Custodial Rights and Wrongs

The family courts are to be admired for all the good work that they do in trying to resolve the arguments of broken families. I do mean 'broken families' because those that are not broken do not need to go to the courts to resolve matters.

However, the court's approach to resolving child custody battles is problematic. In the case of a battle, women will tend to win custody in approximately 80% of cases. This is suggestive of a problem but not proof.

However, the awarding of custody to toxic, angry women and arguing it is in the best interests of the children is a problem.

In one recent Family Court decision a mother with a "delinquent attitude" who had created estrangement between the children and their father was awarded full custody of the children. It was ruled that the father would have no contact with the children even though the court considered that there was no risk that he would expose the children to any harm.

In another decision, a mother who had fabricated claims of sexual abuse successfully prevented the father from having access to his daughters. The mother won full custody of the two daughters recently even though the father had been granted access by a court order in 2008.

In another case, the mother's hatred for the father was so intense that she doubted his claim that he was dying of an inoperable cancer as he appealed to see his daughter. Encouragingly, the court invited him to prepare a DVD for his daughter. However, the court ruled that the content be checked to ensure that he made no disparaging remarks about the mother. This despite the mother having been free to poison the child with her disparaging remarks about the father to an extent that the child wished the father dead.

In each case, the court has decided to place the children with a mother who is acknowledged to have psychologically and emotionally abused the children. The reasoning is that it would not be in the children's best interests to force them to spend time or live with their father.

I think the focus on the child's best interests is a good objective. However, the issue of 'best interests' needs to be more clearly defined.

We can be a little too precious about children's rights sometimes. The court in its effort to cater to the children's interests crosses a line that most parents understand to be exceedingly difficult to navigate.

Best interests are not always those that keep the children happy in the short term. And children are not the ones who can best say what is in their own best interests. If it were, they would not need parents at all!

One important parental role is to set limits. Without parental guidance, the budget for Christmas and birthday presents would be endless, children would never go to bed, would never eat any vegetables, would never brush their teeth, etc.

The reality of life is that not all our wishes will be fulfilled. It is an important lesson for children to learn. The fact that some adults still need to learn this is perhaps evidence enough that it does not serve us if authorities including parents and courts do not balance a child's selfish interests with considerations of what might best serve the child and society at large.

I am not saying these decisions are easy of course. They are indeed difficult decisions to make.

Juvenile delinquency for instance, is an extreme version of children defining their own best interests. It is perhaps no coincidence that once at this level, neither parents nor courts can stop the children from fulfilling their desires despite the harm it brings to others. Nor is it a coincidence perhaps that one of the biggest predictors of delinquency is coming from a single-parent home.

Children need both parents – but the court in this recent case and many other cases is prepared to say that one will suffice. It is not clear to me that this is in the best interests of the children.

Sure it limits how much conflict the children see. However, the reality is that conflict exists, and children need to deal with it.

Parental decisions have consequences for the children, and the parents should be held accountable for such decisions – and consequences. One or both of the parents created conflict that ultimately resulted in divorce. At least one parent was pushing for divorce having decided that it was the path to be taken despite of the consequences.

The initiator, the partner, the children (and many others besides) need to bear those consequences.

It is a burden of responsibility for parents – and not one that we always get right as most parents would probably acknowledge. However, how a person conducts themself through the divorce process and particularly a custody battle is relevant. However, this counts for nought in the court's considerations of what is best for the children.

In one of the cases mentioned earlier, it is significant that when the mother was challenged about the emotional carnage she had created. She replied "I've done the best thing I can for my kids."

Encouragingly, the judges in at least some of these cases understood that the father would be disappointed by the decision.

Disappointed? The father was likely to be a great deal more than disappointed. He is quite likely to be severely damaged by this whole process! Would anyone wonder if he went a little bit off the rails after all this?

Upholding children's rights above parental rights is tantamount to giving the lunatics the asylum.

Parental rights are important too. It is not simply children who are in danger of being damaged if they are prevented from seeing their parents. The parents may be damaged if they are prevented from seeing their children. A father must accept that his own children are taken from him as if dead by nothing more than the crusty conniving of an ex-wife and the impotence of a Family Court judge.

Sure she hates him. She may even be justified in doing so. But why do the courts reward her abusive behaviour? Behaviour in which she uses her children to wage a war against her ex? Here is evidence that she is psychologically unhinged and prepared to perpetrate emotional abuse, and yet it is deemed right that she should continue in the role of parent.

This elevation of the child's rights to a level higher than any other individual seems a little misplaced. Moreover, while the focus is on child's rights, courts typically give default rights to mothers as the primary caregivers. This gives mothers enormous potential power as anyone who has been through divorce probably knows. The mothers can prevaricate, violate interim orders, refuse to attend mediation, etc. The consequences? None. So why wouldn't she?

Fortunately many mothers would not abuse the power accorded them through their custodial domination. Nonetheless, the court's decisions clearly show that the consequences for this kind of abuse are little more than some sharp words.

This just isn't right.

I'm not the only one to think so. A couple of years ago, a UK judge spoke out in disgust about how fathers were not being served by the court. He acknowledged that the legal system was failing fathers.
For the sake of our children, for the sake of their parents, for the sake of our society, we need to right some of these wrongs. As the UK judge said, "We need to take note. We need to act. And we need to act now."


  1. This article would make more sense if the 2 links you supplied matched each other. An Australian Family Court decision and then a UK judge talking about the UK Courts???

  2. Courts should also spend more time requiring both parents to do parenting classes.

  3. Courts should also spend more time requiring both parents to do parenting classes.

  4. Thanks Olivia. Sadly, I doubt that parenting classes will help much. Teaching an unwilling student is a poor solution