San Francisco Family Law Blog

‘Roe v. Wade for Men’ Case Illustrates Family Law System’s Inequities
by Mike McCormick and Glenn Sacks

The controversial "Roe v. Wade for Men" lawsuit filed in Michigan recently demonstrates the disparate treatment of men and women by our family law system. The plaintiff, 25 year-old Matt Dubay, claims that he was duped into fatherhood. He argues that since women are not compelled to be mothers, he should not be compelled to bear the responsibilities of fatherhood, including the responsibility to pay child support. Whether one sympathizes with Dubay or not, his lawsuit illustrates the way the family law system addresses the needs and desires of women, while turning a cold shoulder to those of men. This system represents the most egregious violation of gender equity in our society today.

The plight of unwed fathers illustrates the point. Dubay is vilified by both the pro-choice feminist left and the pro-life right as an irresponsible cad, deadbeat and whiner. Yet the millions of unmarried men who do try to be fathers to their children find that while they are frequently lectured to "take responsibility," they’re often not permitted any meaningful role in their children’s lives. These stand-up guys usually get to spend only a few days a month with their kids, if they’re lucky. Once mom finds a new man, they’re often pushed out entirely in favor of the child’s "new dad." And fathers who look to the family law system for help quickly find that said system has no interest in their case beyond keeping the child support checks coming.

The contrast between child support enforcement and the enforcement of visitation and parenting time also illustrates this inequity. Over $5 billion a year is spent nationwide on enforcing child support, and large enforcement bureaucracies exist in all states. Each year 100,000 men are jailed for alleged non-payment of child support, and many others lose their driver’s licenses, passports and business licenses. This is despite the fact that federal Office of Child Support Enforcement data reveal that nationwide 70% of those behind on payments earn poverty level wages, and less than 5% earn $40,000 a year.

Fathers who want to share in parenting their children face many obstacles. In a study conducted by Arizona State University psychology professor Sanford Braver and published in the American Journal of Orthopsychiatry, 40% of divorced mothers admitted that they had interfered with their ex-husband's access or visitation, and that their motives were punitive in nature and not due to safety considerations. A study of adult children of divorce conducted by Glynnis Walker, author of Solomon's Children: Exploding the Myths of Divorce, found that 42% of children who lived solely with their mothers reported that their mothers had tried to prevent them from seeing their fathers after the divorce.

Despite this, state and federal governments spend almost nothing on enforcing visitation and parenting time. Fathers denied access to their kids are on their own, and must wage long, costly legal battles to remain a part of their children’s lives. And while prosecutions of fathers who violate child support mandates are common, prosecutions of mothers who violate visitation orders are almost nonexistent.

The epidemic of domestic violence restraining orders is another example of disparate treatment. According to the Justice Department, two million restraining orders are issued each year in the United States, most of them based on allegations of domestic violence. Such orders are usually issued on behalf of the mother, without the accused's knowledge and with no opportunity afforded for him to defend himself. When an order is issued, the man is booted out of his own home and can even be jailed if he tries to contact his own children. This enables women to better position themselves to gain custody of their children in the subsequent divorce.

Numerous bar associations, legal groups and attorneys have complained that many restraining orders are simply custody maneuvers, and that they represent a horrendous violation of due process. Nevertheless, most courts grant them to practically any woman who applies.

The "woman good/man bad" modus operandi of the family law system has wounded children and the fathers they love and need. The problem cannot be resolved until we acknowledge and address the fundamental inequities of the system. The Dubay case is merely the tip of the iceberg.