Frank Taddeo Jr. ()
In the iconic movie, “Mrs. Doubtfire,” a judge confronts Daniel at a hearing following the exposure of Daniel’s identity as the daddy inside the nanny and lowers the gavel. The judge dismisses Daniel’s baleful explanation of the charade—a sincere, even desperate love for his three children—as mere additional evidence of superb acting ability. He assigns permanent custody to Miranda, orders supervised visitation, and refers Daniel for psychological counseling.
With less than perfect judgment, beset with unusual habits, perhaps even a bit eccentric, but with no dangerous or truly aberrant characteristics, Daniel is like many devoted fathers of the some 70 million American dads who are knocked senseless by the legal system when spousal strife prevents amicable resolution of custody and visitation disputes during divorce and separation proceedings. On custody, she usually wins, he usually loses, especially if the children are young. He becomes a mere visitor in his children’s lives (hence the term “visitation” rights) obligated to pay child support and often doomed to fight monumental battles with spouse and court to maintain even the slightest contact with his children. A common story in states across the nation, rarely with a happy ending.
Is a disguise, a masquerade, a Mrs. Doubtfire, the only route out of the quagmire for devoted, competent fathers? Or might there be some recourse or solace to be found in the law, some concept or theory he might grab onto? The answer is a tentative, guarded, but perhaps inevitable “yes,” a right ripening on the vine called human dignity or “dignity rights,” a right that just may elevate them to the sanctum of a protected class.
In New York fathers ostensibly begin on a level playing field of equal protection and due process. Under the Domestic Relations Law there is no prima facie right to custody in either parent; fathers are not automatically excluded (DRL Sec. 70[a]; Sec. 240 (1)[a]). Case law, moreover, shelters visitation with repeated emphases on the crucial role a noncustodial father can play in the development of the children (Ronald S. v. Lucille Diamond S., 45 A.D.3d 295 (2007)), and the obligation of a custodial mother to assure meaningful contact between children and him (Bibi Khan-Soleil v. Armani Rashad, 111 A.D.3d 728 (2013)). But then there is the “best interest” test which both custody and visitation courts impose as an objective evaluation of parental qualification (DRL Secs. 70, 240; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 (1982); Eshbach v. Eschbach, 56 N.Y.2d 167 (1982))—a test fathers flunk in some significant degree or another more frequently than mothers.
The test requires courts to assess a variety of objective factors such as home circumstances, ability to nurture emotional and intellectual development, age and maturity of the children, time and commitment to child-rearing, and the like, and to determine by a preponderance of the credible evidence which parent will serve the interests of the children better (Eshbach v. Eschbach, supra.). Often assisting in this determination is a phalanx of so-called “forensic experts ” appointed by the court—psychiatrists, psychologists, guardians ad litem, and others, often likely to regard a father’s views on his children’s welfare as no more than pandering self-interest advanced to defeat the mother, rather than to benefit his children.
Even as the test begins, the father faces a traditional presumption of a mother’s alleged superior competence stemming from her perceived experience as homemaker, housekeeper, and primary caregiver. Rarely acknowledged, the presumption lingers as a silent elephant in the courtroom which sits on her side of the scale at decision time. When all is said and done it is she—not he—who is anointed with sole custody. And it is he—not she—who is left with the crumbs of visitation, and crumbs they frequently are.
Consider, for example, the flimsy threshold under which a court order can be deemed violated, such as his phone call to his children outside a specified time. He may well be held in contempt of the order, and when he erupts at the perceived injustice, he may be directed to a court-retained psychiatrist for anger management with visitation rights suspended during “treatment.” His privacy may be invaded by court-ordered onsite inspection, supervision, and discipline by a social worker with no prior history with, or affection, for his children.
Remaining may only be the agonizing choices of swallowing such rulings or challenging them with further litigation viewed negatively as aggressive and which is complex, expensive, subject to long delays, and often completely ineffective. Access becomes increasingly limited in duration, time, place, and scope with emotional injury often occurring to the children in the process. Worst case scenario? Communication ceases altogether, and the father-child relationship is destroyed.
Now along comes dignity rights from the cauldron of social change. Dignity is perhaps best described as a principle of morality overlapping a principle of law prohibiting inhuman and degrading treatment, and it has ushered in a new foundation for human rights across the globe. Mentioned prominently, for example, in the Universal Declaration of Human Rights, it proposes what legal claims people can assert to insist that their humanity be recognized. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948); United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007), 46 I.L.M. 1013 (2007).
Dignity rights are cited nowhere in the U.S. Constitution. The word does appear in some 900 Supreme Court opinions usually as a passing reference, only on occasion as a fully articulated concept in Miranda v. Arizona (384 U.S. 436 (1966), for example, prohibiting police from coercing confessions; search and seizure cases; and most prominently Eighth Amendment claims by convicted inmates. It is never mentioned, in Brown v. Board of Education(347 U.S. 483 (1954)) (invalidating racial segregation in schools), Roe v. Wade (410 U.S. 113 (1973)) (securing rights to abortion), Griswold v. Connecticut (381 U.S. 479 (1965)) (invalidating a ban on contraception), Virginia v. Black (583 U.S. 343 (2003)) (upholding limitations on racist speech), and Atkins v. Virginia(536 U.S. 304 (2001)) (invalidating the death penalty for the mentally retarded). See “Dignity Rights, Courts, Constitutions, and the Worth of the Human Person,” Erin Daly, U. of Penn. Press (2012).
In 1992 the concept emerged prominently and powerfully in the Supreme Court opinion Planned Parenthood of Southeastern PA v. Casey (505 U.S. 833, 835 (1992) upholding the core of Roe .v. Wade associating a woman’s right to control her own reproductive health with dignity, Justice Anthony Kennedy writing for the majority:
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education….These matters, involving the most intimate and personal choices a person may make in a lifetime, a choice central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.
At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
Eight years later, the court in Troxel v. Granville (530 U.S. 57, 58 (2000)) cited the Fourteenth Amendment as protecting the rights of parents to decide the care, custody, and control of children. It did not designate them as dignity rights, but certainly could have. Said the court:
Our constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations….The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, capacity for judgment required of making life’s difficult decisions. More important, historically, it has recognized that natural bonds of affection lead parents to act in the best interests of their children.
Last year in Obergefell v. Hodges, Director, Ohio Department of Health, 135 S. Ct. 2584; 192 L. Ed. 2d 609; 2015 U.S. LEXIS 4250 (U.S. 2015). the court expanded constitutional rights on grounds of human dignity to permit gay men and lesbians to acquire marriage licenses. It held human dignity to be a co-relevant and natural element of the Bill of Rights integrating the “helix” of Due Process and Equal Protection under the Fourteenth Amendment into a doctrine of “equal dignity,” in Laurence Tribe’s words (“Equal Dignity: Speaking Its Name” 129 Harv. L. Rev. Nov. 10, 2015). There are “new insights and societal understandings [that] can reveal unjustified inequality within fundamental institutions,” the court held, and a restriction on marital rights is one such unjustified inequality. Denying people in the LGBT community access to marital licenses infringes their liberty by denying their dignity rights to equal protection and due process.
Surely there are now “new insights” and “societal understandings” at play in the relationship of fathers and mothers to child-care which have yet to be fully appreciated. While the latter continue to gain equal rights in the work place and in society at large, their competence for caregiving can no longer be conceded as a basic presumption or preamble for the best interest test. Mothers today pursue active, busy, and burdened social and professional lives. The amount of time they spend with children has dramatically fallen, their duties as caregivers increasingly assigned to nannies and other third parties. There is a new reality of gender equivalence now, supported by a maturing right—the quasi-moral, quasi-legal concept of human dignity, it would appear—available to men as fathers as well as women as mothers.
For if in modern court opinion: (a) child-rearing choices are deemed central to parental dignity and autonomy, (b) fathers, equally with mothers, share natural bonds of affection with their children which cause them naturally to act in their best interest, and (c) fathers as well as mothers are entitled to full and complete equal protection and due process, even when they clash, how might the best interest test be adjusted?
Perhaps courts will realize that a father’s qualifications are to be judged not merely by caregiver credentials, but perhaps even more importantly by the dignity rights of fatherhood, equal and in no way subordinate to, the status and rank of a mother’s dignity rights in her own motherhood. She is entitled to no head start and no advantages along the way, no elephants in the room dramatically tipping the scales in a discriminatory fashion.
In acknowledging these dignity rights as two sides of the exact same coin, perhaps the courts will also recognize that they are administering a comparative, not an absolute, evaluation of parental qualifications, a “better” rather than “best” interest test. Maybe they would further recognize that at least in some close cases, when settlement cannot be achieved, provisional rather than final custody and visitation awards should be awarded, subject to periodic review and if necessary alteration on certain control dates by either the courts themselves or panels established for that purpose.
If after such a better interest test giving dignity rights due consideration, a devoted, competent father emerges with a visitation award only, courts may then conclude that the award requires unfettered, unceasing, unsupervised, and unconditional access to his children at all reasonable dates and times except in truly unusual circumstances. Why? Because the children are his flesh and blood, and the very DNA of his identity as a human being. To interfere with that contact at any time, that natural bond, that dignity, is to defrock him as a parent, diminish his very identity as a man, and likely scar his children forever. As Daniel explained to the judge:
In regards to my behavior, I can only plead insanity because, ever since my children were born, the moment I looked at them, I was crazy about them. Once I held them I was hooked. I’m addicted to my children, sir. I love them with all my heart. And the idea of someone telling me I can’t be with them, I can’t see them every day…it’s like someone saying I can’t have air. I can’t live without air and I can’t live without them.
Neither can they live without him.