The advent of "no-fault" divorce
has given rise to a system that strips fathers of their
children, accelerates the breakdown of families, and makes
a mockery of the marital contract.
For the moment, while
the Federal Marriage Amendment is moved to a back burner,
it's a good time to heighten our awareness of a broader
menace. Same-sex marriage is a symptomatic threat to families,
compared to the more fundamental effect of "no fault" divorce.
“Commentators
miss the point when they oppose homosexual marriage on the
grounds that it would undermine traditional understandings
of marriage," writes Bryce Christensen of Southern
Utah University. "It is only because traditional understandings
of marriage have already been severely undermined that homosexuals
are now laying claim to it." Michael McManus of Marriage
Savers writes that "divorce is a far more grievous
blow to marriage than today's challenge by gays".
The
Bush administration and Congress have allocated $150 million
annually to promote "healthy marriages and responsible
fatherhood." The effectiveness of these efforts turns
on how well they mesh gears with the underlying realities
of the family crisis. In order to face the bitter truths
about why families are dissolving at such an alarming rate,
we must move from the precincts of moral exhortation, to
take an analytical look at the mechanics of the family court
system and related legal agendas.
It is a grievous misconception
that an increase in marital "break downs" warranted
new laws to simplify the divorce process, as if to minimize
a futile expense for an unavoidable outcome. Under "no-fault" divorce
laws, 80% of divorces are unilateral. In other words, most "no-fault" divorces
are unilateral, over the objection of one spouse, who is
often committed to keeping the family together. Further,
it is more often the spouse who is opposed to the divorce
that will be burdened with on-going legal fees and court
actions.
Evidence suggests that those who influenced the
new laws had an ulterior motive which has developed a system
that exploits the opportunity for professional involvement
in a growing divorce industry. Since "no fault" divorce
opened the court room doors wider, the market of professional
family services has grown exponentially. In contradiction
to another myth, that husbands take advantage of the simpler
divorce method, the mother of minor children is overwhelmingly
most often the divorcing parent.
In Divorced Dads: Shattering
the Myths, Arizona State University psychologist Sanford
Braver has shown that at least two-thirds of divorces are
initiated by women. Moreover, these divorces rarely involve
abandonment, adultery, or violence. The most common reasons
are "growing apart" or "not feeling loved
or appreciated." Divorces initiated by women climbed
to more than 70% when no-fault divorce was introduced, according
to Margaret Brinig of the University of Iowa and Douglas
Allen of Simon Fraser University. Mothers "are more
likely to instigate separation, despite…evidence
that many divorces harm children." The bottom line
is indeed the children.
After analyzing 21 variables, Brinig
and Allen concluded that "who gets the children is
by far the most important component in deciding who files
for divorce." The importance of this finding cannot
be overestimated. Political leaders who call for repeated
crackdowns on allegedly dissolute fathers clearly promote
the assumption that fathers are to blame with regard to
the welfare of children of divorce. "I believe children
should not have to suffer twice for the decisions of their
parents to divorce," Senator Mike DeWine stated on
the Senate floor in June 1998; "once when they decide
to divorce, and again when one of the parents evades the
financial responsibility to care for them."
But most
fathers make no such decision. They are expelled by a divorce
to which they become obligated without consent. Family law
now allows mothers to walk away from marriages at any time
and take the children with them. Not only is this permitted,
it is encouraged and rewarded with financial incentives.
Even more disturbing, in some cases, mothers are actually
pressured by social service agencies into filing for a divorce
that they don’t want. The Massachusetts News reported
how Heidi Howard was ordered by the state’s Department
of Social Services to divorce her husband Neil or lose her
children, though DSS acknowledged he had not been violent.
When she refused the social workers seized her children,
including a newborn and attempted to terminate the Howards’ parental
rights.
News reporter Nev Moore says she has seen hundreds
such cases. The problem runs much deeper than the existing
bias against fathers in custody decisions. "Washing
their hands of judgments about conduct...the courts assume
that all children should normally live with their mothers,
regardless of how the women have behaved," observes
Sunday Times columnist Melanie Phillips. "Yet if a
mother has gone off to live with another man, does that
not indicate a measure of irresponsibility or instability,
not least because by breaking up the family…she is
acting against their best interests?"
Mothers who separate
children from their fathers are routinely given immediate
custody. Although considered temporary, once a mother has
custody, it cannot be changed without a lengthy court battle.
The sooner she can establish herself as the sole caretaker,
the more difficult and costly it is for the father to regain
custody. Further, it is the tendency of a mother who cuts
off the father to use his absence to embitter the child
with false charges against him, while she delays custody
proceedings, and obstructs the father's efforts to see his
children. The most common end result is that she retains
sole custody.
As for the father, he is most likely to discover
too late that any restraint in his effort to regain custody
will cost him dearly. Often only reciprocal belligerence
and aggressive litigation on his part carries any hope of
reward. Astoundingly, the latest wisdom counsels nervous
fathers that the game is so rigged that their best chance
is not to wait for their day in court, but to snatch first,
then conceal, obstruct, delay, and so forth. "If you
do not take action," writes Robert Seidenberg in The
Father’s Emergency Guide to Divorce-Custody Battle, "your
wife will." Thus we have the nightmare scenario of
a "race to the trigger" and the pre-emptive strike
reminiscent of nuclear deterrence strategy. Whoever snatches
the children first wins.
Far from merely exploiting family
breakdown, domestic relations law has turned the family
into what political scientists call the game of "prisoners’ dilemma," in
which only the most trusting marriage can survive and the
emergence of the slightest marital discord renders not absconding
with the children perilous and even irrational. Willingly
or not, all parents are now prisoners in this game. How
did all this come about? Under the assumption that only
mutual consent would precipitate the dissolution of a marriage, "no
fault" laws provided for the removal of grounds for
divorce.
Subsequently divorces, commonly blamed for causing
hardship to wives and children, has increasingly left husbands
vulnerable to desertion and the confiscation of their children. "No-fault" divorce
is a misnomer for the creation of what Maggie Gallagher
calls in her book The Abolition of Marriage "unilateral" divorce,
allowing either spouse to end the marriage, without any
agreement or fault by the other. What's more alarming is
that these laws were passed while no one was looking; no
clamor to dispense with divorce restrictions preceded their
passage; no public debate was held in the national media. "The
divorce laws…were reformed by unrepresentative groups
with very particular agendas of their own and which were
not in step with public opinion," writes Phillips in
her book The Sex-Change Society. "All the evidence
suggests that public attitudes were gradually dragged along
behind laws that were generally understood at the time to
mean something very different than what they subsequently
came to represent."
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Attorney Ed Truncellito agrees.
In August 2000, he filed suit with the Texas Supreme Court
against the state bar. Truncellito contends the legislative
history of no-fault divorce law in Texas makes clear that
the law was meant for "uncontested-only" cases.
He insists that "the state bar knew all along that
the no-fault law was being misapplied, but they covered
it up for financial gain." Truncellito claims that,
effectively, "no one is married" because the laws
created "unilateral divorce on demand." Dickens’ observation "the
one great principle of the...law is to make business for
itself" couldn't be more starkly validated. Nothing
in the law requires a judge to grant the divorcing parent’s
initial request to strip the other parent of his children.
A judge could simply rule that, prima facie, neither the
father nor the children has committed any infraction that
justifies being forcibly separated and that neither the
mother nor the court has any grounds to separate them. Yet
such rulings are virtually unheard of. One need not be cynical
to recognize that judges who refused to grant the request
would be denying earnings to an entourage of lawyers, custody
evaluators, psychologists and psychiatrists, guardians ad
litem, mediators, counselors, child-support enforcement
agents, social workers, and others – all of whom profit
from the ensuing custody battle and have a strong say in
the promotion of judges.
With all the concern shown for
family breakdown and judicial power, it is surprising that
family advocates and judicial critics have paid so little
attention to family courts. Without a doubt they are the
arm of the state that reaches farthest into the private
lives of individuals and families. Though lowest in the
judicial hierarchy, they are the most powerful. "The
family court is the most powerful branch of the judiciary," according
to Robert Page, Presiding Judge of the Family Part of the
Superior Court of New Jersey. According to Judge Page, "the
power of family court judges is almost unlimited." Others
have commented on their vast power rather less respectfully.
Former Supreme Court Justice Abe Fortas once characterized
them with the term "kangaroo court." Contrary
to basic principles of open government, they generally operate
behind closed doors, often excluding even family members
and leaving no record of their proceedings.
These bureaucratic
courts emerged in the 1960s and 1970s along with the divorce
revolution. Their existence and virtually every problem
they address – divorce, custody, child abuse, child
support enforcement, even juvenile crime – depend
upon one overriding principle: The removal of the father
as head of the family. When parental authority functions
properly, family courts have little reason to exist, since
these problems seldom appear among intact families.
While
both fathers and mothers may fall afoul of family court
judges, it is fathers against whom their enmity is largely
directed, because fathers are their principal rivals. The
judges’ contempt for both fathers and constitutional
rights was openly expressed by New Jersey municipal court
judge Richard Russell: "Your job is not to become concerned
about the constitutional rights of the man that you’re
violating," he told his colleagues at a judges’ training
seminar in 1994. "Throw him out on the street, give
him the clothes on his back and tell him, see ya around….
We don’t have to worry about the rights."
While
all courts complain of being "overburdened," judicial
powers and salaries, like any other service, are determined
by demand. Family court judges are generally appointed and
promoted by commissions dominated by bar associations and
other professional groups who have an interest in maximizing
the volume of litigation.
Political scientist Herbert Jacob
describes how "the judge occupies a vital position
not only because of his role in the judicial process but
also because of his control over lucrative patronage positions." Jacob
cites probate courts, where positions as estate appraisers "are
generally passed out to the judge’s political cronies
or to persons who can help his private practice." The
principles are similar, only in family courts what is passed
out is control over children. Once the parent "loses
custody," in the jargon of the court, he can be arrested
for trying to see them outside of authorized times and places.
He can be arrested for running into his children in a public
place such as the zoo, sporting events, or church.
Additionally,
parents are routinely summoned to court for questioning
about their private lives, which attorney Jed Abraham has
characterized as an "interrogation." Their personal
documents and homes must be surrendered to government officials
without warrants. Their children are alienated with the
backing of government officials and then are required to
inform on them. Despite the constitutional prohibition on
incarceration for debt, a parent can be jailed without trial
for failure to pay not only child support but the fees of
lawyers and psychotherapists he has not hired.
In these
cases, the judge is summoning legally unimpeachable citizens
and ordering them to write a check or go to jail. And the
weapon he is using to do it is children. If this systematic
bullying by courts and enforcement agents begins to sound
like a reign of terror, that is precisely how many now see
it. Aside from countless absurd and bizarre injustices,
the family court system has been cited as a cause for a
growing percentage of fathers being driven to suicide.
In
March 2000, Darin White was denied all contact with his
three children, evicted from his home, and ordered to pay
more than twice his income as child and spousal support,
plus court costs for a divorce he never agreed to. White
hanged himself from a tree. No evidence of any wrongdoing
was presented against him. White’s fate is increasingly
common. "There is nothing unusual about this judgment," the
Vancouver Sun quotes former British Columbia Supreme Court
Judge Lloyd McKenzie, who pointed out that the judge in
White’s case applied the same guidelines used in the
US and other western countries.
Augustine Kposowa of the
University of California Riverside writing in the Journal
of Epidemiologist and Community Health attributes a dramatic
increase in the suicide rate of divorced fathers directly
to family court judgments. Family law denies rights as basic
as free speech and freedom of the press. In American jurisdictions
it is a crime to criticize family court judges. Earlier
this year, Kevin Thompson received an order from Massachusetts
Judge Mary Manzi prohibiting distribution of his book, Exposing
the Corruption in the Massachusetts Family Courts. Following
his congressional testimony critical of the family courts,
Jim Wagner of the Georgia Council for Children’s Rights
was stripped of custody of his two children and jailed.
"We
believe…the court is attempting to punish Wagner
for exposing the court’s misconduct to a congressional
committee," said Sonny Burmeister, president of the
Council. The divorce industry has, in affect, rendered marriage
a fraudulent contract. While the dissolution of families
affects the health of the entire society, parents and especially
fathers must demand that marriage be made an enforceable
contract. "No fault" divorces granted by family
courts also confront church leadership, not only along lines
of morality, but as it touches on the validity of their
ministry.
If marital bonds can be dissolved by government
officials with no grounds or agreement between the marriage
partners, the sanctity of a wedding ceremony is subject
to disregard. Unless marriage is an enforceable contract,
there is little point in preaching trust in it. It is not
surprising that ever fewer are willing to marry while the
marriage contract offers no protection of family, children,
homes, or privacy, even to the extent of life-threatening
impositions. It is one thing to tolerate divorce. It is
another to allow government to impose it on unwilling spouses.
When courts stop dispensing justice, they must start dispensing
injustice. There is no middle ground.
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