THE CASE AGAINST JOINT CUSTODY
What is at stake is the institution of marriage: Can it continue to be the foundation of society, a suitable arrangement for the procreation and proper rearing of children? Feminists and parlor intellectuals would have us think marriage is simply cohabitation plus a piece of paper. In my piece "The Case for Father Custody" I have quoted Brenda Hoggett, British feminist, Former Law Commissioner responsible for Family Law, as saying that the concept of matrimonial obligations is now not recognized by the law. The law "has adopted principles for the protection of children and dependent spouses which could be made equally applicable to the unmarried."
The "principles" referred to are that the ex-husband shall continue to subsidize the ex-wife after the marriage is terminated. This economic function was the husband's primary contribution to the marriage, the principal inducement he had to offer his wife to share her reproductive life with him, to bear his children--and he is required to continue to perform it after the marriage ceases to exist and after she deprives him of his children. Ms. Hoggett thinks that marriage no longer serves any useful purpose once ex- husbands can be choused into continuing this subsidization after the wife informs him that she no longer loves him and she and the law maintain that this terminates her obligations to him. Today's easy divorce permits her to withdraw her contribution and in addition to withdraw the children whose procreation and rearing were the primary purpose of the marriage. Since women and children are deemed to be dependent creatures, which they are, she is entitled to have the ex-husband continue to perform labor for her benefit--to accept slavery.
In other words, the husband was inveigled into a fraudulent contract, one which the wife is privileged to get out of and he is not. If he tries, he is a deadbeat dad and the law will make him pay. As our President says, "We will find you. We will catch you. We will make you pay." Women would never consent to such a reversal of the divorce contract. If lawmakers or judges allowed husbands to do what they now allow wives to do--to deprive the wives of their children, their homes and their property, and then compel the ex-wives to work and turn part of their income over to the ex-husbands, those lawmakers and judges would be torn to pieces by mobs of frenzied women. This, however, is the existing law with the genders reversed.
Proponents of joint custody tell us that husbands should submit to half of this outrage, on the grounds that it is better than submitting to all of it. Joint custody, they tell us, would at least push the pendulum back in the right direction, after which men could work for father custody itself. This misses the point: It still acknowledges that the marriage contract doesn't mean anything--that wives can still break their marriage contract and judges can still compel ex-husbands to compensate them for the harm her contract-breaking does by being good guys and keeping their part of the contract, continuing to pay the bills--while watching society slide into matriarchy as has happened in the ghettos. Women want to do away with the contract and proponents of joint custody want to give them half of what they want. If men won't insist that marriage means something, nobody else will. (Maggie Gallagher is an exception. Her recent book The Abolition of Marriage makes the same pitch I'm making, that marriage must once again be made to mean something.) Men must do this because they are the reproductive outsiders, the weak link in the family. The patriarchal revolution created the family in order to ensure men's reproductive role. Prior to this revolution of some 5,000 years ago, during the Stone Age, human reproduction followed the ghetto pattern, with the man in the role of a mere boyfriend. Men must see that a half-time subsidization of an ex-wife is still a betrayal of their children. They ought not to pay for the destruction of their families and ought not to pay to have their kids brought up half-time in a female-headed household where they are more likely to be mistreated, neglected, impoverished, delinquent and sexually confused. And, in addition, not knowing what a family is supposed to be.
No man can respect the system of law that gives him such a shabby deal as he receives in the divorce court--which requires him to actually pay a man, his wife's attorney, to help destroy his family, to deprive him of his property, and to attack his character, which permits three strangers, members of an odious profession, men with no interest in his welfare, to impose upon him an outrageously unjust arrangement depriving him of most of his motivations and laying heavy debts upon him for years, even for a lifetime--an arrangement often imposed even without due process, the two lawyers and the judge retiring into chambers to facilitate the carving up of his family and his property, to prevent a record being kept that might permit later appeals, and--not incidentally-- saving lawyers' time so that more cases may be processed and more fees generated.
Husbands are compelled to submit to this atrocity because the law is administered by weakling judges who will not enforce the contract of marriage. It is now a matter of principle for feminists to repudiate the sexual regulation which is the whole idea of marriage on the grounds that they have a sacred right to control their own bodies. That means that marriage is meaningless. That means that the female kinship system, matriarchy, is sacred-- the way they live in the ghettos and on Indian reservations and in the Republic of Haiti, the way they lived in the Stone Age. In making this claim they are repudiating their own right to make a stable and enforceable contract to share their reproductive life with a man--which is what marriage and family living and civilization are all about. The Seneca Falls feminists in 1848 complained that women were regarded as moral minors who were incompetent to make contracts and had to have contracts made for them their by husbands or fathers. Today's feminists are reclaiming the right to be moral minors--and the law is agreeing with them and passing on the social costs to ex-husbands. The judge himself is a moral minor. The judge wouldn't try to pass the costs along to the ex-husband if he didn't know the ex-husband was more responsible than the ex-wife. If he made comparable demands on her she would laugh at him and he knows it. He punishes the husband because he is more responsible and he rewards the wife because she is less responsible. This is miserable, indeed catastrophic, social policy, but it enables the judge himself to be a moral minor by not keeping his oath of office and enforcing the basic contract on which all else depends--and to tantrum at the husband if he doesn't bail him out for his own weakness of character, his refusal to administer equal justice under law and his lack of cognitive skill in refusing to see what he is doing to the fabric of society by destroying marriage and requiring husbands to continue to subsidize the women who hold his children hostage.
We need to look at the big picture of what is happening to our society--indeed to the whole industrialized world. It is abandoning the male kinship system and returning to the female kinship system of the ghettos. This is what women's liberation is all about--women's liberation from sexual regulation. (This is effectively argued by Ehrenreich, Hess and Jacobs in Re-Making Love.) It is no accident that three-quarters of divorce actions are initiated by wives. But it is wives' acceptance of sexual regulation that gives-- or should give--them their bargaining power with men and gives men their motivation for supporting families by working and creating the wealth of society. Men must be made to see that they owe it to themselves, to their children--and to their wives too--not to subsidize the female kinship system which is destroying society. Judges must be made to see that they should administer equal justice under law--not allow the wife to abandon her marriage contract while compelling the husband to keep to the terms of his.
There are judges who proclaim that they won't enforce fifty- fifty joint custody. Why should they when they can save themselves the trouble of thinking about what they are doing when they destroy half of society's families? James Cook, the leading advocate of joint custody, informs us that
Could a worse justification for joint custody be imagined? Cook is saying that it would make divorce more workable, more profitable for the woman. The "cycle" is not vicious; it is something to be encouraged. It is the anticipation of receiving support money which partly motivates wives to toss the old boy out in the first place. Simply the abolition of alimony and child support payments would be a salutary measure, something men's rights groups ought to work for.
What is a son in a joint custody household being taught about the institution of marriage? Is he being socialized to submit to the discipline of the classroom and the workplace so that he can get married and be treated as his sees his father is being treated? What is his sister being taught about the worth of the marriage vow she will someday take?
Goldstein, Freud and Solnit (Beyond the Best Interests of the Child) oppose joint custody. But they oppose it for the same reason they oppose requiring the custodial parent to permit visitation by the non-custodial parent--because it is necessary "to protect the security of an ongoing relationship--that between the child and the custodial parent" (p. 38). These naive people fail to see that visitation is necessary to protect the motivation of the father who sends the support check. And their naivete is shared by those who see the chief benefit of joint custody as being that it facilitates the collection of this support money. This is the worst possible reason for joint custody--that it makes the ongoing destruction of families affordable to the wives who initiate most divorces.
The time for a woman to find out she can't stand a man is not after the marriage takes place and children have been procreated, but when she is contemplating marriage. The woman and the man and the children and society all have the right to let them make an irrevocable contract, one which means what it says. The female kinship system is now becoming so firmly established that people have come to think marriage ought not to be a binding contract. This is very convenient for weak and shallow people who can't be bothered to take reproduction seriously, who like to talk about careers and "fulfillment" and getting out of an "unsatisfactory relationship." This is because the female kinship system is natural: if your cat has kittens you know that the mammalian female is in charge of reproduction. It is the contract which makes patriarchy, the two-parent family and civilization possible. Without the contract, without women's acceptance of sexual regulation, there is the lifestyle of the cat and her kittens, of Judge Noland's cattle ("I ain't never seen a calf following a bull; they always follow the cow, so I always give custody to the mammas"), the lifestyle of the ghetto and the Indian reservation-- matriarchy and its horrors.
Besides the contract which women and judges take so casually, there are practical and economic incentives which father custody, (but not joint custody) places on the side of family stability. Women don't want to lose their children and dad's paycheck. Men don't want the double burden of breadwinning and child custody. Women, once again, initiate most divorce actions. Women need assurance that the benefits of marriage are to be secured by marriage, not by divorce. Joint custody, like divorce itself, is one more contribution to the shallowness of American life which has made us a mock and a byword and a shaking of the head to the nations.