140 Children’s Legal Rights Journal [Vol. 37: 1 2017]
application. 91 It effectively turns a blind eye to the reality that countless changes often occur as
an aftermath of separation and divorce – including finances, living arrangements, friends, and
day cares or schools for the children. 92 Among these changes could be the pattern of care by the
parent who was not considered the primary caretaker prior to the divorce.
Further, divorce and separation may also initiate a change in caretaking roles. This
approach fails to consider many circumstances where such an analysis would be unjust to the
parents and children. 93 For unwed fathers, for instance, the opportunity to take on such duties
may have never been an option while their child is in the care and control of the mother of their
children. 94 This presumption blatantly ignores scenarios where mothers, who may use their
children as pawns to reflect their rage for a failed relationship or withhold their children to
protect their current relationship, thwart fathers from establishing a relationship with their
children. 95 It ignores the fact that aside from a child support obligation, unmarried fathers
essentially lack any legal relationship with their child until they begin paternity proceedings to
secure visitation through the court. 96 Furthermore, the primary caretaker approach fails parents
who have been deployed to serve our country; under this approach, these parents’ planned short-term sacrifice to secure a better life for their children and country has the potential to become a
91 See Weitzman & Dixon, Child Custody Awards: Legal Standards and Empirical Patterns for Child Custody,
Support and Visitation After Divorce, 12 U.C. DAVIS L. REV. 471, 521 (1979).
92 See generally Marion Gindes, Ph.D., The Psychological Effects of Relocation for Children of Divorce, 15 J. AM.
ACAD. MATRIM. LAW. 119, 124-26 (1998).
93 Linda D. Elrod & Milfred D. Dale, Paradigm Shifts and Pendulum Swings in Child Custody: The Interests of
Children in the Balance, 42 FAM. L. Q. 381, 400 (2008).
94 See Lehr v. Robertson, 463 U.S. 248, 268-70 (1983)
95 See id.; See Caban v. Mohammed, 441 U.S. 380, 382 (1979).
96 See Michael H. v. Gerald D., 491 U.S. 110, 142 (1989); Matter of Appeal in Pima County Juvenile Severance
Action No. S-114487, 875 P.2d 1121, 1129 (1994). Kevin Noble Maillard, Fatherhood Is One Area Where Men Are
Unequal, N.Y. TIMES (June 13, 2014), http://www.nytimes.com/roomfordebate/2014/06/13/fathers-rights-and-
womens-equality/fatherhood-is-one-area-where-men-are-unequal; See Stanley v. Illinois, 405 U.S. 645 (1972); see
generally Michael H. v. Gerald D., 491 U.S. 110 (1989).
