Media Bypass, vol. 8, no. 8, August 2000, pp. 30-31. (Originally published
in the Newsletter of the Women's Freedom Network, July-August 2000.)
The Criminalization of Fatherhood
Family Court Most Powerful Branch of the Judiciary
This article will appear in the July-August issue of the Newsletter of the Women's Freedom Network, probably without further editing. Please credit them in any reprints. And thanks to all those who have helped with information.
Fatherhood is now the rage: presidential initiatives, federal staff conferences, congressional task forces and resolutions, federal grants, new nonprofit organizations, and media reports now "promote" fatherhood.
Yet the nation's discovery of fatherhood also has a darker side: law enforcement initiatives targeting "deadbeat dads," federal registers monitoring millions of parents, databases and information gathering on American citizens accused of nothing, new cadres of armed, plainclothes police, and endless "crackdowns" on allegedly dissolute parents.
Campaigning for president, Al Gore calls for incarcerating more fathers.
What we are seeing today in fact is nothing less than the criminalization of fatherhood: criminal penalties imposed on citizens who have committed no act but are made outlaws through the actions of others. This phenomenon proceeds largely from involuntary divorce and is affected by family courts.
Family courts are 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," writes Robert W. Page, Presiding Judge of the New Jersey Family Court. By their own assessment, "the power of family court judges is almost unlimited." One father was told by a New Jersey judicial investigator: "The provisions of the US Constitution do not apply in domestic relations cases."
A father brought before these courts - in the absence of any civil or criminal wrongdoing - will immediately have his movements, finances, personal habits, conversations, purchases, and contact with his children all subject to inquiry and control by the court. He must submit to questioning about his private life that author Jed Abraham has termed an "interrogation." He must surrender personal papers, diaries, correspondence, and financial records. His home can be entered at any time. His visits with his children can be monitored by court officials and restricted to a "supervised visitation center," for which he must pay an hourly fee and where he and his children will be observed and overheard throughout their time together. Anything he says to his spouse or children, as well as family counselors and personal therapists, can be used against him in court, and his children can be used to inform on him.
Fathers are questioned about how they "feel" about their children, what they do with them, where they take them, how they kiss them, how they feed and bathe them, what they buy for them and what they discuss with them. He will forced, on pain of incarceration, to pay for lawyers and psychotherapists hehas not hired. His name will be entered on a federal registry, his wages will be garnished, and the federal government will have access to all his financial records. If he refuses to cooperate he can be summarily incarcerated or ordered into a psychiatric examination.
Henceforth, that parent has no say in where the children reside, attend school or daycare, worship, or visit the doctor and dentist. He has no right to see their school or medical records nor any control over what medications or drugs are administered to them. He can be enjoined from taking his children to a physician when ill. He can be told what religious services he may (or must) attend, what he may do with them, and what subjects he may discuss with them in private. And he can be forced to pay two-thirds or more of his income as "child support."
If for any reason the father falls more than $5,000 behind in owed child support, he becomes a felon. If he moves to another state while he is in arrears, perhaps to find work, he becomes a felon. It is possible he can even become an instant felon from the time his children are taken. If his ordered child support is high enough, and if it is backdated far enough, he will be and instant felon and subject to immediate arrest.
A presumption of guilt pervades child support enforcement where "the burden of proof may be shifted to the defendant" according to one ruling. In clear violation of the Constitution it has been 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."
Setting child support is a political process conducted by interest groups involved in collection but from which parents who pay the support are excluded. Such legislating by courts and enforcement agencies raises serious questions about the separation of powers and the constitutionality of the process. Where officials in all branches and at all levels of government develop a financial interest in hunting "delinquents," it is predictable that they will create delinquents to hunt. Obviously the more onerous the child support levels, and the more defaults and arrearages created, the more demand for coercive enforcement and for the personnel and powers required.
Private collection firms also set the levels of what they collect. Not only does an obvious conflict-of-interest arise in terms of the amount to be collected, but the firms can create precisely the "delinquents" and "deadbeats" they are hired to pursue and on which their business depends. In Los Angeles former Deputy District Attorney Jackie Myers told the Los Angeles Times she left office in 1996 because "we were being told to do unethical, very unethical things."
Myers is not alone. "I got a call from a homeless shelter and was told that I had put a man and . . . his four children out on the street because I had put an enforcement order . . . for 50% of his income," ex-Deputy District Attorney Elisa Baker recalled. "That was the first time I was in touch with the ramifications of what I was doing."
Men are now forced to support children who are acknowledged not to be theirs biologically. Stepfathers are ordered to pay support for stepchildren. Grandparents and second wives are pursued by child support prosecutors. Minor boys statutorily and forcibly raped by adult women must pay child support to the criminals who raped them.
A presumption of guilt also pervades allegations of domestic violence made during custody proceedings, where a father's contact with his children is criminalized through restraining orders that are routinely issued with no evidence of wrongdoing whatever - orders that cannot protect anyone because they criminalize not violence (which of course is already criminal) but a father's contact with his own children.
Family law is now criminalizing rights as basic as free speech. In many jurisdictions it is now a crime to publicly criticize family court judges, and fathers have been jailed for doing so. In a paper funded by the Justice Department, the National Council of Juvenile and Family Court Judges, an association of ostensibly impartial judges who sit on actual cases, attacks fathers' groups for their political opinions and activities.
No figures are available on how many fathers are incarcerated for "family crimes." Informal estimates put as much as one-third of the nation's jail population consisting of fathers on contempt-of-court charges. Some jurisdictions now propose creating forced labor camps specifically for fathers to relieve overcrowded jails. Not since the fall of the Weimar Republic has a democracy treated millions of its own citizens in this fashion.
About the author: Stephen Baskerville teaches political science at Howard