You’ve probably heard a lot about father’s rights groups. They’re all over the place, campaigning for 50/50 custody, and arguing that dads should have more of a role in raising their children.
You probably haven’t heard a lot about mother’s rights groups. They…don’t really exist. Though there may, in fact, be a need for them these days; after all, it’s not like the courts automatically decide in favor of mothers. In fact, in recent years, in Virginia at least, we’ve seen more and more cases where shared custody is awarded than ever before. It’s not that 50/50 is required. It isn’t. But the law changed a few years back so that judges have to consider “all” types of custody equally, meaning primary physical, shared physical, and split physical, which seems to have led to a lot of judges believing that shared custody should come first, before any other custodial arrangement.
Of course, shared custody doesn’t happen in every case. In cases where there’s a breakdown in coparenting communication, shared custody doesn’t work very well – or at all. There are also a lot of cases where one parent or the other has relocated, whether due to military orders or for some other reason, or cases where the parents have come to a different kind of agreement between themselves.
There are cases where one parent or the other is suffering from untreated mental illness, from addiction, from homelessness, or from some other concern that means that they’ve – temporarily, at least – lost custody, had it restricted, or found themselves subject to an order requiring supervision. There’s also domestic violence and abuse, but that’s a whole other can of worms, anyway.
Mother’s Rights groups don’t really exist.
Father’s Rights groups, though, are pretty prolific. And they often act like they’re out there doing God’s work or some other ridiculousness even though, in my opinion, very little could be further from the truth.
You want the truth? Okay, I’ll give it to you.
Custody and visitation is not a question of the rights of moms or dads. It’s a question of the rights of children.
There is such a thing as ‘parental rights’, and we do essentially protect parents from non parents (grandparents, aunts, uncles, legal strangers, etc) who might try to take parenting time away from parents. We also give parents some control over the decisions they make for their children. They choose where to send them to school, whether to vaccinate, whether to make them vegetarian, or whatever – all with very little oversight.
In a custody and visitation scenario, we refer to ‘legal custody’ as something that is generally awarded jointly, and which allows parents to make decisions regarding non emergency medical care, religious upbringing, and education. The court views these things as central to the ‘rights’ of parents, and often requires that parents collaborate and cooperate with respect to making these types of decisions on behalf of their children.
Referring to rights, though, as something belonging to mothers or fathers is missing the point: it’s the CHILDREN who have rights.
It’s the children whose needs need to be met, and it’s the parents that we call upon to know what those needs are, and then to come to some kind of decision about how to meet them. Under Virginia law, we call this the ‘best interests of the child’.
It’s not the ‘best interests of the parents’ or even of the mother or the father – there’s no such thing. When the court, Guardians ad litem, and others involved in custody and visitation disputes in Virginia make decisions about what happens to children, that’s the way they decide. What’s in the children’s best interests? Well, conveniently, we have ten factors that are codified in Virginia that help tell us what’s a child’s best interests.
Because best interests are changing, and are not fixed, custody and visitation determinations are modifiable based on a material change in circumstances. So, it’s not like what wins the day today will win the day forevermore. The court will re-hear issues related to custody and visitation, and issue a different opinion, if necessary, in the future.
But it’s still not a question of mom’s rights or dad’s rights. Mom and dad rarely come into it at all, except inasmuch as they’re necessary to raise the children in their care.
That’s why, when it comes to things like relocation, we often say that the court can’t tell a parent NOT to move. The court can only tell that parent that, if they DO move, they can or cannot take the children with them when they go. To a mom, that may sound like the same thing – after all, I’m not going anywhere without my children – but it’s not actually a restriction on MOM’S ability to move. She can go. But the court can keep the children here, if it feels that this is in the children’s best interests.
I’ve said it before, and I’ll say it again.
Raising a child is not a matter of right. Raising a child is a privilege, and it involves a ton of obligations, but it’s not really a right.
It isn’t – or it shouldn’t be – mom versus dad. It’s child versus the world, and how mom and dad can use their influence to raise the best, the strongest, the happiest, the most well adjusted children possible.
It’s a privilege. It’s an obligation. But I don’t see where ‘right’ enters into it. Privileges can be revoked. Obligations, well, they’re work. But rights? Meh. I think that’s the wrong word to use entirely in this situation.
Father’s rights groups can continue to stamp their feet and demand that they get what they want. But I think, really, the reason there’s not mother’s rights groups is that, for the most part, moms get it. We know it’s about the kids. And we’re trying to make sure everyone else sees it, too.
For more information, to request a copy of our custody guide for Virginia moms, or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give us a call at 757-425-5200.