Fathers with no rights

Once the father "loses custody," in the jargon of the court, he becomes in many ways a virtual outlaw and subject to plunder by a variety of officials. His contact with his own children becomes criminalized in that he can be arrested if he tries to see them outside of court-approved times and places. Unlike anyone else, he can be (and fathers are) arrested for running into his children in a public place such as the zoo, a sporting event, or a parish church. He can also be arrested for telephoning his children when he is not authorized to do so or for sending them birthday cards.

Fathers are routinely summoned to court and subjected to questioning about their private lives and how they raise their children. Whether or not they have been accused of any wrongdoing, they are subject to questioning that attorney Jed Abraham has characterized as an "interrogation." Their personal papers, bank accounts, and homes must be opened and surrendered on request to government officials, who are not required to produce warrants. Their children are taught to suspect them with the backing of government officials and given directions to inform on them.

Anything a father has said to his spouse or children can be used against him in court. His personal habits, movements, conversations, purchases, and even his relationship with his own children are all subject to inquiry and control by the court.

Despite the constitutional prohibition on incarceration for debt, a father can be jailed without trial for failure to pay not only child support but the fees of lawyers and psychotherapists he has not hired.

The child-support conundrum

The criminalization of fathers is further consolidated through child-support burdens, which constitute the principal financial fuel of the divorce machinery, underwriting divorce and giving both mothers and the state further incentive to remove children from their fathers.

We often hear the imprecations of politicians and enforcement officials against fathers who fail to pay child support. What we do not hear is that child-support obligations are determined not by the needs of children but by the politics of interest groups involved in collection. Guidelines are generally set by the same agencies and courts who enforce and adjudicate them. Such de facto legislation by courts and enforcement agents raises serious questions about the separation of powers and the constitutionality of the process. Where government officials develop an interest in hunting "delinquents," it is predictable that they will find delinquents to hunt. The more onerous the child support levels, and the more defaults and arrearages that accumulate, the more demand there will be for coercive enforcement and for the personnel and powers required.

A presumption of guilt pervades courts and prosecutions, where "the burden of proof may be shifted to the defendant" according to a legal analysis by the National Council of State Legislatures. In clear violation of the US Constitution, courts have held that "not all child-support contempt proceedings classified as criminal are entitled to a jury trial," and "even indigent obligors are not necessarily entitled to a lawyer." Thus impoverished parents who lose their children through literally "no fault" of their own are the only citizens who – when they are fortunate enough to be formally charged and tried at all before being incarcerated – must prove their innocence without the help of an attorney and without the opportunity to present their case before a jury of their peers.

Federal policies (which provide incentive payments attached to each dollar of child support collected by state governments) give another reasons for the states channel all child-support payments questions through the machinery of the criminal justice system, so that they will show up on the relevant federal ledgers. This policy aggravates the criminalization of fathers, and encourages agencies to squeeze every dollar out of every available parent. The result is systematic bullying by courts and enforcement agents: a pattern of activity that is now too common to ignore.

Driven to despair

In March 2000 a Canadian man named Darrin White was denied all contact with his three children, evicted from his home, and ordered to pay more than twice his annual income as child and spousal support, plus court costs for a divorce to which he had never agreed. Shortly after that judgment, White hanged himself from a tree. No evidence of any wrongdoing had ever been presented against him.

The fate of Darrin White is increasingly common. "There is nothing unusual about this judgment," former British Columbia Supreme Court Judge Lloyd McKenzie told the Vancouver Sun when he was questioned about White's case. McKenzie pointed out that the judge in White's case applied standard guidelines for spousal and child support -- the same guidelines used in the US and other western countries.

In fact there are those who would argue that the y phenomenon of fathers who are driven to suicide by family courts now threatens to become an epidemic. In Britain the National Association for Child Support Action has published a "Book of the Dead" chronicling 55 cases where they report that the official Court Coroner concluded fathers were driven to suicide because of judgments from divorce courts and/or harassment by child-support agencies. The suicide rate among divorced fathers has increased dramatically, according to Augustine Kposowa of the University of California, who reported his findings in the Journal of Epidemiology and Community Health. Kposowa attributes his finding directly to family court judgments. Yet reports on his study by several major media outlets studiously avoided that conclusion of his study, instead accentuating therapeutic explanations that emphasized the fathers' lack of "support networks." One reporter bluntly told Kposowa that his finding was not "politically correct."

Family law is now denying rights as basic as freedom of speech, freedom of the press, and even the right to hold private conversations. 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 Georgia Council.

As the logic of involuntary divorce plays itself out, we now find instances in which divorce is forced on not only one parent but both. Mothers are not only being enticed into filing for divorce with financial and emotional incentives; they are being pressured toward divorce by threats against their children. On February 20, 2001, the Massachusetts News reported that Heidi Howard was ordered by the state's Department of Social Services to divorce her husband Neil or lose her children, although the Department acknowledged he had not been violent. When she refused to accept their advice, the social workers seized her children, including a newborn, and attempted to terminate the Howards' parental rights. Massachusetts News reporter Nev Moore says she has seen hundreds similar cases. In short, the state can now tear apart families by imposing divorce on married parents.

What can be done?

No-fault divorce has rendered marriage, in effect, a fraudulent contract. Until marriage is made an enforceable contract, there is little point in exhorting young people to put their trust in the legal institution. Young men in particular who are lured into marriage and family today can lose their children, their homes, their freedom, and even their lives. It is not surprising that ever fewer men are ready to make the marital commitment.

More than anyone else, the ones who must stand up and demand that marriage be made an enforceable contract are fathers. This does not necessarily require "turning back the clock" to fault-based divorce – a move that many observers now believe is not politically feasible. What it does require is the recognition that marriage confers legal rights on parents and their children, including the right not to be separated without compelling legal grounds. Except in extreme circumstances, that right should prevail over what government officials deem to be in the children's "best interest."

The others who must speak out in defense of marriage are the clergy. The destruction of marriage and families by the state directly concerns the churches, not simply because all matters of morality and justice concern the churches, but also because this particular controversy touches upon the integrity of their pastoral ministry. As long as marital and parental bonds can simply be legally dissolved by the state at the request of one spouse -- with no grounds, wrongdoing, legal action, or agreement by the other, our priests and pastors must consider how far they may be, however inadvertently, deceiving their flock and dishonoring their calling by encouraging young people to enter into a legal contract that has been stripped of its practical meaning.

The words "divorce" and "custody" now sound deceptively innocuous. We should remind ourselves that they involve bringing the law-enforcement and penal system into the home, for use against family members who have not necessarily done anything legally wrong. Fathers are not without sin, of course, and marital difficulties are seldom the fault of one party alone. But our justice system is supposed to be based on a distinction between legal wrongdoing (criminal or civil) and human imperfection or sin. Ironically, that distinction has been obliterated -- not by churches or ecclesiastical courts, but by secular ones.

Stephen Baskerville is a professor of political science at Howard University in Washington, DC.