What do you expect?

Why is it that the legal system and the institutional structures seem to be so stacked against fathers? I am coming to believe that it is due to the expectations that people have of fathers. These expectations have come about from what people see and hear. Much of this is a result of what we, as fathers, do and think.

by Stuart Birks

A notable Jewish sage, Rabbi Hillel, said almost two thousand years ago: "Im ain ani li, mi li?" which means, "If I am not for myself, who is for me?" If we, as fathers, do not fundamentally believe ourselves to be equal to mothers, then why expect that of anybody else? We ourselves do not believe that we have the same rights as mothers. On separation we give up the home, give up the chattels, live in temporary accommodation for years while property settlements are delayed, accept limited contact with our children, and then, from this weak bargaining position, fight for minor improvements in our position. What would the average mother say if she were told to accept contact with her children one weekend a fortnight? Why do we assume that the mother has greater rights to the children and the house, that we should lose contact, we should rough it rather than her? Why do we still see ourselves in the provider role when the state will force us to provide anyway?

When we ask if officials treat fathers and mothers the same, we should also ask, "Do fathers and mothers act in the same way themselves?" The answer would have to be, "No". So why then expect the same advice or treatment?

We should set our sights higher than just being a secondary parent in the background.

I have often seen men withdraw when they get hurt by marriage breakdown - can we afford to do that to our children? Custody is a hearts and minds contest. Withdrawal is seen as abandonment, indifference, or worse. Instead of just feeling the pain and perceived injustice, we should form a clearer view of our natural rights and entitlements. We should work to make ourselves "better instruments to achieve our goals". The law says that there is no gender discrimination, so we must stress this and expect the same treatment as mothers.

We should promote the use of the word parent, rather than father and mother. Long ago, feminists recognised the importance of highlighting gender-specific language which had a discriminatory effect on them. There is a problem of sexist language in terms of the family which has not been highlighted to the same extent.

We should ask, what would a woman ask for/demand/accept? How would a woman expect to be treated? We should repeatedly ask, of ourselves, of counsellors, of psychologists, of lawyers and of judges, "Would you say this to a mother, would you ask this of a mother, would you expect acceptance of this by a mother?" If the answer to any of these is, "No", then in our minds and in the minds of others, there is not equal treatment. This is the starting point for change, and the first people whose attitudes have to change are we ourselves, fathers.


In 1990 in New Zealand, fathers were awarded sole custody in only about 12 per cent of final custody orders. There was joint or split custody in a further 10 per cent of cases. (Final orders are made in only about 40 per cent of all cases. They would not normally be made when custody is not contested.) According to the child support data, only 16 per cent of lone parents are men. Why do most separated fathers find themselves in the position of non-custodial parent?

Men I know have come away from dealings with the family court convinced that they are considered second-class citizens simply because they are men. A Family Court Counselling Co- ordinator said that a change in custody would usually be one of the last options considered to overcome an unsatisfactory situation. A father, having met all the agreed matrimonial property and child support obligations, was told by a Family Court Judge to "go away and renegotiate" access when the mother stopped him from seeing his children. A lawyer suggested to his male client that he should reduce his involvement with his children to try to pressure their mother into giving him all or part custody. A woman psychologist automatically assumed that a father was "grieving the loss of his children" when he described the parental alienation actions of his ex-partner that he was trying to counter. (Parental alienation is where children are distanced/alienated from one parent due to the actions and behaviour of the other. This can range from overt put downs of the parent to more subtle obstacles such as not passing on messages, for example.) Another woman psychologist suggested that all non-custodial parents can do is wait until the mother or the children push for a change. Yet another told a father that non-custodial applicants have only a ten per cent chance of successfully applying through the Family Court for a change of custody in their favour. These could hardly be considered positive or encouraging signals.

In New Zealand children can be staying with a non-custodial parent (the so-called "absent parent") for up to 145 nights in a year. There is no reduction whatsoever in child support obligation as stay with the NCP rises from 0 to 145 nights. This is because outlays are said to be for the "enjoyment" of access. Presumably custodial parents do not enjoy their time with the children. In Australia, matrimonial property is divided unequally in favour of the custodial parent.

A common complaint by men is that they are seen as no more than "walking wallets". The criteria used to determine custody and changes in custody would seem to reinforce that view.

"Continuity" is one of the most important factors in deciding who gets custody of the children. This includes continuity of use of the family home. If the father moves out while the mother stays behind with the children, then the father is already disadvantaged in any competition for custody.

"Continuity" is also applied to caregiving. If the mother did not work outside the home, or worked part-time, she is considered to have been the primary caregiver. Fathers are severely disadvantaged by being the sole breadwinner.

If the children are with the mother initially after a separation, then her position is even more entrenched. After separation, "continuity" essentially means a strong presumption in favour of maintaining the status quo. As they say, "possession is nine tenths of the law".

The emphasis would appear to be on having one effective parent with whom the children stay, while looking to the other parent for a financial input only. Sadly, children are unlikely to associate the financial contribution with the payer except with the goodwill of the custodial parent.

Even problems of parental alienation are largely ignored by the Family Court. One father, using the Court to assert his access rights in the face of strong alienation, was told by the Judge that his application to the Court had contributed to the alienation, so he was partly to blame.


A mutually agreed settlement is always preferable to a legal battle. However, there are some things fathers can do to improve the chances of a fair outcome if ever they do find themselves applying for custody of their children.

As a general rule, we should ask ourselves, "What would a mother do?" How should we change our behaviour to follow the same patterns?

During the marriage:

  • We should not be the sole breadwinners
  • We should be involved in the day-to-day care of our children
  • We should know our children’s friends and interests
  • Their friends should be allowed round when we are in charge
  • We should be known at the children’s schools
  • We should be able to care for the children on our own for an extended period.
On or after separation:
  • We should not be the ones to leave the home and the children. Some fathers are now saying, "If you want the marriage to end, you go and I’ll stay here with the children". I get the impression that this is the most crucial factor for gaining custody.
  • If we do leave, we should take our share of the chattels straight away. The home may be split by this, but it means that there is continuity for the children linking your old and new homes. They are not "visiting" a strange place, there are possessions which make it familiar to them.
  • We should try to retain as much time with the children as we can. We need enough time to maintain a close relationship with the children. Fortnightly "visits" are not sufficient. We have as much right to time with the children as the mother does. We should not throw that right away without thinking about it first.
  • We should aim to maintain close contacts with teachers, keep or make contact with the parents of our children’s friends, draw our children into a community, and not isolate ourselves.
  • We should make clear just what the money we pay is expected to cover. We should have some accountability for its use.
We must become more aware of our rights and responsibilities and become more vocal in asserting ourselves. Only then are we likely to get a greater involvement in our children’s lives after separation, and only then will child support and matrimonial property allocations be fair to all parties.

How to Subscribe to Certified Male

Go to table of contents

© Copyright 1995.