BLIND JUSTICE? For years fathers have contended that mothers get preferential treatment in child custody cases, but judges and attorneys in Alamance County say the playing field has never been more even.

Keren Rivas

Jun. 15, 2008 (McClatchy-Tribune Regional News delivered by Newstex) -- I t (OOTC:ILIMF) has been four years since Sean Perkins McDonnell started fighting for custody of his two children.

In that time, he says, he has taken his ex-girlfriend, the mother of his children, to court in Alamance and Caswell counties nine times for breaking a court order and three times for allowing the children to be near inappropriate people.

He has also been arrested once after his ex-girlfriend accused him of trespassing when he picked her daughter up from school one day. That charge was later dismissed.

And though he won a battle in April when police took his children away from the house they had been living in with their mother after receiving a call from the children's school, he is aware that the battle still is not over.

McDonnell, 30, who now lives in Kansas City, Mo., currently has sole temporary custody of his children. His ex-girlfriend signed over the rights to him after police took the children from her.

In September, an Alamance County District Court judge will decide who gets permanent custody.

McDonnell's confidence in the court system isn't strong and he's not shy about it. He doesn't think justice is blind when it comes to custody cases. He fears that despite all he has proved to the courts, he will not be given custody of his two children, ages 9 and 8.

"If they gave her nine chances over the years, what's one more?" he asks "I'm scared to death of that." In his mind, there is only one explanation as to why he has to fight "an uphill battle" to get his children Because he is a man.

"Few fathers have custody of their children. There is a reason for that It's because the courts don't give them custody," he says.

There are no local statistics prove it. The N.C. Administrative Office of the Courts collects data as the total number of child custody and visitation cases that are mediated every year but it does not make a distinction as to which party is granted custody.

In the 2005-06 year, for instance, there were 253 child custody and visitation cases in Alamance County referred to mediation. Of that number, 186 were mediated.

The Times-News decided to ask those involved in the judicial process whether they believed that fathers receive different treatment when it comes to custody cases.

JUDGES AND ATTORNEYS contacted for this article said that there is no legal presumption that one parent is better than the other simply because of gender.

Many years ago, the N.C. Supreme Court held that a mother was presumably the better parent to get custody of children when parents separated, says Chief District Court Judge Jim Roberson. That is no longer the case.

The legislature overruled that decision decades ago, Roberson says, adding that the standard now is to look for what's in the best interest of the child.

In determining this, judges look at several factors, such as which of the parents has been historically the main caretaker of the children, whether there have been instances of abuse in the past and the quality of life at home each parent has to offer.

"We have to decide what's in the best interest of the child, not what parents think they are entitled to," Roberson says.

"I've awarded fathers custody and I've awarded mothers custody," Roberson says. "I don't give either parent an edge over the other. ... I hope I'm consistent with it in practice." Other judges gave similar answers.

District Court Judge Tom Lambeth says he has no bias in favor of either gender when it comes to deciding the placing of a child.

"There are a lot of different factors that you look at," he says. Among other things, he says, you look at who can spend quality time with the children. "You start with the premise that hopefully both parents love the children," he says.

He says that as traditionally assigned gender roles have changed in the past 20 to 30 years, it's more common today to see fathers involved in daily child care activities.

"I know that men of my generation are more active than men of my father's generation were," he says. "I think it starts in the birthing room." Roberson says he has seen more fathers in the past couple of years seeking custody or asking for more placement than before. He says that part of this may be because nowadays it's more common for both parents to work and for both parents to provide care for the children.

Whatever the outcome of a case, Lambeth says custody cases are never easy.

"It is clear to me that custody cases are the most important cases that judges hear," he says. "I think there are the hardest cases. I take them extremely seriously." District Court Judge Brad Allen agrees. He says that custody cases are not cut and dried. "Every single case is completely different," he says. "There is not a pattern. Every single one is different. Even the ones that look similar are different." For him, too, the best interest of the child is what guides his decisions, he says.

MCDONNELL SAYS THAT although traditional gender roles have changed and the law itself has changed, the judges have not entirely changed the way they ruled on these cases, despite what they may say.

When he separated from his ex-girlfriend in 2004 after living seven years together in Caswell County, he entered into a parenting agreement. He left for Kansas City, where he eventually married his current wife, thinking that the agreement he had signed was enough to set a joint custody schedule.

He was wrong. For the next two years, his ex-girlfriend had sole custody of the children and did not allow him to see the children for awhile. In 2006, a Caswell County judge modified the agreement and gave McDonnell's ex-girlfriend the primary placement of the children and McDonnell the secondary placement.

The judge also ordered the woman to let the children talk on the phone with McDonnell following a schedule, which she did not obey, according to court documents.

In an order entered in October, Roberson wrote that he had concerns about the woman's judgment regarding "her pursuit of a relationship with a person with ... serious criminal record," who had exposed the children to questionable behavior such as drug activity, killing cats and hanging a dead deer in a tree to decompose.

However, the order notes that the woman had ended that relationship two weeks prior to the hearing. The judge also found that McDonnell's wife had a good relationship with the children, that she loved them and that they loved her. Both McDonnell and his exgirlfriend were unemployed at the time.

In the end, Roberson noted that there were "substantial and material circumstances" to change the prior custody order but that the evidence was not "sufficient enough to modify primary placement" of the children from the mother to the father.

He did, however, find the woman in contempt of court for not allowing the children to speak with their father on the phone as the previous order stipulated, though no sanction was given.

"Court orders are there for a reason," McDonnell says. "What good is it if there is no repercussion?" He says these orders need to be enforced to motivate people to do the right thing.

He says that the behavior his children have been exposed to during the years they have lived with their mother has been very detrimental. They are currently receiving counseling.

"Over all those years, my children would tell me things they wanted me to fix," he says. "I'd tell them I'd fix them." But while the courts kept giving his ex-girlfriend one opportunity after another, he says, his children started to lose faith in him. "They didn't believe me," he says. "It's very unfortunate." He says he has told judges numerous times in the past to give him the children for six months to see if he is fit to be the primary caregiver of his children. If they would find after that time that he is unfit, then they could take them away.

WITHOUT SPEAKING about a particular case, Roberson says that in order for him to take custody away from the primary caregiver there has to be more than one small violation of a court order.

"Everything goes in gradual steps," he says. "It has to build up or be one extremely serious event." He says that after the facts of a case are presented in court, a judge has "a lot of discretion" in making his decision, which is something that sometimes concerns parents since the decision is left with a third party who doesn't know the children or the parents intimately.

He says that often times, he tells parents to try to resolve the cases themselves before he makes a decision on their case. Many times they do.

He says the law in North Carolina is very clear about the court's authority when it comes to family issues. He says the courts cannot meddle in family matters unless the parents don't agree on an issue or if there is abuse, neglect or dependency.

McDonnell believes that part of the reason fathers don't get custody lies in the judge's discretionary powers. Such powers "need to be done away with," he says, because it gives judges "the right to evaluate the case not based solely on facts, but on opinion and feelings." But it is exactly this ability to rely on their own experience that makes a judge's decision all the better, some attorneys say.

"Every judge, any judge, takes to their job all of their personal experiences," said attorney Wade Harrison, who has been practicing law for almost 25 years. "And all of our judges are experienced attorneys. ... They've seen how their decisions have worked." Though he says that there are some gender biases in our society, particularly among older people, if the case centers on what is best for the development of the child, then it takes the spotlight from the parties.

Attorney Wiley Wooten agrees.

"Judges not only here but across the state do a very good job at trying to determine what is in the best interest of the child," he says. "I have represented numerous fathers who have primary placement of children." Attorney Mildred Hardy, who has handled dozens of custody cases over the past 20 years, says courts used to give preferential treatment to women decades ago but that not longer is the case. "We have come a long way," she says.

THOUGH DISTRICT Court Judge Wayne Abernathy agrees that no legal presumption exists in favor of women and that things have changed, he recognizes that there is still "human nature" in the mix.

"Do men have an even shot going in? It depends on the man and the woman," he says. "It's safe to say that there has been an evolution in the way the courts handle custody cases." Abernathy says that in his experience as a private attorney, something he did for almost 30 years before being elected judge in 2004, men he represented had to typically work harder to get custody.

"I told them, 'Your case is different; you have to prove that you are a very good dad and that there is something wrong with her,'" he says. "I didn't feel it was 50 percent each if the woman was a good mom." Part of the reason for this, he says, is because typically mothers are more involved with the day-to-day care of children, something that judges consider in making their determination for primary placement.

He says that during mediation, which is mandated in the state, mothers are primarily the ones who get the children. However, in his experience, if the case comes to court years later because something is not working, things tend to be different.

"That's when dads get a closer look," he says, adding that in his opinion, "men's success rate changes dramatically" then.

"If he really is a good dad, he has an equal shot," he says.

McDonnell would like to think that is true. He says his children are doing things now that they never had the opportunity to do before, such as going to summer reading camp.

"It's all about the children, it's not about me," he says. "They have a right to have that relationship (with their father) that all children need."

Newstex ID: KRTB-0029-25997158