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May 14, 2012, 06:43:55 PM
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SOMEDAY Hollywood will make a movie of this: A father is sentenced to prison for wanting to take his son to a ballgame.
Up against him is his ex-wife, the legal system, and various women's groups, all declaring him a deadbeat, and a batterer, all of it untrue. But as a result, he's in a cell while his ex and her new boyfriend take little Johnny to a Mets game.
Improbable? Only in the sense that Hollywood would ever make such a movie. Unfortunately, it's an all too real scenario that is taking place everyday across the country.
The case of a man we'll call Alan is fairly typical. Without warning Alan came home one day to find his apartment cleaned out. His wife and two-year-old girl were gone. Shortly afterwards Alan was summoned to court as a "defendant," was ordered to stay away from his daughter most of the time and to begin making child support payments.
His two-hour, thrice-weekly visits with his daughter were supervised and she was not allowed to stay with him overnight, since his wife alleged that he was dangerous and would kidnap her. The accusations eventually proved groundless, and the supervision terminated. After a year Alan was permitted one overnight visit with his daughter per week. His wife, meanwhile, was never charged with making false accusations nor has the fabrication counted against her in the custody proceedings. Various experts testified that Alan is no danger whatever to his daughter and that he is a devoted and loving father. All these findings were ignored by the courts. More than four years after his wife left, the child remains with her. He has spent a $160,000 inheritance on legal fees, not counting about 40 percent of his income for child support, and now lives hand-to-mouth.
Then there's Bruce, who was a truck driver in Boston and who came home one day to find his things on the street, the locks on his doors changed, and his wife's new boyfriend already moved in. Angry and bewildered, Bruce kicked in the door and began shouting. (He did not strike anyone.) His wife called the police, who arrived and took Bruce away in handcuffs. She got a restraining order preventing any contact with his three children. When his son was hospitalized with an illness, he was not allowed to visit. Eventually Bruce was allowed to see his children at a supervised visitation center with his wife and her boyfriend present in the next room.
Another man, Tom, tells of how he was living with his wife in California, where they were raising their three children as vegetarians like themselves. He thought she was content until one day, when she told him she wanted to move back to her native Virginia. He agreed to the move. After establishing residency in Virginia, however, she left with the children, and he was hauled into court.
Then, after an injury left him without an adequate income he found himself in jail for failure to pay child support. Eventually he relocated in the Washington area to find work. Tom now drives three hours each way to get his children from his wife's place in Virginia, twice every other weekend.
His ex-wife subsequently gave up her vegetarianism, and obtained a court order preventing him from discussing diet with his children. His children are used as informers to monitor his compliance, and their relationship is now strained.
More extreme cases exist than those of Alan, Bruce, and Tom. Nevertheless these men are angry. Alan describes the system as a legal "child-kidnapping and extortion racket". Even more though, they are in shock. Like virtually all men in their position, none realized that such a thing could happen until it did. Even after they realized the full horror of their situation, they remained captive to the social attitudes and public prejudices of which he had become a victim.
Tom now belongs to a fathers' group that meets in Arlington, Virginia. Almost every member has a similarly painful story. Some have not seen their children in years. The children of a few will no longer speak to them. Others regularly drive hundreds of miles to visit their children in hotels or visitation centers. Several with no previous criminal records have spent time in jail.
The group is currently involved with the case of Michael Mahoney, a father in an Arlington jail awaiting sentencing for criminal contempt. Mahoney has already lost his job, his home, his savings, his freedom, and most recently his health (he has developed congestive heart failure, severe stomach ulcers, sleep apnea, and has undergone brain surgery for subdural hematoma). His private life has also been exposed to public view and he himself vilified on "Geraldo" and at least one other nationally televised talk show.
And these fathers are angry. Alan describes the system as a legal "child-kidnapping and extortion racket." Even more though, they are in shock. Like virtually all men in their position, none realized that such a thing could happen until it did. Worse still, these men and millions more like them have suddenly found that the assumptions they had made about wife beaters, child molesters, "deadbeat dads," and O J. Simpson are now being made about them. Many see themselves as having been abandoned not only by their wives but by friends and family members, who assume they "must have done something" to deserve losing their children. What their children "must have done" to deserve losing the care of even an imperfect father is seldom asked.
Fathers who attempt to contact their confiscated children or separated spouses can be arrested for "harassment" or "stalking," an offense that can be defined as "unwelcome conversation." "Stories of violations for minor infractions are legion," the Boston Globe reported in May. "In one case, a father was arrested for violating an order when he put a note in his son's suitcase telling the mother the boy had been sick over a weekend visit. In another, a father was arrested for sending his son a birthday card."
The practice of arresting fathers for attending public events such as their children's musical recitals or sports activities events any stranger may attend is one many find difficult to believe, but it is common. Last year National Public Radio broadcast a story on restraining order abuse centering on a father who was arrested in church for attending his daughter's first communion. During the segment, an eight-year-old girl wails and begs to know when her father will be able to see her or call her on the phone. The answer, because of a "lifetime" restraining order, is "never."
At once the most extensive and well-concealed denial of civil rights in America today, the plight of fathers and children is all-but-ignored by the media and virtually unknown beyond the rapidly increasing circle of its victims. Few people realize how easily and frequently children are now taken from fathers who have committed no actionable offense and for reasons that have nothing to do with the children's wishes, safety, health, or welfare.
Contrary to common assumption, the prevalence of mother-custody is not a matter of simple sex-bias against fathers in mutually-agreed-to divorces. As American family courts now operate, a mother can have the father summoned to court and, without producing any evidence of wrongdoing, request that he be stripped of custody of his children and effectively ejected from his family, and in almost every case the judge will duly oblige.
Despite formal legal equality between parents, some 85 to 90 percent of custody awards go to mothers. One study in Arlington found that over a recent eighteen-month period, maternal custody was awarded in a hundred percent of decisions. This includes divorces in which the father has given neither grounds nor agreement. Most people probably accept some bias against fathers in custody cases when divorce is mutual. What is happening in family courts, however, is very different. It is one thing to say that young children need their mother; it is quite another to say a mother should have the arbitrary power to keep their father away.
Yet current judicial practice throughout most of the United States allows her to do just that. In fact, a mother can have had a half-dozen previous divorces; she can have deserted the marital home; she can abscond with the children; she can have committed adultery; she can level false charges; she can have assaulted the father; and none of these can be introduced as evidence against her in a custody decision. For a father, the simple fact of his being a father will be used to keep him away from his children six days out of seven, deprive him of any decision-making role, and dissolve his marriage over his objections.
Part of the problem originates in the advent of no-fault divorce in the early 1970s, which is often blamed by conservatives for leaving wives vulnerable to abandonment. Yet it has also left fathers with no protection against the confiscation of their children. No-fault divorce laws did not stop at removing the requirement that there be grounds for a divorce, so as to allow for divorce by mutual consent; they also provided for what writer Maggie Gallagher calls "unilateral" divorce and removed any consideration of grounds from custody decisions.
Though changes in the divorce laws were legislative, it is the practitioners of family law who have benefited both in terms of power and profit, and they have not hesitated to exploit the opportunities to the full. Dickens' observation "the one great principle of the law is to make business for itself" could hardly be more strikingly (or destructively) validated.
There is nothing in the no-fault laws that requires a judge to honor a mother's initial request to remove the children from the father's care and protection. A judge could simply decide that, prima facie, neither the father nor the children have committed any infraction that justifies their being forcibly separated, that they have a fundamental human and constitutional right not to be forcibly separated, and that neither the mother nor the court has any grounds to separate them.
Unfortunately, not only is the legal machinery an accomplice; in some ways it is the principal instigator. A mother who consults a divorce attorney will be advised that her best chance of gaining custody is simply to take the children and all their effects and leave without warning. If she has no place to go, she will be told that by accusing the father of sexual or physical abuse, however vaguely (often simply stating that she is "in fear"), she can easily obtain a restraining order immediately forcing him out of the family home. She will also learn that even if her claims are false, there are no legal consequences she will face for making them; her trumped-up accusations cannot even be used against her in a custody decision. In fact, they work so strongly in her favor that failure to advise a female client of these options may constitute legal malpractice.
Far from being punished for child-snatching and false accusations, then, she is almost certain to be rewarded. Mothers who abduct children and keep them from their fathers, with or without abuse charges, are routinely given immediate "temporary" custody. But it is almost never "temporary" Once a mother has custody, it cannot be changed without a lengthy (and, for the lawyers involved, lucrative) court battle. The sooner and the longer she can establish herself as the sole caretaker, the more difficult and costly it is to dislodge her. Further, the more she cuts the children off and alienates them from the father, slings false charges, delays the proceedings, and obstructs his efforts to see his children, the better her chance for obtaining sole custody. She can then claim child support and perhaps (usually. Ed.) her own legal fees from the father. In the absence of paternal wrongdoing, the Kafkaesque logic of family courts readily supplies a rationale for summarily stripping the father of custody. Usually it is said that the parents "can't agree," so naturally the parent who is trying to exclude the other should get the children and make the decisions, even if the only thing the left-behind parent can't agree to is the taking of his children. Or the father is alleged to be planning to "kidnap" his children back usually with no evidence other than his opposition to the initial abduction by the mother.
As for the father, any restraint he shows throughout all this is certain to cost him dearly, as most discover too late. On the other hand, reciprocal belligerence and aggressive litigation on his part may carry enough hope of reward to keep him interested in the game. But the vast majority (about 90 percent who cannot pay the five- and six-figure sums required to fight a full-scale custody battle are branded as having "abandoned" their children and simply pushed out of the family.
Some fathers' rights activists are now determined to fight fire with fire, and imitate the techniques of mothers:. If you think she is about to snatch, snatch first. Then conceal, obstruct, delay, accuse, and so forth. "If you do not take action," writes Robert Seidenberg, author of The Father's Emergency Guide to Divorce-Custody Battle, "your wife will." Thus we now have the nightmare scenario of a race to the trigger: Whoever snatches first survives.
FOR THE LEFT-BEHIND parent, the loss of his children is only the beginning of his troubles. It may also be the beginning of ours as well, for the legal and political implications of these decisions extend well beyond the family. Other violations of basic civil rights and liberties logically follow when courts successfully asserted the power to invade a family (and) remove children from the care of parents who have done no wrong.
Despite the protection of the First Amendment, family courts may decide what religious worship parents may take their children to. The 1997 ruling by the Massachusetts Supreme Court preventing a fundamental Christian father from taking his children to services against the opposition of the Orthodox Jewish mother was unusual only in that it made the papers.
As it is, some twenty-three million American children now live in fatherless households, virtually half a generation. Nearly 2.5 million will join their ranks this year.
Parents' discussions with their children about matters such as religion and politics may also be controlled by family court judges. Tom's court order preventing him from discussing a vegetarian diet with his children is not unusual. Another father in the group had weekend visits with his children reduced when a judge decided that soccer was a more important Sunday activity than church.
The Fourth Amendment's protection against "unreasonable searches and seizures" similarly seems to mean little to family court judges. Parents who are accused of no crime and who have given no grounds or agreement for divorce are routinely required to surrender personal diaries, notebooks, correspondence, financial records, and other documents all ostensibly to determine their fitness as parents, even when it has never been questioned. They are regularly interrogated behind closed doors about intimate family matters that most parents would not normally discuss with strangers. If the strains of losing their children or undergoing this legal nightmare are too great, they are wise to conceal any contact with therapists, family counselors, psychologists and psychiatrists, since these otherwise privileged consultations and records can be subpoenaed and used to separate them from their children. Parents swept into this litigation are terrified to discuss anything with their children or spouses for fear that what they say will be used against them in court. The use of children as informers is common.
As well, a custody trial will likely be held behind closed doors and without any record of what is said, free of scrutiny by press and public. Delays of months and years are common, as the parent with "temporary" custody tries to stall. Since custody cases are not criminal prosecutions, they do not fall under the protections of the Sixth Amendment, but given other abuses they often amount to the same thing, being the first stage in the criminalization and incarceration of fathers.
Indeed, while the same article stipulates a right to counsel in criminal cases, fathers can be jailed without a lawyer. One of the most notorious and common abuses in family courts is the incarceration of fathers for extended periods without charge and without trial. The guarantee of "due process" does not prevent family courts from jailing parents on civil contempt for weeks, months, or even years without trial.
A mother can have the father summoned to court and, without producing any evidence of wrongdoing, request that he be stripped of custody of his children and effectively ejected from his family, and in almost every case the judge will duly oblige.
The notorious Elizabeth Morgan case in which a mother abducted her child and, for refusing to reveal her whereabouts, spent two years in prison for civil contempt, was publicized only because it involved a mother. Much more common instances of fathers languishing in prison for years seldom receive any publicity. Buried as a filler in the Washington Post last January was an Associated Press report that Odell Sheppard, a father in Chicago who also would not or could not reveal the whereabouts of his 2-year-old daughter, was released after serving ten years for civil contempt. Despite what "may have been the longest jail term for civil contempt ever in the United States," the case seems to have prompted no comment in either the local or national press or among civil libertarians.
Courts routinely order fathers whose children have been taken from them involuntarily and with no grounds to support those children financially. They can and do summon fathers to court so frequently that they lose their jobs and then incarcerate them for failure to pay child support. Courts these days will even order men to support children who are acknowledged not to be theirs. In 1994 Maryland court of appeals refused to rescind a child support order against a man who, according to DNA tests, could not possibly have been the father of the child he was ordered to support. This was despite the fact that the mother and the true father joined the falsely-accused man in requesting the order be changed. An October series in the Los Angeles Times reported that in Los Angeles alone there are 350 new cases each month of men required to support children who are established by DNA testing not to be theirs. Yet the Los Angeles County District Attorney has insisted that he had no intention of seeking to overturn support orders based on false identifications.
The Eighth Amendment's prohibition of "cruel and unusual punishment" does not stop family courts from summarily depriving fathers of professional licenses, drivers' licenses, and passports that bear no connection with their alleged offence.
Fathers who are alleged (but again not formally charged and never proven) to be delinquent in child support payments have had their cars booted and confiscated and their names published in the newspapers.
Fathers are also ordered by courts into employment, the wages from which are then confiscated. Last February the California Supreme Court overturned 100 years of precedent when it ruled in the case of Moss v. Superior Court that this is not contrary to the Thirteenth Amendment prohibition on involuntary servitude. In the past the Supreme Court has recognized that "Congress has put it beyond debate that no indebtedness warrants a suspension of the right to be free from compulsory service. This congressional policy means that no state can make the quitting of work any component of a crime, or make criminal sanctions available for holding unwilling persons to labor " Yet states now routinely do precisely this.
In April 1998, a custodial father in Illinois who stayed at home to care for his three children and who received no child support from the mother was arrested under "a little known state law that makes it a felony for a man to be 'deliberately unemployed' ". "Men in Illinois have become the target of a witch hunt," the man's attorney told Reuters. "Men are hounded if they owe child support and Mom is on welfare. Now Mom is the deadbeat parent, and the man is hounded because he is on welfare."
As for the children, courts that piously proclaim their commitment to "the best interest of the child" seldom hesitate to employ heavy-handed methods against them as well. To take only a recent, documented example, in April the Los Angeles Times reported that "three children, whose only crime was their reluctance to testify against their father, were jailed for 12 days in Los Angeles County's overcrowded Central Juvenile Hall and brought to court in handcuffs and leg chains"
The conservative campaign for "responsible fatherhood" may unwittingly reinforce the vilification of fathers in the media and by politicians and feminists.
For their part, a few fathers' groups have countered by filing federal class action suits claiming abrogation of civil rights "under color of law", including denial of due process and equal protection. Violations of the First, Fourth, Fifth, Sixth, Eighth, and Ninth Amendments are also alleged, and some go so far as to invoke anti-racketeering statutes. There is a substantial body of federal case law recognizing parenting as a basic constitutional right and requiring its protection under the Fourteenth Amendment: "The liberty interest and the integrity of the family encompass an interest in retaining custody of one's children, and thus a state may not interfere with a parent's custodial right absent due process protections," according to the 1981 decision, Langton v Maloney. Justice Thurgood Marshall also held for the majority in the 1978 case Quilloin v. Walcott that a divorced father could not be treated differently from a father who is married and still living with his child. Yet such apparently unequivocal constitutional principles are almost never applied by state courts, and the federal courts steadfastly resist becoming involved.
As it is, some twenty-three million American children now live in fatherless households, virtually half a generation. Nearly 2.5 million will join their ranks this year, according to the National Fatherhood Initiative. The crisis of fatherless children has been called "the most destructive trend of our generation" by David Blankenhorn, author of Fatherless America. Even Bill Clinton acknowledges that "the single biggest social problem in our society may be the growing absence of fathers from their children's homes," and Al Gore has declared in more accusatory terms that "absent fathers are behind most social woes. " This opinion is shared by almost 80 percent of respondents to a 1996 Gallup poll.
Indeed, nothing else accounts for as many major social problems. Recent figures from the Department of Health and Human Services confirm that violent crime, drug and alcohol abuse, teenage pregnancy, emotional and behavioral disorders, teen suicide, poor school performance and truancy all correlate more strongly to fatherless homes than to any other single factor, surpassing both poverty and race. The overwhelming majority of prisoners, juvenile detention inmates, high school dropouts, pregnant teenagers, adolescent murderers, and rapists all come from fatherless homes.
The guarantee of "due process" does not prevent family courts from jailing parents on civil contempt for weeks, months, or even years without trial.
The Washington Post, New York Times, and other major media bent over backwards to avoid mentioning that Mitchell Johnson, instigator of the shootings in Jonesboro, Arkansas, had been taken from his father, whom he was said to be close to, and moved to another state. Even as the crisis of fatherhood gains selective recognition by policymakers and the media, however, attention is confined almost entirely to "the prodigal father" who has "abandoned" his children. Fathers now get it from both sides, since the conservative campaign for "responsible fatherhood" may unwittingly reinforce the vilification of fathers in the media and by politicians and feminists. The resulting message is that until proven otherwise, fathers are presumed to be irresponsible louts whose eagerness to desert their families accounts for all our social failures.
Yet Sanford L. Braver, in his recently published book, Divorced Dads: Shattering the Myths, shows that far from abandoning their children, most divorced fathers make heroic efforts against enormous obstacles to stay in touch with them.
SCAPEGOATING FATHERS has predictably done little to alleviate any of the problems associated with father absence. Indeed, it cannot even solve the one problem in terms of which politicians most often proclaim their commitment to father "involvement": the collection of child support. With a massive army of some 59,000 enforcement agents (the Drug Enforcement Administration has about 7,500), the Federal Office of Child Support Enforcement perseveres in its losing battle to squeeze money out of ejected fathers who more often than not are either unemployed, impoverished, imprisoned, disabled, or dead. The General Accounting Office found in 1992 that as many as 14 percent of fathers who owe child support are dead, and 66 percent "cannot afford to pay the amount ordered." Some 52 percent earn less than $6,200 a year, according to the Poverty Studies Institute at the University of Wisconsin.
Far more useful than trying to shake down fathers with no money would be to reform a legal system that forces so many fathers out of their children's lives in the first place. But in addition to wives and the judiciary, fathers must also contend with feminist groups, who loom as the most formidable opponents of joint custody laws and are now promoting legislation that would openly legitimate the current epidemic of maternal child-snatching. The purported justification is domestic violence. An article posted on the NOW web site asserts that preserving fathers' rights to the care and protection of their children "is dangerous for women and their children who are trying to leave or have left violent husbands/fathers."
This of course begs the question of why children can be taken virtually at whim from the vast majority of fathers by whom no violence is ever demonstrated or even alleged, nor why it should be any more dangerous trying to leave truly abusive spouses who can be prosecuted under existing laws and who are precluded from custody under presumptive joint custody statutes. Yet in the present climate such obvious questions are seldom asked. So successful is anti-father propaganda now that even mainstream feminist organizations regularly use the term "batterer" as essentially synonymous with "father. " In political terms, a NOW resolution asserts that the political activities of fathers' groups constitute "using the abuse of power in order to control in the same fashion as do batterers."
Courts routinely order fathers whose children have been taken from them involuntarily and with no grounds to support those children financially.
Both domestic violence and child abuse are serious problems, but they are by no means sex-specific. Moreover, accusations of child or spousal abuse are a widespread method of winning sole custody. NOW claims that "false accusations by women are in fact rare" (and opposes penalties for making them), but saying this does not make it so. Statistically they are not rare at all. Overall, more than two-thirds of child abuse reports are unsubstantiated, according to the National Clearinghouse on Child Abuse and Neglect Information, and the proportion becomes overwhelming when custody is an issue. But more tellingly, NOW itself would seem to be proving just how false they are with its own legislative agenda. By legitimizing child stealing under the guise of protecting victims of domestic violence, NOW is openly practicing on the political level precisely what it claims is not happening in the family courts, the use of "battering" as a red flag to separate children from fathers who are guilty of no such thing.
THERE IS NO EVIDENCE that fathers commit any more spousal or child abuse than mothers; in fact fathers in intact families are about the least frequent perpetrators of either. The National Family Violence Survey, funded by the National Institute of Mental Health and developed by Murray Straus and Richard Gelles, estimates that men are slightly more likely than women to be victims of severe domestic violence. Nor can "the high rate of attacks by wives" be explained "largely as a response to or as a defense against assault by the partner," according to one of the survey's authors, Murray Straus, in a contribution to the 1996 book Domestic Violence.
More to the point, mothers especially single mothers are much more likely than fathers to abuse children. According to a major 1996 study by the Department of Health and Human Services, women aged twenty to forty-nine are almost twice as likely as men to be perpetrators of child maltreatment. "It is estimated that almost two-thirds [of child abusers] were females," the report states. Given that "male" perpetrators are not necessarily fathers but much more likely to be boyfriends and stepfathers, fathers emerge as the least likely child abusers.
In fact, about the most dangerous place for a child then is the home of a single mother. The HHS study reiterates the already well-established fact that children in single-parent homes are at much higher risk for physical and sexual abuse than those living in two-parent homes (up to thirty-three times higher when a live-in boyfriend or stepfather is present). As Maggie Gallagher sums it up in her 1996 book The Abolition of Marriage, "The person most likely to abuse a child physically is a single mother. The person most likely to abuse a child sexually is the mother's boyfriend or second husband. Divorce, though usually portrayed as a protection against domestic violence, is far more frequently a contributing cause."
Divorce, though usually portrayed as a protection against domestic violence, is far more frequently a contributing cause.
At one time this may have been considered common sense, since two parents check one another's excesses and the father was seen as the children's natural protector. Not only has this role now become politically incorrect; the current system has managed to pervert it into a fault. What "male violence" does occur may well be the result of custody disputes more often than it is the cause, after all, since common sense would again suggest that fathers with no previous proclivity to violence could very well erupt when their children are arbitrarily taken from them. One is tempted to say this is what fathers are for: to become violent when someone interferes with their offspring. A 1997 study by Anne McMurray of the Griffith University School of Nursing in Australia that began with the express purpose to "provide definitive explanations for the violent behaviors of certain males," concluded that "regardless of the male's propensity toward violence" the circumstances most conducive to it arose "during the process of marital separation and divorce, particularly in relation to disputes over child custody, support and access."
"These men," McMurray continues, "from a range of socioeconomic backgrounds and age groups, freely discussed episodes in which they had either planned, executed, or fantasized about violence against their spouses in retaliation for real or perceived injustices related to child custody, support, and/or access."
For their part, a few fathers' groups have countered by filing federal class action suits claiming abrogation of civil rights "under color of law", including denial of due process and equal protection. Violations of the First, Fourth, Fifth, Sixth, Eighth, and Ninth Amendments are also alleged, and some go so far as to invoke anti-racketeering statutes.
Interestingly, while violence against wives is well-publicized, the huge increase in violent attacks by fathers against judges and lawyers has gone completely unreported in the mainstream press. According to an article in the National Law Journal the year 1992 was "one of the bloodiest in divorce court history a time when angry and bitter divorce litigants declared an open season on judges, lawyers, and the spouses who brought them to court."
NOW and others further attempt to defend the power to take children from their fathers by invoking popular but facile clichés about marital harmony, saying that "most studies report that joint custody works best when both parents want it and agree to work together," but that it "is unworkable for uncooperative parents." This tautological reasoning is simply an extension of assumptions that have long been invoked by parents of both sexes as self-justification for their wish to divorce. As such, fathers who have acquiesced in this casuistry have only themselves to blame now that it is being taken to its logical next step to justify rewarding the most belligerent of the "warring parents" and throwing the other out of the family altogether. After all, if an intact family or joint custody requires "agreement" and "cooperation" between parents, the most effective method for the parent who expects sole custody to sabotage either is to be as belligerent and uncooperative as possible.
In fact, joint custody has repeatedly been demonstrated to reduce parental conflict for precisely this reason. A study by Judith Seltzer of the University of Wisconsin based on data from the National Survey of Families and Households concluded that joint custody, even when imposed over the objection of one parent, reduces post-divorce conflict. Similarly, a study team headed by Braver found that "both child support compliance and paternal visitation were highest in those cases where joint custody was awarded against the mothers' wishes but in conformity with the fathers' wishes."
The author concludes that these results demonstrate "the value of joint legal custody even when the couple does not initially agree to it. Joint custody appears to enhance paternal involvement, child support compliance, and child adjustment." Perhaps most important, it takes away much of the incentive to snatch the children in the first place. (Giving sole custody to the left-behind parent, as some have proposed, would naturally create a stronger deterrent ). For similar reasons, states with presumptive joint custody laws report significantly fewer divorces.
As for the connected tautology that that parental conflict in itself justifies divorce, this is seldom justified as far as children are concerned, as any child will tell you. "Children can be quite content even when their parents' marriage is profoundly unhappy for one or both partners," write Judith Wallerstein and Sandra Blakeslee in their 1996 book, Second Chances, "Only one in ten children in our study experienced relief when their parents divorced."
SPECIOUS JUSTIFICATIONS for a system that spawns massive corruption, violates basic constitutional rights, destroys the homes and lives of innocent children, and leads to serious social ills thus carry the day because of our willingness to buy into clichés that disguise the reality and extent of what is taking place. We have sanitized a breathtaking injustice with buzzwords such as "divorce" and "custody battle" that imply mutual consent, when in most cases no such thing exists. Yet however palatable we try to render this abuse, there is no escaping the central fact that it has very little to do with the needs of children and everything to do with the power of certain groups of adults.
But we either maintain a distinction between what is actionable in a court of law and what is not, or we simply haul people into court because we don't like their methods of child-rearing or, for that matter, because of our wish for a new boyfriend. Frightening as it may seem, using the courts and police to punish spouses for what may be nothing more than ordinary family disagreements now seems to be accepted without question, and the bottom line is that any father may now find himself pursued by federal agents because he protests the way his children have been taken from him.
Stephen Baskerville teaches political science at Howard University.
Up against him is his ex-wife, the legal system, and various women's groups, all declaring him a deadbeat, and a batterer, all of it untrue. But as a result, he's in a cell while his ex and her new boyfriend take little Johnny to a Mets game.
Improbable? Only in the sense that Hollywood would ever make such a movie. Unfortunately, it's an all too real scenario that is taking place everyday across the country.
The case of a man we'll call Alan is fairly typical. Without warning Alan came home one day to find his apartment cleaned out. His wife and two-year-old girl were gone. Shortly afterwards Alan was summoned to court as a "defendant," was ordered to stay away from his daughter most of the time and to begin making child support payments.
His two-hour, thrice-weekly visits with his daughter were supervised and she was not allowed to stay with him overnight, since his wife alleged that he was dangerous and would kidnap her. The accusations eventually proved groundless, and the supervision terminated. After a year Alan was permitted one overnight visit with his daughter per week. His wife, meanwhile, was never charged with making false accusations nor has the fabrication counted against her in the custody proceedings. Various experts testified that Alan is no danger whatever to his daughter and that he is a devoted and loving father. All these findings were ignored by the courts. More than four years after his wife left, the child remains with her. He has spent a $160,000 inheritance on legal fees, not counting about 40 percent of his income for child support, and now lives hand-to-mouth.
Then there's Bruce, who was a truck driver in Boston and who came home one day to find his things on the street, the locks on his doors changed, and his wife's new boyfriend already moved in. Angry and bewildered, Bruce kicked in the door and began shouting. (He did not strike anyone.) His wife called the police, who arrived and took Bruce away in handcuffs. She got a restraining order preventing any contact with his three children. When his son was hospitalized with an illness, he was not allowed to visit. Eventually Bruce was allowed to see his children at a supervised visitation center with his wife and her boyfriend present in the next room.
Another man, Tom, tells of how he was living with his wife in California, where they were raising their three children as vegetarians like themselves. He thought she was content until one day, when she told him she wanted to move back to her native Virginia. He agreed to the move. After establishing residency in Virginia, however, she left with the children, and he was hauled into court.
Then, after an injury left him without an adequate income he found himself in jail for failure to pay child support. Eventually he relocated in the Washington area to find work. Tom now drives three hours each way to get his children from his wife's place in Virginia, twice every other weekend.
His ex-wife subsequently gave up her vegetarianism, and obtained a court order preventing him from discussing diet with his children. His children are used as informers to monitor his compliance, and their relationship is now strained.
More extreme cases exist than those of Alan, Bruce, and Tom. Nevertheless these men are angry. Alan describes the system as a legal "child-kidnapping and extortion racket". Even more though, they are in shock. Like virtually all men in their position, none realized that such a thing could happen until it did. Even after they realized the full horror of their situation, they remained captive to the social attitudes and public prejudices of which he had become a victim.
Tom now belongs to a fathers' group that meets in Arlington, Virginia. Almost every member has a similarly painful story. Some have not seen their children in years. The children of a few will no longer speak to them. Others regularly drive hundreds of miles to visit their children in hotels or visitation centers. Several with no previous criminal records have spent time in jail.
The group is currently involved with the case of Michael Mahoney, a father in an Arlington jail awaiting sentencing for criminal contempt. Mahoney has already lost his job, his home, his savings, his freedom, and most recently his health (he has developed congestive heart failure, severe stomach ulcers, sleep apnea, and has undergone brain surgery for subdural hematoma). His private life has also been exposed to public view and he himself vilified on "Geraldo" and at least one other nationally televised talk show.
And these fathers are angry. Alan describes the system as a legal "child-kidnapping and extortion racket." Even more though, they are in shock. Like virtually all men in their position, none realized that such a thing could happen until it did. Worse still, these men and millions more like them have suddenly found that the assumptions they had made about wife beaters, child molesters, "deadbeat dads," and O J. Simpson are now being made about them. Many see themselves as having been abandoned not only by their wives but by friends and family members, who assume they "must have done something" to deserve losing their children. What their children "must have done" to deserve losing the care of even an imperfect father is seldom asked.
Fathers who attempt to contact their confiscated children or separated spouses can be arrested for "harassment" or "stalking," an offense that can be defined as "unwelcome conversation." "Stories of violations for minor infractions are legion," the Boston Globe reported in May. "In one case, a father was arrested for violating an order when he put a note in his son's suitcase telling the mother the boy had been sick over a weekend visit. In another, a father was arrested for sending his son a birthday card."
The practice of arresting fathers for attending public events such as their children's musical recitals or sports activities events any stranger may attend is one many find difficult to believe, but it is common. Last year National Public Radio broadcast a story on restraining order abuse centering on a father who was arrested in church for attending his daughter's first communion. During the segment, an eight-year-old girl wails and begs to know when her father will be able to see her or call her on the phone. The answer, because of a "lifetime" restraining order, is "never."
At once the most extensive and well-concealed denial of civil rights in America today, the plight of fathers and children is all-but-ignored by the media and virtually unknown beyond the rapidly increasing circle of its victims. Few people realize how easily and frequently children are now taken from fathers who have committed no actionable offense and for reasons that have nothing to do with the children's wishes, safety, health, or welfare.
Contrary to common assumption, the prevalence of mother-custody is not a matter of simple sex-bias against fathers in mutually-agreed-to divorces. As American family courts now operate, a mother can have the father summoned to court and, without producing any evidence of wrongdoing, request that he be stripped of custody of his children and effectively ejected from his family, and in almost every case the judge will duly oblige.
Despite formal legal equality between parents, some 85 to 90 percent of custody awards go to mothers. One study in Arlington found that over a recent eighteen-month period, maternal custody was awarded in a hundred percent of decisions. This includes divorces in which the father has given neither grounds nor agreement. Most people probably accept some bias against fathers in custody cases when divorce is mutual. What is happening in family courts, however, is very different. It is one thing to say that young children need their mother; it is quite another to say a mother should have the arbitrary power to keep their father away.
Yet current judicial practice throughout most of the United States allows her to do just that. In fact, a mother can have had a half-dozen previous divorces; she can have deserted the marital home; she can abscond with the children; she can have committed adultery; she can level false charges; she can have assaulted the father; and none of these can be introduced as evidence against her in a custody decision. For a father, the simple fact of his being a father will be used to keep him away from his children six days out of seven, deprive him of any decision-making role, and dissolve his marriage over his objections.
Part of the problem originates in the advent of no-fault divorce in the early 1970s, which is often blamed by conservatives for leaving wives vulnerable to abandonment. Yet it has also left fathers with no protection against the confiscation of their children. No-fault divorce laws did not stop at removing the requirement that there be grounds for a divorce, so as to allow for divorce by mutual consent; they also provided for what writer Maggie Gallagher calls "unilateral" divorce and removed any consideration of grounds from custody decisions.
Though changes in the divorce laws were legislative, it is the practitioners of family law who have benefited both in terms of power and profit, and they have not hesitated to exploit the opportunities to the full. Dickens' observation "the one great principle of the law is to make business for itself" could hardly be more strikingly (or destructively) validated.
There is nothing in the no-fault laws that requires a judge to honor a mother's initial request to remove the children from the father's care and protection. A judge could simply decide that, prima facie, neither the father nor the children have committed any infraction that justifies their being forcibly separated, that they have a fundamental human and constitutional right not to be forcibly separated, and that neither the mother nor the court has any grounds to separate them.
Unfortunately, not only is the legal machinery an accomplice; in some ways it is the principal instigator. A mother who consults a divorce attorney will be advised that her best chance of gaining custody is simply to take the children and all their effects and leave without warning. If she has no place to go, she will be told that by accusing the father of sexual or physical abuse, however vaguely (often simply stating that she is "in fear"), she can easily obtain a restraining order immediately forcing him out of the family home. She will also learn that even if her claims are false, there are no legal consequences she will face for making them; her trumped-up accusations cannot even be used against her in a custody decision. In fact, they work so strongly in her favor that failure to advise a female client of these options may constitute legal malpractice.
Far from being punished for child-snatching and false accusations, then, she is almost certain to be rewarded. Mothers who abduct children and keep them from their fathers, with or without abuse charges, are routinely given immediate "temporary" custody. But it is almost never "temporary" Once a mother has custody, it cannot be changed without a lengthy (and, for the lawyers involved, lucrative) court battle. The sooner and the longer she can establish herself as the sole caretaker, the more difficult and costly it is to dislodge her. Further, the more she cuts the children off and alienates them from the father, slings false charges, delays the proceedings, and obstructs his efforts to see his children, the better her chance for obtaining sole custody. She can then claim child support and perhaps (usually. Ed.) her own legal fees from the father. In the absence of paternal wrongdoing, the Kafkaesque logic of family courts readily supplies a rationale for summarily stripping the father of custody. Usually it is said that the parents "can't agree," so naturally the parent who is trying to exclude the other should get the children and make the decisions, even if the only thing the left-behind parent can't agree to is the taking of his children. Or the father is alleged to be planning to "kidnap" his children back usually with no evidence other than his opposition to the initial abduction by the mother.
As for the father, any restraint he shows throughout all this is certain to cost him dearly, as most discover too late. On the other hand, reciprocal belligerence and aggressive litigation on his part may carry enough hope of reward to keep him interested in the game. But the vast majority (about 90 percent who cannot pay the five- and six-figure sums required to fight a full-scale custody battle are branded as having "abandoned" their children and simply pushed out of the family.
Some fathers' rights activists are now determined to fight fire with fire, and imitate the techniques of mothers:. If you think she is about to snatch, snatch first. Then conceal, obstruct, delay, accuse, and so forth. "If you do not take action," writes Robert Seidenberg, author of The Father's Emergency Guide to Divorce-Custody Battle, "your wife will." Thus we now have the nightmare scenario of a race to the trigger: Whoever snatches first survives.
FOR THE LEFT-BEHIND parent, the loss of his children is only the beginning of his troubles. It may also be the beginning of ours as well, for the legal and political implications of these decisions extend well beyond the family. Other violations of basic civil rights and liberties logically follow when courts successfully asserted the power to invade a family (and) remove children from the care of parents who have done no wrong.
Despite the protection of the First Amendment, family courts may decide what religious worship parents may take their children to. The 1997 ruling by the Massachusetts Supreme Court preventing a fundamental Christian father from taking his children to services against the opposition of the Orthodox Jewish mother was unusual only in that it made the papers.
As it is, some twenty-three million American children now live in fatherless households, virtually half a generation. Nearly 2.5 million will join their ranks this year.
Parents' discussions with their children about matters such as religion and politics may also be controlled by family court judges. Tom's court order preventing him from discussing a vegetarian diet with his children is not unusual. Another father in the group had weekend visits with his children reduced when a judge decided that soccer was a more important Sunday activity than church.
The Fourth Amendment's protection against "unreasonable searches and seizures" similarly seems to mean little to family court judges. Parents who are accused of no crime and who have given no grounds or agreement for divorce are routinely required to surrender personal diaries, notebooks, correspondence, financial records, and other documents all ostensibly to determine their fitness as parents, even when it has never been questioned. They are regularly interrogated behind closed doors about intimate family matters that most parents would not normally discuss with strangers. If the strains of losing their children or undergoing this legal nightmare are too great, they are wise to conceal any contact with therapists, family counselors, psychologists and psychiatrists, since these otherwise privileged consultations and records can be subpoenaed and used to separate them from their children. Parents swept into this litigation are terrified to discuss anything with their children or spouses for fear that what they say will be used against them in court. The use of children as informers is common.
As well, a custody trial will likely be held behind closed doors and without any record of what is said, free of scrutiny by press and public. Delays of months and years are common, as the parent with "temporary" custody tries to stall. Since custody cases are not criminal prosecutions, they do not fall under the protections of the Sixth Amendment, but given other abuses they often amount to the same thing, being the first stage in the criminalization and incarceration of fathers.
Indeed, while the same article stipulates a right to counsel in criminal cases, fathers can be jailed without a lawyer. One of the most notorious and common abuses in family courts is the incarceration of fathers for extended periods without charge and without trial. The guarantee of "due process" does not prevent family courts from jailing parents on civil contempt for weeks, months, or even years without trial.
A mother can have the father summoned to court and, without producing any evidence of wrongdoing, request that he be stripped of custody of his children and effectively ejected from his family, and in almost every case the judge will duly oblige.
The notorious Elizabeth Morgan case in which a mother abducted her child and, for refusing to reveal her whereabouts, spent two years in prison for civil contempt, was publicized only because it involved a mother. Much more common instances of fathers languishing in prison for years seldom receive any publicity. Buried as a filler in the Washington Post last January was an Associated Press report that Odell Sheppard, a father in Chicago who also would not or could not reveal the whereabouts of his 2-year-old daughter, was released after serving ten years for civil contempt. Despite what "may have been the longest jail term for civil contempt ever in the United States," the case seems to have prompted no comment in either the local or national press or among civil libertarians.
Courts routinely order fathers whose children have been taken from them involuntarily and with no grounds to support those children financially. They can and do summon fathers to court so frequently that they lose their jobs and then incarcerate them for failure to pay child support. Courts these days will even order men to support children who are acknowledged not to be theirs. In 1994 Maryland court of appeals refused to rescind a child support order against a man who, according to DNA tests, could not possibly have been the father of the child he was ordered to support. This was despite the fact that the mother and the true father joined the falsely-accused man in requesting the order be changed. An October series in the Los Angeles Times reported that in Los Angeles alone there are 350 new cases each month of men required to support children who are established by DNA testing not to be theirs. Yet the Los Angeles County District Attorney has insisted that he had no intention of seeking to overturn support orders based on false identifications.
The Eighth Amendment's prohibition of "cruel and unusual punishment" does not stop family courts from summarily depriving fathers of professional licenses, drivers' licenses, and passports that bear no connection with their alleged offence.
Fathers who are alleged (but again not formally charged and never proven) to be delinquent in child support payments have had their cars booted and confiscated and their names published in the newspapers.
Fathers are also ordered by courts into employment, the wages from which are then confiscated. Last February the California Supreme Court overturned 100 years of precedent when it ruled in the case of Moss v. Superior Court that this is not contrary to the Thirteenth Amendment prohibition on involuntary servitude. In the past the Supreme Court has recognized that "Congress has put it beyond debate that no indebtedness warrants a suspension of the right to be free from compulsory service. This congressional policy means that no state can make the quitting of work any component of a crime, or make criminal sanctions available for holding unwilling persons to labor " Yet states now routinely do precisely this.
In April 1998, a custodial father in Illinois who stayed at home to care for his three children and who received no child support from the mother was arrested under "a little known state law that makes it a felony for a man to be 'deliberately unemployed' ". "Men in Illinois have become the target of a witch hunt," the man's attorney told Reuters. "Men are hounded if they owe child support and Mom is on welfare. Now Mom is the deadbeat parent, and the man is hounded because he is on welfare."
As for the children, courts that piously proclaim their commitment to "the best interest of the child" seldom hesitate to employ heavy-handed methods against them as well. To take only a recent, documented example, in April the Los Angeles Times reported that "three children, whose only crime was their reluctance to testify against their father, were jailed for 12 days in Los Angeles County's overcrowded Central Juvenile Hall and brought to court in handcuffs and leg chains"
The conservative campaign for "responsible fatherhood" may unwittingly reinforce the vilification of fathers in the media and by politicians and feminists.
For their part, a few fathers' groups have countered by filing federal class action suits claiming abrogation of civil rights "under color of law", including denial of due process and equal protection. Violations of the First, Fourth, Fifth, Sixth, Eighth, and Ninth Amendments are also alleged, and some go so far as to invoke anti-racketeering statutes. There is a substantial body of federal case law recognizing parenting as a basic constitutional right and requiring its protection under the Fourteenth Amendment: "The liberty interest and the integrity of the family encompass an interest in retaining custody of one's children, and thus a state may not interfere with a parent's custodial right absent due process protections," according to the 1981 decision, Langton v Maloney. Justice Thurgood Marshall also held for the majority in the 1978 case Quilloin v. Walcott that a divorced father could not be treated differently from a father who is married and still living with his child. Yet such apparently unequivocal constitutional principles are almost never applied by state courts, and the federal courts steadfastly resist becoming involved.
As it is, some twenty-three million American children now live in fatherless households, virtually half a generation. Nearly 2.5 million will join their ranks this year, according to the National Fatherhood Initiative. The crisis of fatherless children has been called "the most destructive trend of our generation" by David Blankenhorn, author of Fatherless America. Even Bill Clinton acknowledges that "the single biggest social problem in our society may be the growing absence of fathers from their children's homes," and Al Gore has declared in more accusatory terms that "absent fathers are behind most social woes. " This opinion is shared by almost 80 percent of respondents to a 1996 Gallup poll.
Indeed, nothing else accounts for as many major social problems. Recent figures from the Department of Health and Human Services confirm that violent crime, drug and alcohol abuse, teenage pregnancy, emotional and behavioral disorders, teen suicide, poor school performance and truancy all correlate more strongly to fatherless homes than to any other single factor, surpassing both poverty and race. The overwhelming majority of prisoners, juvenile detention inmates, high school dropouts, pregnant teenagers, adolescent murderers, and rapists all come from fatherless homes.
The guarantee of "due process" does not prevent family courts from jailing parents on civil contempt for weeks, months, or even years without trial.
The Washington Post, New York Times, and other major media bent over backwards to avoid mentioning that Mitchell Johnson, instigator of the shootings in Jonesboro, Arkansas, had been taken from his father, whom he was said to be close to, and moved to another state. Even as the crisis of fatherhood gains selective recognition by policymakers and the media, however, attention is confined almost entirely to "the prodigal father" who has "abandoned" his children. Fathers now get it from both sides, since the conservative campaign for "responsible fatherhood" may unwittingly reinforce the vilification of fathers in the media and by politicians and feminists. The resulting message is that until proven otherwise, fathers are presumed to be irresponsible louts whose eagerness to desert their families accounts for all our social failures.
Yet Sanford L. Braver, in his recently published book, Divorced Dads: Shattering the Myths, shows that far from abandoning their children, most divorced fathers make heroic efforts against enormous obstacles to stay in touch with them.
SCAPEGOATING FATHERS has predictably done little to alleviate any of the problems associated with father absence. Indeed, it cannot even solve the one problem in terms of which politicians most often proclaim their commitment to father "involvement": the collection of child support. With a massive army of some 59,000 enforcement agents (the Drug Enforcement Administration has about 7,500), the Federal Office of Child Support Enforcement perseveres in its losing battle to squeeze money out of ejected fathers who more often than not are either unemployed, impoverished, imprisoned, disabled, or dead. The General Accounting Office found in 1992 that as many as 14 percent of fathers who owe child support are dead, and 66 percent "cannot afford to pay the amount ordered." Some 52 percent earn less than $6,200 a year, according to the Poverty Studies Institute at the University of Wisconsin.
Far more useful than trying to shake down fathers with no money would be to reform a legal system that forces so many fathers out of their children's lives in the first place. But in addition to wives and the judiciary, fathers must also contend with feminist groups, who loom as the most formidable opponents of joint custody laws and are now promoting legislation that would openly legitimate the current epidemic of maternal child-snatching. The purported justification is domestic violence. An article posted on the NOW web site asserts that preserving fathers' rights to the care and protection of their children "is dangerous for women and their children who are trying to leave or have left violent husbands/fathers."
This of course begs the question of why children can be taken virtually at whim from the vast majority of fathers by whom no violence is ever demonstrated or even alleged, nor why it should be any more dangerous trying to leave truly abusive spouses who can be prosecuted under existing laws and who are precluded from custody under presumptive joint custody statutes. Yet in the present climate such obvious questions are seldom asked. So successful is anti-father propaganda now that even mainstream feminist organizations regularly use the term "batterer" as essentially synonymous with "father. " In political terms, a NOW resolution asserts that the political activities of fathers' groups constitute "using the abuse of power in order to control in the same fashion as do batterers."
Courts routinely order fathers whose children have been taken from them involuntarily and with no grounds to support those children financially.
Both domestic violence and child abuse are serious problems, but they are by no means sex-specific. Moreover, accusations of child or spousal abuse are a widespread method of winning sole custody. NOW claims that "false accusations by women are in fact rare" (and opposes penalties for making them), but saying this does not make it so. Statistically they are not rare at all. Overall, more than two-thirds of child abuse reports are unsubstantiated, according to the National Clearinghouse on Child Abuse and Neglect Information, and the proportion becomes overwhelming when custody is an issue. But more tellingly, NOW itself would seem to be proving just how false they are with its own legislative agenda. By legitimizing child stealing under the guise of protecting victims of domestic violence, NOW is openly practicing on the political level precisely what it claims is not happening in the family courts, the use of "battering" as a red flag to separate children from fathers who are guilty of no such thing.
THERE IS NO EVIDENCE that fathers commit any more spousal or child abuse than mothers; in fact fathers in intact families are about the least frequent perpetrators of either. The National Family Violence Survey, funded by the National Institute of Mental Health and developed by Murray Straus and Richard Gelles, estimates that men are slightly more likely than women to be victims of severe domestic violence. Nor can "the high rate of attacks by wives" be explained "largely as a response to or as a defense against assault by the partner," according to one of the survey's authors, Murray Straus, in a contribution to the 1996 book Domestic Violence.
More to the point, mothers especially single mothers are much more likely than fathers to abuse children. According to a major 1996 study by the Department of Health and Human Services, women aged twenty to forty-nine are almost twice as likely as men to be perpetrators of child maltreatment. "It is estimated that almost two-thirds [of child abusers] were females," the report states. Given that "male" perpetrators are not necessarily fathers but much more likely to be boyfriends and stepfathers, fathers emerge as the least likely child abusers.
In fact, about the most dangerous place for a child then is the home of a single mother. The HHS study reiterates the already well-established fact that children in single-parent homes are at much higher risk for physical and sexual abuse than those living in two-parent homes (up to thirty-three times higher when a live-in boyfriend or stepfather is present). As Maggie Gallagher sums it up in her 1996 book The Abolition of Marriage, "The person most likely to abuse a child physically is a single mother. The person most likely to abuse a child sexually is the mother's boyfriend or second husband. Divorce, though usually portrayed as a protection against domestic violence, is far more frequently a contributing cause."
Divorce, though usually portrayed as a protection against domestic violence, is far more frequently a contributing cause.
At one time this may have been considered common sense, since two parents check one another's excesses and the father was seen as the children's natural protector. Not only has this role now become politically incorrect; the current system has managed to pervert it into a fault. What "male violence" does occur may well be the result of custody disputes more often than it is the cause, after all, since common sense would again suggest that fathers with no previous proclivity to violence could very well erupt when their children are arbitrarily taken from them. One is tempted to say this is what fathers are for: to become violent when someone interferes with their offspring. A 1997 study by Anne McMurray of the Griffith University School of Nursing in Australia that began with the express purpose to "provide definitive explanations for the violent behaviors of certain males," concluded that "regardless of the male's propensity toward violence" the circumstances most conducive to it arose "during the process of marital separation and divorce, particularly in relation to disputes over child custody, support and access."
"These men," McMurray continues, "from a range of socioeconomic backgrounds and age groups, freely discussed episodes in which they had either planned, executed, or fantasized about violence against their spouses in retaliation for real or perceived injustices related to child custody, support, and/or access."
For their part, a few fathers' groups have countered by filing federal class action suits claiming abrogation of civil rights "under color of law", including denial of due process and equal protection. Violations of the First, Fourth, Fifth, Sixth, Eighth, and Ninth Amendments are also alleged, and some go so far as to invoke anti-racketeering statutes.
Interestingly, while violence against wives is well-publicized, the huge increase in violent attacks by fathers against judges and lawyers has gone completely unreported in the mainstream press. According to an article in the National Law Journal the year 1992 was "one of the bloodiest in divorce court history a time when angry and bitter divorce litigants declared an open season on judges, lawyers, and the spouses who brought them to court."
NOW and others further attempt to defend the power to take children from their fathers by invoking popular but facile clichés about marital harmony, saying that "most studies report that joint custody works best when both parents want it and agree to work together," but that it "is unworkable for uncooperative parents." This tautological reasoning is simply an extension of assumptions that have long been invoked by parents of both sexes as self-justification for their wish to divorce. As such, fathers who have acquiesced in this casuistry have only themselves to blame now that it is being taken to its logical next step to justify rewarding the most belligerent of the "warring parents" and throwing the other out of the family altogether. After all, if an intact family or joint custody requires "agreement" and "cooperation" between parents, the most effective method for the parent who expects sole custody to sabotage either is to be as belligerent and uncooperative as possible.
In fact, joint custody has repeatedly been demonstrated to reduce parental conflict for precisely this reason. A study by Judith Seltzer of the University of Wisconsin based on data from the National Survey of Families and Households concluded that joint custody, even when imposed over the objection of one parent, reduces post-divorce conflict. Similarly, a study team headed by Braver found that "both child support compliance and paternal visitation were highest in those cases where joint custody was awarded against the mothers' wishes but in conformity with the fathers' wishes."
The author concludes that these results demonstrate "the value of joint legal custody even when the couple does not initially agree to it. Joint custody appears to enhance paternal involvement, child support compliance, and child adjustment." Perhaps most important, it takes away much of the incentive to snatch the children in the first place. (Giving sole custody to the left-behind parent, as some have proposed, would naturally create a stronger deterrent ). For similar reasons, states with presumptive joint custody laws report significantly fewer divorces.
As for the connected tautology that that parental conflict in itself justifies divorce, this is seldom justified as far as children are concerned, as any child will tell you. "Children can be quite content even when their parents' marriage is profoundly unhappy for one or both partners," write Judith Wallerstein and Sandra Blakeslee in their 1996 book, Second Chances, "Only one in ten children in our study experienced relief when their parents divorced."
SPECIOUS JUSTIFICATIONS for a system that spawns massive corruption, violates basic constitutional rights, destroys the homes and lives of innocent children, and leads to serious social ills thus carry the day because of our willingness to buy into clichés that disguise the reality and extent of what is taking place. We have sanitized a breathtaking injustice with buzzwords such as "divorce" and "custody battle" that imply mutual consent, when in most cases no such thing exists. Yet however palatable we try to render this abuse, there is no escaping the central fact that it has very little to do with the needs of children and everything to do with the power of certain groups of adults.
But we either maintain a distinction between what is actionable in a court of law and what is not, or we simply haul people into court because we don't like their methods of child-rearing or, for that matter, because of our wish for a new boyfriend. Frightening as it may seem, using the courts and police to punish spouses for what may be nothing more than ordinary family disagreements now seems to be accepted without question, and the bottom line is that any father may now find himself pursued by federal agents because he protests the way his children have been taken from him.
Stephen Baskerville teaches political science at Howard University.