INSIGHT MAGAZINE
June 18, 2001

http://www.insightmag.com/archive/200106186.shtml

Symposium

Q: Are family courts prejudiced against fathers?

Yes: Family-court judges routinely violate the legal rights of fathers and their children.

       By Stephen Baskerville

       In England a father is sentenced to 10 months in prison for waving to his children on a street. In Massachusetts a mother is told to divorce her husband or officers of the state will take away her children, and they do. Also in Massachusetts a father who opposes judicial wrongdoing is dragged from his car, assaulted by what appear to be plainclothes police and told to stop making trouble if he wants to see his son again. In New Hampshire a father is incarcerated without trial and beaten to death by jail guards. In Ontario a legally guiltless father is cut off from his children and assessed 96 percent of his salary in child and spousal support for a divorce to which he did not agree, being left with $300 a month.
       These are not isolated incidents. They proceed logically when we allow government to take children from their parents. Children today have become the state's most potent weapon for creating tyranny over their parents and the rest of us.
       Family courts are the arm of government that reaches deepest into private lives, yet they are accountable to virtually no one. "The family court is the most powerful branch of the judiciary," according to Robert Page, presiding judge of the New Jersey Family Court. "The power of family-court judges is almost unlimited." Often they operate behind closed doors, excluding even family members, and most leave no record of their proceedings.
       Secret courts are contrary to basic principles of free government. "In the darkness of secrecy sinister interest and evil in every shape have full swing," warned political philosopher Jeremy Bentham. He also added, "Where there is no publicity there is no justice. Publicity ... keeps the judge himself while trying under trial." Judges often claim that secrecy protects family privacy. In fact it provides a cloak for the court to invade family privacy with impunity.
       Immune from scrutiny by press and public, it is hardly surprising that family courts and ancillary bureaucracies violate constitutional rights and begin to resemble organized crime - crime so ruthless and cynical that it uses children to plunder and terrorize their parents.
       What is happening in family court is indeed little less than a reign of terror. Throughout the United States and other democracies fathers are losing their children in huge numbers, and many mothers are as well. Guiltless parents are subjected to questioning about their private lives - Jed Abraham has characterized this as an "interrogation" - and how they raise their children.
       They sometimes are arrested for telephoning their children or sending them birthday cards. They are pursued by government goons and private bounty hunters for impossible debts they never incurred. Their personal papers, bank accounts and homes must be opened and surrendered on request to government officials. Their children, with the backing of government officials, are taught to hate them and are used as informers against them. They are incarcerated without trial, charge or counsel.
       Anything a father has said to his spouse or children can be used against him. His personal habits, movements, conversations, purchases and relationship with his children are all subject to inquiry and control by the court. Abraham describes how fathers against whom no evidence of wrongdoing is presented are ordered to submit to "plethysmographs," where an electronic sheath is placed over the penis while the father is forced to watch pornographic films involving children.
       Family law is now criminalizing rights as basic as free speech, freedom of the press, and even private conversations. An Arizona father is ordered not to criticize judges to family members. British and Australian family courts have closed Internet sites and prosecuted fathers for criticizing judges. In many American jurisdictions it is likewise a crime to criticize family court judges. On Fathers Day 1998, a California father planning to protest the fact that he had not seen his son in more than two years was taken into custody for a psychiatric evaluation. The former husband of singer Wynonna Judd was recently arrested for talking to reporters about his divorce. Following his congressional testimony critical of the family courts, Jim Wagner of the Georgia Council for Childrens Rights was stripped of custody of his two children and jailed. "We believe . the court is attempting to punish Wagner for exposing the court's misconduct to a congressional committee," said Sonny Burmeister, president of the council.
       Fathers who speak out against family courts report that their children are used as weapons to silence their dissent, and attorneys regularly advise their clients not to join fathers' rights groups, speak to the press or otherwise express public criticism of judges. The fear is well founded. In a paper funded by the U.S. 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 "patriarchal values" and advocating "the rights of fathers instead of their responsibilities," which it claims are "at odds with the safety needs of the rest of the family." The supposedly apolitical judges also object to the fathers' "message that divorce is always harmful to children" and ask, "How can we learn to counter the sound bites of fathers' rights groups?"
       Family-court judges generally are appointed and promoted by commissions dominated by bar associations and other professional groups who have an interest in maximizing the volume of litigation. The politics of family-court appointments operates 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 wherein what is passed out is control over children.
       "The one great principle of the law," wrote Dickens, "is to make business for itself." 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 for their services. "Judges and staff ... should be given every consideration for salary and the other perks or other emoluments of their high office," Judge Page suggests, adding that divorce-court judges should aim to increase their volume of business. "As the court does a better job more persons will be attracted to it," he observes. He also writes, "The better the family-court system functions, the higher ... the volume of the persons served." A court "does a better job" by attracting more mothers (who file the overwhelming majority of divorces) with windfall divorce settlements.
       Yet the divorce industry no longer is content with enticing mothers to divorce; it now can force them to do so. The Massachusetts News recently reported how Heidi Howard, a happily married mother, was ordered to get a restraining order against her husband and divorce him, even though she insisted that he had never been violent. When she refused, social workers seized her children. Reporter Nev Moore claims hundreds of such cases exist. In short, the government is now actively tearing apart intact families.
       Family courts order parents to pay the fees of attorneys and other court officials they have not hired, with the threat of jail for not complying. A Virginia father, forcibly separated from his son for three years, faces jail if he cannot pay two years of his salary to a lawyer he never hired, for a divorce he never requested. The judge is using his position of public trust to operate a protection racket for the enrichment of his cronies. He has summoned a legally unimpeachable citizen and ordered him to write a check or go to jail. And the weapon he is using to do it is a child.
       Litigants long have claimed that family courts tamper with transcripts and other evidence. Recently Zed McLarnon, a forensic audio-visual expert, proved that hearing records were altered, and the Massachusetts News obtained photographic evidence confirming his claim. For his complaint McLarnon was assessed $19,500 in fees for attorneys he had not hired and jailed without trial by the same judges whose tapes were doctored. The court currently is moving to seize his house and car. His attorney claims that the court also "removed documents from his case file, falsified the case docket, refused to docket motions and hearings in the public record and withheld the public case file for nine months."
       These bureaucratic courts emerged in the early 1960s along with the divorce revolution. Their existence and virtually every problem they address - divorce, custody, child abuse, child-support enforcement, even juvenile crime - depend upon one overriding principle: removing the father from the family. Without this power, family courts could not survive, since these problems seldom appear with intact families. While mothers also fall afoul of family-court bullying, it is fathers against whom their enmity largely is directed, because fathers are their rivals.
       The judges' contempt for both fathers and constitutional rights was openly expressed by New Jersey Municipal Court judge Richard Russell who, according to Cathy Young in her recent book Ceasefire: Why Women and Men Must Join Forces to Achieve True Equality, said at a judges' training seminar in 1994: "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 the rights." he reportedly told his colleagues.
       The words "prejudice" and "corruption" do not really convey what family courts are about. They are the linchpin of a massive political machine that thrives and grows by systematically destroying families. Within this machine individual judges are "no more than blind executors of the system's own internal laws," as Vaclav Havel has written of another kind of apparat, laws which are "far more powerful than the will of any individual." What we have, in other words, is a system of bureaucratic terror, the kind of terror that has never before been seen in the United States.

Baskerville teaches political science at Howard University, serves as a spokesman for Men, Fathers and Children International and writes about the family-court system.

No: Claims of gender bias tend to come from men who have gone to court and lost.

By Tim Tippins

       There is no shortage of legitimate criticism that fairly can be laid at the doorstep of courthouses across the land, including those courts charged with the extraordinary responsibility of protecting children whose family structure dissolves. Overburdened and under-resourced, the courts do not handle every case with perfection. That is beyond dispute. Like any other profession, lawyers and judges come in all shapes, sizes and levels of competency and rectitude. Some simply are better than others and the quality of the process can be affected by those variables. As long as our system of justice relies upon human engines for its propulsion, it ever will be so.
       Yet, for all of the foibles of the U.S. justice system, the claim that the courts institutionally are prejudiced against fathers is a canard. This claim of prejudice, or gender bias, so stridently put forth by fathers' rights advocates, largely is supported by anecdotal evidence, supplied by those disgruntled fathers who were less than happy with the outcome of their cases. They believe that they did not get sufficient access to their children, that they should have won custody or that they were required to pay too much support.
       Rather than honestly access their own responsibility for the outcome of their cases, however, these malcontents band together, prop up their most impressive spokesman behind the nearest podium and collectively proclaim to all who will listen, in classic kindergarten fashion, "No Fair," the ultimate refrain of losers the world over.
       Reliance upon anecdotal evidence to support any broad conclusions, let alone the kind of sweeping broadside these folks have launched against the legal system is, at best, a risky business. There is no way to determine the accuracy of each individual account or whether it is representative of what occurs across the broader spectrum of cases which are formally adjudicated.
       Every horror story can be offset by a countervailing anecdote. For every father with such a story to tell, there is a mother who reposes in her own tormented niche, nurturing her own painful experience, smarting from what she perceives to be an injustice. That is, unfortunately, the nature of any process that concludes with one party prevailing and the other not. Some of these disgruntled litigants are simply more vocal than others. In virtually every instance, the source of the story usually has a personal agenda.
       About as close as the fathers' rights advocates get to citing data to support their gender-bias mantra is the fact that mothers ultimately receive custody more often than fathers. From that lone factual nugget, they ask their listeners to leap to the conclusion that this disparity proves that the courts are prejudiced against fathers.
       It's time for a reality check.
       Fact No. 1: Most custody cases find their resolution in a settlement agreement of the parents' own making, rather than in the courtroom. Those that actually are fought through to a judicial decision are, blessedly, the exception rather than the rule. In other words, most of the mothers who have custody attained it with the father's consent, presumably because the father understood and agreed that the best interest of the children was served by such an arrangement.
       Fact No. 2: Many of the judges who supposedly are infected with this father-hating virus are themselves fathers. Short of some twisted psychoanalytical theory that only those males seized by self-hatred make it to the bench, this fact might at least give pause to a rational mind in the assessment of the gender-bias claim.
       Fact No. 3: Even in the 21st century, when most women work outside the home, practical experience reveals that it still is the mother who bears the lion's share (lioness would perhaps be more accurate) of the parenting responsibilities during the marriage. Many of the fathers who rail the loudest at the unfairness of the system are the same fathers who, while the domestic relationship was intact, couldn't find two hours a week to spend with their children. As soon as litigation begins, however, these same part-time parents act as though they are competing for a "Father of the Year" award.
       In contested custody cases, the court typically examines all relevant factors to determine with which parent the children's best interest will most properly be served. One of the factors to which the courts often look is which parent was the primary care-giving parent prior to the onset of legal hostilities. If the children have done well under that parent's care, the courts are understandably loath to disrupt the arrangement, whether the primary caregiver is the mother or the father. Concern for the stability and well-being of the child rightly outweighs the desire of either parent. As the parenting role of fathers slowly has evolved over the last decade or two, as some fathers have become more active in the lives of their children, we already have seen more fathers prevail in custody disputes than was previously the case.
       The so-called "tender years presumption" that held that children should be placed with the mother unless she was unfit long has been abandoned. Neither party gets a head start in the judicial race for custody because of legal distinctions based on gender. If our culture further evolves, and more fathers assume a more active parenting role before they have a legal motivation to do so, we likely will see even more fathers gain custody when the domestic relationship is dissolved. Simply stated, we're just not there yet.
       The related claim of some fathers - that they are ejected from their children's lives simply because of their gender - is nothing short of ludicrous. The right of the child to have a meaningful relationship with both parents is a core principle within the judicial system. Indeed, where one parent is found to have interfered unreasonably with the child's relationship with the other, courts have been known to switch custody to the other parent, not as a reward to the wronged parent but to preserve the child's right to have a relationship with both parents. Noncustodial parents rarely are limited to supervised visitation, let alone being denied access to their children. Only under egregious circumstances, where a court finds that the child's exposure to a parent would threaten the well-being of the child in some fashion, is visitation restricted to supervised settings or denied. Such limitations usually are predicated on findings by the court, based on evidence, that there has been abuse, neglect or other misconduct.
       These same malefactors then clamor from the public stage that they were deprived of their children for no reason other than that they are male, proclaiming to one and all that they are innocent. They had their day in court. They lost, yet some cannot accept the fact that they lost. They wallow in a sea of self-delusion and denial, telling themselves that they played no part in their fate. Far easier to blame the system, and label hardworking judges and lawyers as biased or prejudiced, than to accept responsibility for their own part in it. For every parent, male or female, who is found to have acted so badly as to justify such restrictions, there are tens of thousands more across the land who don't have time to mount the public soapbox - they're too busy enjoying their children and helping them grow to adulthood.
       Another issue often raised by the gender-bias brigade is child support. They point to the heavy toll that child support takes on their income under the various support guidelines adopted throughout the nation. While many legitimate arguments can be made against the various child-support formulas that have been put in play over the last decade, the fact is that they apply equally to mothers and fathers. Where a mother is the noncustodial parent, her support obligation is determined by the same guidelines as is a father's. If a particular support formula is unfair, it is equally unfair to each, irrespective of gender. The fact that more fathers are on the paying end of these guidelines reflects only that more mothers are custodial parents, which, as outlined above, reflects many factors unrelated to gender-bias.
       Indeed, in one respect, the more generous support laws now in force have hurt mothers more than fathers. By heightening the financial consequences that attach to the custody issue, some fathers, who previously would gladly have agreed to allow the mother to assume the burdens of custody, have been motivated to fight for custody or greater custodial time in an effort to avoid or diminish their child-support obligation. Indeed, in New York, for example, the state's highest court intervened to put an end to what it called "visitation by stopwatch" where it was perceived that too many noncustodial parents were fighting for additional access, not for the benefit of their children but to reduce their support obligation.
       Child-custody and support laws, and their application in specific cases, are by their very nature at the highest end of the emotional scale in the judicial system. Losing litigants seldom acknowledge that they were the cause of their own demise and the nameless, faceless "system" makes an easy scapegoat. Unfortunately, their impassioned self-delusion is not supported by reality.