The Liberator
May-June 1999.
http://www.mensdefense.org/liberator/26


MFCI spokesman nails it


A Philosophy for the Fathers' Movement
by Stephen Baskerville


No one has the right to separate a child from a parent
without compelling evidence of wrongdoing. I think that is clear. It means
that no judge, no parent, no one has the right to take a child away from a
parent who has done nothing wrong (at a minimum given grounds for divorce)
and who has not agreed to a divorce or separation.

This seems to be what most people who are unfamiliar with family law assume
to be the case - as least judging by the shock fathers express when they
find their children confiscated without cause. It is certainly what I once
assumed. But to my knowledge this is not the law in any jurisdiction. Even
more surprisingly, it is not the position of any fathers' rights group I
know of.* But I believe it should be. I believe it is the only morally and
constitutionally defensible position.

What precisely does it mean? It has some decisive benefits
but also some costs.

It means that if a parent who has no grounds wishes to leave
a marriage he or she freely entered, he or she must do so alone. He or she
may not use the police to separate the other parent from his or her
children.

It means that a mother who deserts a marriage (even a "bad"
marriage) is, despite the need of children for their mothers, presumed to be
putting her own desires before the needs of her children and is therefore
less fit than a father who remains with the family. Were this the policy, I
do not think many mothers would in fact leave and the two-thirds or more of
divorces filed by mothers would evaporate. As it is, states with joint
custody laws report significantly fewer divorces, for precisely this reason.

It also means that a father who has agreed to a divorce or
has created grounds for one is not entitled to the same degree of sympathy
or support as the millions of fathers who have had their children simply
taken without their consent and without cause. I believe part of our
problem stems from either a failure to realize this or (more likely) from an
unwillingness to accept the implications. But this is the nettle I think we
must grasp.

It means that the current, somewhat insipid battle cry of
"joint custody", while appropriate in cases of genuine mutual consent,
should not be the focus of our efforts where one parent is committed to
keeping the family intact. If that parent voluntarily agrees to joint
custody, fine; but the presumption should be that that parent gets custody.

It further means we do not accept either the "primary
caretaker" or the "highest earner" standard for custody. Both are
abominable and set up one family role to the exclusion of others. More
seriously, both are prescriptions for throwing an innocent parent out of the
family and out of the children's lives.

What about "the best interest of the child"? Surely this
comes before any parents' rights? This is a false dichotomy. Everyone
(foremost judges) pompously proclaims their commitment to "the best interest
of the child," and those who proclaim it the loudest are usually the least
committed to it, since it costs nothing. This seeming benign standard is in
fact highly cynical and usually has the opposite effect to that advertised.
For what it means is that the parties proclaiming it arrogate to themselves
the power to decide what it is. It means that, even in the absence of
wrongdoing, the state (in the form of the court and its hangers-on) has the
right to usurp the power of the parent to determine this best interest and
force an innocent parent to comply under pain of incarceration. The best
interest of the child should be presumed to be an intact, two-parent family,
and whoever acts to destroy this is not acting in the child's best interest
and may be said to have forfeited the right to determine what it is.
Anything else is invasive. Anytime lawyers and judges are given the sole
and unlimited power to determine the best interest of the child it will end
up being the best interest of the lawyers and judges, as is now all to
evident.

People sometimes respond, "You want to prohibit people
getting divorced at all!" I certainly do feel, like an increasing number of
people today, that divorce should be more difficult when young children are
involved. If someone wants to leave a marriage, thin I don't think we can
stop her or him, and I am not sure we should try, since any attempt is
likely to require some measures that intrude upon the realm of private
decisions. But it is far more intrusive - indeed, as we are now seeing,
highly authoritarian - to go from there to say that the departing parent
should be allowed to take the children along and marshal the instruments of
the state to make sure the other parent stays away. It certainly says
something about the depth of our "divorce culture" that rejecting this
should be interpreted as wanting to prohibit all divorce.

Others object, "This would punish the children by keeping
them from their mothers!" Again, I don't think the mothers would leave, and
those that do are placing themselves first. If the other parent has shown
no inclination to interfere with the mother-child relationship, he should be
presumed to be acting in the best interest of his children and to have done
nothing to forfeit his decision-making role. I realize that if the
left-behind parent cuts the children off completely from the offending
parent, as many mothers and a few fathers now do, there may be a need for
petition to a court, but on a vastly diminished scale than presently and
with the clear burden of proof placed on the court to justify its
intervention against the innocent parent.

I realize too that one side effect of what I am proposing
may be a dramatic increase in trumped-up accusations of sexual and physical
abuse against fathers. But I do not think we should shy away from this.
For one thing, since when do we give in to blackmail before it has even
happened? For another, such a sudden increase would reveal these charges
for the fabrications they usually are. At least fathers who fall victim to
false charges may begin to be formally charged and receive due process of
law.

Any other standard (yes, including presumption of joint
custody) leave the way open for the state to run a family over the rights of
a parent who is guilty of no actionable offense. It also opens the way for
all the other civil liberties violations that fathers and some mothers must
now endure.

Taking this position has some costs but it will go straight
to the heart of the problem. It is the only position consistent with the
constitutional right to be a parent. I also believe it is the only way we
can win. We either take the moral high ground or we whine.

*************

Prof. Baskerville is with the Department of Political Science,
Howard University, and spokesman for the Men/Fathers/Children International
coalition.

* It IS the position of the Men's Defense Association. [Back]