Being an illegitimate child who was raised by a single mother, I can certainly empathize with children who grew up in a single parent home. Now that I am a father myself with a son whom I love immensely, I have realized that the Philippine legal system has a clear maternal bias when it comes to the parental authority of an illegitimate child.
Wouldn’t it be better to give children the chance to be brought up by both parents and optimize their chances at happiness and success? A mother and father each have their own strengths, and to attempt to make broad generalizations about a person’s capacity to love and care for their children based on their gender is a problematic and outdated point of view.
The laws in our country governing parental authority and custody of children are based on the archaic and dogmatic view that children will almost always be better off under the care of their mother after parental separation simply because of her gender. Our laws state that legitimate children are under joint parental authority, but children born out of wedlock are under their mother exclusively.
This is significant because data from the Philippine Statistics Authority state that 54.8% of the total registered live births in 2019 were to unwed mothers, with the figure increasing to 57% in 2020, showing us that that illegitimate children comprise the majority of our children’s population.
When unwed parents have custodial conflict, the child becomes a potential bargaining chip and a means to an end when trying to “punish” the father. Barring a court order, mothers have the freedom to dictate the extent and quality of a father’s visitation.
If the father has the financial resources and the matter goes to court, they can exert their right to visitation. However, the exact details of what exactly this grants them remains nebulous and vague, and in practice, limited and inadequate. The prospect of using the courts is a daunting task for unmarried fathers because of the emotional, psychological, and financial strain it entails.
The visitation rights fathers have over their children also have the potential to become moot if the mother can take the child and immigrate without his consent.
The Tender Years doctrine
Our custodial laws refer to the Tender Years doctrine and mention that “No child shall be separated from its mother, unless the court finds there are compelling reasons thereof.”
The doctrine has its origins in the 19th century but was later scrapped in the US and Europe because of its inherent discrimination based on gender. It made sense at the time when men primarily comprised the work force and women stayed at home, but times have changed, and women now share similar rights and opportunities in the workplace.
It was subsequently replaced with the supposed gender-neutral Best Interest of the Child, in which co-parenting and joint custody for both legitimate and illegitimate children were pushed as the new norms and a natural evolution of child custody law. The Philippines, however, still enforces the Tender Years presumption.
Its very nature makes it inherently flawed because it incites and promotes conflict between two parents for the chance of being rewarded with more parenting time, thus emphasizing parental entitlements over the child’s welfare.
Our medical knowledge has had a significant role in shaping custodial law. Its backbone is British psychologist John Bowlby’s Attachment Theory, wherein mothers are assigned the role of primary caregiver to their child, and fathers merely play a supportive role.
Bowlby further influenced the seminal psychoanalytical book by Goldstein, which posited that “children have one psychological parent who should retain sole custody in the event of a divorce” and asserted that “children cannot benefit from contact with two parents who are in conflict with each other.”
Further research over the years has already challenged and refuted much of Bowlby and Goldstein’s viewpoints, as we have now come to a more thorough understanding of the nuances of parent-child relationships.
Research states that a superior hierarchical attachment to one parent is no longer central to attachment theory. Children have been shown to develop meaningful attachments with both parents as early as six to seven months, and are “more likely to attain their psychological potential when they have meaningful relationships with both parents, whether they live together or not.”
Bowlby’s own son, Richard Bowlby, came to the realization that Attachment Theory doesn’t account for fathers and developed a model of dual primary attachments, wherein each parent can either provide a secure base and source of comfort, or provide a means to engage in exciting and challenging experiences.
Our legal system has misinterpreted “stability” as a child staying with only one parent in one house, stating that, “A home with only one parent is more normal than two separate houses.”
Research shows us that equating stability with having only one home is overemphasized and that having only one home environment is not crucial. The focus should be creating an arrangement wherein parents have predictable schedules, feeding and sleeping times are consistent, and that there is reliable and appropriate care.
The traditional alternating weekend visitation has been eschewed in favor of more parenting time to achieve the well-recognized benefits of two involved parents. Children become stressed and unnecessarily overburdened by separations from either parent that lasts more than three or four days, and if contact is limited to six days per month or less.
Research states that “it violates logic and common sense to welcome father-child contact around bedtime and morning rituals when parents live together, but eschew overnight contact when parents separate.”
Overnights provide “opportunities for crucial social interactions and nurturing activities, including bathing, soothing hurts and anxieties, and bedtime rituals that one- to two-hour visits cannot provide.” Denying them is “stressful for both father and child and does not form sensitive and reciprocal interactions that promote secure attachments.”
The presence of parental conflict is not a contraindication for either overnight visits or shared parenting. Our laws encourage inciting and sustaining conflict to sway the courts into thinking shared parenting is a less than ideal option. Exceptions to this are a history of neglect, abuse, child abduction, and significant geographical separation between parents.
Policymakers, judges, lawyers, and even psychiatrists need to be made aware of the latest empirical evidence about what works best for children and parents.
What we should be doing is to change the “norms and attitudes of professionals from whom separating parents might get advice”.
If lawyers told their clients that shared parenting and adequate visitation leads to benefits for all parties involved, it would foster an environment where the best interest of the child would finally be served.
Fighting for father-child rights does in no way advocate for lessening a mother’s role in a child’s life. Children need both their parents equally, and their “legitimacy” does in no way change that. Children have the right to be with their fathers, to love them and be loved back. It is as simple as that. – Rappler.com
Kyle Cabañez is a physician who finds joy in listening to a good guitar riff, and like Cormac McCarthy, believes we should always strive to “carry the fire.” He gets a kick out of the fact that his son thinks the Beatles song “I Want To Hold Your Hand” is about safety when crossing the street.