*Child Custody* [1] - DER SPIEGEL, 1997-11-17, page 84-89

By Matthias Matussek
(Translated by Walter H. Schneider)

Men are the losers
(German Version: "Verlierer sind die Männer" with additional german links)
( See also "The disenfranchised Father")

Most fathers have accepted that most children of divorce live with their mothers. However, that they mostly don't see their children anymore infuriates men. 20 years after the great divorce reform, the battle over the child intensifies.

Madame Justice had experienced quite some issues, but that "a father wanted to use the sheriff to enforce his taking his three teen-aged children for the purpose of celebrating Christmas," that was a bit strong. With a definitive No, Margot von Renesse refused to allow the upset father to have the children. For him, but for the other family members too, Christmas became thoroughly spoiled.

Mrs. von Renesse, who since then became a Social Democratic Party representative in the Lower House of the German Parliament, reported the incident on the 25th of September to the House; the example was sufficiently moving and repulsive. On the very same day, with a majority that crossed all party boundaries, the Parliament passed a new "Childhood Rights Bill." In the case of separation, custody of the children now should possibly not be assigned to one of the parents, but rather to both partners -- and that regardless of whether they are married or not. In spite of that, the aspiring divorcees will continue to fight over the children. The goal of the new Bill, to share parenting and custody between both parents, shared custody and parenting in spite of the separation of the parents, presupposes a wealth of good-will -- and that is often precluded in the fight over the child.

However, the example provided by Margot von Renesse does demonstrate the dilemma of the provisions of the law that was in place until now and mostly awarded the child custody to the mother. The man had the basic right to share that Christmas with his children. However, who is thereby helped, if a father tries to drag his children under the Christmas tree with the assistance of the sheriff or even police officers in uniform?

As absurd as this scenario might be, it can be appreciated what the despair of the fathers must be when he is forced to realize that the "access right" that the court order provided in writing is being ignored by the mother, sabotaged by her, or that she deliberately alienates the children from him, by systematically keeping her ex-partner at bay and out of reach. That is what happens quite frequently.

Many men simply don't want to put up anymore with such chicaneries. Exactly 20 years after the constitutional changes to the marriage and divorce laws through the social-liberal coalition of the time, something like a "Backlash" [sic], a repercussion, is making itself known. As the women had to suffer until 1977 the disadvantages of a divorce, so now the men are demanding their rights.

"End the Access Boycott", demands perhaps the national "Association for Children" [Bündnis für Kinder und Menschenrechte - Parents FOREVER Germany], supported by diverse initiatives, such as "Fathers' Initiative for Children" ["Väteraufbruch für Kinder"] and "Guilty on Suspicion." On a day of action in mid-December, the groups -- comprised mostly of men -- want to deposit in front of Family Court buildings Christmas presents for such children who are not permitted to see their fathers.

The mothers who are most often successful in the courts are often the very same mothers who time-and-again disregard the sworn "best interest of the child," by inciting their offspring to hate their fathers. Suddenly, the losers are then primarily such fathers who -- exactly on account of that very interest of the child -- keep back lovingly.

That's what happened to Horst Vimbuch[*], who after the divorce endeavoured in vain for eight years to gain his son. Jonas, almost 13 at the time of the last Court hearing, had refused stubbornly, at the instigation of his mother, to have any contact at all with his father.

The "rejection" by the boy, as determined by judges and psychologists, was not "inherent," but based "on the biased and coercive attitude of his mother." That she had obviously attempted to induce in Jonas "an attitude that was moulded through demonizing of the father."

The sanctions that justice can impose in such circumstances are narrowly limited. That is because every punishment immediately makes the child a co-sufferer: A monetary fine will stress the already stretched finances of sole-custodian mothers [2], and the psychological consequences of forced contact with the father could be devastating.

When Horst and Vera Vimbuch obtained their divorce, Jonas was four years old. Out of consideration for the boy, who was not intended to suffer under the tense atmosphere, the father was initially granted only "contact by correspondence and telephone," but even those the mother knew how to thwart. In the interest of the child, Horst Vimbuch kept quiet for four years. Then, shortly after his son's eight's birthday he made a new start and applied, now having become modest, at least one contact per month. Nevertheless, his ex-spouse refused that too -- and kept the judicial process going for five further years. She boycotted every suggestion. Even the suggestion to overcome the resistance of the child through psychotherapeutic help foundered in her renitence.

Finally the judges of the state supreme court refused to be confused any longer. They found in favour of the father, because "an amicable agreement was not to be expected, in view of the personality structure of the mother." From now on Vimbuch is allowed to see his son "on the Saturday of every first school-free weekend of the month from 10 a.m. to 6 p.m."

Without any doubt, the decision was a success for the father -- and hopefully for the son as well. However, should such circumstances truly be acceptable for a society, for any jurisprudence? Which pedagogue, which psychologist would want to earnestly claim that it is for the well-being of the child wen his father makes one appearance per month?

Especially in such conflicts, the judges find themselves in decision-anxiety. A woman teacher, who, according to the opinion of the State Supreme Court of Bamberg "strove for years to systematically destroy the bond between the child and his father," was awarded sole custody. For an "advantageous development" of the "girl who was only a short distance from entering puberty," according to the Bamberg decision, "living arrangements with the mother are of outstanding importance."

The judges must have known quite well that the well-founded interest of the father to see his daughter regularly was not aided by that. It seems therefore almost naive to hear the appeal of the Senate to mothers, that in future they should under no circumstance "out of self-seeking motivations, irreconcilable with the well-being of the child, subvert" the association with the father.

In the case of an obstinate mother, the colleagues from the State Supreme Court in Nuremberg exercised at least gentle pressure. Her sons Anton, 11, and Robert, 9, downright challenged their father. They would only be amiable to be meeting with him if he would drive them to the public swimming pool. When the father once had no swimming trunks with him, Anton made an about turn on his heel and said only "Bye then."

One attempt to invite the children to his home turned out miserably. In front of the door Anton ordered his brother "Turn around immediately!" And then the nitwit became "assuming," he threatened the father that he would "call the police on account of child abduction."

It didn't take the judges long to find out who had thus prepared Anton and reduced her monthly support allowance, "for the duration of the influence of her attitude on the children" and for as long as she would not take measures that the father "perpetually and to an appropriate extent" had reasonable interaction with his children.

The number of the fathers, who -- worn down by the chicaneries -- ultimately resign themselves and forego the battle over their children, is not recorded in any collection of statistics. "Included" are only those processes in which the parents, more or less filled with hate, fight each other.

German Courts have divorced exactly 175,550 marriages since 1996. The Courts concerned themselves with support award cases 181 239 times, with custody and access issues 178,981 times.

Whoever has good legal advice foregoes to appeal the decision in the first place. The expectations of the fathers to succeed in winning their entitlements and wishes are traditionally slim indeed, the Court and lawyer fees on the other hand high.

148,782 children were affected by the divorces of the past year. Only every tenth was awarded to the father. Still, in the last few years -- almost as if in anticipation of the now finished reform -- the number of the parents has increased considerably who availed themselves of the option of shared parenting after divorce; the federal average is about 17 percent.

There may be a few reasons why children mostly remain with the mothers. Complete day-care can as a rule not be guaranteed by the fathers. Their relationship to the children is then limited to two weekends a month and few vacation days per year.

This picture of horrors, of the father wrestling for his children, counts amongst the undesirable outcomes of the divorce reform of the year 1977, once praised as "the Achievement of the Century."

According to the laws that were in effect until then, after one instant of marital indiscretion the wife every right to alimony, even if she had forsaken job and career and had sacrificed herself for decades for her family.

After the implementation of the new law she could and can, without providing reasonable cause, give notice of the dissolution of the marriage -- and receives then still half of the accrued increase in matrimonial property, in addition, if she does not work, three seventh of the net income of her ex-spouse in alimony.

The equalisation of the accrued increase in matrimonial property and annuities -- or pension claims has proved itself many times over. But over the children, and over support and custody issues, strife ensued too often. The legislators had to produce amendments.

In 1986 a reform of the reform was implemented. On account of "gross unfairness" support payments can since then be reduced or cancelled completely, if the partner is obviously being exploited.

Before all, false predictions made these corrections necessary. The increasing unemployment led to working men having to support their ex-wives, not as planned only temporarily, but as a rule perpetually. The assumption that young women would re-marry and thereby relief their former husband[s] turned out to be erroneous; most preferred marriage without certificate.

The law did not allow the judges to limit the amount or duration of support award. After an interval that orients itself according to the duration of the marriage, childless couples are accorded an economic level that corresponds to that which they had at the time preceding their wedding. If the women then live in a new but common-law relationship, they can be treated as if they had married again.

Such regulations aim at a reasonable and sober resolution of conflicts. However, too often jealousy, hurt pride and feelings of revenge gain the upper hand. And only especially severe transgressions are prosecuted.

Generally, divorced individuals lose their right to support if they grossly injure "post-marital solidarity," such as if they denounce the partner with the tax office or slander him with his employer. "It does not have to come to a dismissal from employment", according to case law, "an endangerment" of a position is sufficient. Divorced couples risk their support income too when they hide their own income or subvert the right to access to the children.

The legislators did not only err with respect to their anticipation of the labour market for women. Another especially contrived rule became a flop as well. The sensible idea that the parent who is the care-giver for a child common to both parents is supported by the parent who is the income earner, initiated a fatal mechanism.

On account of the interconnection between the claim for support and the custody right, far too often the divorce processes don't deal anymore with the well-being of the child, but with money issues. On account of the finances, the litigants have to fight over the custody rights -- the women because there by they'll automatically establish a claim for support, the men because they want to avoid it.

A generally noticeable dearth of the ability to strike compromises becomes an aggravating factor. It is a fact that the peaceful resolution of conflicts is not one of the strengths of the Elbow-Society. If even prominent figures in politic, sports and show business give each other notice of intent to divorce in front of cameras in action, then normal mortal couples will not govern themselves any more sensibly. And since time and again the same roles are assigned to the sexes in the spousal battles, the participants react accordingly aggressive.

If a couple separates and children are present -- only then is a divorce truly problematic -- , the woman has to consider foremost that she has sacrificed her job and career opportunities to the family. Women who raise children are being exemplarily punished for performing this social service -- in labour- and primarily pension rights.

On the day of the divorce, the man becomes aware that he is economically severely affected. With an average [monthly] gross income of DM 5,000 [3], after the deduction of the support payments for his two children and their mother, he is left with DM1,500 in his account.

What's left are immaterial assets -- the children. They become the object of a free-for-all, and both partners descend on them. And that's when men lose once more. Naturally, on account of the meagre access rights, a piece of their lives is stolen not only from the fathers, but also from the children -- an ominous development, as the president of German Federal Family Court Session [4], Siegfried Willutzki, laments.

The Law professor of the University of Chemnitz criticises above all that the "social parenthood" (that is: the exclusive bonding of the child to the mother and her new partners) is being more valued in jurisprudence than the "biological" -- that is the bonding to mother and father. Indeed, the new family had been far too much "protected to further the better development of the child for the sake of the child" against the alleged "disturbing influences" of contact by the father.

Indeed, the legislators could not have imagined in earlier reforms, according to Willutzki, what the [child] development psychologists in the mean-time know about the value of the relationships to the "biological parent." [5] However, another question is "whether they should have allowed themselves so much time with respect to considering these changed scientificrealizations."

Margot von Renesse and the inventors of the new Childhood Bill see themselves suitably encouraged. By the new law it should not happen anymore that divorced parents are capriciously turned into litigants. Rather, the ratio of rule and exception will be inverted: The rule will be joint custody, the exception the application by him who doesn't want that solution.

The law that will come into effect in the coming summer provides in addition that father and mother not only are "entitled" to custody, but are instead also "obligated". The child is now entitled, according to Social Democrat Renesse, to "visitation rights"; the Courts wouldn't be allowed any longer to consider the contact with the absent parent "as a more or less disturbing residual right."

Nevertheless, under no circumstances is it precluded that the new legislation too "will become the theatre of war for post-marital disputes," as is feared by PDS representative Christina Schenk. Many partners of foundered marriages have leanings, fears Jurist Willutzki, toward "compensating" for the "pain and grief" over their fiasco, through the "assignment of blame to the other partner."

The wish that is as wide-spread as it is devastating, to hold the ex-spouse responsible for the foundering of the marriage and to punish him with the withholding of the children, could therefore bring to naught all good intentions. With the new custody law, the battle would therefore then only enter a new round.

*) Names changed by the editor

DER SPIEGEL 47/1997 - Copying is allowed only with permission of the SPIEGEL-Publisher.

Translator's notes:

[1] The literal translation of the German term "Sorgerecht" is "[child] care right".
[2] The literal translation of the German term "alleinerziehende Mütter" is "lone-upbringing mothers"
[3] The exchange rates as of 1997 11 17: 1 DM = $ 0.816069 (Can) / 1 DM = $ 0.576768(US)
[4] I'm not sure of the accuracy of the translation of the term I used here. The term in the original text was "der Deutsche Familiengerichtstag."
[5] I don't know why the author put that term in parentheses, because the term "Elternteil" is quite acceptable in general usage. It may be that the term leiblich, meaning bodily, seems quaint to the author, but it is used quite commonly in southern Germany and parts of the former East Germany in which Chemnitz is located.