The National Organization for Women - has always favored a primary caregiver presumption to ensure stability and continuity of care for children. If you have not been involved in a major way in the lives of the children during the marriage, why would that involvement increase after divorce?

A primary caregiver presumption would cut down on a bargaining tool when one parent agrees to forego a custody battle if the other agrees to a less favorable financial settlement. Richard Neely, a lawyer in West Virginia, has acknowledged that he often advised his male clients to make that threat. When he became Chief Justice of West Virginia Supreme Court of Appeals, he was responsible for the passage of a primary caregiver presumption.

Contrary to the argument of father’s rights groups, mothers are not awarded custody in 95% of divorce cases. Since only one per cent of cases are litigated, mothers get custody by agreement of the parties, whether or not the agreement is coerced as described above.

There is a pervasive attitude in the courts that allegations of child abuse are not true. Andrew Schepard, founder of PEACE, a statewide parental education program, in a New York Law Journal column of July 29, 1998, discussed an Australian study of child abuse charges. He stated that many professionals involved in such cases (child abuse) believe that the allegations are presumptively false, simply a nuclear weapon in the ongoing divorce custody wars. The study found, to his surprise, that only 9% of the allegations were false.

The legislation gives short shrift to the devastation wreaked by domestic violence and child abuse, although they state that the court must consider the effect of domestic violence upon the best interests of the child. However, because of the widespread acceptance in the courts of PAS (Parental Alienation Syndrome), mothers are afraid to even raise the issue of child abuse for fear of losing custody and possibly even visitation. Women are advised by their attorneys and domestic violence counselors not to raise that issue in court because of the risk that it will backfire. The friendly parent concept intimidates the parent who has experienced an embattled relationship, which makes the failure of joint custody predictable.