VA Family Law Reform Coalition

 

The Women's Quarterly, no. 18, Winter, 1999


Why Is Daddy In Jail?

by Stephen Baskerville

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SOMEDAY HOLLYWOOD WILL make a movie of this, A father is sentenced to prison
for wanting to take his son to a ballgame. Up against him are his ex-wife,
the legal system, and various women's groups, all declaring him a deadbeat
and a batterer, all of it untrue. But as a result, he's in a cell while his
ex and her new boyfriend take little Johnny to a Mets game.

Improbable? Only in the sense that Hollywood would ever make such a movie.
Unfortunately it's an all too real scenario that is taking place everyday
across the country.

THE CASE OF a man we'll call Alan is fairly typical. Without warning Alan
came home one day to find his apartment cleaned out. His wife and
two-year-old girl were gone. Shortly afterwards Alan was summoned to court
and as a "defendant," was ordered to stay away from his daughter most of the
time and to begin making child support payments. His two-hour, thrice-weekly
visits with his daughter were supervised and she was not allowed to stay
with him overnight, since his wife alleged that he was dangerous and would
kidnap her. The accusations eventually proved groundless, and the
supervision terminated. After a year Alan was permitted one overnight visit
with his daughter per week. His wife, meanwhile, was never charged with
making false accusations nor has the fabrication counted against her in the
custody proceedings. Various experts testified that Alan is no danger
whatever to his daughter and that he is a devoted and loving father. All
these findings were ignored by the courts. More than four years after his
wife left, the child remains with her. He has spent a $160,000 inheritance
on legal fees, not counting about 40 percent of his income for child
support, and now lives hand-to-mouth.

Then there's Bruce, who was a truck driver in Boston and who came home one
day to find his things on the street, the locks on his doors changed, and
his wife's new boyfriend already moved in. Angry and bewildered, Bruce
kicked in the door and began shouting. (He did not strike anyone.) His wife
called the police, who arrived and took Bruce away in handcuffs. She got a
restraining order preventing any contact with his three children. When his
son was hospitalized with an illness, he was not allowed to visit.
Eventually Bruce was allowed to see his children at a supervised visitation
center with his wife and her boyfriend present in the next room.

Another man, Tom, tells of how he was living with his wife in California,
where they were raising their three children as vegetarians like themselves.
He thought she was content until one day, when she told him she wanted to
move back to her native Virginia. He agreed to the move. After establishing
residency in Virginia, however, she left with the children, and he was
hauled into court.

Then, after an injury left him without an adequate income he found himself
in jail for failure to pay child support. Eventually he relocated in the
Washington area to find work. Tom now drives three hours each way to get his
children from his wife's place in Virginia, twice every other weekend. His
ex-wife subsequently gave up her vegetarianism and obtained a court order
preventing him from discussing diet with his children. His children are used
as informers to monitor his compliance, and their relationship is now
strained.

Tom now belongs to a father's group that meets in Arlington, Virginia.
Almost every member has a similarly painful story. Some have not seen their
children in years. The children of a few will no longer speak to them.
Others regularly drive hundreds of miles to visit their children in hotels
or visitation centers. Several with no previous criminal records have spent
time in jail.

The group is currently involved with the case of Michael Mahoney, a father
in an Arlington jail awaiting sentencing for criminal contempt. Mahoney has
already lost his job, his home, his savings, his freedom, and most recently
his health (he has developed congestive heart failure, severe stomach
ulcers, sleep apnea, and has undergone brain surgery for subdural hematoma).
His private life has also been exposed to public view and he himself
vilified on "Geraldo" and at least one other nationally televised talk show.

And these fathers are angry. Alan describes the system as a legal
"child-kidnapping and extortion racket." Even more though, they are in
shock. Like virtually all men in their position, none realized that such a
thing could happen until it did.

Worse still, these men - and millions more like them - have suddenly found
that the assumptions they had made about wife beaters, child molesters,
"deadbeat dads," and O.J. Simpson are now being made about them. Many see
themselves as having been abandoned not only by their wives but by friends
and family members, who assume they "must have done something" to deserve
losing their children. What their children "must have done" to deserve
losing the care of even an imperfect father is seldom asked.

Fathers who attempt to contact their confiscated children or separated
spouses can be arrested for "harassment" or "stalking," an offense that can
be defined as "unwelcome conversation." "Stories of violations for minor
infractions are legion," the Boston Globe reported in May. "In one case, a
father was arrested for violating an order when he put a note in his son's
suitcase telling the mother the boy had been sick over a weekend visit. In
another, a father was arrested for sending his son a birthday card."

The practice of arresting fathers for attending public events such as their
children's musical recitals or sports activities--events any stranger may
attend--is one many find difficult to believe, but it is common. Last year
National Public Radio broadcast a story on restraining order abuse centering
on a father who was arrested in church for attending his daughter's first
communion. During the segment, an eight-year-old girl wails and begs to know
when her father will be able to see her or call her on the phone. The
answer, because of a "lifetime" restraining order, is "never."

At once the most extensive and well-concealed denial of civil rights in
America today, the plight of fathers and children is all-but-ignored by the
media and virtually unknown beyond the rapidly increasing circle of its
victims. Few people realize how easily and frequently children are now taken
from fathers who have committed no actionable offense and for reasons that
have nothing to do with the children's wishes, safety, health, or welfare.

Contrary to common assumption, the prevalence of mother-custody is not a
matter of simple sex-bias against fathers in mutually agreed to divorces. As
American family courts now operate, a mother can have the father summoned to
court and, without producing any evidence of wrongdoing, request that he be
stripped of custody of his children and effectively ejected from his family,
and in almost every case the judge will duly oblige.

Despite formal legal equality between parents, some 85 to 90 percent of
custody awards go to mothers. One study in Arlington found that over a
recent eighteen-month period, maternal custody was awarded in a hundred
percent of decisions. This includes divorces in which the father has given
neither grounds nor agreement. Most people probably accept some bias against
fathers in custody cases when divorce is mutual. What is happening in family
courts, however, is very different. It is one thing to say that young
children need their mother; it is quite another to say a mother should have
the arbitrary power to keep their father away.

Yet current judicial practice throughout most of the United States allows
her to do just that. In fact, a mother can have had a half-dozen previous
divorces, she can have deserted the marital home, she can abscond with the
children, she can have committed adultery, she can level false charges, she
can have assaulted the father, and none of these can be introduced as
evidence against her in a custody decision. For a father, the simple fact of
his being a father will be used to keep him away from his children six days
out of seven, deprive him of any decision-making role, and dissolve his
marriage over his objections.

Part of the problem originates in the advent of no-fault divorce in the
early 1970s, which is often blamed by conservatives for leaving wives
vulnerable to abandonment,. Yet it has also left fathers with no protection
against the confiscation of their children. No-fault divorce laws did not
stop at removing the requirement that there be grounds for a divorce, so as
to allow for divorce by mutual consent; they also provided for what writer
Maggie Gallagher calls "unilateral" divorce and removed any consideration of
grounds from custody decisions.

Though changes in the divorce laws were legislative, it is the practitioners
of family law who have benefited both in terms of power and profit, and they
have not hesitated to exploit the opportunities to the full. Dickens'
observation "the one great principle of the...law is to make business for
itself" could hardly be more strikingly (or destructively) validated.

There is nothing in the no-fault laws that require a judge to honor a
mother's initial request to remove the children from the father's care and
protection. A judge could simply decide that, prima facie, neither the
father nor the children have committed any infraction that justifies their
being forcibly separated, that they have a fundamental human and
constitutional right not to be forcibly separated, and that neither the
mother nor the court has any grounds to separate them.

Unfortunately, not only is the legal machinery an accomplice; in some ways
it is the principal instigator. A mother who consults a divorce attorney
will be advised that her best chance of gaining custody is simply to take
the children and all their effects and leave without warning. If she has no
place to go, she will be told that by accusing the father of sexual or
physical abuse, however vaguely (often simply stating that she is "in
fear"), she can easily obtain a restraining order immediately forcing him
out of the family home. She will also learn that even if her claims are
false, there are no legal consequences she will face for making them; her
trumped-up accusations cannot even be used against her in a custody
decision. In fact, they work so strongly in her favor that failure to advise
a female client of these options may constitute legal malpractice.

Far from being punished for child-snatching and false accusations, then, she
is almost certain to be rewarded. Mothers who abduct children and keep them
from their fathers, with or without abuse charges, are routinely given
immediate "temporary" custody. But it is almost never "temporary." Once a
mother has custody, it cannot be changed without a lengthy (and, for the
lawyers involved, lucrative) court battle. The sooner and the longer she can
establish herself as the sole caretaker, the more difficult and costly it is
to dislodge her. Further, the more she cuts the children off and alienates
them from the father, slings false charges, delays the proceedings, and
obstructs his efforts to see his children, the better her chance for
obtaining sole custody. She can then claim child support and perhaps her own
legal fees from the father.

In the absence of paternal wrongdoing, the Kafkaesque logic of family courts
readily supplies a rationale for summarily stripping the father of custody.
Usually it is said that the parents "can't agree," so naturally the parent
who is trying to exclude the other should get the children and make the
decisions, even if the only thing the left-behind parent can't agree to is
the taking of his children. Or the father is alleged to be planning to
"kidnap" his children back--usually with no evidence other than his
opposition to the initial abduction by the mother.

As for the father, any restraint he shows throughout all this is certain to
cost him dearly, as most 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 in the game. But the vast majority (about 90
percent who cannot pay the five- and six-figure sums required to fight a
full-scale custody battle are branded as having "abandoned" their children
and simply pushed out of the family.

Some fathers' rights activists are now determined to fight fire with fire,
and imitate the techniques of mothers: If you think she is about to snatch,
snatch first. Then conceal, obstruct, delay, accuse, and so forth. "If you
do not take action," writes Robert Seidenberg, author of The Father's
Emergency Guide to Divorce-Custody Battle, "your wife will." Thus we now
have the nightmare scenario of a race to the trigger: Whomever snatches
first survives.

FOR THE LEFT-BEHIND parent, the loss of his children is only the beginning
of his troubles. It may also be the beginning of ours as well, for the legal
and political implications of these decisions extend well beyond the family.
Other violations of basic civil rights and liberties logically follow when
courts successfully asserted the power to invade a family remove children
from the care of parents who have done no wrong.

Despite the protection of the First Amendment, family courts may decide what
religious worship parents may take their children to: The 1997 ruling by the
Massachusetts Supreme Court preventing a fundamental Christian father from
taking his children to services against the opposition of the Orthodox
Jewish mother was unusual only in that it made the papers. A judge in
Virginia sparked a protest, but little news coverage, last year when he
enjoined a father from taking his son to synagogue on Passover.

Parents' discussions with their children about matters such as religion and
politics may also be controlled by family court judges. Tom's court order
preventing him from discussing a vegetarian diet with his children is not
unusual. Another father in the group had weekend visits with his children
reduced when a judge decided that soccer was a more important Sunday
activity than church.

The Fourth Amendment's protection against "unreasonable searches and
seizures" similarly seems to mean little to family court judges. Parents who
are accused of no crime and who have given no grounds or agreement for
divorce are routinely required to surrender personal diaries, notebooks,
correspondence, financial records, and other documents--all ostensibly to
determine their fitness as parents, even when it has never been questioned.
They are regularly interrogated behind closed doors about intimate family
matters that most parents would not normally discuss with strangers. If the
strains of losing their children or undergoing this legal nightmare are too
great, they are wise to conceal any contact with therapists, family
counselors, psychologists and psychiatrists, since these otherwise
privileged consultations and records can be subpoenaed and used to separate
them from their children. Parents swept into this litigation are terrified
to discuss anything with their children or spouses for fear that what they
say will be used against them in court. The use of children as informers is
common.

As well, a custody trial will likely be held behind closed doors and without
any record of what is said, free of scrutiny by press and public. Delays of
months and years are common, as the parent with "temporary" custody tries to
stall. Since custody cases are not criminal prosecutions, they do not fall
under the protections of the Sixth Amendment, but given other abuses they
often amount to the same thing, being the first stage in the criminalization
and incarceration of fathers.

Indeed, while the same article stipulates a right to counsel in criminal
cases, fathers can be jailed without a lawyer. One of the most notorious and
common abuses in family courts is the incarceration of fathers for extended
periods without charge and without trial. The guarantee of "due process"
does not prevent family courts from jailing parents on civil contempt for
weeks, months, or even years without trial.

The notorious Elizabeth Morgan case in which a mother abducted her child
and, for refusing to reveal her whereabouts, spent two years in prison for
civil contempt, was publicized only because it involved a mother. Much more
common instances of fathers languishing in prison for years seldom receive
any publicity. Buried as a filler in the Washington Post last January was an
Associated Press report that Odell Sheppard, a father in Chicago who also
would not or could not reveal the whereabouts of his 2-year-old daughter,
was released after serving ten years for civil contempt. Despite what "may
have been the longest jail term for civil contempt ever in the United
States," the case seems to have prompted no comment in either the local or
national press or among civil libertarians.

Courts routinely order fathers whose children have been taken from them
involuntarily and with no grounds to support those children financially.
They can and do summon fathers to court so frequently that they lose their
jobs and then incarcerate them for failure to pay child support. Courts
these days will even order men to support children whom are acknowledged not
to be theirs. In 1994 Maryland court of appeals refused to rescind a child
support order against a man who, according to DNA tests, could not possibly
have been the father of the child he was ordered to support. This was
despite the fact that the mother and the true father joined the falsely
accused man in requesting the order be changed. An October series in the Los
Angeles Times reported that in Los Angeles alone there are 350 new cases
each month of men required to support children who are established by DNA
testing not to be theirs. Yet the Los Angeles County District Attorney has
insisted that he had no intention of seeking to overturn support orders
based on false identifications.

The Eighth Amendment's prohibition of "cruel and unusual punishment" does
not stop family courts from summarily depriving fathers of professional
licenses, drivers' licenses, and passports that bear no connection with
their alleged offence. Fathers who are alleged (but again not formally
charged and never proven) to be delinquent in child support payments have
had their cars booted and confiscated and their names published in the
newspapers.

Fathers are also ordered by courts into employment, the wages from which are
then confiscated. Last February the California Supreme Court overturned 100
years of precedent when it ruled in the case of Moss v. Superior Court that
this is not contrary to the Thirteenth Amendment prohibition on involuntary
servitude. In the past the Supreme Court has recognized that "Congress has
put it beyond debate that no indebtedness warrants a suspension of the right
to be free from compulsory service. This congressional policy means that no
state can make the quitting of work any component of a crime, or make
criminal sanctions available for holding unwilling persons to labor." Yet
states now routinely do precisely this.

In April 1998, a custodial father in Illinois who stayed at home to care for
his three children and who received no child support from the mother was
arrested under "a little known state law that makes it a felony for a man to
be 'deliberately unemployed.'" "Men in Illinois have become the target of a
witch hunt," the man's attorney told Reuters. "Men are hounded if they owe
child support and Mom is on welfare. Now Mom is the deadbeat parent, and the
man is hounded because he is on welfare."

As for the children, courts that piously proclaim their commitment to "the
best interest of the child" seldom hesitate to employ heavy-handed methods
against them as well. To take only a recent, documented example, in April
the Los Angeles Times reported that "three children, whose only crime was
their reluctance to testify against their father, were jailed for 12 days in
Los Angeles County's overcrowded Central Juvenile Hall and brought to court
in handcuffs and leg chains."

For their part, a few fathers' groups have countered by filing federal class
action suits claiming abrogation of civil rights "under color of law",
including denial of due process and equal protection. Violations of the
First, Fourth, Fifth, Sixth, Eighth, and Ninth Amendments are also alleged,
and some go so far as to invoke anti-racketeering statutes. There is a
substantial body of federal case law recognizing parenting as a basic
constitutional right and requiring its protection under the Fourteenth
Amendment: "The liberty interest and the integrity of the family encompass
an interest in retaining custody of one's children, and thus a state may not
interfere with a parent's custodial right absent due process protections,"
according to the 1981 decision, Langton v. Maloney. Justice Thurgood
Marshall also held for the majority in the 1978 case Quilloin v. Walcott
that a divorced father could not be treated differently from a father who is
married and still living with his child. Yet such apparently unequivocal
constitutional principles are almost never applied by state courts, and the
federal courts steadfastly resist becoming involved.

As it is, some twenty-three million American children now live in fatherless
households, virtually half a generation. Nearly 2.5 million will join their
ranks this year, according to the National Fatherhood Initiative. The crisis
of fatherless children has been called "the most destructive trend of our
generation" by David Blankenhorn, author of Fatherless America. Even Bill
Clinton acknowledges that "the single biggest social problem in our society
may be the growing absence of fathers from their children's homes," and Al
Gore has declared in more accusatory terms that "absent fathers are behind
most social woes." This opinion is shared by almost 80 percent of
respondents to a 1996 Gallup poll.

Indeed, nothing else accounts for as many major social problems. Recent
figures from the Department of Health and Human Services confirm that
violent crime, drug and alcohol abuse, teenage pregnancy, emotional and
behavioral disorders, teen suicide, poor school performance and truancy all
correlate more strongly to fatherless homes than to any other single factor,
surpassing both poverty and race. The overwhelming majority of prisoners,
juvenile detention inmates, high school dropouts, pregnant teenagers,
adolescent murderers, and rapists all come from fatherless homes.

The Washington Post, New York Times, and other major media bent over
backwards to avoid mentioning that Mitchell Johnson, instigator of the
shootings in Jonesboro, Arkansas, had been taken from his father, whom he
was said to be close to, and moved to another state. Even as the crisis of
fatherhood gains selective recognition by policymakers and the media,
however, attention is confined almost entirely to "the prodigal father" who
has "abandoned" his children. Fathers now get it from both sides, since the
conservative campaign for "responsible fatherhood" may unwittingly reinforce
the vilification of fathers in the media and by politicians and feminists.
The resulting message is that until proven otherwise, fathers are presumed
to be irresponsible louts whose eagerness to desert their families accounts
for all our social failures.

Yet Sanford L. Braver, in his recently published book, Divorced Dads:
Shattering the Myths, shows that far from abandoning their children, most
divorced fathers make heroic efforts against enormous obstacles to stay in
touch with them.

SCAPEGOATING FATHERS HAS predictably done little to alleviate any of the
problems associated with father absence. Indeed, it cannot even solve the
one problem in terms of which politicians most often proclaim their
commitment to father "involvement": the collection of child support. With a
massive army of some 59,000 enforcement agents (the Drug Enforcement
Administration has about 7,500), the Federal Office of Child Support
Enforcement perseveres in its losing battle to squeeze money out of ejected
fathers who more often than not are either unemployed, impoverished,
imprisoned, disabled, or dead. The General Accounting Office found in 1992
that as many as 14 percent of fathers who owe child support are dead, and 66
percent "cannot afford to pay the amount ordered." Some 52 percent earn less
than $6,200 a year, according to the Poverty Studies Institute at the
University of Wisconsin.

Far more useful than trying to shake down fathers with no money would be to
reform a legal system that forces so many fathers out of their children's
lives in the first place. But in addition to wives and the judiciary,
fathers must also contend with feminist groups, who loom as the most
formidable opponents of joint custody laws and are now promoting legislation
that would openly legitimate the current epidemic of maternal child
snatching. The purported justification is domestic violence. An article
posted on the NOW web site asserts that preserving fathers' rights to the
care and protection of their children "is dangerous for women and their
children who are trying to leave or have left violent husbands/fathers."

This of course begs the question of why children can be taken virtually at
whim from the vast majority of fathers by whom no violence is ever
demonstrated or even alleged, nor why it should be any more dangerous trying
to leave truly abusive spouses who can be prosecuted under existing laws and
who are precluded from custody under presumptive joint custody statutes. Yet
in the present climate such obvious questions are seldom asked. So
successful is anti-father propaganda now that even mainstream feminist
organizations regularly use the term "batterer" as essentially synonymous
with "father." In political terms, a NOW resolution asserts that the
political activities of fathers' groups constitute "using the abuse of power
in order to control in the same fashion as do batterers."

Both domestic violence and child abuse are serious problems, but they are by
no means sex-specific. Moreover, accusations of child or spousal abuse are a
widespread method of winning sole custody. NOW claims that "false
accusations by women are in fact rare" (and opposes penalties for making
them), but saying this does not make it so. Statistically they are not rare
at all. Overall, more than two-thirds of child abuse reports are
unsubstantiated, according to the National Clearinghouse on Child Abuse and
Neglect Information, and the proportion becomes overwhelming when custody is
an issue. But more tellingly, NOW itself would seem to be proving just how
false they are with its own legislative agenda. By legitimizing child
stealing under the guise of protecting victims of domestic violence, NOW is
openly practicing on the political level precisely what it claims is not
happening in the family courts: the use of "battering" as a red flag to
separate children from fathers who are guilty of no such thing.

THERE IS NO evidence that fathers commit any more spousal or child abuse
than mothers; in fact fathers in intact families are about the least
frequent perpetrators of either. The National Family Violence Survey, funded
by the National Institute of Mental Health and developed by Murray Straus
and Richard Gelles, estimates that men are slightly more likely than women
to be victims of severe domestic violence. Nor can "the high rate of attacks
by wives" be explained "largely as a response to or as a defense against
assault by the partner," according to one of the survey's authors, Murray
Straus, in a contribution to the 1996 book Domestic Violence.

More to the point, mothers--especially single mothers--are much more likely
than fathers to abuse children. According to a major 1996 study by the
Department of Health and Human Services, women aged twenty to forty-nine are
almost twice as likely as men to be perpetrators of child maltreatment. "It
is estimated that...almost two-thirds [of child abusers] were females," the
report states. Given that "male" perpetrators are not necessarily fathers
but much more likely to be boyfriends and stepfathers, fathers emerge as the
least likely child abusers.

In fact, about the most dangerous place for a child then is the home of a
single mother. The HHS study reiterates the already well-established fact
that children in single-parent homes are at much higher risk for physical
and sexual abuse than those living in two-parent homes (up to thirty-three
times higher when a live-in boyfriend or stepfather is present). As Maggie
Gallagher sums it up in her 1996 book The Abolition of Marriage: "The person
most likely to abuse a child physically is a single mother. The person most
likely to abuse a child sexually is the mother's boyfriend or second
husband.... Divorce, though usually portrayed as a protection against
domestic violence, is far more frequently a contributing cause."

At one time this may have been considered common sense, since two parents
check one another's excesses and the father was seen as the children's
natural protector. Not only has this role now become politically incorrect;
the current system has managed to pervert it into a fault. What "male
violence" does occur may well be the result of custody disputes more often
than it is the cause, after all, since common sense would again suggest that
fathers with no previous proclivity to violence could very well erupt when
their children are arbitrarily taken from them. One is tempted to say this
is what fathers are for: to become violent when someone interferes with
their offspring. A 1997 study by Anne McMurray of the Griffith University
School of Nursing in Australia that began with the express purpose to
"provide definitive explanations for the violent behaviors of certain
males," concluded that "regardless of the male's propensity toward violence"
the circumstances most conducive to it arose "during the process of marital
separation and divorce, particularly in relation to disputes over child
custody, support, and access."

"These men," McMurray continues, "from a range of socioeconomic backgrounds
and age groups, freely discussed episodes in which they had either planned,
executed, or fantasized about violence against their spouses in retaliation
for real or perceived injustices related to child custody, support, and/or
access."

Interestingly, while violence against wives is well publicized, the huge
increase in violent attacks by fathers against judges and lawyers has gone
completely unreported in the mainstream press. According to an article in
the National Law Journal the year 1992 was "one of the bloodiest in divorce
court history--a time when angry and bitter divorce litigants declared an
open season on judges, lawyers, and the spouses who brought them to court."

NOW and others further attempt to defend the power to take children from
their fathers by invoking popular but facile cliches about marital harmony,
saying that "most studies report that joint custody works best when both
parents want it and agree to work together" but that it "is unworkable for
uncooperative parents." This tautological reasoning is of course simply an
extension of assumptions that have long been invoked by parents of both
sexes as self-justification for their wish to divorce. As such, fathers who
have acquiesced in this casuistry have only themselves to blame now that it
is being taken to its logical next step to justify rewarding the most
belligerent of the "warring parents" and throwing the other out of the
family altogether. After all, if an intact family or joint custody requires
"agreement" and "cooperation" between parents, the most effective method for
the parent who expects sole custody to sabotage either is to be as
belligerent and uncooperative as possible.

In fact joint custody has repeatedly been demonstrated to reduce parental
conflict for precisely this reason. A study by Judith Seltzer of the
University of Wisconsin based on data from the National Survey of Families
and Households concluded that joint custody, even when imposed over the
objection of one parent, reduces post-divorce conflict. Similarly, a study
team headed by Braver found that "both child support compliance and paternal
visitation were highest in those cases where joint custody was awarded
against the mothers' wishes but in conformity with the fathers' wishes." The
author concludes that these results demonstrate "the value of joint legal
custody even when the couple does not initially agree to it. Joint custody
appears to enhance paternal involvement, child support compliance, and child
adjustment." Perhaps most important, it takes away much of the incentive to
snatch the children in the first place. (Giving sole custody to the
left-behind parent, as some have proposed, would naturally create a stronger
deterrent.) For similar reasons, states with presumptive joint custody laws
report significantly fewer divorces.

As for the connected tautology that that parental conflict in itself
justifies divorce, this is seldom justified as far as children are
concerned, as any child will tell you. Children...can be quite content even
when their parents' marriage is profoundly unhappy for one or both
partners," write Judith Wallerstein and Sandra Blakeslee in their 1996 book,
Second Chances. "Only one in ten children in our study experienced relief
when their parents divorced. These were mostly older children in families
where there had been open violence and where the children had lived with the
fear that the violence would hurt a parent or themselves."

SPECIOUS JUSTIFICATIONS FOR a system that spawns massive corruption,
violates basic constitutional rights, destroys the homes and lives of
innocent children, and leads to serious social ills thus carry the day
because of our willingness to buy into cliches that disguise the reality and
extent of what is taking place. We have sanitized a breathtaking injustice
with buzzwords such as "divorce" and "custody battle" that imply mutual
consent, when in most cases no such thing exists. Yet however palatable we
try to render this abuse, there is no escaping the central fact that it has
very little to do with the needs of children and everything to do with the
power of certain groups of adults. But we either maintain a distinction
between what is actionable in a court of law and what is not, or we simply
haul people into court because we don't like their methods of child-rearing
or, for that matter, because of our wish for a new boyfriend. Frightening as
it may seem, using the courts and police to punish spouses for what may be
nothing more than ordinary family disagreements now seems to be accepted
without question, and the bottom line is that any father may now find
himself pursued by federal agents because he protests the way his children
have been taken from him.


Stephen Baskerville teaches political science at Howard University.