I have been following, with interest, the cries of the Single Fathers Association for equality of treatment in child custody matters. How times have changed! In old times, the father was in charge of the family. His wife and children were his property. When we left the 19th century behind, we saw the birth of the tender-years doctrine: the presumption that young children under age seven years should be in the care of their mothers. This has now been replaced by the principle of the best interests of the child under which both parents stand on equal footing before the courts. The Single Fathers Association has accused the courts of being biased against them and highly favouring mothers in custody disputes.
Organised groups of fathers against the perceived gender bias of courts are a fairly new phenomenon not peculiar to T&T. Some are quite militant and have attacked judges. In 2001, while attending the Third World Congress on Family Law and Children's Rights in Bath, England, the police had to escort us into the conference as a fathers' group tried to intimidate us. The main target of their anger was the then President of the Family Division of the High Court of Justice of England and Wales, Justice Butler-Sloss. The T&T group has been quite vocal and has made statements which are unchallenged. Are they true?
Some years ago, while pursuing a certificate course in gender and development studies at UWI, Cave Hill, I conducted a study on gender bias in the courts in T&T. One of the areas of law I examined was child custody cases. I was aware of similar studies conducted in the United States, Canada and Australia. What these studies had in common was that the results were not in accord with the widely held belief that fathers were discriminated against in child custody cases.I was unsure of what I would find. Having read criticisms of the Massachusetts study, I looked at all reported contested cases over a period. To my surprise, I found that fathers were awarded custody in 50 per cent of contested cases. From my research, and my years of experience in the courts, I found that most fathers did not contest custody, so mothers were generally given custody. Whether fathers did not contest because they felt mothers were better suited to bring up the child, or they would not stand a chance of succeeding, I could not say. What I found a bit curious during my research was that in every case where the father was granted custody, the judge had made mention of a mother figure in the father's life–his own mother, his second wife, sister or nanny–as though the father needed some female to assist him in his parenting role.
It would be surprising to me if the situation in the magistrates' courts is different since I have practiced in all courts, but it bears investigation. Since magistrates' courts are not courts of record, research there is problematic. Whether the courts treat never-married fathers differently from divorced fathers, I cannot say. The law, of itself, no longer discriminates against unwed fathers once paternity is recognised or established.I agree with the Single Fathers Association that the absence of fathers from a child's life has negative consequences. This is a general rule and is subject to exceptions. I believe that judges do the best they can based on the evidence before them. Like the Single Fathers Association and the Family Court, I recommend mediation as a better method of settling custody disputes.
There is need for greater education of judges, lawyers and parents on custody matters. On a visit to Hofstra University some years ago, I was invited by Professor Andrew Schepard, Director of the Center for Children, Families and the Law and a leading figure in the Association of Family and Conciliation Courts, to attend a parental education class at a family court. I listened while parents were informed about the effects of divorce–legal, practical and psychological issues, especially, as regards their relationship with their children. The judge told me afterwards that she does not grant a divorce to anyone who does not attend the sessions. It might be useful to institute such a training session here for parents going through a divorce and parents whose non-marital relationships have broken down. I wish all fathers Happy Father's Day.
Hazel Thompson-Ahye