About Us | Articles | Attorney's | Books | Case Studies | Contact Us | Forum | Home | Join CFT | Links | Photo's | Resources

Fathers and the Family Court
by Stuart Birks
As published on About.com - Fatherhood

(A shorter version of this appeared in the Autumn 1996 edition of Certified Male)

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.

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 with 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.

Politicians now prefer the term "absent parent", although in New Zealand children can be staying with a "non-custodial" 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.


Section 23 of New Zealand's 1968 Guardianship Act states that, in custody decisions, the welfare of the child is paramount. Subsection 1A was added in 1980 - "For the purposes of this section, and regardless of the age of a child, there shall be no presumption that the placing of a child in the custody of a particular person will, because of the sex of that person, best serve the welfare of that child."

The then Minister of Justice, Hon. Jim McLay, made the intent perfectly clear in the associated parliamentary debate when he said: "There are those who believe that fathers do not gain custody of their children more often because the judiciary discriminates in favour of mothers. If any lingering trace of the so-called mother principle does in fact survive, it will be eradicated by the proposed new subsection (1A) of section 23, inserted by clause 8 of the Bill."

Why then are there so few men who are lone parents? Why are fathers being deterred from applying for or contesting custody? If we look for evidence of bias against men in the interpretation of family law, it is not hard to find.

Alistair Nicholson, Australian Family Court Chief Justice, has been on a judges' gender education course. That is why he now says of men that:

I think very often the marriage, or their approach to a marriage, may have been conditioned by older ideas. And I think there is very much a power factor comes into this. And I think the loss of that power that stems from the breakdown of the marriage is something that some men just cannot cope with. They in fact expected to control their wives, they expected to control their children, and they expected that they would do what they were told by them. And once that ceases to happen, I think they find that almost unbearable from the point of view of their ego.

This is why he dismisses men's dissatisfaction with Family Court orders as arising from "unusual motivations".

Catherine Fraser, Chief Justice of Alberta, explains that, as on average married men and women earn different amounts, gender-specific laws are needed. "What we're doing is, we're compensating mothers and wives for the disadvantages that have arisen because of the fact that they have been married ... In Canada, especially for long term marriages, we have taken the position that the reasonable standard of living is the marital standard of living." So there should be no fall in the woman's standard of living, irrespective of the impact on the father. There are no equivalent discriminatory laws favouring men in the areas of unpaid work and custody.

Judges Green and Boshier in New Zealand both believe that the custodial parent's freedom to relocate with the children should only be restricted, "where there is no apparent reason for a prime care-giver to move from an established residence and where the other parent has had a clear and important part in the child's life". By alienating the other parent, a primary care-giver can be free to relocate at will. They also believe that," ... where there is genuine reason to wish to move ... the mother's enhancement as a primary care-giver is more important than the father's wish to have ready contact". Were the father to have custody, I wonder if they would place such low a value on ready contact by the mother.

If the law in New Zealand is intended to rule out gender bias in custody decisions, why is the input of the father as non-custodial parent so lightly dismissed? How can decisions be unbiased if the process and the advice given is biased?


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 considered important for 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. If the children are with her 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. This is evident by New Zealand's use of the term "enjoyment" of access by the non-custodial parent. The failure to make any financial allowance for access in New Zealand is the practical expression of this attitude. It is seen as a bonus for that parent, rather than a real contribution to the children. Australia's link between custody and the unequal division of matrimonial property is another indication that the non-custodial parent's input is assumed to be significantly less, even after allowing for child support. Sadly, children are unlikely to associate the financial contribution with the payer except with the goodwill of the custodial parent.

A Family Court official told me that they would consider ways to make or enable a custodial parent to meet children's needs first, before considering change of custody as an option. The thought of making a non-custodial parent more effective did not seem to be considered. A non-custodial parent is expected to be, and even forced to be, an "absent parent".

The Family Court's lack of concern for "parental distance" (children relocating away from one parent so that contact is greatly reduced) is yet another indication of the assumed irrelevance of contact with the non-custodial parent. Paradoxically, relocation of the children means a change of schools, friends, and homes, but in this case "continuity" appears to in terms of contact with the custodial parent only.

Even problems of parental alienation are largely ignored. 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.

The emphasis on the number of nights as a measure of the relative contributions and burdens further penalises non-custodial parents. Access time is usually in periods of "full-time parenting", weekends and holidays, whereas day-to-day care generally includes time when children are at school. Constraints such as the need to be near schools and to have suitable accommodation limit the NCP's ability to take the children for many nights. There is no account taken of the expense of furnishing a second home when most of the chattels are retained by the CP. An NCP's time with the children is likely to be much more when measured in days than in nights.

Even in terms of straight competition with the mother for custody of the children, child support payments would generally mean that a custodial father would receive less financial assistance than a custodial mother. The father is therefore subsidising the mother in her bid for custody. He can still be made to contribute significantly to the family even if he is absent, whereas this is less apparent in the case of a mother due to her generally lower earnings.


What follows has a lot to do with the attitudes and expectations that we should hold. It has nothing to do with the question of whether to have a hard-fought legal battle or to aim for a mutually agreed settlement. Other things being equal, the latter is always to be preferred.

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.

Stuart Birks
24 May 1996

About Us | Articles | Attorney's | Books | Case Studies | Contact Us | Forum | Home | Join CFT | Links | Photo's | Resources