Father's Rights

By David C. Gardner

There are many references to "father's rights" in divorce law. As a divorce lawyer, we usually represent both mothers and fathers, and it is rare that an attorney only represents one sex in contested divorces or custody disputes. However, there are specific rights that father's usually want to protect when they go to court, and an attorney who represents fathers on a regular basis will recognize these rights. These include obtaining either joint custody or substantial access to a father's children, preventing what is frequently referred to as "alienation of affections" by their spouse, and avoiding paying such a large award of alimony that they cannot maintain a reasonable standard of living. Many fathers feel that courts are biased toward mothers, that they do not get a fair hearing when they go to court seeking custody, and that courts are biased toward woman when it comes to dividing assets and ordering alimony. This is where the term "father's rights" was coined, and it is why many fathers feel that they need an advocate who understands their rights and concerns.

In Maryland, there is no longer any legal basis for a bias toward the mother in either a contested divorce or contested custody dispute. By statute, if the parents live apart, "a court may award custody of a minor child to either parent or joint custody to both parents, and neither parent is presumed to have any right to custody that is superior to the right of the other." Family Law, Section 5-203

Indeed, Maryland's Equal Rights Amendment, Article 46 of the Maryland Declaration of Rights, specifies that "equality of rights under the law shall not be abridged or denied because of sex." It is therefore unconstitutional for a court to discriminate on the basis of sex, and the Maryland Court of Appeals has ruled that the gender of the parents is not a valid consideration in determining child custody. Giffin v. Crane, 351 Md. 133 (1998). This is important because it means that the maternal presumption has been abolished by the legislature, and the court begins with a presumption that both parents have equal custodial rights. In deciding custody the courts refer to the best interest standard, which means that a court is to determine what is in the best interest of the child in awarding custody or visitation rights.

Using the best interest standard, a court may award sole physical custody to either parent, or it may award shared physical custody, depending on the facts of each case. I have often been asked why mother's frequently win a custody dispute, and my response is because the mother often spends more time raising a child than the father, and as a result she becomes the "primary attachment figure" for the child from a very early age. There is literature in the field of psychology that supports the idea that taking a child from his primary attachment figure can cause irreparable harm, and the courts will not do this except under extreme circumstances. On the other hand, many fathers spend substantial time with their children, and may even become stay at home dads where they provide the majority of care for their children. In these cases, the father would stand in the same position as a stay at home mom, and is likely to receive primary physical custody.

In cases where both parents work and divide the responsibilities for picking up and dropping off their children from day care or school, as well as dividing the responsibility for taking their children to medical appointments and for seeing that their school work is completed, there is a strong argument that joint custody should be awarded; particularly where both parents live in close proximity to one another. This may include 50/50 custody, or it may include some other percentage that may be less than 50%, but results in shared physical custody. While there is no magic percentage of time that constitutes joint physical custody, once a father has more than 128 overnights (or 35% of the overnights) with his children, child support is calculated using the shared child support guidelines. Therefore, if a father is concerned about the amount of child support he will pay, one way to reduce the burden is to see that he receives at least 128 overnights with his child. Otherwise, the sole child support guidelines are used, and a father receives no credit when the child support guidelines are calculated, whether he spends 24 or 127 nights with his children. This is a rather unfortunate feature of the Maryland Child Support Guidelines, frequently referred to as the "cliff". Unless a father reaches this "cliff", which reduces the amount of child support, he gets no credit whatsoever for the time the children spend with him.

With regard to alimony, Maryland law has changed radically since the adoption of the Alimony Act of 1980. Under that Act, now embodied in Section 11-106 of the Family Law Article, the standards in determining alimony are no longer judicial (meaning judge made), but are statutory (meaning made by the legislature and contained in the statute). Before the Act was adopted, the Governor appointed a Commission on Domestic Relations Laws which submitted a Report which has been liberally cited by the Courts when applying the Act. The Report explained that "the purpose of alimony is to provide an economic means for both parties to deal with their new unmarried life on their own. Put another way, the purpose of alimony is to provide an opportunity for the recipient party to become self-supporting." In addition, the Report stated that alimony was "not to provide a lifetime pension, but to facilitate a transition for the parties from the joint married state to the separate single one, where this is practicable." As a consequence, "in the ordinary case" alimony is to be awarded for a definite time, to promote the transitional or rehabilitative function. Turrisi v. Sanzaro, 308 Md. 515 (1987)

This is important, because it means that alimony is no longer to be considered a lifetime pension, but is merely to facilitate a transition from the joint married state to a separate single state. Only when a mother is disabled, is elderly and never started a career, or where there will be a "gross disparity" in the parties' standards of living may the court award permanent alimony.