The image many people
have -- of marriages simply and mutually "breaking down" -- is not
accurate. As permitted under "no-fault" divorce laws, some 80 percent of
American divorces are unilateral, according to Frank Furstenberg and
Andrew Cherlin, authors of Divided Families. In other words, most
divorces take place over the objection of one spouse, who is generally
committed to keeping the family together.
Contrary to another
persistent myth, when minor children are involved, the divorcing parent
is overwhelmingly likely to be the mother. In Divorced Dads:
Shattering the Myths, Arizona State University psychologist Sanford
Braver has shown that at least two-thirds of American divorces are
initiated by women. Moreover, few of these divorces involve grounds such
as desertion, adultery, or violence. The reasons most often given are
"growing apart" or "not feeling loved or appreciated."
Other studies have reached
similar conclusions. The proportion of divorces initiated by women
climbed to more than 70 percent 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 a deep attachment to their children and the evidence
that many divorces harm children." And the "bottom line" is indeed the
children. After analyzing 21 different variables, Brinig and Allen
concluded that "who gets the children is by far the most important
component in deciding who files for divorce." Author Robert Seidenberg
goes further, reporting that "all the domestic relations lawyers I spoke
with concurred that in disputes involving child custody, women
initiate divorce almost all the time."
It is difficult to
overestimate the importance of this finding. A very different picture of
the situation is clearly assumed by political leaders who call for
repeated crackdowns on supposedly dissolute fathers. "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
(and some mothers) have made no such decision. They are expelled by a
divorce to which they have not consented.
Family law today
allows mothers to walk away from marriages whenever they feel like it
and take the children with them. Not only is this behavior
permitted; it is encouraged and rewarded with financial incentives. Even
more disturbing, in some cases it appears mothers are actually being
pressured into filing for a divorce they do not necessarily want by
The problem runs much
deeper than the bias against fathers in custody decisions. Such bias
certainly exists, but it goes well beyond the supposition that "all else
being equal," children should stay with their mothers. "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 take and keep
children from their fathers are routinely given immediate "temporary"
custody. In fact this custody is seldom temporary. Once a mother has
custody, the situation cannot be changed without a lengthy (and costly –
or, for the lawyers, lucrative) court battle. The sooner and the longer
the mother can establish herself as the children's sole caretaker the
more difficult and costly it is to dislodge her. Further, the more she
cuts the children off from the father, poisons them against him, levels
false charges, delays the proceedings, and obstructs his efforts to see
his children, the more likely she is to retain sole custody.
As for the father, any
restraint he shows is likely to cost him dearly, as most fathers
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. It is significant and revealing that the latest
tactical wisdom suggests to nervous fathers that the game is so rigged
that their best chance may not be to wait for their day in court but to
snatch the children right away, before the litigation begins. Then the
fathers – who are now the ones with custody – are advised to 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 seem to have the nightmare
scenario, reminiscent of the strategies for nuclear warfare, complete
with the threat of a pre-emptive strike. There is a race to pull the
trigger; whoever strikes first, survives.
Divorce on Demand
Far from merely exploiting
family breakdown after the fact, then, American domestic relations law
has turned the family into a game of "prisoners' dilemma," in which only
the most trusting marriage can survive and the emergence of marital
discord renders the decision not to abscond with the children
perilous and even irrational. Willingly or not, all parents are now
prisoners in this game.
How did all this come
about? The advent of "no-fault" divorce, often blamed for leaving wives
vulnerable to abandonment, has left fathers with no protection against
the confiscation of their children. "No-fault" is a misnomer, for the
new laws did not stop at removing grounds for divorce, so as to allow
divorce by mutual consent (as their sponsors promised that they would);
they also created what Maggie Gallagher, in The Abolition of Marriage,
calls "unilateral" divorce, allowing either spouse to end the marriage
at any time without any agreement or fault by the other.
What is striking about
these laws is that they were passed "while no one was looking," largely
at the prompting of lawyers and judges. There had been no popular clamor
to dispense with restrictions on divorce prior to their passage; no
public debate was ever 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 from what they subsequently came to represent."
Although feminist groups were
involved in the drive for no-fault divorce, they were not usually the
most important proponents; the changes were passed largely by and for
the legal industry.
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 had committed any infraction that would justify their being
forcibly separated, and that neither the mother nor the court had any
grounds on which to separate them. Yet such rulings are virtually
unheard of. One need not be cynical to notice that judges who made such
judgments would be rendering themselves largely redundant -- and denying
earnings to a massive entourage of lawyers, custody evaluators,
psychologists and psychiatrists, guardians ad litem, mediators,
counselors, child-support enforcement agents, social workers, and other
hangers-on of the court – all of whom profit from the custody battle and
also have a strong say in the appointment and promotion of judges.
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
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 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
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
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.