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The White House
Supporting the Role of Fathers in Families
November 27, 1995
Introduction:
The most important institution in our society which serves as the foundation for social and personal development and upon which America relies for its success and well-being is the family. A disturbing, recent trend of family fragmentation, however, that transcends social and economic barriers, threatens the very fabric of this essential institution and exacerbates our nation's most pressing problems: crime, educational failure, declining mental health, drug abuse, and poverty. The distinctly American dream of healthy, content families living in relatively problem-free, loving homes and neighborhoods has turned into a nightmare marked with images of conflict and desiccation. To reverse this ominous trend of family fragmentation and outright disintegration, government must address various domestic issues, abandon ineffectual policies, and actively undertake substantial reforms.
This paper is intended to examine the research and literature on children and families, review current welfare policies, and make educated recommendations for welfare reform. These recommendations of the National Congress for Fathers and Children are non-partisan and should not be construed as aligned with those of any particular interest group or political party. The recommendations are based entirely on what has been found to be in the best interest of children. Only reforms that are primarily concerned with children will work to repair our families, restore family values and ensure the future well-being of children.
THE PROBLEM
The most critical problem facing our nation today is the continuing disintegration of the family and the erosion of its support system. Perhaps the single most profound crisis in American families is the alarming and precipitous rise in fatherlessness throughout our nation's communities. Our tragic situation can be best documented by the abundant statistics which confirm some of our more ominous conjecture that an extremely high percentage of children born in urban, metropolitan areas were born out of wedlock, or are fatherless due to divorce.
The problems of wedlock, inextricably bound up with and exacerbated by divorce, have continued to deteriorate and become more acute over the past thirty years. In the early 1960's America was faced with an out-of-wedlock birth rate of 8% and a divorce rate of about 20%. Today, out-of-wedlock births have increased dramatically to nearly 40% of all births, a staggering 400% increase. In Detroit, Michigan, a shocking 72% of all children born are born out of wedlock. Although this astonishing number appears to be the highest in the nation in terms of metropolitan areas, numerous other metropolises across the country have percentages approaching this frightening figure. Nationwide today, at least one-third of all children born in America are born out of wedlock.
The danger to, and the adverse impact upon these unfortunate children and the social and legal repercussions of fatherlessness is disconcerting. Perhaps more than any other single factor, the absence of biological fathers is the leading cause of many of our nation's problems, including crime, drug problems, teen violence, inner city strife, and juvenile delinquency. Lack of a father presence in their daughter's lives has been linked to a increased risk for those teenagers of pregnancy. The U.S. Department of Justice, Bureau of Justice Statistics (1991) has reported, and Louis Sullivan, former cabinet member of President Bush, has confirmed, that 70% of the juveniles in state reform institutions grew up in single-or no-parent situations; additionally, 72% of adolescent murderers, 60% of rapists and 70% of the long term prisoners in America grew up without a father in the home. According to a recent report of the U.S. Department of Health and Human Services, children in father-absent families have a much higher risk of drug and alcohol abuse, mental illness, suicide, poor educational performance, teen pregnancy, and criminality. Among several other statistical correlations demonstrating the crucial role of the father in the proper and healthy development of children, educational problems among children and adolescents have been linked to fatherlessness as has generally lower socioeconomic status of children and women. And what of risks to these children from outsiders i.e. rape, child abuse and murder, because the biological father is not there to protect them? The compelling implication of these findings is clear: one parent is simply not enough. (Exhibit 2, Crime and Delinquency)
The following will attempt to briefly examine and evaluate applicable current laws and offer reforms that promise to rebuild the foundation of our society and forge a brighter future for the American family.
CURRENT POLICIES
1. Welfare and Government Aid
Current welfare policies are directly contributing to the degeneration and fragmentation of families which drives many of the social ills and dysfunctions that constantly plague our communities.
The long-term implications of maintaining these policies and continuing to rely upon welfare has had psychologically de-stabilizing effects on welfare recipients which will impact and imperil their families and their communities. Before the Second World War, concerned men and women, worried about the impoverishment of widows with children, decided that the government should ensure these families a minimal level of financial support. Thus was formed, as early as 1935, the start of such programs as Aid to Families with Dependent Children (AFDC), food stamps, public housing allowances, child support enforcement... followed by decades of increased regulations such as child support guidelines, child care, Medicaid, job training, free or subsidized college education, free legal services, etc. Notwithstanding the implementation of a vast array of purportedly "stabilizing" programs, out-of-wedlock births, ironically have increased an astonishing 400% while divorce rates rose 150%. From 1960 to 1988 the percentage of children living in households with only one adult tripled. Reforms in the area of child support in the 1980s only contributed to the deterioration of the family, actually decreasing the statistical record on child support payment. Moreover, the policies instituted served to drive fathers away from their children, an effect of government policy that remains a major concern today. What Congress has seemingly failed to realize is that introducing these welfare programs and a government financed child support program with stringent enforcement mechanisms unconnected to access of parents to their children "disenfranchises" the non-custodial parent (generally the father) while financially rewarding the custodial parent, resulting in family disintegration.
The stakes are enormous. Outlays on programs for the poor and for the consequences of poverty continue to eat up large and growing chunks of Federal, state and local budgets. Yet, the underlying problems of poverty, welfare and the underclass are worsening. Between 1988 and 1992, welfare caseloads jumped from 3.7 to 4.8 million families, fueled largely by the increase in the number of unwed mothers. And, because children growing up in poor one-parent families are less likely than other children to do well in school, avoid criminal activity, and form stable families, poverty and related social problems look like they are becoming intractable and self-perpetuating. Charles Murray struck a sensitive nerve when he recently pointed out the reality of a growing white underclass driven by high illegitimacy rate (22% of white births) and the link between fatherless families and drugs, crime, poverty, illiteracy, welfare and homelessness.
The target for nearly all reforms is the Aid to Families with Dependent Children (AFDC) program. AFDC provides cash assistance to low income families with children in cases where at least one parent is absent, incapacitated, or unemployed. Although the Congress mandated in 1988 that all states assist poor two-parent families, one-parent families or families with neither parent present make up over 90 percent of AFDC cases. As of 1993, the custodians of over 13% of the nation's children and about 40% of African-American children received AFDC. The AFDC programs attracts the most attention, but outlays for benefits in the other major welfare programs have increased at a faster rate. Between 1980 and 1992, spending on AFDC (in 1992 dollars) rose from $11.5 billion to $22 billion; meanwhile, combined outlays on food stamps, low income housing programs, and Medicaid increased from $65 billion to $136 billion.
In the 1960s, welfare reform meant making benefits more equal across states, extending eligibility to all poor families, turning benefits-in-kind (such as food stamps and public housing) into cash assistance, and strengthening financial incentives for recipients to work. The proposals reflected the idea that the poor were no different from the non-poor except they lacked money. It did not matter why people were poor; the problem of poverty could be solved simply by providing cash to the needy. The only issue was how to distribute the cash fairly and without creating harsh work disincentives. We've seen in the last 35 years that this approach does not work and has actually caused more harm than good as welfare dependency has been extended intergenerationally.
The principal reason welfare must undergo substantive reform today is because of its manifest lack of an incentive structure through which parents of children would be encouraged to, or rewarded by marrying, or forming meaningful family relationships. Government subsidies, the Cato report concludes, is responsible for perpetuating intergenerational poverty and chronic underachievement. According to the report, "Welfare benefits are far more generous than commonly portrayed and substantially exceed the amount a recipient could earn in an entry-level job... As a result, recipients are likely to choose welfare over work, increasing long-term dependency... Welfare benefits are especially generous in large urban cities." In Detroit, welfare offers the pre-tax income equivalent of a $10.90 per hour job, while in 9 states, the average first year teacher can expect less total income than a welfare recipient. "In 29 states, welfare pays more than the average starting salary for a secretary. In 47 states welfare pays more than a janitor. Indeed, in the 6 most generous states, benefits exceed the entry level salary for a computer programmer." (Exhibit 3, Cato report)
Current policies provide that a mother seeking AFDC or other welfare benefits will be ineligible for those benefits if the father of the children cohabitates with her. This policy implicitly promotes and causes fraudulent applications where the mother and biological father are actually residing together, and encourages the exclusion of the biological father. One reform to the welfare system would be to provide that prior to the issuance of state subsidies, the party requesting the subsidy would have to produce an affidavit from the other parent and themselves indicating that child care is not available from the father, relatives or grandparents. (Exhibit 4)
Unless strong, decisive action is taken to deal with increasing out-of-wedlock births and establishment of paternity, these problems and their relationship to suicide, teenage pregnancy, involvement with the criminal justice system, delinquency, continued drug use and alcohol abuse among children will continue to grow. Only, if policies can be developed and implemented which support the relationship between the biological father and his children, and recognize the real boon in terms of the economic and emotional support of the children and the benefits of role modeling, and protection of the children, can our nation can emerge from this crisis.
2. Paternity
Establishing paternity is the first step toward containing the grave consequences of this epidemic of fatherlessness. Children quickly become attached to both parents immediately after birth and need two active parents for their optimum development. Mothers typically fulfill the role of care giver, and thus meet the child's needs for security while fathers typically provide socialization, stimulate curiosity, effect discipline, and provide protection. The infant typically spends a disproportionate, albeit appropriate, amount of time with the mother following birth and, thus, becomes highly attached to the mother while the father is commonly away from the home for many hours of the day. When the father returns home and embraces his child the baby sees the father's face--this different face--which stimulates the baby's curiosity and involves socialization. Through their interaction and stimulation with their infants, fathers encourage babies to distinguish different sounds, faces, and touches at an earlier age, and make infants more receptive to change, less fearful of new experiences, and better able- having established close ties with more than one person-- to form trusting relationships with others. Fathers exercise aspects of the infant, stimulating different muscle groups and parts of the brain and ways of integrating the two, that might be benignly neglected if a child were cared for solely by a woman. One recent study has actually revealed that when fathers regularly talked, played, soothed, fed and changed their babies during the first month of life, the children scored significantly higher on developmental tests of motor skills, pattern identification, word recognition, and problem solving at age 1.
Clearly, both the maternal and paternal relationships are crucial during the turbulent times that inevitably occur through a child's formative years, and the sometimes cavalier treatment of the importance of fathers is a severe and irreparable injury to children. Expectations that mothers can and should raise children alone, being a "super-parent," reflects antiquated notions of the role of women and debunked theories of effective child rearing. However, while most women today work the same jobs and hold the same occupations as men, strangely, men continue to be largely excluded from child care responsibilities.
Current policies should be reformed to establish paternity at the earliest possible moments in order to maximize the emotional, social, and mental development of the child. Action should be taken to require the mandatory notice of pregnancy to be provided to the candidates for fatherhood within the second trimester of the pregnancy. In the event that the mother fails to notify potential fathers of the fact of the pregnancy and conception, she should be denied access to all public assistance, and this should be a pre-condition to state aid. To further enhance the possibilities for the developmental future of the child, state child care policies should be modified to encourage father and extended family involvement. The child care allocation and subsidy has become a hurdle for concerned non-custodial parents who wish to be involved in their children's lives. Under the current state of the law, a recurring scenario is that both parents work separate shifts wherein the mother works the first and the father will work the second shift. The father will commonly offer to care for the children at no cost during the time while the mother is at work so as to nurture his children to provide more stabilizing relationships; however, this request is frequently rebuffed. The consequences of this rejection is that costs are borne not only by the children, who are now isolated from integral parental interaction, but by taxpayers.
An example will illustrate the burdens and problems of the present system. Assume that the related child care is $100 per week and this occurs on the first of the year. This $4,800 bill for child care has a direct tax credit given to the custodial parent of approximately $2,400. Of the remaining $2,400, the courts apply a percentage based upon the pro-rata share of the parents. Assuming the non-custodial father makes twice as much as the mother, he would have to pay $133 per month as a child care subsidy to the mother who refuses to allow him to have an on-going relationship and provide the emotional as well as financial support for his children. Taxpayers supplement this figure to the tune of $200 per month, with out-of-pocket expenses for the mother of approximately $16 per week. This policy remains in spite of well established psychological and social evidence indicating the harm that parental absence causes to the children. It is not surprising that low income mothers actively conceal paternity when extant policies make such behavior the economically rational course.
Programs should orient America towards family formation and, specifically, towards father-included households even as the child is conceived. Marriage should be encouraged by these programs. Pregnant women should be required to identify the father pre-birth through in-hospital parentage forms such as those adopted September 25, 1995, in Maricopa County, Arizona. Receipt of government benefits should be preconditioned on either the active and final establishment of paternity or verifiable proof of clear efforts towards obtaining the acknowledgment of paternity and active involvement of the biological father.
The arguments opposing these reforms and favoring present welfare polices, essentially contend that it is exceedingly difficult and imposes an onerous burden upon the mother to identify the father of the children to whom she gave birth and for whom she provides. This contention or belief necessarily implies the somber notion that society has become so pathological that women have no regard for how, or with whom the children were conceived. This pessimistic view of modern morality and social responsibility, we submit, presents a ready, and unacceptable, excuse to put additional people on the government dole. We do not perceive the morality of a segment of American women in such a bleak and disparaging light. While the shining virtue of chastity has certainly been dimmed in the modern age, promiscuity is hardly so rampant that individuals cannot recall their sexual partners. It is our belief and has been our experience that at least 90% of the women who have conceived a child can identify who the probable father is within at least one or two candidates. Certainly, any male named by a mother as the father should be required to be identified at the time of application for benefits for welfare and, further, the birth certificate should reflect the identity of the biological father. This is a modest proposal imposing a mere duty of honest recollection and would require minimal cost for implementation.
In-hospital paternity establishment forms should be used to encourage parties to voluntarily establish custody and visitation as well as financial support. Parentage identification forms should be required to be completed, at a minimum and as a precondition, before an application for government assistance will be processed or considered. These forms are provided and available to new mothers at hospitals and other places referencing the acknowledgment of paternity and do not impose an unacceptable burden on mothers. The mother, until this matter is brought before the court, should be restrained from removing the child from the jurisdiction or from the general area, so as to preempt access or visitation thereby jeopardizing the possibility of the involvement of both parents. Additionally, the system should be reformed to provide that prior to the issuance of any government aid, the party applying for the subsidy produce an affidavit from the other parent and themselves indicating that no other child care is available from the father, other relatives, or grandparents. Any obligation of financial child support imposed upon fathers should include some level of access to the child. Further, when there is a genuine need for the subsidy, applicable policies should be reformulated to ensure that the father remains in the home after the birth of children and require both parties to actively participate in their children's raising and care. This might, incidentally, include marriage and taxpayer savings. A model for assisting in establishing orders related to identification in the early paternity, custody and support (emotional and financial) is being used in Maricopa County, Arizona.
3. Divorce
In matters of divorce, our nation's woes are partly attributable to the emergence, popularization, politicization, and increasing fervency of the feminism movement in the 1980s. Women's groups seized on their long-awaited opportunity to impact local, state and national policies on a wide range of domestic issues. Foremost, perhaps, in their collective agenda, has been the abrogation of purportedly patriarchal policies that allegedly limit the freedom of women and perpetuate their deferential and submissive role as housewife and mother. To liberate themselves from these shackles of domesticity, however, required, definitionally, their alienation from the home environment and their distancing themselves from their historical oppressors: men. While the resulting infusion of women into the workforce has undoubtedly been an economic boon and personally rewarding, this cultivated philosophy of liberation carried a destructive anti-family element. What has developed over the years is the attitude that men, in the workplace, in the home, as husbands and as fathers are really unnecessary - women can survive alone. While women have realized greater independence, it has come, unfortunately, at the price of the family; independence has meant independence from the fathers of their children and from the traditional family. While there were 142 divorces for every 500 marriages in 1990, in 1950 the figure was a mere 35.
The legislators handling issues of joint custody statutes, child support enforcement and domestic violence have been effectively lobbied by the resources and power of the women's movement and have proposed and effected discriminatory policies against men which have detrimentally affected the father-child relationship and, as a consequence, they have partly contributed to larger social problems, as previously established.
Lamentably, most states still adhere to the current de facto divorce option--the sole maternal custody/paternal visitation option which has proven a dismal failure. The rationale underlying the concept of visitation is a desire to keep the out-of-home parent involved with his or her children. Nonetheless, studies have indicated that divorce and sole custody effectively terminate the meaningful involvement of the out-of-home parent, and that sole custody leads directly to less frequent payments of financial child support. Considering the well-documented consequences, there is no conceivable and justifiable reason for maintaining these damaging policies and further imperiling families that have already suffered divorce.
4. Child Support, Custody and Visitation/Access
For every social problem that we experience--teenage pregnancy, drug abuse, poor school performance, low self-esteem, depression, suicide, or any other item on our list of social ills --research confirms that family breakdown and, particularly, father loss are primary causal factors. As acknowledged by groups of all political persuasions, from the conservative American Legislative Exchange Counsel to the liberal Progressive Policy Institute to the National Commission on Children, a political consensus has emerged to acknowledge the reality that public policy must begin to focus upon issues of family formation, family preservation, and demilitarization of the divorce process where parental separation cannot be avoided.
Unfortunately for children, public policy initiatives too often consist of Band-Aids and tonics designed to cover or suppress individual symptoms while failing to diagnose or cure the underlying disease. Too often, the tonics have some unintended consequences and side effects which exacerbate the original disease or stimulate new ones. The nation has spent thirty years treating the symptoms of family breakdown in ways that many believe have unintentionally advanced the dismal trend. We know that marriage is the best path to avoid or escape poverty, yet we punish family formation through our social service programs and tax laws. We know that the three best predictors of child support compliance are (1) the fairness of the original order, (2) the obligor's access to the child, and (3) the obligor's work stability, yet we have proceeded on a simplistic ideology of "more is better" in all matters of support amount and punitive enforcement. We know that entrenched special-interest groups have a vested interest in magnifying their own self-importance through repeated claims that child support is paid only 50% in full and 25% in part, but we have failed to challenge the accuracy of the claims and have failed to challenge the special-interest groups' strange silence about the fact that the same database also reveals the following:
- Child support compliance was 90.2% in cases of joint custody;
- Child support compliance was 79.1% where access to the child was protected by a visitation order;
- Child support compliance was only 44.5% where neither joint custody nor access were protected by an order;
- In 66% of the non-compliance cases, the mothers themselves reported that the reason was "father unable to pay." (Citing from the Prepared Statement of Ronald K. Henry, Attorney-at-Law, Before the Subcommittee on Administrative Law and Governmental Relations, Committee on the Judiciary United States House of Representatives, August 12, 1992.)
Notwithstanding the overwhelming evidence clearly demonstrating that two-parent families in which the father is vital and active is central to the health and welfare of our youth (Exhibit 5, Empirical Studies Related to Access/Visitation), divisive policies are currently being enforced by both the federal and state government which discourage the continued involvement of both parents with their child shortly after birth. The relationship of these policies to the enforcement of child support has been clearly demonstrated and documented both in the United States census report and in other studies and actual programs implemented throughout the United States. These scholarly and experiential works have conclusively established a correlation between increased access between father and his minor children and the father's compliance with child support order. The greater access a non-custodial father has to his children, the greater the likelihood that he will honor court ordered support obligations. States operating Federal Access Grants have, furthermore, found a significant increase in voluntary compliance with financial child support orders when "visitation" is awarded and enforced. While deprived of the care and nurturing of his children, the non-custodial father also typically suffers a greater adverse financial impact in paying child support than the mother, which helps explain why the principal reason support payments are not received from non-custodial parents is that they are simply unable to pay. Moreover, when both parents share the social and economic responsibilities of child care, children appear to adapt better to their changed living arrangements than when mothers bear these responsibilities alone.
Increasing access or visitation between the non-custodial children and their fathers has a positive, invaluable impact on the children. Aside from the aforementioned beneficial stimulative and socializing role a father can play during the infancy of his children, the presence of the father during his child's development reduces the likelihood of the child suffering potentially dangerous personal problems. The continuing involvement of divorced non-custodial fathers where the mother maintains physical custody has become recognized as being an important mediating factor in the adjustment and well-being of the children of the divorce. A child living with his/her divorced mother, compared to a child living with both parents is 375% more likely to need professional treatment for emotional or behavioral problems and is almost twice as likely to repeat a grade of school, is more likely to suffer chronic asthma, frequent headaches, and /or bed wetting, develop a stammer or speech defect, suffer from anxiety or depression, and be diagnosed as hyperactive. Fewer internalized problems, overall, are reported by minors who enjoyed closer relationships with their fathers.
Incidentally, joint physical custody and substantive access has been found to have numerous benefits not only for the children but also for the parents in divorce actions themselves. The award of physical custody to a parent has the unseemly dark side of placing the burdensome onus of full-time childrearing on the custodial parent, generally the mother, who finds precious little private or personal time and is, consequently, at high risk for "burnout." Non-custodial fathers are likely to be negatively affected psychologically, plagued by a feeling that they have somehow lost their children. Divorced fathers, altogether, have reported significantly more depressive symptoms than married fathers. Additionally, less post-divorce litigation occurs in instances of joint physical custody.
These findings clearly suggest that to stem the problem of non-payment of child support, to preserve the semblance of the family, to ensure continued economic support for children, and to generally enable children to experience greater love, caring, kindness and less strife, policies should seek, first to establish joint custodial arrangements, and second, to facilitate greater quantitative and qualitative relations between the non-custodial father and his children through increased access.
5. Equal Protection and Due Process
A. False Allegations - Tactical Advantage Without Consequences or Sanctions
An allegation by one parent that the other parent is a child abuser is a powerful weapon in a divorce. The allegation puts in motion the wheels of the protective service system, active involvement by Probate Courts and a policy of taking whatever action is necessary to protect the child as if, and assuming, these allegations were true. This includes the arrest and removal of the alleged abuser from the home and the denial of all contact between that person and the other parent and children. Once these wheels are set in motion the system itself is unable to easily grind to a stop. Many costs are incurred by the taxpayers by virtue of the action required of the various state agencies in order to investigate and properly resolve the issues. These investigations typically take somewhere between six (6) months and two (2) years to resolve and during this entire period of time the relationship between the accused parent and the child is strained if not destroyed. Furthermore, during this time the minor children are subjected to repeated interviews frequently causing the children to be so indoctrinated by the perception that something abusive has occurred that they are permanently rendered unable to distinguish fact from fantasy, reality from fiction. Yet, 85% of such allegations are proven to be unfounded, i.e., false.
Legislation is needed to attach penalties to the act of falsely creating allegations, charges or the dissemination of information designed to set in motion mandatory reporting of child abuse or domestic violence. The National Congress for Fathers and Children would hope that the legislation eventually would be enacted so as to make the penalty for fabricating allegations of child mistreatment or knowingly encouraging and perpetuating the dissemination of such information to be equal to the penalty associated with the offense which is being accused. I recently have reviewed many cases where individuals were accused of having sexual contact with children under the age of thirteen (13). This is criminal sexual conduct, first degree, which carries a possible life sentence with a mandatory prison sentence. A person who falsely raises this accusation is typically facing only a misdemeanor based upon the filing of a false police report or other similar misdemeanor statute with a virtual guarantee of probation. In the assessment of the possible benefit to the accuser and the prejudice which attaches to the accused, which is frequently impossible to reverse, this may be seen as an acceptable risk by many, knowing that the allegation in and of itself will typically have the desired result: causing significant prejudice, causing limitation of contact and access between the accused individual and the children, causing the children to be placed into serious psychological evaluation, counseling, numerous physical examinations. All of this has the effect of not only destroying the children's innocence and naiveté but also of allowing significant time for the relationship between that accused individual (typically the parent) and the minor child to be destroyed. The doubt and psychological damage to the children's ability to form the relationship, the polarization created by the charges in and of themselves typically requires long term psychiatric intervention and in many ways are fait accompli after the mandatory reporting and involvement of the funded state agencies.
B. Lack of Standing for Fathers to Sue to Establish Paternity
A major difficulty facing fathers who wish to be involved in the lives of their children who are born to mothers to whom they are not married has been created and perpetuated by legislation which defines "child born out of wedlock" in such a manner as to deny the biological father the right to sue to establish paternity in cases where the mother either was married at the time of conception or got married prior to the actual birth of the child. This interpretation denies the father of the ability to seek to establish his obligations to the child and a relationship with that child while allowing married pregnant women the option of excluding the biological father's involvement with the child and, in fact, denying him the "legal forum or procedure to claim his alleged paternal status." The justification and policy behind the formation of this definitional bar to standing for the fathers was to preserve the sanctity of the marital family. Michigan Supreme Court Chief Justice Cavanagh in his dissent of Girard v Wagenmaker, 437 Mich 231, 470 NW2d 372 (May 7, 1991) stated, "It is surely a bit late to talk of preserving the sanctity' of the marital family by the time a situation like the one alleged in this case has arisen." This antiquated legislation and vast precedent needs to be reversed by a clear federal mandate requiring that the actual biological father has standing to sue to establish his paternity over his child regardless of the marital status of the mother. Otherwise, a clear due-process argument would require that when a single woman conceives a child with a man who is either married at the time of conception or gets married to a different woman by the time of the birth of the child, that physical custody should immediately be transferred to him as he has the marital relationship and the two-parent household for the child. These irrational decisions based upon the marital status of a woman will continue until direct action is taken by the legislature or a reversal by the United States Supreme Court of cases which have allowed this inequity to continue. The majority opinion in the Wagenmaker case clearly recognizes this dilemma as it stated, "We do not denigrate the dissent's genuine and thoughtful concerns over the moral dilemma between the paternal needs of the biological father and those of the presumptively legitimate child. We only find that the Legislature has made its choice and the answer to the dissent's concerns will have to come from that body."
C. The Obligation to Provide Financial Support and the Obligation to Provide Access Between the Non-custodial Parent and Child Should Be Treated Equally
Parental access should be added to each recommendation by substitution of domestic relations order whenever the recommendation contains the term "support action", or similar reference to only a portion of the court order. Little justification exists for adopting one standard for financial child support enforcement and another for parental access. For example, there is no reason to provide full faith and credit to the one line of a domestic relations order regarding child support while ignoring the line requiring visitation or access to the children. Each existing piece of legislation should be modified so as to apply to the entire domestic relations order with equal or greater concern and resources allocated to promoting equal parental access. Financial obligations should be imposed equally on both parents and accountability equal to or greater than the standards applicable to social security benefits received for dependent children adopted.
D. Need for Policies to Discourage a Parent from Relocating the Child(ren) Away from the Other Parent
The United States Constitution and current case law establishing the standards for changing the domicile of minor children have been liberally interpreted so as to provide for the granting of petitions to change domicile in the vast number of cases. Relocating the children away from the other parent is not typically beneficial to young children. Restrictions should be imposed on such moves so as to encourage if not require the continued involvement of both parents in the children's lives.
6. Additional Concerns:
A. Identification of Sex Offenders
Forensic and statistical evidence make it clear that pedophilic behavior does not respond to therapy and psychological intervention and therefore cannot be rehabilitated. Although a national database exists regarding sex offenders, this database is not generally available to the public or business sector of our society. The inability for employers to determine the status of a potential employee can place America's children at jeopardy by allowing the employment of sex offenders in jobs which deal with children. This is not acceptable. A simple addition to the social security numbers which would be recognized as a clear tag to remain with a convicted individual for life could significantly add protection for our children. For this reason, the following is proposed:
- It be a requirement that all motor vehicle records, all state ID cards and all uses of Social Security shall clearly have a designation so anyone reviewing the license, state ID, IRS or Social Security documents would be able to identify the owner of that record as a person previously convicted of sexual abuse.
- All convictions regarding child abuse, either physical or sexual, be officially kept and documented with said identification to remain with the individual for life absent a pardon or expungement of the conviction whether it be a misdemeanor or felony.
- It shall further be a crime for a person with a conviction of child molestation or abuse to enter into or engage a profession primarily devoted to contact with and direction of children.
- Any persons living in the household where AFDC is being paid shall provide an Affidavit as to the fact that no person living in the household with those children has been convicted of a sexual abuse or child molestation. Failure to provide such an Affidavit that the environment is free of contact with convicted child molesters or abusers should require the welfare agency or other state agency to provide immediate notice to the other parent and to take appropriate action so as to protect the children involved.
B. Freedom of Information Act
Much of the most insightful and focused research available necessary for the consideration by the legislatures exists in the reports of committees and sub-committees which are funded by taxpayer dollars and are the compilation of information necessary for the consideration of both the representatives of the people and by the people themselves. Recently a paper entitled "The Opposition to Joint Custody" by Phillip J. Holman, Esq. was distributed citing fifteen statistics drawing attention to the disastrous consequences of adhering to the policy of awarding sole custody to mothers. (Exhibit 6) The conclusion of that paper refers to the Michigan Friend of the Court Advisory Committee and the adoption of the recommendations from the Joint Custody Subcommittee.
As President of National Congress for Fathers and Children, I appeared before the Michigan Legislature regarding the proposed modification of legislation addressing joint custody. Although a member of the Friend of the Court appeared before the Legislature, no information regarding the Friend of the Court Advisory Subcommittee report and recommendation was available. Luckily, the Legislature went into full session and the issue of joint custody was not allowed to be heard due to that interruption but was continued until November 28, 1995. Believing that this information could provide critical insight to the Legislators faced with the pending issue of joint custody, a phone call was made requesting a copy of the report and recommendation. It was determined that there would be no response to my phone call, so a request under the Freedom of Information Act was sent to the State Court Administrator's office (Exhibit 7) so that this information could be disseminated by myself to the Legislature. In response to the Freedom of Information Act request, the State Court Administrator's office claims that they are not subject to Freedom of Information Act requests (Exhibit 8).
It is of great concern to me as a taxpayer and as President of The National Congress for Fathers and Children that information regarding recommendations of presumptive joint physical custody can be buried by the stroke of a pen by simply refusing to comply with a request for the production of information paid for by tax dollars. I would assume that the Advisory Committee would be subject to the Open Meetings Act and, therefore, the information should be available, however, whether or not Ms. Hall is correct in determining herself and her office to be excluded under the definition of a "public body", it is clear that the information should be freely available to the representatives of the taxpayers when it addresses critical issues before the Legislature at this time which directly impact upon the children and families of our country. Serious concerns exist that the important recommendations are being bottom-drawered because they do not agree with the personal views of the Court Administrator. This impropriety should never be allowed.
Although a final copy of the report is being refused based upon Freedom of Information, a preliminary draft dated July 27, 1995 and entitled "final report" was secured and is attached (Exhibit 9). Please determine for yourself whether personal agendas are influencing the release of this report so as to undermine the formation of Legislative policies regarding father involvement and presumptive joint physical custody.
RECOMMENDATIONS
Based on the preceding information and data, we recommend policy formulation, modification and implementation to increase the qualitative and quantitative involvement of fathers in children's lives. These changes, generally, should be oriented toward:
- Challenging the public image that father-presence is relatively unimportant to children's health and well-being.
- Helping preserve the nuclear family and promote parental involvement with their children.
- Provide support, education, and training for fathers that are accessible to families of all socioeconomic levels through methods such as home visits.
More specifically, we offer the following recommendations; some which can be adopted rather quickly, and others which will, understandably, require more time before implementation:
Recommendation 1:
The legislature adopt language stating that "In determining custody, the court shall not prefer a parent as custodian because of that person's gender."
A number of state statutes specially prohibit gender bias in the determination of custody, however, where language is absent indicating that gender not be an issue or concern, we cannot merely rely on presumption of gender neutrality. The law should be unambiguously clear that sex is not a criterion for consideration.
Recommendation 2:
The term "visitation" should be replaced by the term "access" or "shared parenting time."
The term "visitation" carries a distinct negative connotation, projecting images of trips to prisons or correctional facilities. Use of the term "access" implies an opportunity for a parent to spend quality time with his child.
Recommendation 3:
The term "child support" should be replaced by the terms "financial child support & emotional child support."
Economic issues are too easily confused with emotional issues under the current language. The inability of a parent to make payment on an obligation should not carry the connotation that the parent does not "care" for the child in an emotional or psychological sense. Establishing a distinction between the terms will enable the child to realize that he or she is loved and cared about regardless of the financial condition of the parties and their ability or inability to make financial support payments.
Recommendation 4:
Establish in-hospital parentage identification programs wherein paternity would be established at the earliest possible date.
The program should provide for the identification of the mother and father, explain the custodial and support rights, responsibilities, and options available to the parents and provide a mechanism for unwed and non-cohabitating parents to identify and record any voluntary agreement respecting the custody and support of the child. Birth certificates should include both parents' names when parentage is acknowledged.
This requirement would assure that the father's interests are not overlooked, would lay the groundwork for beneficial father-child relationships, and establish a custody and access or visitation arrangement between the mother and father.
Recommendation 5:
Require that parents seeking child-care assistance complete a form or certificate of eligibility in which they are required to demonstrate that no other member of the child's family is willing to provide assistance.
In cases where a father or family member is in a position to perform the care for the child at no cost, they should be allowed to care for the children rather than have the government pay childcare. In a society facing increasing instances of absent fathers, this requirement represents a way to keep fathers involved and strengthens the child's chances for economic and emotional success through immediate and extended family bonding.
Recommendation 6:
Parents should both be required upon filing for paternity or at the dissolution of their relationship, to include a proposed parenting plan establishing a custodial arrangement and terms of access. If the parents cannot mutually agree upon an acceptable plan the court shall impose such a plan.
All parties involved, children and parents, are traumatized by the break-up of familial relationships. By requiring parents to enter into a parenting plan, and thereby focus their energies on maintaining their relationship with the children, the interests of the children are assured to be paramount, which the children will understand. If parents cannot reach agreement, the court will have the responsibility of determining a parenting plan equitable to the parents, but primarily, in the best interest of the children.
Recommendation 7:
Joint physical custody or shared parenting shall be presumed in the absence of a credible showing of child abuse and/or neglect.
Establishing a distinct policy presumption in favor of joint custodial arrangements would inure to both the benefit of children and to their families as the overwhelming number of studies, reports and statistics conclude. The realization that joint custody is almost always in the best interest of the children encourages parents to pay primary attention to their children's needs and attend to their own secondarily. This presumption should be maintained notwithstanding the apparent conflict between parents and the likelihood that they will be unable to mutually resolve certain issues. The children are of primary importance. Defeating this presumption will require more than allegations of misconduct, it will require the presentation of credible, documentable proof to the court.
Recommendation 8:
Notwithstanding the presumption of joint custody, if one parent applies for AFDC the other parent should be considered first in determining alternative placement of the child so as not to require taxpayer subsidy.
This recommendation complements recommendation number 6 concerning childcare forms or certificates. A policy favoring the placement of children in a custodial environment in which the parent is not receiving government assistance will provide children with a more disciplined and otherwise healthy home environment conducive to the development of children. This policy would deter fraudulent filings and have the ancillary benefit of saving the government and taxpayers hundreds of millions of dollars.
Recommendation 9:
Recipients of AFDC benefits and financial child support should, when requested, with good cause shown, be required to make some form of accounting as to how those funds have been spent.
AFDC benefits and financial child support payments should accrue to the benefit of the children, not to custodial parents for whom other forms of support are available. Financial child support, in particular, may be abused by recipient parents who may use these funds for personal expenditures which, essentially, becomes a form of tax-free alimony. Accountability could be accomplished by filing a simple form at the end of the year which outlines how the funds were spent, as currently required in cases of Social Security and foster care. Alternatively, or in addition, receipts might be retained over a specific period, much like the IRS requires of business expenses.
Recommendation 10:
Hold both parents responsible for the financial support of their children based upon their ability to earn.
Just as both parents should provide for the emotional, psychological and intellectual needs of their children, both parents should be required to contribute to the economic well-being of their children regardless of their level of income. Mothers who are receiving AFDC benefits should, nevertheless, support their children by reimbursing the government for those benefits, which would certainly make the welfare lifestyle less attractive and convey the message that to have a child requires financial responsibility from both parents. We have come to know two very important things about family/welfare policy:
- A) Until the person who receives the benefits bears some responsibility for reimbursing the government for those benefits, the incentive for unwed pregnancy will continue, and
- B) Until government policy allows fathers to become involved with their children, those children will continue to be at high risk for criminal behavior, teen pregnancy and numerous other social abnormalities.
Recommendation 11:
Provide job training and skills enhancement programs to parents unable to meet their financial child support obligations. These parents should be required to reimburse the government for the cost of their training if financially feasible.
Providing employment opportunities would obviously enable parents in difficult economic conditions to find jobs and honor their financial obligations to their children. After paying support and necessary personal expenses, the employed parent should be required to compensate the government for the subsidized training.
Recommendation 12:
Enact legislation providing that civil contempt and bench warrants will be issued when a parent who is charged with a responsibility of facilitating visitation or access interferes with such visitation or access.
Such legislation would ensure that the parent interfering with visitation would pay the costs related to a hearing which they fail to attend when given proper notice, including the costs of the issuance of the warrant, arrest and any further hearings.
Recommendation 13:
Impose Federal restrictions on minor children of divorced or separated parents being moved out-of-state.
The statistics from the U.S. Census Bureau demonstrate that when the children reside in the same state as the obligor (non-custodial parent) compliance is 81.1%. When the children are moved out-of-state, compliance drops to between 46% and 64%. It is a simple reality - when the non-custodial parent is allowed to be a parent, he/she will act responsibly as a parent. Think about it--the GAO report reveals that in 66% of cases where non-custodial parents are not paying it is due to inability. Now we escalate the expenditures or revenues needed by factoring in the costs of exercising parental access (visitation) and you see the dilemma of interstate cases. In many cases, on a regular monthly basis, the non-custodial parent must make a moral choice between paying his/her financial child support or being there to provide the emotional child support. [See: David Blankenhorn's "Fatherless America" - Are our social policies and programs not escalating this absenteeism?]
Recommendation 14:
Enforce child support and access equally.
Sanctions such as contempt, incarceration, and license revocations should be applied not only regarding child support noncompliance but also against parents who deny visitation or access between children and the other parent. Non-compliance is the symptom; parental disenfranchisement is the problem!
Recommendation 15:
Implement policies and procedures to protect children from individuals who have been convicted of child molestation or sexual abuse.
These policies and procedures should include:
- It be a requirement that all motor vehicle records, all state ID cards and all uses of Social Security shall clearly have a designation so anyone reviewing the license, state ID, IRS or Social Security documents would be able to identify the owner of that record as a person previously convicted of sexual abuse.
- All convictions regarding child abuse, either physical or sexual, be officially kept and documented with said identification to remain with the individual for life absent a pardon or expungement of the conviction whether it be a misdemeanor or felony.
- It shall further be a crime for a person with a conviction of child molestation or abuse to enter into or engage a profession primarily devoted to contact with and direction of children.
- Any persons living in the household where AFDC is being paid shall provide an Affidavit as to the fact that no person living in the household with those children has been convicted of a sexual abuse or child molestation. Failure to provide such an Affidavit that the environment is free of contact with convicted child molesters or abusers should require the welfare agency or other state agency to provide immediate notice to the other parent and to take appropriate action so as to protect the children involved.
Recommendation 16:
Parental locator services for non-custodial parents.
We allow custodial parents who want to locate the other parent to have access to the federal Parental Locator Service. Currently, we do not allow non-custodial parents to have this access. Yet, in the majority of cases, it is the custodial parent who makes the first move out-of-state. If we truly want to increase compliance and increase father involvement, we must give access to both parents to utilize the Parental Locator Service.
Recommendation 17:
Kinship Care.
When a custodial parent applies to the state or federal government for welfare assistance, government should examine and investigate whether there are other family members with which this child can be placed without putting the child into an environment of economic dependency on the government. If one parent needs aid, but the other parent can maintain the child independently without taxpayer assistance, let's look first to placing that child into that self-sustaining familial home. Likewise, if the other parent is not available or able, what about grandparents, uncles, aunts, siblings and other family members. Instead of government trying to be the financial parent to 20 million children, let's allow the family to be available. This was the method employed prior to the 1960's and it was tremendously successful, not only for society and government, but especially for the child.
Recommendation 18:
Dependent tax exemption.
The law should be revised to provide that the dependent tax exemption shall be allocated to the parent who bears more than 50% of the child's financial support as established by the applicable child support order. To avoid ambiguity and dispute, the taxpayer claiming the exemption could be required to submit a copy of the court order as an attachment to the tax return. Most child support orders are now generated by computers using the state's child support formula and are set forth in a one page computer printout.
Recommendation 19:
Welfare Reform: Employer notification.
The welfare reform legislation passed by the House of Representative includes language requiring employers to report all newly hired employees for the purpose of modifying and enforcing child support orders. To maintain the accuracy of the child support enforcement data base, it is necessary to also report terminations of employment. Notification of terminations of employment is necessary both to alert the enforcement personnel that a prior source of earnings must be replaced and to assure that support obligations are properly modified to reflect both increases and decreases in earnings from changes of employment. Each state shall require all employers to provide the name and social security number of all new hires and terminations to the state's child support enforcement agency. The child support enforcement agency shall utilize the reports of new hires and terminations to process child support award modifications administratively within thirty (30) days after receipt of such information.
Recommendation 20:
Establish laws causing it to be a criminal offense to knowingly file or cause to be filed a false allegation of abuse, neglect, sexual abuse, domestic violence, stalking or other criminal behavior.
Knowingly falsifying information or disseminating information so as to require the mandatory reporting or investigation or prosecution of a parent as a means to justify the interruption of the parent/child relationship should carry a monetary penalty and threat of incarceration which is equal to the crime falsely charged. Bearing false witness was considered such a major offense as to deserve its own Commandment [See: Ten Commandments - Exodus 20 at 20:16], yet this problem is not even addressed in divorce and custody proceedings.
The contentious domestic issues of custody, child support enforcement and paternity will continue to loom large in the future of America. Before we can meaningfully address and remedy these formidable issues we must first question the status quo, re-evaluating our perceptions and perspectives on welfare, government aid and father absence in the home. These recommendations are intended to initiate and contribute to a sustained national focus on the necessity of reversing the disturbing current trend of family fragmentation and disintegration. Until Congress and our state legislatures concentrate their efforts upon the family unit: a mother, a father and their children, and not on the individuals, we will not be able to rescue our suffering families from their current plight. These recommendations are a promising step toward meaningful reform that will ameliorate the sad condition of the American family. The time for further research and study has passed. It is time for action.
Respectfully submitted,
Travis Ballard, Esq. (P32805)
President, National Congress for Fathers and Children
415 Mill Road, Adrian, Michigan 49221
[email protected] (E-MAIL)
1-800-Kid-n-Dad or 1-517-265-5532 (FAX)