As promised, I want to take up some questions of custody. Of children, that is.
As I did some research for this, I discovered some facts that I didn’t know, and re-discovered some things that used to be fairly commonly said but have fallen out of common parlance.
For example, apparently for centuries, when an unwed mother gave birth, the father was accounted as having no rights at all, whereas if married the father had full rights and the mother virtually none at all. I see claims that in some places mothers were accounted not as a co-equal “parent” with the father, but as (a) the father’s wife – her first place in the family which entitles her only to WIFELY estate, and (b) as the children’s caretaker to the extent the father approves same. Hence her position over the children was little more than glorified babysitter.
Apparently, under Roman law children were accounted a kind of possession of the father, at least in some respects though perhaps not all. This is undoubtedly connected with the Roman father’s authority to abandon a child by exposure. And this attitude carried over into middle ages, where children were (after infancy) viewed as a valuable resource for labor, to which the father had the right (until older, I guess).
Fairly recently (speaking historically), in the US, the custody rules for children after divorce relied on the “principle” of so-called “tender years”, in which it was said that a child needs its mother during its tender years, much more so than its father. As a result, virtually all custody battles between parents for children under age 7 were won by mothers. This became standard only starting in the later 1800s, I gather. Before that, at least in some places, illegitimate children were simply left to the community to raise, belonging neither to the father (who had no rights) nor to the mother. Only much more recently did unwed fathers start to get ANY traction in having a voice on custody of their biological children. They still have nowhere near an equal position.
I am not going to parse through an actual history of the development of the ideas surrounding custody. I am going to lay out some truths that I think I can defend as reasonable and probable, but I don’t claim to be able to prove them all definitively from first principles. Though I will add some first principles, starting here: God made man and woman for each other, male and female He created them, the one completes the other. This completion is seen physically, but is TRUE also emotionally, psychologically, affectively, and even spiritually – in different ways. But the physical sense is the most obvious: man and woman cannot reproduce except together, and since reproducing is a very great good of human nature, the impetus toward being together is very great.
And permanent. That is, God made marriage to be permanent, for life. Unlike most animals, human children take fully (at a minimum) 14 years to grow up, more like 20, and (for handicapped children) for life sometimes. It takes a commitment that is open-ended (without specified end-date) to be a parent, and so marriage is permanent. At the spiritual level, marriage is a pointer and preparer to teach man about union with God, and part of the way it does this preparing is by showing us a pathway of committed, unconditional love so we are prepared to commit to that kind of relationship with God. To wholly give yourself away in love is to give yourself away without a definite time limit. And thus married love is properly a whole commitment of self, until death.
There is no such thing as a lasting community of persons without someone having the authority to decide on different matters. For, as soon as there is a disagreement as to the right way to take (on a grave matter) if there is nobody who has the authority to which others ought to defer, then all those others will generally perceive an OBLIGATION to stand up for their own preferred judgment…and the community will not be in common any more, it will dissolve by each going his own way. So, in any ongoing community, there can and must be a way of identifying who has the authority: it may be by election, by lots, by Divine appointment, permanent or temporary, but it has to BE. By making the family a permanent institution, God created a definitive need for there to be someone in charge.
In the family, God made it the husband. He could have done it differently. He could have designed it so that they choose, or they switch on an annual basis, or any of 50 other approaches, but He didn’t. We can propose dozens of plausible reasons why the way He chose works, but none of them FORCED God’s hand, because He could have made man differently so some other arrangement would have made sense for man. He chose that mankind would consist of 2 sexes (not one and not 23), and that the husband would be the authority of the family. (Which, by the way, shows the inherent limitation of that authority: as in all other cases, authority exists for the common good of the community, not for the personal good of the guy in charge. Hence for a man to be in charge in the true way is for a man to carry out the office of father by serving the good of the rest, it is a role of service.) And, among humans, to be in authority is not to be a different species than those who are ruled, it is a vocation of service that adds to man a superficial layer of good, not changing his essence. This is important, because men and women are of the same nature, and share completely equal dignity in sharing that nature, neither one is more than the other in essence. The only difference in dignity is regarding layers of good added on top of the basic nature, much as a president receives the dignities of his office but has no claim on them from his very nature.
The PRIMARY meaning of parenthood is love. God the Father is not our biological father, any more than he is the biological father of the Son of God. But He is the paradigm of being a father. Fatherhood (and motherhood) is found FIRST in the act of love by which a man and a woman commit to permanent, unconditional love for each other, and in expressing that love physically, with a willing extension of their love for each other into love for the fruit of their love made flesh, a child. True parenthood as a human being, as a rational being with intellect (capable of foreseeing) and will, is an act of love made permanently and unconditionally for the child that God may send to the family formed by marriage.
As in all other things made to be united, God made the family’s good to be integrated with the good of the members: to be a flourishing human being means, among other things, to be serving others and being served in the family by turns. One of the ways a father and a mother serve the good of the children is by being in the flesh an example of permanent, unconditional love to each other, the husband demonstrating love as a man to his wife, the woman demonstrating unconditional love as a woman to her husband, (both of which are, also, the promise of unconditional love for the child). This manifestation of love is for the child like daily rain on the young, thirsty plant, this is necessary for thriving. And so one of the templates of love the parents live out in demonstration to the children is that of loving authority and loving obedience. Children need all this to flourish. And to learn their own future roles.
Now we come to the crux of this: children who either are not born into a married family relationship of parents, or who were but whose parents are splitting.
It is inevitable that if a child is raised with one parent, the other being apart by either the lack of or the failure of marriage, the child necessarily suffers from NOT having that daily demonstration of permanent, unconditional self-giving love between father and mother, and that daily promise of unconditional love for the child that resides in their love for each other. As a result, the child’s vocation as a human being called to permanent, unconditional love of God is placed in great jeopardy: without the template, how is he to be able to even perceive much less carry out his calling? And in addition to the defect of not modeling the kind of love we are called to with God, the single parent is not modeling as well that entirely ordinary human love between equals that ought to be every human’s estate with others as a complete person. Nor is that single parent demonstrating loving authority and loving obedience before the child. Therefore, it is ALWAYS the case that conceiving and raising a child out of wedlock, or marrying but separating and raising the child alone, presents real damage to the child, whatever else is true in the given circumstances. Other than acts of actual, direct abuse, there is hardly any graver damage a child can suffer. (We see it in all the emotional and psychological train wrecks that we observe in kids raised without one of the parents.)
So, what is the best solution for such kids? I will separate it out into 2 categories: those kids conceived where the bio-parents are not married, and those conceived within a marriage. For the former, their basic need is to be received into a family, an intact marital relationship of mother and father. Rarely, if ever, will there be any reason why this will not be much, much better for the child than being raised by just one parent. And, since within marriage by God’s design what is good for parents is good for kids and vice versa (that integrity of the natural social unity I mentioned above), the fact that the bio-parents brought that child into being without marriage, without that marital integrating, unifying coordination of personal goods, means that in justice THEIR personal goods take a far, far distant third to the good of the child and of society.
The basic consequence is simple, if unsavory to some: a bio-father has no right to complain if the bio-mother wants to put the baby up for adoption, and frankly the ONLY real right a society like ours ought to give the father is a right to discuss his preferred religion for an adoptive family. The bio-father simply doesn’t have much in the way of rights, naturally, and shouldn’t be granted much by society. But also, the bio-mother ought to not keep the baby herself as a single mother if a reasonable adoptive family is available, her moral right to keep the baby is less than the baby’s right to be raised in a family with the permanent, unconditional love of two spouses for each other and him or her.
Ah, but what if the bio-mother wants to keep the baby in spite of the baby’s needs? Well, here is where we get into social and cultural particularities that cannot be solved globally, by general principles.
In a society in which abortion is unheard of and in which there are more adopting-ready families than there are babies needing a family, I could see it reasonable for society to insist on her giving the baby up for adoption, by law. Yes, to our sensibilities that seems a harsh wrench against “feeling”. But (as my previous post indicated) if society has the right to regulate when you can have sex (even though you are “in love” that doesn’t trump society’s right to constrain you), for the sake of the children to be thus conceived so that they be born into a family, surely society has the right to insist that when you refuse to abide by that law about having sex only within a family, you don’t get to decide on keeping the baby and raising it outside of a family. And, just as it isn’t real love (the love God designed for spouses), when 2 gays want to have sex, and it is a deformity against real love when a man and a woman want to have sex without regard to any children, so also (usually) it is an act against real love for the bio-mother to refuse to place the baby for adoption if a good family is available. Society plausibly can act for the good of the baby and society over the good (as she feels it) for the bio-mother.
That’s (part of) the argument in favor of 100% adopting out. However, I did say above that “I could see it reasonable” rather than insisting on the one right way because I can see alternative arguments. One of them is that society hasn’t the right, the authority to decide that. The baby does not belong to society, but to the mother. Now, those who make this argument have a couple of worries about making it stick. First of all, when you introduce “belong” you have to worry about harking back to the Roman pater and his ownership of the children, including to the extent of exposing a baby to death. That kind of “belong”? No, let’s hope not.
Secondly, you have to face up to the fact that the basic unit of society is the FAMILY, and to a large extent individuals within a family have social rights mediated by the family. A family is a natural entity. A child “belongs” to its family (and the family belongs to the child, so within family that squelches the idea of belonging as ownership.) Society doesn’t have the right to take a child away from a family just because the family is not ideal. But get rid of the family entity, and it just is not really all clear that the child by nature “belongs” to the bio-mother in a sufficient sense to be able to say to society to “bug off, it’s her decision” whether to put him up for adoption. There are societies who said otherwise. Even if in some general sense it ought to be her decision, it remains true that society has a right to stick its oar in when there is a severe case of abuse or neglect…and I did point out that failing to put the child into a family is a grave form of neglect. So, is “not placing for adoption” grave enough? All other things being equal, (as in, sound society with good laws and morals), I suspect yes, but I won’t insist on it.
But there is another objection: that by nature, the mother’s love of a child is so great that demanding that she give up her child is unnatural and will lead to other disturbances in society. The counterargument to the first (that it is unnatural) is that it was no natural love by which she first conceived the child, and it is no natural love to insist on keeping the child from being raised in a family. The counterargument to the second is not so easy: yes, because of the passions involved, a woman may be led to worse evils (even to killing the child), so we might have to accommodate less than ideal rules about it. I suspect that this will depend on circumstances that will vary from place to place and person to person, and no universal solution can be affirmed definitively.
Now, what about children in a failed marriage? Some (most, in the last 100 years) said the mother has the greater claim, and that usually she should have primary custody, unless she can be shown to be unfit. A newly urged argument is that this is sexist, unjust, and there is no prior reason to prefer one sex over the other. I might be inclined more toward the latter position, if I did not know that, at least through the 1980’s (maybe still true but maybe not), far more than half of divorces were more caused by the man than by the woman, and that this fact should be considered in the overall judgment: the custody battle isn’t simply a decision about JUST CLAIMS of a parent _over_ a child, it is also (always) a decision for mopping up the detritus of a failed marriage, and the kid’s best interest to be weighed with the parents’ interests and potentially against the at fault parent(s)’ interests. If a marriage is destroyed because a man commits adultery with the office secretary, there can be no easy reason to think that the man is going to be the better parent for the children. But I also would shy away from any overwhelming bias purely by general statistics: just because more adulteries wrecking marriage (used to be) initiated by men, doesn’t mean that’s what happened in THIS case. (And, by the way, I simply assume that effectively all marriages that end in divorce end only because of “fault”, and all divorce findings should be by a finding of fault in at least one party, if not both: out of justice for both the children and the victim spouse (if there is one), assigning fault (and acting on it) is a way of vindicating the their true rights. It tells a child he is right to feel slighted, abused.)
Since the 1970’s or 1980’s or so, there has been a vast increase in arrangements of joint custody. I tend to think this experiment was a big mistake and should end. I have seen far too many of these go on and on and on wrecking the lives of both parents and children. No, can we stop this experiment, please? I have also seen cases where the non-custody spouse has walked away and made a good life for themselves, because the custodial spouse had complete control and allowed no involvement of the other. A husband and a wife in marriage are supposed to be a family, a social unit, living together and working together. A FAILED marriage means, at a minimum, that they can’t live with each other, they can’t work toward the same goals together, they can’t come to mutual decisions together, they are at odds about decisions great and small with no end in sight. So, what joint custody appears to mean, in practice, is an ongoing custody by the STATE, who continually gets embroiled into the minutiae of what ought to be family decisions that are none of the state’s business, to pick one parent over the other time and time again and “grant” custody over X issue, until yet another blow up: which faith (and which flavor) to raise them in, which school to put them in, whether to allow the boy to play school football or object because it is too dangerous, etc, etc, etc.
I would propose an alternative. Usually, generally, for most cases: one parent should be chosen THE kids’ custodial parent for all purposes. Period. That’s all. However, to give a way and a reason for the other parent to be willing to accept such a thing, have the court appoint a family friend (i.e. a family that is friends with BOTH husband and wife) as back-up custodians. These friends, whom the “losing party” can refer to for objectivity, can intervene (or ask the court to intervene in extreme cases) if the “winning” parent’s custody is not being carried out properly. That way, there will be a mechanism in place for NOT having to have every little ongoing disagreement be heard at the state level by a judge who really doesn’t know the persons at all, when the state isn’t really designed to run families. Keep the decision-making below the level of the state, as much as possible. (And, by the way, “custody” is a different issue from right/ability of the non-custodian parent to have an ongoing relationship with kids. That’s a sticky problem I am not addressing.)
Should it be the mother or the father who usually gets custody? Let me ask a prior question: should we expect to find that USUALLY it will be with the mothers that the children will flourish as much as possible? Or, should we expect to find that USUALLY it will be with the fathers that the children will flourish most? Or, should we expect NOT to find either one on a USUAL basis, but only individual cases?
That’s tough to answer. But not necessarily impossible, for one very good reason: fathers and mothers are not interchangeable. The sexes are complementary not just physically, but in other ways as well. As a result, there is a real difference between a father’s role with kids and a mother’s role. So it should not be terribly surprising if there were certain rules of thumb by which we might judge that kids will do better with a father or a mother, and these rules might indeed weigh with a strong preponderance for one or the other.
But they won’t necessarily be EASY rules to apply, and they won’t outweigh all other factors. The old standard of “tender years” was such an easy rule…and arguably might be overly simplistic. Surely the court’s decision of where fault lies can change the application of tender years doctrine. But so could other considerations. For instance, we might need to take temperaments into account: it could be true that kids with a tendency to melancholia as a temperament (not simply as a response to the divorce) do particularly poorly with a parent who has a sunshiny sanguine temperament who never had a moment of angst in her life.
And of course there will be the question of splitting kids apart between parents. The good of siblings is so great that I would guess that splitting is almost never the right choice, but I hesitate to say it is a firm rule. (What about if there are 8 kids? A Four and Four split still leaves each kid growing up with several siblings. A single parent managing 8 might be so overwhelming a burden that he or she simply cannot do well enough to justify the “benefits” of being raised with your siblings.)
Instead I would end with this: asking “what are the _rights_ of the parents” is almost always the wrong question, at least before you have already answered about 243 prior ones. The parents had the definite DUTY to make loving acts of self-sacrifice to each other (even when it hurts), and at least one of them failed that duty gravely. The right of the kids to live with both parents is being denied them, and given that denial, at least one parent’s so-called “rights” to children is diminished to being almost irrelevant – i.e. with respect to a parent at fault. What should be the guiding principle would be “what will promote the greatest flourishing of all parties but especially the kids, without putting the state in the referee’s corner continuously.” As far as I can tell, that will normally not be shared custody, and will normally require careful (individual-based rather than merely categorical) judgment about the parents, the kids, and family & friends.