Santa Maria Child Custody Lawyer: A Father’s Day Blog Post

[Ed. Note: This post was written on Father’s Day 2013 but due to a technical glitch and site transfer, did not get uploaded until today. Father’s Day or not, I still feel like it’s relevant.]

Happy Father’s Day Blog Post

It’s Father’s Day and I had a great day I spent in that bittersweet way that only a father in a blended family can have. I had my four and half year old daughter Stella, a bundle of electric energy that is only outperformed by the depths of the thoughts she manages to put together as a pre-schooler. I also spent the day with my 20-year-old stepdaughter Savannah, herself a picture of grace caught in that in-between place between adulthood and late teenager with leanings each and every day more toward the adulthood side of things. My wife, who planned in the way that I love things to be planned, a gameplan with a lot of open space for changing things up as we went along with the day. Not to belabor the day, but I got to sleep in past Stella’s customary 5:58 am wake-up, had a way too carb-laden off-diet breakfast in Buellton, CA an then we fed ostriches on an ostrich farm, picked berries in Los Olivos, petted rescue donkeys in Los Olivos, and came home and planted some new vegetable starts in the garden (Stella didn’t want to get her hands dirty). I got a little sunburn. Then after dropping Stella at her mom’s house and Savannah leaving for work, my wife and I went on a lovely drive into Sisquoc and ended up having wine at Costa de Oro.

I’ve been wanting to write a good Father’s Day blog for a couple of years now, and since the day is almost over, I think it’s high time I tried it. I want to write a few words about all of the lame Father’s Day articles that get written each year around this time, point to the blog post that got me thinking and say a few things legal.

First, it’s overwhelmingly common for men as fathers to be stereotyped as absent minded, not overly caring and slightly goofy dads who need moms to fix everything. Articles about what to give dads on Father’s Day focus on booze, knick knacks, days on the golf course or other manly man pursuits. They forget that Father’s Day is about that most precious gift that any father ever experiences in their lifetime, fatherhood. This is also invariably the time of year when anecdotal comments come out about how dad ditched the family when they were young or dad was never present in people’s lives. The majority of the blog posts and articles that come out this time of year tend to focus on a) how dad was a real jerk or b) how dad is someone to be made fun of.

Even a recent article from my alma mater “Five reasons why it’s a good time to be a dad” by Jeremy Adam Smith on the Greater Good blogsite at UC Berkeley, which is a great step in the right direction, still falls short of honoring the true gift of fatherhood. The article has a great start: “are you feeling fed up and burned out, Dad?” and then it goes on to discuss something that is important in the current cultural climate: dads are more involved in their children’s lives than they ever have been before. In fact, the article cites Pew Center research that shows that Dads are juggling the work/life balance, “just like moms.” From there the article basically refutes a whole lot of stereotyping about dads. Again, a good blog post, or at least a blog post with its heart in the right place, but what’s missing?

His first article on the Pew Center (“How to be a happy working father”) research is better but still not great – he discusses something that is truly important – that even though the time dads have spent with their children has tripled since the 60s, men are twice as likely as moms to say they aren’t spending enough time with their kids.

The good stuff gets glossed over (and I don’t mean to pick on these articles, as I said, I think they are among the better ones out there compared to much of the men hating going on) – we already knew how important fatherhood was going to be to us, whether we became fathers by accident or by choice. I don’t believe though that it’s about finding a family friendly workplace or cutting down your commute or putting the extended family “team” in place, so that you are less tired when you see your children, it’s about digging deep inside yourself to spend quality time with your children even when you are exhausted, there is a looming deadline and your kids are full of unbridled energy that you simply cannot contain. It’s about finding a sense of calm amidst the chaos and getting your four year old into the bath and into jammies, reading a story, singing a lullaby and rubbing her back until she goes to sleep, even though you can feel that every second ticking off the clock is another second until you are going to be able to go to bed. It’s carefully putting a pink Dora the Explorer band-aid on your finger before you go to court in the morning and letting your daughter pick out your tie for the day. It’s sitting down with your child and taking the time to listen to everything from knock-knock jokes to the first time she has realized that it was a judge who decided how much time she was going to get to spend with you (I’m not kidding, four years old, and I get told “Judges think that kids should spend more time with mommies than with daddies”).

But this is a lesson for all parents. Spending quality time with the kids is being present for them even amidst the absolute pandemonium of the world outside.

A new generation fathers are participating more fully in their children’s lives than the generation before – which participated more fully than the generation before them. Let’s stop talking about it in comparison to moms. That comparison is not only getting tired, but it’s also getting a little boring. The other thing that I find generally boring is the novel concept of the “stay at home father.” Let’s face it, other than a very few exceptions, the true stay at home father movement was a product of the downturned economy with men in the trades being out of work, while women in the services industry still had jobs. Daycare bills had to be cut, and Dad became the stay at home parent. I would hazard a guess that most of these guys loved their children as much as any parent, but did not prefer to be a stay at home dad or even classified as one. They were looking for work – signing the book at the union hall, scouring the internet for jobs, and taking the kids to the park while they did it. But, let’s not get confused that in most of these households the men were trading this task with the women – moms had already been working, it’s just that their jobs weren’t lost in the downturn.

I have a general feeling – anecdotal at this point, but having spoken with members of more than 300 families in the last two years, not so anecdotal as to be without any scientific basis – that men and women both overestimate the time moms spend with kids and underestimate the time dads spend with kids. So many of us live in two income households with dads and moms both doing everything they can to raise their children together. We are all tired and we are all struggling to find that one more gear to handle what is an overwhelming task – parenthood. But we are still bound by our preconceptions about who does the work with the children in the home. Is bath time any more caregiving than coaching soccer? Is helping with homework any less caregiving than making dinner? Is drop off at school less of a challenge than picking up from school?

As a family lawyer and noncustodial father, I am in a position to see the ways judges are bound to the designation of the primary caregiver – and the rules that flow from it. Moms tend to come to court very sure that they are obviously the primary caregiver, because they are the mom after all. And Dads are all too ready to concede the point – which is why many Dads come to court with the foregone conclusion that Mom will have the kids and they will get the Daddy Plan.

The truth is that while have seen a remarkable shift in Court rulings in recent months with judges in my jurisdiction beginning to award greater shared custodial arrangements, more shared parenting time, it has still not gone far enough. In my experience, there needs to be more recognition of two things: 1) in many respects, in two income families the notion of the “primary caregiver” tends to mean something different now than it did in the 1970s when the “best interests of the child” standard was born. I believe we should examine it more closely if it’s going to be meaningful and 2) it is demanding on anyone – mom or dad – to try to raise a child full-time on their own. This includes parents with strong extended family networks and parents with spouses who are involved and caring stepparents.

As to the first, the legal notion of the “primary caregiver” is that the best interests of the child will generally be served by having the child live with the primary caregiver.
But, who is the primary caregiver in a household where: 1) Dad takes the kids to school in the morning because Mom starts her shift at 6:45 am and Dad doesn’t have to be at work until 8:30 am; 2) Mom picks the kids up from after-school care at 3:45 pm and runs them to practices; 3) Dad stops at the store on the way home to pick things up for dinner and gets it started, then runs off to coach the youngest daughter’s soccer practice and take her home; 4) Mom finishes prepping dinner, has the oldest set the table, clears the dishes while Dad gets the kids into the shower and Mom figures out what to pack for their school lunches; and 5) they both tuck the kids into their beds at night and give them a good night kiss, only to fall asleep on the couch about an hour later and do it again? What if the parents share days off work if the kids are sick? What if only Mom takes days off work because she works an hourly wage job while Dad’s salary job means they can take paid vacations in the summer to take the kids to grandma’s house?

Increasingly in my practice, this is the type of shared parenting we are seeing at the outset of the divorce. Both parents want the children with them. Typically, Dads come to me asking that they have 50% custody of the children, stating emphatically “I would never take the children away from their mom, I just want them with me half the time.” Moms tend to come with the position that Dad can visit with the kids, but they need to sleep in their own beds.

I believe that men have become more involved as parents because we take our roles seriously. It can be simple: as one of my clients said in open court when asked why he was pushing for 50% time with his daughter, “I’m trying to keep my daughter off the [stripper] pole.”

There are also more complex reasons: we view it as a sacred bond and sacred duty. When my daughter was born, I felt my very DNA was changed upon seeing and holding her for the first time. She was born by C-Section and that meant that in her first two hours, it was just she and I. Her mom had had 9 months to bond with her in utero, but for those first two glorious hours it was just my baby girl and me in the hospital nursery. From the time when she was an infant, I carried her in the Baby Bjorn on early morning walks and stayed up late feeding her when her mom was exhausted. A bond was formed. Maybe more on me even than my daughter.

This is a little more personal than I usually get, but because it is Father’s Day, I am feeling a little more deeply about the subject. I am blessed with a great relationship with Stella’s mom and an involved and caring wife, who is a fantastic stepmother to Stella. I have been further blessed with three amazing stepchildren, each of whom I love dearly in their own ways. One of whom, in particular, whose dad is not in the picture, I feel is my own daughter. I am grateful for all that has been given to me each and every day.

But, it did not come easy and it took time, patience, pride-swallowing and releasing some of those negative emotions that were holding me back.

As a lawyer, I work tirelessly to bring parents to an understanding about the importance of involved parenting. By involved parenting, I mean being there for and with your child when your child is with you.

One of our judges said recently, “your child knows you love them because you show up when you say you are going to show up. If you can be there every Tuesday and Thursday than I will give you every Tuesday and Thursday. But when you miss your days, maybe we need to set the schedule when you can always make it. Wednesdays? One Saturday a month? When is it going to be?” Being there means literally being there. I will work as hard as I can for a Dad or Mom who wants to be there for their child more than they already are – and I believe that our Courts reward parents, particularly Dads because they are frequently the non-custodial parent, who want to be there for and with their child.
As a lawyer I work with both mothers and fathers as clients. I try to make sure that parents have healthy, active relationships with their children and that they understand what is lost when they keep the child from the other parent. That the person they hurt is the child and that ultimately, as another child of divorced parents told me, “my mom kept us from our dad most of our lives. I didn’t know my dad, I just knew my mom said that he was a true jerk. When I got to be 16, I decided I had to know my dad more than the one weekend a year that I would see him. So, I saved my money and bought a ticket to Norway and flew to go see him one summer. You should know that now, as I am a father, and all through my adulthood, my close relationship is with my dad. It’s my mom who I see one obligatory time per year.” I want to tell that story to my young father clients who find themselves with a parenting schedule dictated by a judge that has them spending so little time with their kids they aren’t sure what to do. When you see the tears on these men’s faces – and I am not talking about sensitive new age Berkeley guys like myself, but true working men, blue collar guys who the stereotype says won’t care – you know that they see fatherhood as I do, as a type of sacred duty.

As I mentioned, in our jurisdiction, the judges are beginning to see this new sort of reality, but it’s nowhere near perfect. When I read articles about “shared custody” I sort of gag a little bit. It’s the law in most jurisdictions that the parents, absent some good showing, will share legal custody of the children. This means they will confer about which school, which doctor, which religion and the like. But shared legal custody is increasingly meaningless because the parent with primary physical custody has the strongest role in making those decisions – shared legal custody is like a participation ribbon when you wanted the first place trophy – you get it as long as you cross the finish line. If there’s a tie (which is frequent between two people who got divorced because they couldn’t get along), the tie goes to the person with the larger share of physical custody.

True shared custody boils down to one thing: timeshare. Standard Daddy Plans still have Dad at 20% timeshare with every other weekend and one weekday dinner visit per week. These plans are entirely based on the financial outcomes – child support is calculated on the basis of timeshare and income differential and the state has a policy of maximizing support. This means the stated public policy in California of “continuing care and contact” is balanced against the need to maximize support. Timeshare, primary parenting, physical custody is a product of the financial equation. That means a 49% primary caregiving dad can end up with 20% timeshare of the children for support purposes.

Most dads I talk to in my office are there crying about the kids and not the money – they’d rather pay the 20% timeshare support and see their kids than effectively be shut out of their lives because of the money. But after custodial parents have been once through the system, they get wise to the idea that every additional minute Dad spends with the kids is a dollar less they get in their support each month. I believe in paying child support and I believe that the lower-income earner and the parent caring for the children the majority of the time needs support. But I do not like support being tied to timeshare.

Now I am getting a little far afield – I will pick up the support issue below.

The second point is that it’s damned difficult to be a good, involved parent and work full-time or more than full-time as many of us are now doing. You have to dig deep. You have to work a shift, be present for your children and then work a second shift. Without going into a whole bunch of self-congratulatory detail, during this last year, I worked as a tenure-track Cal Poly professor and a full-time lawyer and have been a husband and 35% timeshare father. What that effectively means is that there have been dozens of nights (this one included) when I have worked until picking up Stella from school – ten hours most of the time, no lunch break – picked her up, played princesses, jumped on the trampoline, got her fed (with my wife’s help) and into the shower, into jammies, read books, sung lullabies, and said our prayers, only to come back out to the living room couch right afterward and worked until 2 am. All this only to be woken up at 6 am to start again.
Exhausted as I sometimes am, I would do that every single day to have more time with my daughter. But we have to be reasonable. The body and mind do not function that way and we need time and space to replenish ourselves. We need time and space to spend with friends, to go on a walk by our own selves, to go to the gym (that’s wishful thinking), to fall in love again, to get married again, to do all of those things that are completely necessary to live fulfilled and fulfilling lives. Don’t we want our children to witness us happy and fulfilled in our lives? Our children need us to replenish ourselves so that we are ready to spend that time with them.

One more anecdote: a friend told me a story about how when his parents divorced when he was 8, his mom moved from Los Angeles to Nipomo, about a 3 hour drive away. He said that his dad was awarded weekend visits with him, two per month. He noted that his dad drove up from Los Angeles for every one of those weekend visits from the time when he was 8 until he was 18; he never missed a visit. In the meantime, his dad remarried and had two additional children. His dad would come even when my friend got to the age when he didn’t really want to see his dad that much – he’d have rather been hanging with his friends or girlfriend or whoever. This dedication never dawned on my friend until he was older and he realized how much energy his dad put into staying in contact with his son.
Not all dads will be like that. I see that some of the dads who tend to fade from the picture are the ones who get cut out of their children’s lives by early court orders – the ones with a single Saturday visit each week or alternate weekends with Mom in another town. You set Dad on a course where he sees the kids for Bob’s Big Boy on Wednesday nights and every other weekend in his apartment, and he is going to be trying to find some other meaning in his life – another relationship, other children he sees every day, extra hours at work, a promotion, devotion to his church or worse, alcohol and drugs. Being shut out of one’s child’s life is so painful, that you have to expect that some dads will start over again or get involved in something else just to ease the pain.

This is why sometimes I believe that custody/timeshare awards should have an aspirational character to them. Dad, if you want this much time with the kids, prove it. If Dad proves it, the situation is great for everyone – the kids have a dad who cares for and loves them and is involved with their lives, Mom has a chance to date, spend time with her friends or with herself, and Dad is given the gift of being allowed to be the father to his children.

Solutions

Finally, this blog post got very long: I argue for a new system of child custody proceedings. This has been taken up by others before me. It’s called “no fault child custody.” In child custody proceedings, for the low wage earner who is also usually the low-income earner, support is the most important part of the equation. The low-income earner, usually Mom, needs funds to be able to live. Dad usually has some additional funds (although not much) and wants to spend time with the children. Support is directly tied to timeshare. It is a common lawyer’s tactic when representing Mom to try to make Dad look like he is only trying to increase timeshare to reduce child support payments. Savvy lawyers know that they must get around this by not asking to change support at the time that they ask to change the timeshare. Wouldn’t it just be easier to have support from high-income to low-income parent at a reasonable formulaic level and then let the presumption be that the children would spend time with both parents on a relatively even level, making certain (BIG) exceptions? That is, rather than tie support to time-share, we would tie it to some other formula, such as income differential and need.

These BIG exceptions would be: 1) proven allegations of abuse, 2) proven lack of safe environment for the children, such as substance abuse; 3) very young children – infants in particular – who would be with their primary caregiver until a certain reasonable age at which point they would be introduced more and more to the other parent (so that Dad, if shut out early in the game would know that as the child got older, the child would definitely spend more time with him); 4) Dads (in particular) who do not exercise their time with their children; and 5) private custodial agreements. This doesn’t have to mean 50-50, but would certainly mean more than 20%. I think between 35-50% is reasonable. 35% would look like every other weekend Friday after school to Monday morning and one overnight per week – five overnight visits in 14 days. Further, we would not count hours in the week and give one parent credit for sleep time or time in school unless the child is in poor health and would need to miss a lot of school and one parent is primarily responsible for care giving on those missed days – then the other parent should share the cost of the lost work time.

I think that both moms and dads have come a very long way in recent years in their willingness to share children with one another. There is progress, but in order to see greater development in the area, we need to see policy shifts that create default positions that encourage sharing and discourage calculations of support based purely on timeshare. We also need to reduce the chance that either party could hurt the other with the children. It’s time to really start thinking about the changes we need to bring about.

One thing I would suggest is that every parent going through a divorce conduct a thought experiment: if you are a Mom, imagine that you are a Dad, and if you are a Dad, imagine that you are a Mom. Then both parents spend time imagining that they were each of the children. Ask what would be the things that would hurt most and what would be the thing that would ease the pain. Try to step outside of the anger for just a few minutes while you think through it. If you can do that, you can see just how important shared parenting really is.

My suggestion: we default to a 35% shared custody arrangement for kids under 8, and move to a 50% timeshare when kids turn 8 until high school. Child support would be calculated on a 30% timeshare basis immediately for all timeshares until the child turns 14 and starts high school. At high school age support drops to the 50% timeshare rate. Even when kids are under 8, they will spend 35% time with one parent and 65% with the other. The support number won’t move off the 30% level unless one of the BIG exceptions above is met with regard to support.