The Catholic World Report - August/September 2001
http://www.catholic.net/rcc/Periodicals/Igpress/2001-09/essay.html
Excerpts from:
What God Has Joined Together…
The advent of “no-fault” divorce in the US has given rise to a system that strips fathers of their rights, accelerates the breakdown of families, and makes a mockery of the marital contract.
By Stephen Baskerville
Email: sbaskerville@cox.net
The worldwide crisis of the family is now inspiring urgent attempts to strengthen marriage and promote responsible fatherhood. With a divorce rate upwards of 50 percent, and with some 40 percent of children now living in homes without their fathers—and with a growing realization of the destructive social and personal pathologies this trend engenders—groups like Marriage Savers and the National Fatherhood Initiative have arisen in the United States to restore these institutions through public awareness and education.
While such efforts are laudable, their effectiveness is likely to be limited until we come to grips with the realities underlying the family crisis. If we face some bitter truths about why families are breaking up, the study will take us beyond the safe confines of vague moral exhortation into realms of law and politics that many of us would rather avoid.
To begin, we must realize 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.
The Dickens Principle
Far from merely exploiting family breakdown after the fact, then, American domestic-relations law has turned family problems into games 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 as 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 new divorce 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 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.” 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 it clear that the law was meant to be applied only in uncontested 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 for practical purposes, under Texas law today, “no one is married,” because the laws created “unilateral divorce on demand.” 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.
Dickens’ observation “the one great principle of the… law is to make business for itself” could hardly 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 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 overly 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 have a strong say in the appointment and promotion of judges.
The Power of Family Courts
For all the concern that has been voiced in recent years about both family destruction and judicial power, it is surprising that so little attention has been focused on family courts. Without doubt they are the arm of the state that routinely reaches furthest into the private lives of individuals and families. Though lowest in the ranking of the judicial hierarchy, the family courts have the greatest discretionary power. “The family court is the most powerful branch of the judiciary,” according to Robert W. Page, Presiding Judge of the Family Part of the Superior Court of New Jersey. By their own assessment, according to Judge Page, “the power of family court judges is almost unlimited.” Others have commented on their vast power rather less respectfully. Former US Supreme Court Justice Abe Fortas once used the term “kangaroo court” in reference to the family courts. Contrary to basic principles of open government, these courts generally operate behind closed doors, excluding even family members, and most leave no record of their proceedings.
These courts emerged in the 1960s and 1970s alongside the revolution in divorce laws. Their existence, and virtually every problem they address-–divorce, custody, child abuse, child-support enforcement, even juvenile crime—revolve around one overriding principle: removing the father from the family. If fathers remained with their families, family courts would have little reason to exist, since the problems that they handle seldom appear in intact families. While mothers also 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. Speaking to his colleagues during a training seminar in 1994, he said:
"Your job is not to become concerned about the constitutional rights of the man that you’re violating. 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 their rights."
Family court judges are generally appointed and promoted by commissions that are dominated by bar associations and other professional groups which have an interest in maximizing the volume of litigation. The politics of court appointments operate according to principles of patronage that Richard A. Watson and Rondal G. Downing, authors of The Politics of the Bench and the Bar, have described as “cronyistic.” 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 in family courts (with which probate courts are sometimes united), only there what is passed out is control over children.
Like all courts, family courts complain of being overburdened. Yet it is clearly in their interest to be overburdened, since judicial powers and salaries are determined by the level of demand for their services. “Judges and staff… should be given every consideration for salary and the other ‘perks’ or other emoluments of their high office,” suggests Judge Page, adding that divorce court judges aim, and should aim, to increase their volume of business. “As the court does a better job, more persons will be attracted to it,” he observes. “The better the family court system functions the higher… the volume of the persons served.” A court “does a better job” by attracting more divorcing mothers with more windfall settlements.
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 that 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.
Federal policies (which provide incentive payments attached to each dollar of child support collected by state governments) give another reason for the states to channel all child-support 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 possible 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.
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 by financial and emotional incentives; they are being pressured toward divorce by threats against their children. These pressures arise when government agencies, for reasons of their own, determine that a married couple is not providing a suitable environment for their children; the agencies then
tell the mother that she will lose her children unless she ends the marriage.
What Can Be Done?
The divorce industry 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.
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 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.
Stephen Baskerville, Ph.D.
Department of Political Science
Howard University
Washington, DC 20059
Email: sbaskerville@cox.net
Website: http://www.members.cox.net/sbaskerville/index.htm
(202) 806-7267
(703) 560-5138
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