the study is hopelessly weak. The number implies that if a father wants custody, 70% of the time he will get either primary or joint physical residency. The number does not explain, for example, in how many of those cases mothers actually agreed that primary or joint physical residency was best for their children. It does not explain how many of those cases were contested cases where the judiciary determined custody after a hearing on the merits. Nor does it explain in how many of those cases the mother actively rejected custody or was unavailable to care for the children. In short, problems in the methodology underlying the 70% figure and basic failures to explore other possible explanations, render the figure utterly useless in concluding a lack of gender bias against fathers.[124] Indeed, analyzed fairly, the data underlying the figure strongly suggest social and cultural forces at play beyond a holistic analysis of children=s best interests. It cannot be fairly concluded through the analysis of these data that those forces are based on gender bias against fathers, but it can be fairly concluded that the study does not refute such gender bias.

C. Discriminating Against Fathers as Men

Much has been written about and many studies conducted regarding gender stereotypes and sex-based discrimination against women. Comparatively, little attention has been focused on gender stereotypes and sex-based discrimination against men.[125] Yet, as Professor Leo Kanowitz wrote nearly twenty years ago:

Centuries of sex-role allocation, based on "habit, rather than analysis," simply disabled Americans of either sex from restructuring the duties of military service, family support, and protections in the work place so as to permit men and women to share the burdens and benefits of social existence more equitably. Viewed in this light, the apparent power of men to change their sex-based roles in the past can be seen as being more theoretical than real. In this respect, men were as powerless as any other discrete, insular minority; past discrimination against them was invidious in every sense of the word.[126]
One expert noted that "[i]n sum, over the past two hundred years, fatherhood has lost, in full or in part, each of its four traditional roles: irreplaceable caregiver, moral educator, head of family, and family breadwinner."[127] Thus, particularly since the inception of the Industrial Revolution, the role of the father in the father-child dynamic has become unclear and undefined. Yet, compared to mothers, little focus has been placed on understanding the role of fathers and diminishing discrimination against them. Instead, more effort has seemingly been placed in disseminating anti-father propaganda that devalues fathers. For example, Joan Zorza, an author who writes about domestic violence, noted in a recent article that:

[a]fter separation, fathers tend to fade from their children's lives, even when they have joint custody and are strongly encouraged to stay involved. Not only do separated fathers have less physical contact with their children, but also they become less altruistic over time, less likely to pay child support, and further likely to disengage from their children.[128]
Even though this article purportedly focused on domestic violence among mothers and fathers, Zorza transcended the original premise to make broad comments about the inferiority of fathers in general, "whether or not abusive."[129] Although numerous studies show that fathers with joint custody are much more likely to pay child support,[130] Zorza stated that "[j]oint legal custody does not increase the father's compliance with child support orders, does not result in his assuming greater child-rearing responsibilities, and does not increase the amount of time he spends visiting with his children."[131] Many experts disagree with these conclusions.[132] Clearly, Zorza uses domestic violence as a springboard from which to attack fathers in general, a practice she implements in other articles as well.[133]

These generalized distortions encourage the anti-father attack and promote the limitation of the father's role to financial provider and insignificant caretaker. Viewed from the opposite end of the twentieth century, the continuous refrain throughout the last one hundred years has been that when it comes to childrearing, fathers are not that important.[134] Consequently, "In most parts of the country, only if the mother is grossly negligent or abusive does the father have a chance of keeping custody. Even then, the cards of the family court system are stacked against him."[135]

Conversely, since the 1960s, society has made a significant effort to assist women with throwing off the shackles of societally imposed gender stereotypes, most notably by passing much-needed laws to protect women seeking economic self-sufficiency.[136] However, because of persistent stereotypical beliefs that women are not as efficient as men in traditional male-dominated jobs, or that women are not the primary familial breadwinners,[137] women still earn only 71.5% of every dollar a man earns for the same job.[138] Moreover, while white men are a minority in the total work force (47%) and in the number of those with college degrees (48%), they hold the top jobs in nearly every field.[139]

For the most part, however, our culture and laws have, within the last twenty-five years, encouraged women to enter into traditional male territories such as the workplace.[140] At the same time, though, our culture has continued to assure women that they will be recognized and protected as the primary caregivers of children, even when women trade their traditional roles as home-dwelling caretakers for workplace laborers.[141] By contrast, our culture and our laws have not uniformly promoted father involvement in the home and with children. Accordingly, most men have not been permitted by society to likewise alter their roles to fully participate in childrearing.[142]

D. Protecting the "Weaker Sex": The State as Mr. Right

Society views women as weaker than men and in need of protection, whether by a man or by society when no man is available.[143] Traditionally, this protection was provided by a woman's connection to a man through the marriage contract.[144] However, with the increase in divorce, the state has taken it upon itself to act as the guardian of women.

This movement toward protection of women is a reaction to the success of the notion that women, as individuals, could be freed from dependence on men . . . . At a more general level, the women's movement is clamoring to build some sort of safety net or shield for women. The movement wants to return women to a position where their biological differences are taken into account. But rather than do this through the informal structures that traditionally performed this role, rather than allow men and women to form contracts in marriage and work out an arrangement that provides some security and protection for women, the movement asks the state to take on the role of protector.

This approach has placed Uncle Sam in Mr. Right's shoes. The state places formal rules, laws, and regulations where informal systems of social control formerly existed. Laws insist that women be provided for through equal pay where social structures used to provide the means of survival. Laws command men to behave in a certain way with respect to women, because the informal controls that used to define the boundaries of behavior have been destroyed.[145]

In some cases this protection is appropriate, such as when legal protection is provided to battered women and women sexually harassed in the workplace. Yet, in custody determinations, women receive a clear and unequivocal advantage over men when they receive primary residential custody of children approximately 90% of the time.[146] This result assures mothers great power over fathers largely due to stereotypical beliefs that mothers must be primary caretakers-a belief promoted and protected by the courts who award mothers custody in overwhelming numbers.[147] Mothers are further advantaged because custody commonly is accompanied by a child support order (which does not have to be accounted for to fathers),[148] the familial residence, and the primary decisionmaking power regarding the children. As primary custodians, mothers are also awarded the opportunity to spend significantly more time with the children, thereby having a greater influence on their children's growth and development.

Some have begun to recognize that when society protects women, that is, when it places women upon "pedestals" and awards them a custody advantage, it is confining women within an overly sentimentalized "cage."[149] By requiring mothers to be the primary caregivers of children, whether or not they desire to be, society continues to communicate to mothers that they must choose their children over all else or risk being labeled a failure as a mother, and as a woman.[150] Thus, women who voluntarily relinquish primary custody are frequently seen by society as "misguided, selfish, unnatural."[151] This refrain continues, despite the fact that numerous opportunities, notably in education and employment, have opened up to women over the last thirty years.[152]

Yet although opportunities for women have grown outside of the home, the beliefs that people hold about how women should act inside the home have not necessarily kept pace. Many people believe that it is good that women have more choices than before, so long as the changes do not take away from their time with their children. . . . The new opportunities they have achieved have not extended to permission to live away from their children. Thus, a divorced mother is in a precarious position-encouraged to pursue life outside the home but discouraged from doing so without her children. Thus, women are penalized if they are mothers.[153]
This double-bind furthers the continued subjugation of women: "tethering mothers to children by discouraging separations . . . also serves less felicitous functions, such as keeping women out of the labor force, securing their services for free at home, and sustaining a comforting set of social relationships."[154] Although women may seek to free themselves from the constraints of marriage and also perhaps their role as the primary caretakers of children when they serve as such, gender bias imbedded in the court system ensures that women remain in this role even after divorce, whether or not they want to continue in that role, and whether or not the imposition of that role is truly in the best interests of the child. Despite the efforts of legislatures to extract this gender bias from the exercise of custody determinations, courts have nonetheless clung to traditional perceptions of women as primary caretakers of children in need of state protection.

E. The Court and the Legislature: The Battle to Control Custody Considerations

Adhering to the motherhood mystique, courts, many of which are presided over by judges raised in traditional homes consisting of fathers as breadwinners and mothers as caretakers,[155] have resisted letting go of the tender years doctrine and the all things being equal doctrine, occasionally doing battle with legislatures over the child custody issue. For example, in 1971 the Florida Legislature amended Florida's child custody law in an effort to repeal the tender years doctrine: "Upon considering all relevant factors, the father of the child shall be given the same consideration as the mother in determining custody."[156] Nonetheless, the Florida Supreme Court reaffirmed the principles behind the tender years doctrine four years later in concluding that the all things being equal doctrine was not changed by the 1971 statute.[157] In 1982, the Florida Legislature responded by specifying that fathers and mothers were to be given equal consideration despite the age of the child.[158] Yet, some courts continued to resist the change.[159] In 1991, the Legislature responded again, saying neither the age nor sex of the child made a difference as between fathers and mothers in custody considerations.[160]

The message seemed to finally reach judges who wanted to apply either of the two outdated doctrines, when, in 1995, a Florida appellate court stated that "[t]he tender years doctrine is not a relevant fact, but an impermissible gender-based preference favoring the mother as custodian of a young child."[161] Nonetheless, some judicial circuits in Florida established "visitation guidelines" that reincorporated the tender years doctrine. For example, as late as 1996, the guidelines in the Twelfth Judicial Circuit provided that a noncustodial parent-almost always the father-could not have overnight visitation with a child until the child turned two years old.[162] Despite clear evidence about the importance of father involvement in early childhood development,[163] the guidelines provided noncustodial parents actual physical access to their child for less than 5% of their child's first twenty-four months of life. In 1996, the Florida Legislature responded once again, overturning the guidelines by amending the law to read: "If the court orders that parental responsibility, including visitation, be shared by both parents, the court may not deny the noncustodial parent overnight contact and access or visitation with the child solely because of the age or sex of the child."[164]

Nonetheless, the presumption in favor of mother-custody continues to prevail inside and outside of Florida:

In the past two decades, most states have abandoned as unconstitutional the formal presumption in favor of mothers being awarded custody, and a number of states use language encouraging shared parenting in their custody statutes. However, gender is still a statutory consideration in several jurisdictions.

The child's best interests standard ostensibly considers more direct criteria of parenting capacity and patterns. Nevertheless, decisions favor mothers in a number of ways. Joint custody laws still prefer mothers as physical custodians. The primary caretaker standard, adopted explicitly in West Virginia and Minnesota, and implicitly in a number of other jurisdictions, may be a thinly veiled return to the maternal preference standard. Even in states in which the formal maternal presumption is absent, judges may make decisions as though such a presumption still exists, or may exhibit strong biases against awarding custody to fathers. Moreover, as an empirical matter, mothers obtain sole custody in an overwhelming proportion of cases.[165]

F. When Fathers Are Marginalized

Sociologists, psychologists, criminal justice experts, and others have begun to closely examine the issue of fatherhood in our American culture and how and why fathers came to be ousted from a significant role in childrearing. Statistics clearly show that children without fathers are more likely to suffer increased psychological, educational, behavioral, and health disorders, and our society is more likely to suffer increased crime and violence. For example, a 1988 United States Department of Health and Human Services study found that at every income level except the very highest (over $50,000 a year), children living with never-married mothers were more likely than their counterparts in two-parent families to have been expelled or suspended from school, to display emotional problems, and to engage in antisocial behavior.[166] Children in single-parent families are two to three times as likely as children in two-parent families to have emotional and behavioral problems.[167] They are also more likely to drop out of high school, to get pregnant as teenagers, to abuse drugs, and to be in trouble with the law.[168] Eighty percent of adolescents in psychiatric hospitals come from broken homes.[169] Three out of four teenage suicides occur in households where a parent has been absent.[170] Compared to children living with both biological parents, children living apart from their biological fathers experience more accidental injury, asthma, frequent headaches, and speech defects.[171] Children who live apart from their fathers are more than four times more likely to smoke cigarettes as teenagers than children growing up with a father in the home.[172] Seventy-two percent of adolescent murderers grew up without fathers.[173] Sixty percent of America's rapists grew up in homes without fathers.[174]

The one factor that most closely correlates with crime is the absence of the father in the family.[175] This relationship is so closely related that controlling for family configuration erases the relationship between race and crime and between low income and crime.[176]

In response to these and other significant findings, groups promoting the recognition of the father's role in childrearing have met, brainstormed, and implemented programs intended to encourage and promote fathers' involvement in their children's lives.[177] Nonetheless, despite plenty of evidence that children need integral and consistent love and support from their fathers as well as mothers, many family courts fail to ensure that fathers play a meaningful role by awarding the children significant time with both parents in addition to joint legal responsibility for the children. At times, however, a ray of enlightenment does appear. In 1996, a Florida court stated:

With the focus of so much recent statewide and national attention on the absentee parent and the deadbeat dad, we should do everything within our power to encourage responsible parenthood, which consists not only of the legal obligation of financial support but also the maintenance of a meaningful relationship with the child. We should encourage the noncustodial parent, who is often the father, to view the relationship with his child not as an obligation which he fights every inch of the way, but as a responsibility he rushes to embrace. The ability of the noncustodial parent to develop and maintain a meaningful relationship with the child inures to the benefit of not only the parent, but also the child.[178]

While some courts are moving toward recognizing the importance of encouraging divorcing fathers to remain integrally involved in the lives of their children, awarding them primary residential custody, or even rotating custody, is another issue. Overwhelmingly awarding mothers sole or primary residential custody of children may not only be grossly unfair to fathers and children, but the practice may violate fathers' constitutional rights to equal protection of the laws, and their fundamental right to parent their children.

IV. THE FOURTEENTH AMENDMENT

A. The Equal Protection Clause and Gender Discrimination

The Fourteenth Amendment, enacted by Congress in 1868, states that "[n]o state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws."[179] Congress intended to ensure that racial minorities received the same degree of personal and property rights as enjoyed by white persons (usually men).[180] At first, the Supreme Court interpreted the Equal Protection Clause to apply only to racial equality and no other classification.[181] Thus, in a case decided the day after the Slaughter-House Cases,[182] the Court denied a woman's request for a license to practice law.[183] The Court later upheld a statute that prohibited women from working in factories for more than ten hours per day.[184] In subsequent direct challenges on equal protection grounds, the Court likewise upheld statutes denying women equal protection of the law.[185]

By 1971, however, the Court recognized that statutes designed primarily to restrict women to stereotypical roles should be subject to stricter review.[186] The Court struck down a statute that preferred male estate administrators over female administrators as a violation of the Equal Protection Clause.[187] The Court stated that it was applying the rational relation test,[188] but because it rejected the state's administrative reason for the discrimination, the court actually applied a heightened level of scrutiny. In Frontiero v. Richardson,[189] the Court explicitly stated that gender-based classifications are inherently suspect and should be subject to strict scrutiny.[190] However, in the next gender-based challenge reviewed by the Court,[191] it retreated to an intermediate level of scrutiny for reviewing gender-based classifications.[192]

Intermediate scrutiny is also applied when the Court reviews statutes or policies enacted to remedy past discrimination against women.[193] These remedial statutes or policies frequently result in "benign discrimination" against men; that is, they were not enacted with the express intent to discriminate against men but do so as a byproduct of the government action.[194] Nonetheless, if the statute or policy is narrowly tailored to be substantially related to an important government interest that is remedial in nature, it will likely be upheld.[195]

1. Intent to Discriminate Is Required

For a plaintiff to prevail in a claim that a government act violates the Equal Protection Clause, the plaintiff must demonstrate that the government intended to discriminate.[196] Intent can be proven by showing that the law is facially discriminatory,[197] that the law is administered in a discriminatory manner,[198] or that although the law is facially neutral and appears to be applied in a non-discriminatory manner, discrimination can be proven through an examination of the legislative history or other evidence that clearly indicates a discriminatory intent.[199] Frequently, statistics are used to prove intent to discriminate.[200]

B. Substantive Due Process: Interference With Fundamental Rights

The Fourteenth Amendment contains the provision that "no state shall make or enforce any law which shall . . . deprive any person of life, liberty, or property, without due process of law."[201] This clause has been interpreted as limiting the substantive power of states to regulate specific areas of individuals' lives deemed to be protected by a fundamental right.[202] The Court first recognized a fundamental right under the Equal Protection Clause in Skinner v. Oklahoma.[20]3 In Skinner, the Court struck down a state statute that allowed the sterilization of certain criminals, thus interfering with what the Court deemed to be the fundamental right to have children.[204] Other areas such as voting[205] and interstate migration[206] have been recognized as fundamental rights protected by the Fourteenth Amendment. An unreasonable intrusion into these areas is deemed to interfere with a person's liberty.[207]

In a fundamental rights challenge, courts will first examine whether the right at issue is fundamental or non-fundamental.[208] Two classes of fundamental rights exist: those that are explicitly guaranteed by the United States Constitution under the fundamental rights provision of the Equal Protection Clause,[209] and those not specifically constitutionally enumerated but recognized by the Court as implicitly guaranteed by the Constitution under the Fourteenth Amendment's protection of fundamental rights.[210] If the right is deemed to be non-fundamental the courts will use the rational relation test to determine if states are pursuing a legitimate governmental objective; this analysis almost always leaves the government action intact.[211] If the right is deemed fundamental, however, courts will use the strict scrutiny standard and the government will have the burden to show it has a necessary and compelling interest justifying its interference with the plaintiff's fundamental right.[212] The court will also examine whether there are less restrictive means that could be implemented.[213]

1. The Parent-Child Relationship as a Fundamental Right

The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the Fourteenth Amendment.[214] The Court has affirmed that related parental interests falling under this original premise are similarly constitutionally protected. For example, a parent's right to educate his or her children in the manner he or she chooses has been recognized as a substantive due process fundamental right.[215] The Court based its decision on the "liberty of parents and guardians to direct the upbringing and education of children under their control."[216]

Like the United States Supreme Court, the Florida Supreme Court has also recognized that substantive due process protection must be given to parents pursuant to the fundamental liberty interest that parents have in the care, custody, and management of their children.[217] As a Florida Supreme Court justice noted:

The right of the parents to the custody, care and upbringing of their children is one of the most basic rights of our civilization. The emphasis upon the importance of the home unit in which children are brought up by their natural parents is one of the great humanizations of western civilization as contrasted with the ideologies of some nations where family life is not accorded primary consideration.[218]
The following year, while addressing a grandparents' rights statute, the court noted that:

The extent to which the government should be involved in settling disputes within the family is a relatively new question in the law. There are, though, certain established principles. We have stated that "this Court and others have recognized a longstanding and fundamental liberty interest of parents in determining the care and upbringing of their children free from the heavy hand of government paternalism." The fundamental liberty interest in parenting is protected by both the Florida and federal constitutions. In Florida, it is specifically protected by our privacy provision.[219]
Thus, under both the U.S. Constitution and the Florida Constitution, the court should recognize that both parents have a fundamental right to parent their child.

C. Procedural Due Process Requires a Fundamentally Fair Hearing

In custody determinations, fundamentally fair procedures are required by the Fourteenth Amendment's procedural due process requirement, which protects "life, liberty, or property" interests.[220]

In a related procedure, a state-instituted termination of parental rights proceeding, the U.S. Supreme Court noted that the parents had a substantive due process right to fair proceedings because the parent-child relationship is protected as a fundamental right:

[P]arents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.[221]
It is well-recognized that "[a] fundamentally fair hearing requires the procedural steps of notice, an opportunity to be heard, the opportunity to present evidence which is relevant and material, and arbitrators who are not infected with bias."[22]2 In Johnson v. Johnson,[223] an Illinois appellate court invalidated a change of custody to a father because the judge demonstrated bias against the mother and refused to grant a change of venue that had been waived in a settlement agreement.[224] The appellate court found that the settlement agreement would waive the mother's right to a fair and impartial judge, a constitutional right that cannot be contravened.[225]

V. FLORIDA'S CHILD CUSTODY STATUTE

It is well-recognized in Florida that the controlling consideration in a custody determination is the best interests of the child.[226] Section 61.13, Florida Statutes, provides that the court shall consider and evaluate all factors affecting the welfare of the child, including but not limited to:

(3)(a) The parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent.

(b) The love, affection, and other emotional ties existing between the parents and the child.

(c) The capacity and disposition of the parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home.

(f) The moral fitness of the parents.

(g) The mental and physical health of the parents.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

(j) The willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.

(k) Evidence that any party has knowingly provided false information to the court regarding a domestic violence proceeding pursuant to s. 741.30.

(l) Evidence of domestic violence or child abuse.

(m) Any other fact considered by the court to be relevant.[227]

The statute further states that:

[i]t is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. After considering all relevant facts, the father of the child shall be given the same consideration as the mother in determining the primary residence of a child irrespective of the age or sex of the child.[228]
A representative of the Florida Office of the State Courts Administrator stated that circuit court clerks are not required to report data regarding when mothers or fathers receive custody of children.[229] Therefore, no Florida data currently exists to prove that, as required by section 61.13(2)(b)(1), Florida Statutes, judges equally consider fathers when determining the primary residence of a child. However, a recent U.S. Department of Commerce report stated that of children living with one parent, 87% live with their mothers, while 13% live with their fathers.[230] Thus, while a review of the statutory considerations does not indicate an obvious preference that would result in mothers receiving primary residential custody in overwhelming numbers, by inference, national statistics indicate that Florida follows the trend of primarily awarding custody of children to mothers.[231]

VI. THE FOURTEENTH AMENDMENT AND CHILD CUSTODY

While fathers have raised equal protection challenges to the mother-preference in custody determinations, it appears, at least at the appellate level,[232] that none have been successful-unless the statute states a blatant presumption favoring mothers.[233] Most challenges appear to have been dismissed either because the court apparently had difficulty understanding the fathers' arguments or because, according to the court, the fathers' attorneys did not properly present valid arguments backed by compelling facts capable of supporting an equal protection claim. Similarly, very few cases claiming that the child custody system violates the fundamental right to the parent-child relationship appear to have reached the appellate level.

A. Challenges From Divorcing or Formerly Married Fathers

In Ropoleski v. Rairigh,[234] the Michigan federal district court stated that the father "did not allege that he had been subjected to adverse treatment because he is male, but that his former wife ha[d] been granted preferential treatment, to his detriment."[235] After noting that the father was making an equal protection challenge claiming that a facially neutral policy had been administered unequally, the court stated that the father must show not only that the defendants' conduct had a discriminatory effect, but that discriminatory purpose was also a motivating factor.[236] The court further noted that "'[d]iscriminatory purpose' implies that the decisionmaker selected a course of action because of its detrimental effects on an identifiable group. Error, mistake in judgment or arbitrary administration in applying a facially neutral policy does not violate equal protection."[237] The court then addressed the challenge:

Plaintiff has alleged, baldly, that [two court administrators], both men, discriminated against him purposefully, pursuant to custom or policy, because he is a man. The complaint provides no factual detail in support of the claim. Plaintiff has not identified the discriminatory policy or custom with any specificity. His allegations offer no explanation as to why defendants' alleged lenient or preferential treatment of his former wife should give rise to a reasonable inference that intention to injure him in his relationship with his daughter, because he is a man, is the primary motivating factor. Not only is the claim not supported by factual details, but, even when viewed in the abstract, it is not supported by reasoned sense.

Though gender based discrimination is suspect, plaintiff as a male, is not a member of a group whose interests have traditionally been under-represented in the political process. Based on the facts alleged, the notion that plaintiff's injury is the result of gender based discrimination-rather than, for instance, an erroneous or even arbitrary exercise of discretion-is implausible. Plaintiff's equal protection claim is subject to dismissal as one "whose factual contentions are clearly baseless." To countenance such a claim under the alleged facts would be to invite disgruntled parents everywhere to embroil the federal courts in child custody and support disputes, matters traditionally and appropriately entrusted to the state courts . . . simply by alleging gender discrimination. This, the Court refuses to do.[238]

The court then dismissed the equal protection claim.[239]

In Fariello v. Rodriguez,[240] the father, appearing pro se, claimed that numerous named defendants deprived him of equal protection under the law.[241] The court stated that a review of the "voluminous complaint" provided no evidence that any government official interpreted any statute to single out the plaintiff.[242] The court added that no such action could foreseeably occur, either, and dismissed the action with prejudice.[243]

B. Challenges From Unwed Fathers

1. Equal Protection Challenges in General

Equal Protection claims raised by unwed fathers generally arise in the contested-adoption context. While adoptions are frequently handled by family courts, they are usually governed by statutes separate from those addressing custody when parents divorce.[244] Nonetheless, many of the custodial issues are similar and provide interesting insight into equal protection challenges. In particular, contested adoption or out-of-wedlock custody cases demonstrate the enormous differences in treatment between unwed mothers and unwed fathers.[245]

In Wyoming, a father adverse to placing his child for adoption claimed an equal protection violation had been committed when the mother of the child was allowed to place the child for adoption without his consent.[246] The Court restated what it believed to be the gist of the father's argument: that the court was "inferring that a young man cannot take care of his child, while a young woman who does not want her child, can and is fit because she is a woman."[247] The Court stated that the father was arguing that "[i]f he was a woman, the Court would very likely give the child to him."[248] Apparently confused by the father's argument, the court wrote:

GWJ [the father], of course, has no authority to assert BGH's [the child's] right to equal protection. His standing does not permit him to assert the rights of another. BGH's guardian ad litem represents her interest, and the guardian ad litem stated: As the child's guardian ad litem, the undersigned asserts that her right to equal protection under the laws has not been violated in any way, but has, on the contrary, been zealously protected by the District Court in these proceedings. As to his own right, GWJ's argument is at best obscure. We understand the gist to be that, because the court did not rule in his favor, he was denied his right to equal protection. GWJ does not attack the [relevant statutes] as being facially unconstitutional or encompassing a discriminatory motive. We are not able to discern any discrimination. . . . The adoption statute . . . does not favor one class over another, and it does not endorse mothers over fathers or women over men or adoptive parents over birth parents. There can be no valid argument that the statute is facially unconstitutional or encompasses a discriminatory motive.[249]
The court concluded that "GWJ fail[ed] to make any logical argument in support of this claim of error."[250] It added that the father failed to point to any portion of the record evidencing a denial of his right to equal protection.[251] Quoting the district court, the appeals court noted that mother was identified as:

"the most sensible and mature of the two biological parents, but in addition she is the most credible. . . ." Our examination of the record does not permit us to conclude the district court was biased or prejudiced against GWJ on gender grounds in this case. His right to equal protection of the law was not violated, and his argument must fail.[252]
2. Challenges to Facially Discriminatory Statutes

Arizona has a statute that declares the mother of a child born out of wedlock the child's legal custodian until paternity is established.[25]3 In Arizona v. Bean,[254] after being convicted of custodial interference for failing to return his child to the child's mother following a visitation, a father challenged the statute as a violation of the Fourteenth Amendment's and the Arizona Constitution's Due Process and Equal Protection Clauses because it created a statutory distinction between biological mothers and fathers.[255] The father also argued that statutorily embodied unequal treatment afforded to married, unmarried, separated or divorced fathers similarly amounted to constitutional violations.[256]

The court disagreed with the father's argument that "there is no difference in the importance between the maternal and paternal roles" and that therefore no compelling state interest existed warranting a distinction based on gender.[257] The court first attacked the argument by noting that although the Supreme Court has recognized an unmarried father's constitutionally protected interest in a relationship with his child,[258] the Court "also recognized, however, that such a right is not absolute and that protection of the child is also an important state interest."[259] The court explained:

Thus, the importance of the paternal role in a child's development notwithstanding, we cannot say that equal custody rights between all unmarried fathers and mothers effectuate the best interests of the child. To the contrary, as suggested by one writer, such a practice could have "disastrous consequences" for the child. See Brigitte M. Bodenheimer, New Trends and Requirements in Adoption Law and Proposals for Legislative Change, 49 S. Cal. L. Rev. 10 (1975). As the statutory presumption at issue here operates to preserve the child's interest in stability, it is not without a compelling state interest such as referred to in Lehr. Moreover, because the presumption is operative only until paternity and custody in the child's best interest are established by a court, it does not go substantially beyond the protection of that interest.[260]
The father also argued that because he was similarly situated to the mother he was entitled to protection equal to that provided to the child's mother as well as to married, divorced, and separated fathers.[261] Again, the court disagreed:

As in Lehr, we conclude that the parents here are not similarly situated. The testimony at trial established that, while the mother provided daily supervision, care and financial support for the child from the time of his birth, defendant lived with the mother only sporadically, living at times in another city, and provided what at best can be described as minimal financial support. The evidence was undisputed at trial that defendant never took any steps whatsoever to establish his paternity or exercised any custodial or visitation rights and was not living with the mother and child in a de facto family relationship at the time of the abduction. . . . The defendant was never the caregiver or provider for the child. Thus, defendant and the natural mother were similarly situated [only] in a biological sense . . . .[262]
Despite recognition of the mother's fundamental right to parent the child because of giving birth to the child, the Bean court noted that "'[p]arental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.'"[263] The court added that because the father had not taken "a single step as required by statute to establish his paternity, he cannot be said to be similarly situated with all married, divorced and separated fathers."[264] The court noted that the Supreme Court had specifically recognized that the "'mere existence of a biological link' does not create parental rights deserving of protection under the due process clause."[265]

Concluding, the Arizona appellate court affirmed the trial court's declaration that the statute is substantially related to an important state interest and is not a gender-based equal protection violation.[266]

A Utah appeals court reviewed the issue of whether requiring the father to register an acknowledgment of paternity violated the Equal Protection Clause.[267] The father argued that:

the similarly situated parents of an illegitimate child are given different legal rights solely on the basis of their sex since the mother's consent is required prior to any adoption of the child regardless of whether she is willing to fulfill her parental responsibilities while the father has the right to consent to the child's adoption only if he files an acknowledgment of paternity indicating his willingness and intent to support the child.[268]
The court stated that the statute was designed to readily determine the paternity of illegitimate children so as to "facilitate immediate and continuing physical care of and emotional bonding opportunities for such children."[269] The father argued that the statute was based on gender differences not reasonably related to these purposes, in that:

the statute defeats its objective by failing to require the mother of an illegitimate child to take action to identify herself as a willing parent as fathers are required to do since an unfit and indifferent mother can prevent the adoption of her child and, thus, fail to provide appropriate physical care and emotional bonding opportunities for the child.[270]
The father further argued that:

the statutory objective is also defeated because it results in gender-based discrimination against "identified, present, and willing fathers" who would, in fact, provide the necessary care and bonding opportunities for the child, and that an indifferent mother can arbitrarily deprive such a father of his parental rights under the statute.[271]
The court responded by noting that the Utah Supreme Court held that the statute did not violate the equal protection rights of an unwed father because he had the same rights as the mother or the father of a legitimate child, if he timely filed an acknowledgment of paternity pursuant to the statute.[272] Therefore, the court added, when the father failed to timely file an acknowledgment of paternity or develop a substantial relationship with the child, the Equal Protection Clause did not preclude the state from terminating his parental rights.[273] The court noted that the state's interest is to promptly identify fathers who will acknowledge parental responsibilities, and to make children speedily available for adoption.[274] As did the court in Bean, this court dismissed the father's "mere" biological link to the child:

[F]athers who have "fulfilled a parental role over a considerable period of time are entitled to a high degree of protection," whereas unwed fathers "whose relationships to their children are merely biological or very attenuated" are entitled to a lesser degree of protection. . . . When an unwed father demonstrates a full commitment to the responsibilities of parenthood by "com[ing] forward to participate in the rearing of his child," his interest in personal contact with his child acquires substantial protection under the due process clause. . . . But the mere existence of a biological link does not merit equivalent constitutional protection.[275]
The court recognized that unwed mothers were "'automatically identified by virtue of their role in the process of birth,'" but that if a mother was shown to be unfit, the state could terminate her parental rights.[276] The court concluded that the gender differences in the statutory classifications were reasonably related to the statutory purposes.[277]

VII. CHALLENGING GENDER BIAS IN CUSTODIAL DECISIONS

A. Bringing an Equal Protection Challenge

Fathers seeking to bring an equal protection challenge in court face many hurdles. Perhaps the biggest hurdle is proving that the court intended to discriminate when it awarded custody of the children to the mother because of gender discrimination.

In child custody statutes involving divorce cases, statutes that delineate the mother as the primary custodian violate the Equal Protection Clause because they are facially discriminatory and the intent to discriminate is obvious. Most states have repealed such laws for this reason.[278]

When the statute is not facially discriminatory but purports to treat both parents equally, as does Florida's statute,[279] the challenge will be much more difficult. A father seeking to prove that his right to equal protection of the law was denied must present evidence that the law was administered in a discriminatory manner by the trial judge.[280] As demonstrated in the Ropoleski case, this is a difficult standard to meet. Most judges do not state that they are awarding custody to the mother because she is the mother; instead, they may base their decision on a finding that the mother is the more fit parent due to her role as the primary caretaker and that it is in the child's best interests to remain with her.[281] Some states do not require courts to make specific findings of fact for the record when determining custody, and courts in these states do not have to articulate any reasons for their decisions. Florida is one of these states. The failure to require specific findings on the record makes it highly difficult to prove exactly what motivated the judge's decision, and thus opens the door for the court to interject gender biases favoring mother-custody when making a custody determination.[282]

In 1991, the Georgia Commission on Gender Bias in the Judicial System released a report listing "[c]ulturally based gender-biased beliefs that influence some judges and disadvantage fathers."[283] The Commission found that these beliefs included:

A. The belief that a mother is a better parent than a father.[284]

B. The belief that children, especially young children, need to be with their mothers.[285]

C. The belief that a father cannot work outside the home and be a nurturing parent.[286]

D. The belief that because a mother is presumed to be the better parent, fathers must prove the mother "unfit" in order to gain custody.[287]

E. The belief that if a court grants custody to a father, it brands the mother as "unfit" and "unworthy."[288]

The Commission noted that in addition to the actual application of these biases by judges, "perceptions of gender bias discourage fathers from seeking custody by creating a 'chilling effect,'" thus convincing fathers that it is not worth their effort to even seek custody.[289]

To address the problem of gender bias in Florida's custody determinations, during the 1998 legislative session Senator Katherine Harris[290] introduced a bill that would require judges to state in writing the findings of fact upon which they based their custody decision.[291] The bill includes findings that state:

[S]ome residents of this state have a perception that, despite the gender neutrality of [the custody statute], the law is being applied by trial courts in a gender-biased manner, and

[S]uch a perception, if grounded in fact, is unacceptable, is contrary to children's best interest, and is contrary to the public policy of this state, and

. . . .

[A] lack of a record of trial court proceedings can prevent meaningful review or other analysis of trial court action . . . .[292]

The legislation seeks to ensure that trial courts adhere to the legislative policy of considering both parents equally when making a custody determination.[293]

A father or fathers could also claim that, as a group, fathers have been denied equal protection of the law as a collateral effect of a custody policy, rather than through the application of express discrimination by a state actor (here, the trial judge). Notably, however, in Personnel Administrator of Massachusetts v. Feeney[294] the Supreme Court required that the group whose rights were infringed upon demonstrate that nearly all of its members were discriminated against to prove that the state intended to discriminate.[295]

Thus, absent express gender-bias by a trial judge, fathers alleging that the law is applied in a discriminatory manner may be required to demonstrate an absolute preference for mothers over fathers; that is, at the trial level no fathers receive custody. In one particular courtroom or in some small, remote counties this may be the case, and then a plaintiff may actually be able to prove a 100% impact. A particular judge might never award custody to fathers, and may even make comments indicating that, as a rule, he or she never awards children to fathers because, for example, "Children belong with their mothers." A "mere" disparate impact on fathers, however, will not likely be enough to prove an equal protection violation.[296] Invidious discrimination must be demonstrated.[297] It may be inferred from a totality of the facts, including the fact that the law bears more heavily on one group than another.[298] Thus, as depicted in Rogers v. Lodge,[299] a voting rights case involving racial discrimination, a statistical showing of the impact is key to the claim.[300]

Because the gender of the parents is at issue, a reviewing court should apply intermediate scrutiny to determine if there is a violation of the Equal Protection Clause.[301] The state must show that its interest is substantially related to an important governmental interest.[302] In a custody case, that interest is to further the best interests of the child.[303] A court that has an overt or covert policy of awarding children to mothers would have to show that this policy is substantially related to the governmental interest of meeting the best interests of the child. There is a wealth of information which states that children need both fit parents to be significantly involved in their upbringing.[304] Thus, a child's needs would be better met by an award of joint physical or rotating custody where the parties reside within the same locale and can reasonably cooperate regarding the arrangement.[305] Where the parties do not reside within the same locale, or where the parties are unable to cooperate, and one party must be deemed the primary residential caretaker, the best interests of the child are met not by following a policy that awards children to mothers solely because they are women, but by a careful analysis of who is the overall more fit parent regardless of gender.

B. Bringing a Substantive Due Process Challenge

A father may also bring a cause of action based on state interference with a substantive due process fundamental right. While this issue has arisen in the contested-adoption context,[306] it should also apply to divorced fathers when the state discriminatorily provides custody to mothers.

A claim that fundamental rights have been violated requires the reviewing court to apply strict, rather than intermediate, scrutiny. Thus, the state would need to show a necessary and compelling interest to justify its interference with the father's fundamental right. This argument might best be raised in a situation where both parents are fit, reside in the same community, and are suitable for rotating or joint physical custody, yet the trial court awards the mother primary residential custody and the father visitation of every other weekend.[307] When an activity is constitutionally protected, as is the fundamental right to parent, a state must chose the least restrictive means possible to achieve its goal.[308] Absent good cause, it would appear that the court, in this situation, would be interfering with the father's fundamental right to parent his child; the father, then, should be entitled to a review of strict scrutiny.

If the appellate court finds that the trial court did interfere with the father's fundamental right to parent his child without a compelling state interest, the court could remand the case and order that the father's right to parent his child be reflected through rotating or joint physical custody, or through a greater award of visitation. However, the appellate court could make such a determination itself.

C. Challenging Fundamentally Unfair Hearings

The failure to provide a fundamentally fair hearing is a violation of procedural due process, a constitutionally protected right.[309] Procedural due process requires that the party whose interest is threatened be provided with a meaningful opportunity to be heard.[310] Inherent in this right to be heard is a right to a fair proceeding;[311] the interjection of gender bias into a proceeding violates the requirement that the hearing be fair.[312] Thus, judges who make custody determinations not on a record basis, but on the basis of gender bias, violate procedural due process.[313]

Ideally, a father bringing a claim should be supported by a transcript from the trial court proceeding that evinces discriminatory comments made on the record.[314] However, even this evidence of judicial discrimination can be ignored by the reviewing court. For example, in Dalin v. Dalin,[315] the North Dakota Supreme Court denied the father's claim that the roughly equal custody arrangement that had been modified to allow the mother to have custody for nearly nine and a half months of the year was motivated in part due to gender bias.[316] The court reviewed the trial court transcript, which contained questions demonstrating that the trial court had used stereotypical caretaking roles in making its decision.[317] After stating that "[g]ender bias in judicial proceedings is wholly unacceptable,"[318] the court noted that:

if the trial court assumed that fathers, as a group, are incapable of adequately raising their daughters, it would be relying on an improper factor to determine custody. Trial courts should not "perpetuate the damaging stereotype that a mother's role is one of caregiver, and the father's role is that of an apathetic, irresponsible, or unfit parent."[319]
Nonetheless, because the father had admitted that the child's grandmother assisted him with "training that might best be done by a woman,"[320] the court found that his request for permanent sole custody was appropriately denied,[321] although the father had had sole custody for four months prior to the custody modification, and had presented evidence that the mother had a history of alcohol abuse and an unstable life.[322]

A father may challenge gender bias by claiming that the court has violated his right to equal protection of the laws, his fundamental right to parent his child, and his procedural due process right to a fair hearing. Ideally, any claims should be supported by discriminatory comments recorded in a transcript. Absent this proof, a father may choose to research custody records within a particular clerk of the court's office to determine whether any fathers have been awarded primary residential custody by a particular judge.[323] Because of cases such as Feeney, the unfortunate fact is that claimants will likely need to show a nearly 100% impact on the affected group.

In any event, it is hoped that fathers raising this challenge will be able to call to the court's attention the serious breach of their rights when fathers are discriminated against in custody decisions because of their gender. An increase in these claims may put courts on notice that fathers intend to see that their constitutional rights are upheld, and that courts absolutely must, for the best interests of children, fairly and justly weigh both parents equally when primary residential custody must be determined.

Fathers may have greater success with claims that trial courts have violated their fundamental right to parent their children. Because it is well-established that the right to parent one's child is a fundamental, constitutionally protected right, strict, rather than intermediate, scrutiny should be applied by the appellate court.[324] The state must have a compelling reason for interfering with the fundamental right.[325] In the least, it is hoped that this type of appeal will allow a father to acquire a significantly increased amount of time with his child, if not rotating or joint physical custody. Some fathers may be able to impress upon the trial court the sanctity of the parent-child relationship, and the seriousness with which custody determinations must be approached to ensure that the fundamental right to parent is minimally infringed upon.

Regarding a father's right to a fair hearing, a transcript is almost certainly essential to prove to an appellate court that the custody hearing was not fundamentally fair. Thus, whenever possible, fathers should have court reporters record custody proceedings. In conjunction with the requirement that states require judges to submit their custody awards in writing, with detailed findings of fact,[326] it is hoped that the increased use of trial transcripts will help to root out gender bias which results in fundamentally unfair proceedings.

VIII. RECOMMENDATIONS

A. End "Selective Discrimination"

Misandry has been defined as "the attribution of negative qualities to the entire male gender."[327] Today, it is politically correct within our culture to belittle and berate men, although the very same treatment toward women could result in a civil lawsuit.[328] This is selective discrimination.

While the male power structure undoubtedly deserves criticism, males alone do not defend and uphold its principles; indeed, many women support male values, such as individualism, liberty, production, and competition. Moreover, as evidenced in family court, for example, males can be victimized by the male power structure, which perpetuates the myth that, to be recognized as valuable, fathers must economically provide for their families.

However, to discriminate against individual men because they are men is an entirely different matter. As women and minorities have argued for the last thirty years regarding their particular interests, men, too, should be evaluated on an individual, non-discriminatory basis, especially when it comes to custody of children. To do otherwise extinguishes the ability to fairly evaluate and administer the placement that is in the best interests of children.

In 1996, NOW issued National Conference Resolutions announcing that the organization was preparing a counterassault against all fathers' rights groups because their recent successes-primarily legislation that inched fathers minimally forward to permitting them to spend more time with their children-threatened "all women."[329]

What is so wrong with fathers spending more time with their children? For many women, this change presents a threat in the only arena in which they clearly have an advantage: the family court. On the one hand, it is hard to blame women for fighting tooth and nail to maintain every inch of the status quo they enjoy within our legal system. But because women have fought for-and won-the right to enter into traditional male domains, women should therefore understand what it feels like to be subject to oppression, based on a physical characteristic. Instead of judging all males "in the form of universals, rather than in the form of particulars of individual parents' experiences,"[330] women must recognize the important role most fathers play in the lives of their children. Furthermore, women should take this recognition one step further:

Theoretical literature depicts "mothering" as an activity exclusive to women. Fathers will continue not to be custodial parents as long as societal divisions of child care responsibility persist. Feminist theory could do much toward exploding the myth that parenting is a sex-linked trait, and toward fostering an understanding of how men can nurture and take on child care responsibilities.[331]
Indeed, many women might ask "Why should we encourage fathers to care for and seek custody of children when it will leave us as second class citizens in the workplace and at home?" Because welcoming fathers into the childcare sphere benefits women as well as children, in that it frees women of oppressive stereotypical roles and allows men to explore and incorporate traditionally female-identified characteristics, making both women and men better people; because it is undoubtedly in the best interests of children to have the maximum amount of love and care from both fit parents; because having been subjugated by gender bias, women should know better and thus should be true to female values, such as communitarian inclusion, rather than tyrannical oppression. Discrimination against fathers not only unjustly harms fathers, but even more significantly, harms children who suffer when their fathers are treated as insignificant, disposable factors unessential in the lives of their children.

B. Implement "Courtwatch" Programs to Empirically Examine Contested Custody Decisions

Problematically, many gender bias studies gather their data through subjective surveys, questionnaires, and personal testimonies rather than through empirical examinations of the actual custody-making decision in the courtroom.[332]

Objective data regarding custody awards should be gathered to

determine whether the gender-biased application of gender-neutral laws is occurring. Legislatures should either fund their own studies, fund studies by the judiciary, or contract out to private organizations to develop a methodology for tracking, categorizing, and analyzing custody awards in selected, representative areas. Moreover, until trial judges are required to provide written findings supporting their reasons for awarding custody or primary residency to one parent over another,[333] a courtwatch program should be funded and implemented to monitor the way courts, witnesses, and experts treat mothers and fathers in custody litigation.

Implementing these two recommendations should inform policymakers of what is truly considered when family courts make custody decisions.

C. Implement a Statutory Presumption in Favor of Joint Physical or Rotating Custody

Recognizing that children need both parents, some states have passed legislation that presumes that parents will share parental responsibility of children.[334] In some states, statutes invoke a presumption that joint custody is in the best interests of children when both parents agree to it.[335]

In 1997, the Florida Legislature passed a bill stating that rotating custody is a viable option for judges to consider when determining custodial arrangements.[336] Rotating custody means that parents who live within the same community can split custody of the child fifty-fifty, such as where the child lives one week with one parent, and a subsequent week with the other parent.

Florida, and all states, should establish a rebuttable presumption in favor of not only shared parental responsibility but also joint residential or rotating custody when both parents are fit and live within the same community. The presumption should be defeated only if independent, corroborated facts demonstrate clearly that rotating custody is not in the best interests of the child.[337] The presumption should not be defeated merely because the parent likely to be the custodial parent does not want to engage in rotating custody. An opportunity to opt out merely by choice places noncustodial parents, usually fathers, at the mercy of the custodial parent. This result favors the mother because if she declines to support rotating custody she has a much greater chance of receiving primary residential custody.

D. Require Judges to Make Specific Findings of Fact When Determining Custody

In Florida, the law currently does not require judges to make specific findings as to why they are awarding primary residential custody to one parent over another.[338]

Chapter 61 should be amended to require that when making primary residential custody determinations, judges must state on the record specific findings as to why they are awarding primary residential custody to a particular parent.[339] Presently, most judges simply state that they find it is in the best interests of children that the mother receive primary residential custody, without specifically stating why they are making that finding. Requiring these findings to be made in detail and on the record would better indicate whether judges are truly considering the statutory criteria of gender neutrality when making custody determinations. This requirement would also help to demonstrate when judges are abusing their discretion and exercising gender bias when making their determination. Finally, specific findings stated on the record would better preserve the issue for appeal. Under the current practice, an appellate court is highly unlikely to reverse a judge's custody determination because the statute allows judges to exercise broad subjective discretion and reviewing courts usually award great deference to trial court judges' decisions.

E. Require Clerks of the Circuit Courts to Record Which Parent Receives Primary Residential Custody

Although Florida's child custody statute states that "[a]fter considering all relevant facts, the father of the child shall be given the same consideration as the mother in determining the primary residence of a child irrespective of the age or sex of the child," [340] statistics are not being kept by the clerks of the circuit courts to confirm that courts are adhering to this statutory requirement. There is currently no evidence that fathers are being considered as primary residential custodians to the same degree that mothers are considered. Indeed, the evidence appears to indicate that Florida follows the national trend of awarding primary residential custody to mothers in overwhelming numbers. Therefore, in order to enforce adherence to the statutory requirement that fathers be considered equally when custody is determined, either the legislature or the supreme court should require circuit courts to report whether the mother or the father receives primary residential custody during the initial custody determination of the divorce proceeding.

F. Revise Child Support Guidelines

Although the very troublesome topic of child support is beyond the scope of this Comment, courts should note that United States General Accounting Office statistics demonstrate that two-thirds of all fathers with child support arrearages are incapable of paying the amount ordered.[341]

More often than not, these "guidelines" are adhered to as the absolute law rather than simple guidelines. States should realize that child support can be an impediment to the father-child relationship.[342] For example, when fathers reside a significant distance away from their children, excessive child support can interfere with the father's ability to spend time with his children due to transportation costs. Additionally, child support guidelines do not take into account that fathers must set up separate residences requiring furnishings and other accommodations and supplies for children. For example, the report on which Florida's current child support guidelines are based states that the author drafted the guidelines according to a two-parent intact family model, rather than incorporating the reality of two separate households.[343] Second household set-up and maintenance costs were intentionally excluded.[344] With the move toward joint and rotating custody of children, the need to include these costs within the child support formula becomes even greater. The exclusion of such costs is not only patently unfair to noncustodial parents, but to children as well who suffer when their noncustodial parent is subject to actual, or near abject, poverty, or cannot provide an additional home that parallels the quality of the home offered by the mother. As Cynthia L. Ewing, a Senior Policy Analyst with the Children's Rights Council noted:

[F]or a child support system to work, the levels of child support must be reasonable and based on the TRUE costs of raising children. In practice, the child support guidelines are none of the above. Child support guidelines must reflect the basic fact that it costs more to maintain two households than one. Excessive child support awards which force obligors to work 2 or 3 jobs in order to meet their support payment are NOT serving the best interests of our children. Parents caught in this trap simply do not have the time to parent, to provide the emotional support and guidance which our children desperately need. Excessive support awards which drive obligors themselves into poverty or homelessness are NOT serving the best interests of our children. While the media is quick to note that many custodial parents, primarily mothers, are living in poverty, they fail to report that the same may also apply to noncustodial parents. A University of Wisconsin study found that 58% of non-custodial parents are living below the poverty level. Congress must recognize the unfortunate fact that children of divorced or separated parents may never exist at the same standard of living they enjoyed as an intact family. Congress must accept that the overwhelming majority of children of unwed parents will likely be raised at a standard of living at or below the poverty level, regardless of the bureaucracy's success at collecting child support.[345]
States should implement study commissions composed of genuinely unbiased members including custodial and non-custodial fathers and mothers who can redesign child support guidelines to include costs necessary to set-up and maintain both households.

Moreover, non-custodial parents with fifty-fifty custody should not be required to pay child support as long as the child's reasonable needs are met in both households. Women should recognize the dishonesty of arguing for social equality yet voluntarily submitting themselves to the traditional experience of extracting financial support from men to support children when it is not necessary to support the reasonable needs of the children.[346] In most cases, responsible fathers who are allowed to remain involved in their children's lives will financially contribute directly to the child's care as they did prior to the divorce. Funding for needs beyond those which are reasonable should not be routed through mothers via state-instituted wealth transfers.

G. Implement True Parity in the Workplace

In the end, the most effective way to correct the post-divorce inequities between the sexes is simple: correct pay inequality in the work force. If the wage gap were wiped out between the sexes, a federal advisory council concluded in 1982, one half of female-headed households would be instantly lifted out of poverty.[347]
Women, and men, should proactively seek eradication of the glass ceiling and should pursue true economic and social values parity for women in the workplace. True parity, however, does not mean that women should be expected to adopt the male-norm in the workplace; instead, the workplace should fully integrate behavior culturally identified as female-based:

Women have tried too long and too hard to be like men. The second stage of the social transformation must be for men to become more like women. The traditional male power base in the workplace no longer simply can bring women on board, and expect them to thrive and prosper because they are there. Rather, the workplace must become more humane and inviting for all. It must recognize that workers have personal lives and that families require time and attention, and integrate these factors into the workplace.[348]
With the transformation in gender roles so that now both parents are expected to care for children and work, quality, inexpensive daycare, preferably on workplace premises, is essential. Both parents should be equally and actively encouraged by employers to play a significant role in the lives of their children. Employers should permit parents to engage in alternative work hours or to work from the home via telecommuting. Fathers, as well as mothers, should take leave from work when necessary to care for their children. These are just a few examples of ways in which employers should actively incorporate behavior culturally identified as female within the workplace.

IX. CONCLUSION

The evidence is overwhelming and demands that we re-examine the wisdom of conventional custody. Unless you believe that a father's value to his children diminishes after divorce, it is hard to justify a custody policy that routinely and automatically disrupts the divorced father's relationship with his children. The notion that only mothers are important to their children is false; it is time to jettison it from custody policy.[349]
If the treatment fathers receive in the family court occurred in the workplace, an affirmative action plan would likely be implemented to rectify the pervasive discrimination and barriers fathers encounter as they seek meaningful access to their children in family courts. Ample evidence exists to prove that children need loving fathers to substantively care for them. Many fathers stand ready and willing to take on this charge, despite societal messages that "real men don't take care of children." As Florida's Fourth District Court of Appeal noted in Willey v. Willey,[350] courts should do all that is possible to encourage fathers to embrace their fatherhood, rather than interject barriers and gender bias to confine fathers to insignificant child care roles. In turn, mothers should encourage the father-child relationship, and should seek and expect true parity in the workplace that incorporates culturally female-identified values.

As the twentieth century concludes, both mothers and fathers, and all members of society, including judges, must work actively to discard outdated gender stereotypes that are no longer relevant and that oppress both men and women at home, in the workplace, and in family court. The health and well-being of children depend on the ability of both parents, and all others, to work cooperatively to achieve this critical goal.