When Tiger Woods and Elin Nordegren had their divorce approved, few would have been shocked if their children were taken away from Woods. But he's not exactly the normal dad who goes in front of family court.

For years, fathers have complained that in a divorce proceeding, the law and the judges are biased in favor of mothers. It spawned a "Father's rights" movement and lawyers who specialize in fighting for fathers. But is it true? Do fathers get a fair shake in family court?

"There's a lingering perception of that," said Dan Butler, a St. Paul attorney who specializes in family law. Although Butler said his firm represents both men and women, he authored a 1995 article called "Fathers Get The Shaft in Family Court."

Today, he says: "I think we've come a long way from that concern."

Partially, he thinks so because judges have simply turned over. 

"I think we've got a new generation of judges on the bench. The old school has passed on into retirement," said Butler.

However, it's not just judges changing, according to Pamela Waggoner, the head of the family law section for the Minnesota Bar Association, and an adjunct professor at William Mitchell College of Law.

"I think it's a reflection of a change in society. You no longer have the traditional family unit where there's one breadwinner and one stay at home parent. Right now, you have two people -- where both people work," she said. 

The mother doesn't have the same ability to walk into court and stake her claim as the one parent who's been doing all the childrearing. That idea used to have standing in a family law courtroom, according to Butler. It was called the "tender years doctrine."

The theory was that "children, especially young children, do better and belong with their mothers. And we've moved a long way from that in this day and age," he said.

Still, even though Minnesota law is technically gender neutral when it comes to awarding custody, Butler said that dads "have to work harder" when they fight for custody, as many judges still presume that the mother is the more fit parent.

Minnesota law has a presumption of joint legal custody, which means that both parents get the right to make decisions about their child, unless there's some strong reason why one of them should not have custody (like a history of drug abuse or domestic violence).

It does not have a presumption of joint physical custody, however, a point that some father's rights advocates have taken issue with.

Waggoner said the area where the law hasn't caught up to society relates to children of unmarried parents. "If the parents have signed a recognition of parentage, the mom retains sole legal and sole physical until such time that dad brings a petition," she said.

Considering at least a third of Minnesota children are born to unmarried parents, this is already starting to "overwhelm" family courts, said Waggoner.

The good news, according to both Butler and Waggoner, is that more and more parents are setting up joint physical custody arrangements outside of court.

"I do see a lot of cases settled under the parenting plan," said Butler, "most commonly 5-2-2-5," which is a setup where a child is with the mother for five days, father for two, mother for two, then father for five.

"It is progress, we just need more of it," said Butler.

http://wcco.com/local/child.custody.fathers.2.1877563.html

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