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child-rearing:
A boy meets his dog
A boy meets his fate
[Family Policy, vol. 15,
no. 1 (January-February 2002), pp. 5-7.]
The Politics of Family Breakdown
How No-fault Divorce Turns Fathers into ‘Deadbeat
Dads’
Stephen Baskerville
Most attempts to
address America’s family crisis have emphasized the cultural
dimension, though increasingly the importance of economic factors
has also been recognized.
Less attention has been devoted to
the politics of family breakdown. Yet the effectiveness of our other
efforts is likely to be limited until we come to terms with the
political realities underlying marriage dissolution.
First,
the media image many people have of marriages simply and mutually
“breaking down” is inaccurate. Under “no-fault” divorce laws, some
80% of divorces are unilateral and over the objection of one spouse.
Contrary to another persistent myth, when minor children are
involved, the divorcing parent is overwhelmingly likely to be the
mother. Arizona State University psychologist Sanford Braver has
shown that at least two-thirds of divorces are initiated by women.
Few of these divorces involve grounds, such as desertion, adultery,
or violence. The reasons usually given are “growing apart” or “not
feeling loved or appreciated.” More disturbing, researchers Margaret
Brinig and Douglas Allen found that “Who gets the children is by far
the most important component in deciding who files for divorce.”
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 laws were passed not as the
result of any popular clamor or following any public debate but
largely for the benefit of divorce practitioners. “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 Melanie Phillips in The Sex-Change Society. “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.”
It is
usually assumed that these groups profit from divorce but do not
actually create it. Yet any bureaucracy develops an interest in
perpetuating and exacerbating the problem it ostensibly exists to
solve. By offering incentives to divorce and rewarding the parent
who initiates it, divorce courts encourage divorce, which is their
bread and butter. In some cases it appears mothers are actually
being forced to divorce with threats.
Family Court Equals
Big Business
It is striking how little attention is
focused on family courts. They are certainly the arm of the state
that routinely reaches farthest into the private lives of
individuals and families. “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. “The power
of family court judges is almost unlimited.” Contrary to basic
principles of open government, family courts generally operate
behind closed doors and seldom record their proceedings.
Dickens’ observation “the one great principle of the law is
to make business for itself” could hardly be more starkly validated.
Nothing requires judges to grant the divorcing parent’s request to
strip the other parent of his children. Yet they invariably do. One
need not be cynical to recognize that judges who failed to reward
the divorcing parent would be rendering themselves redundant and
denying earnings to a large entourage of lawyers, psychologists and
psychiatrists, mediators, counselors, child-support enforcement
agents, social workers, and others – all of whom benefit from the
ensuing custody battle and also have a strong influence on the
careers of judges.
Family court judges are generally
appointed and promoted by commissions dominated by bar associations
and other groups with an interest in maximizing the volume of
litigation. The politics of court appointments operates according to
patronage principles that Richard Watson and Rondal Downing, in The
Politics of the Bench and the Bar, describe as “cronyistic.”
Political scientist Herbert Jacob has demonstrated how “lucrative
patronage positions . . . are generally passed out to the judge’s
political cronies or to persons who can help his private practice.”
Like all courts, family courts complain of being
overburdened. Yet it is clearly in their interest to be
overburdened, since judicial powers and salaries, like any other,
are determined by demand. “Judges and staff . . . should be given
every consideration for salary and the other ‘perks’ or other
emoluments of their high office,” suggests Judge Page, who urges
divorce court judges to increase their business. “As the court does
a better job more persons will be attracted to it.” A court “does a
better job” by attracting more divorcing parents with advantageous
settlements.
Putting Dad Out on the Street
The existence and virtually every problem addressed by
family court – divorce, custody, child abuse, child support
enforcement, even juvenile crime – depend upon one overriding
principle: removing the father from the family. “Your job is not to
become concerned about the constitutional rights of the man that
you’re violating,” New Jersey municipal court judge Richard Russell
told his colleagues at a 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.”
Once
a parent loses custody he becomes a virtual outlaw. His contact with
his own children outside authorized times and places becomes
criminalized. He can be arrested for running into his children in
public places such as the zoo or church, or for telephoning his
children when he is not authorized, or sending them birthday cards.
Parents summoned to court are subject to questioning about
their private lives and how they raise their children that attorney
Jed Abraham has characterized as an “interrogation.” Their personal
papers, financial records, and homes must be opened and surrendered
on demand. Their children may used as informers.
Anything a
parent has said to his spouse or children can be used against him in
court. His personal habits, movements, conversations, purchases, and
relationship with his children are all subject to inquiry and
control by the court. A Virginia father had his visitation reduced
when a judge decided soccer was a more important Sunday activity
than church. Another in Tennessee faces jail for giving his son an
unauthorized haircut. In From Courtship to Courtroom, Jed H. Abraham
describes how fathers charged with no wrongdoing must submit to
“plethysmographs,” where an electronic sheath is placed over the
penis while the father is forced to watch pornographic films
involving children.
The criminalization of fathers is
further consolidated through child support burdens, which constitute
the financial fuel of the divorce machinery, underwriting divorce
and giving everyone involved further incentives to remove children
from their fathers.
In the current issue of the journal
Society, Bryce Christensen of the Howard Center for Family,
Religion, and Society describes “the linkage between aggressive
child-support policies and the erosion of wedlock.” Christensen
argues that the advocates of ever-more-aggressive measures for
collecting child support have trampled on the prerogatives of local
government, have moved us a dangerous step closer to a police state,
and have violated the rights of innocent and often impoverished
fathers.
Research by Braver and others has undermined most
justifications for the multi-billion dollar criminal enforcement
machinery. Described by Front Page Magazine as “the most important
work of conservative social science in a decade,” Braver’s study
showed that no serious problem of nonpayment exists, since
“estimated” arrearages have no basis in hard figures but are
compiled entirely from surveys.
Child support obligations
are determined less by the needs of children than by the politics of
interest groups. Guidelines are set not by economists but by the
agencies and courts (and even private firms) who enforce and
adjudicate them, raising questions about the separation of powers
and the constitutionality of the process. The more onerous the child
support levels, and the more arrearages, the more demand for
enforcement powers and personnel. These groups can create precisely
the “deadbeats” on which their livelihood depends.
Federal
incentive payments of 6-10% on each dollar collected impel states to
channel all child support payments (including current ones) through
the criminal enforcement machinery, further criminalizing parents
and leading agencies to pursue every dollar they can. The federal
government also pays two-thirds of states’ collection costs and 90%
of computer costs. Federal taxpayers are effectively subsidizing
divorce, and laws created to deal with the relatively few men who
truly abandon their offspring have been hijacked to build a
self-financing divorce machine.
As the logic of involuntary
divorce plays itself out, we now find divorce being forced on not
only one parent but both. Mothers are not simply being enticed into
divorcing with financial incentives; they are being forced into it
with threats against their children. Last February, the
Massachusetts News broke the story of Heidi Howard, who was ordered
by the state’s Department of Social Services to divorce her husband
or lose her children, though the department acknowledged neither
parent had been violent. When she refused, social workers seized her
children and attempted to terminate the Howards’ parental rights.
Massachusetts News reporter Nev Moore reports hundreds of such
cases.
G.K. Chesterton wrote that "the ideal for which the
family stands is liberty." It is hardly accidental that a
governmental regime founded upon betrayal and broken promises must
ultimately depend for its survival on the betrayal of public trust
by office-holders. When we not only condone broken promises but
marshal the state apparatus to protect ourselves from their
consequences we have poisoned the waters of justice and created
something very dangerous indeed.
Dr. Baskerville teaches
political science at Howard University in Washington, D.C. He earned
his Ph.D. in political science from the London School of Economics.
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