Friday, October 28, 2005

Child Custody

As I promised, I have given some thought to how child custody and visitation might be handled in a free society. Murray Rothbard considered children to be the "property", in a peculiar sense, of their mothers as their creators or homesteaders, and it makes some sense to grant paramount parental rights to mothers in the absence of any agreement to the contrary. This would be consistent with the requirement that the system for dealing with child custody and visitation be as unintrusive and as inexpensive as possible. Disputes over child custody and visitation (CCV) are problems for the disputants, but the disputants have no right to make their private disputes the responsibility of third parties. If you or your ex-mate cannot be adults about CCV, there is no reason that I or any other disinterested third party should be required to pay for an expensive dispute resolution bureaucracy or an intrusive child welfare agency.

Having mothers as the default custodians has at least two advantages. Firstly, maternity is rarely in question. Secondly, it appears to be the societal norm that mothers are the primary caregivers of their children even in the case of mothers with full time jobs.

Of course, parents (and others) could contract for different CCV provisions, and these agreements should be enforced. For example, a father might contract with his mate to share parental rights or for the father to have sole rights.

This leaves out those fathers who fail to contract for rights but who later wish to have CCV privileges. In many cases, the mother will afford such privileges voluntarily or in exchange for financial support. Most women who truly love their children will want them to have healthy relationships with their non-custodial fathers. In some cases, spiteful mothers may deprive their former mates of access to their children, and the system I propose will afford no remedy in such cases. Men will have a powerful incentive to stay on the good sides of their wives or baby-mommas, to avoid reproducing with spiteful women, and to make contractual arrangements for parental rights. Men who love their children and find themselves cut out of their lives will be SOL under my proposed system, but this can't be helped without undue expense and imposition on the rest of society. I might point out that this injustice already occurs routinely even with an elaborate and expensive family court system.

Why not choose fathers as the default custodians? Firstly, paternity is sometimes at issue. Secondly, it is an unfortunate social fact that many fathers are entirely disinterested in and are more or less incompetent at being primary caregivers. This would be especially true in the case of men who did not have the foresight or interest to make advance contractual arrangements for parental rights. Frankly, in my experience in divorce cases, child welfare and as a children's advocate for 20 years, I have seen a lot of men use CCV proceedings as power plays rather than as manifestations of a genuine desire to take on more parental responsibility. This is especially true in lower income families where the default provisions are most likely to come into play. No good can come of tilting power relations in these families more in the favor of men.

What if the mother or the party with contractual parental rights is unfit? I would permit any person to petition for custody of any child on the basis of abuse, abandonment or neglect. The burden of proof would be on the petitioner. To keep these cases to a minimum, I would make it relatively difficult to establish unfitness. There would be no need for any publicly funded child welfare apparatus.

This system would not be competent to determine the best interests of children, only the respective rights of various adults, but the present system that purports to apply the best interests standard does not, in fact, succeed in doing so in any meaningful way. Let's save ourselves a lot of time and money by abandoning this unattainable standard.

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