Dads and Custody Battles: A Law Professor Weighs In

Sept. 22, 2008— -- Harvard Law professor Jeannie Suk, who was interviewed by actor Alec Baldwin in his book, "A Promise to Ourselves: A Journey Through Fatherhood and Divorce," says changes in the legal system mean "it's easier today to say that a father is unfit."

Suk, who teaches family and criminal law, also sat down with ABC News to discuss some of the reasons why fathers may feel disadvantaged in family court.

What was your goal when you decided to contribute to Alec Baldwin's book?

I guess in the book, what I'm trying to do is provide some explanations and some background and some context for why a father in the family law system might feel disadvantaged, and what that's really about.

This isn't just a case of animus or discrimination, right. This has a history and it has a real reform movement behind it, and there are good reasons for it. And every time you reform the legal system, you shift costs from one party to another party.

How has the feminist movement affected family law?

You have to start the story at what the legal system used to be like for men and women. The legal system used to be pretty bad for women in that, if they were being beaten at home, if there was domestic abuse, then the legal system didn't actually protect them and it didn't help them.

And so, the idea is that when the legal reform movement, spearheaded by feminism, tried to change that, then what they did is to usher in a whole new set of understandings about men and women and what they're like and what homes are like.

Feminism is no longer an outsider movement in the law, it's a movement that has had great success in the law and is wielding power in the form of prosecution decisions, police decisions to arrest, and judges' decisions about all kinds of things, not only in criminal matters, but in family law matters.

The legal system now sees women and men differently than it did 30 to 40 years ago. And the role of domestic violence in that revision, of the way that, that the legal system treats the home, cannot be overestimated. Because the idea is that the, the home is now seen by the legal system as a place where violence occurs.

How do the courts treat domestic violence?

If the legal system has this understanding that violence is endemic to homes and to families and then defines violence very broadly, and what that means, then, is that the role of the state is expanded and the role has -- role of the state is bigger and the state comes in, in a much more active way in the home to try to fight violence.

A legal culture, in which domestic violence is very easily established, and where the definition of violence is so broad that it includes many kinds of behaviors that some of us might think shouldn't be included.

So, an angry comment or throwing something on the ground or saying things that are not very pleasant, all of those things can be assimilated into the model of subordination, that one person that's subordinating another person, it's the man subordinating the woman.

Is there bias against fathers in the court?

It's not that the legal system is biased against men, it's that we have a real concern today in our legal system with protecting women from violence, and it's a concern that people take very seriously, and that judges and lawyers and prosecutors and police officers, everyone in the chain of law enforcement, takes this extremely seriously.

And what that means is, when there's any kind of a hint of an accusation, or even a suggestion that a man may have behaved in a manner that might resemble domestic violence, then you're gonna have people becoming very alarmed, and of course, it's going to affect whether people think that the person is a fit father.

I think that fathers' rights groups when -- when they complain that feminism has hurt them, what they really mean is that the idea of masculinity has been associated with violence. And to that extent, as fathers, it's easier today to say that a father is unfit as a result of feminist ideas about what men are like.