Barbara Kay: Yet more family law gender injustice


National Post - Tuesday December 10th, 2013

Joe Raedle/Getty Images
As the Hendricks and King cases make clear, our misandric family law systems routinely assign more importance to mothers over fathers.

A year ago 19-year old Preston King was a light-hearted young Southern California man in love with his high school sweetheart. Her pregnancy changed their lives dramatically. But, even though the couple’s relationship deteriorated and they chose to live apart, King accepted approaching fatherhood with admirable commitment and indeed pleasure.

As the birth date approached, though, King was shocked to learn that the mother planned to give the baby up for adoption, whether or not he agreed to it. The adoptive couple had already been selected by the mother, and King was invited by an adoption agency – via text message – to meet them. King immediately petitioned the Orange County courthouse for paternity testing, and in the weeks leading to the birth, went to court several times to claim his paternal rights.

In spite of his best efforts, though, King was not allowed to sign a declaration affirming his fatherhood and was denied the right to paternal mention on the birth certificate. After King spent a mere 15 minutes alone with his baby, born September 7, the infant went home with his adoptive parents.

King continues to press for DNA testing and the right to parent his child.

According to a Facebook page created to tell his side of the story – the mother claims King was not an engaged father-to-be or supportive of her needs – Mr. King was both engaged and supportive. He maintains he attended medical appointments, bought maternity clothes, pampered his ex with spa treatments and excursions, and bought baby furniture, a layette and decorative accessories for the nursery.

Response to the story has been unequivocally sympathetic to King and highly critical of the state’s dismissive attitude to fathers his case represents. An online petition has been set up to push for a change in California’s laws to prevent more such “unethical” adoptions.

Observers of the family law system in Canada will be reminded of the quite similar 2007 case of Hendricks vs Swan in Saskatchewan. Saskatoon dad Adam Hendricks was in the same position as King. He was a willing father, whose girlfriend unilaterally adopted their baby out to well-off strangers. The judge decided that blood ties are only one factor in awarding custody, and could not trump others. Kinship was “a pivotal point” 50 years ago, the judge explained, but today the “best interests” of the child must be the paramount consideration.

What do these two cases tell us about the prevailing culture as filtered through the family law system? That mothers count in a child’s life and fathers don’t.

And even if King could prove paternity, he might still lose the child if the court decided it was in the child’s best interest to live with biological strangers offering a pony

When a mother – who might be poor, shiftless, unemployed, or otherwise disadvantaged – chooses to keep her child, the state does not intervene, and in fact will support her, if the child’s father (biological or presumed) cannot be run to ground. In the case of mothers’ rights, biology always trumps all other considerations. And yet, if the mother doesn’t want the child, suddenly the “best interests” of the child pivot from kinship – i.e. a willing, loving father’s natural rights – to the seductions of a detached home, a big back yard and a pony for Christmas.

So, in King’s case, if the mother had wanted to keep the child, the court would have ordered him to pay child support without any proof that the child was his biologically. On the other hand, even though she doesn’t want to keep the child, he has no right to custody unless he can prove paternity – which he cannot do unless the adoptive parents consent to a DNA sample being taken. And even if he could prove it, he might still lose the child if the court decided it was in the child’s best interest to live with biological strangers offering a pony.

Coincident with the appearance of King’s story, on Dec. 8, Canadian MP Maurice Vellacott moved for leave to introduce Bill C-560, which would amend the Divorce Act to make equal parenting the custody default after separation. Across Canada and across party lines, 80% of Canadians support equal parenting as a default in the absence of abuse, with slightly more support among women than men.

As the Hendricks and King cases make clear, our misandric family law systems routinely assign more importance to mothers over fathers. Yet decades of research unequivocally prove that children want to love and be loved equally by both their parents. These travesties of gender injustice must end. Equal parenting is equal gender justice.