The most incisive guide to issues facing the American family today . . . An invaluable resource for anyone wishing to stay on the cutting edge of research on family trends.

-W. Bradford Wilcox
Associate Professor of Sociology, University of Virginia 

Fall
2013

Divorce and the Forced Separation of Children from Their Parents


Stephen Baskerville


Parents have the natural right to be with their own children, unless they are guilty of some egregious act. . . . Stealing children from their own parents has historically been considered one of the most inhuman acts of tyrannical dictators. . . . Slave owners sold the children of their own slaves to other men. Today we are appalled by knowledge of such inhumanity.
Bai Macfarlane, Mary’s Advocates1

What would you do if I came along in the street and took your children from you? You would do everything physically in your power to defend your children. You would probably injure me and maybe even kill me to protect your own flesh and blood. And yet fathers are somehow supposed to walk away.
Matt O’Connor, Fathers For Justice2

The rights of parents to their children are generally regarded as inviolable. The very idea of forcibly separating children from parents who have done nothing legally wrong immediately evokes feelings of deep revulsion among most people. That any government should be able to do this also elicits feelings of anger and fear. It is no accident that such practices are associated with totalitarian regimes. “The right to one’s own children . . . is perhaps the most basic individual right,” writes Susan Shell, “so basic we hardly think of it.”

Yet Shell elides sound statements of principle with common misconceptions of fact. “No known society treats the question of who may properly call a child his or her own as simply . . . a matter to be decided entirely politically as one might distribute land or wealth,” she states.

No known government, however brutal or tyrannical, has ever denied, in fact or principle, the fundamental claim of parents to their children. . . . A government that distributed children randomly . . . could not be other than tyrannical. . . . A government that paid no regard to the claims of biological parenthood would be unacceptable to all but the most fanatical of egalitarian or communitarian zealots.3

As a statement of society’s moral consensus, Shell’s points are unexceptionable. Yet they also provide an unintended commentary on the ignorance that pervades today’s debates over marriage, children, and the family. For current law and practice have rendered Shell’s words both prescient as principles and factually false. What she asserts that “no known government” has ever done is exactly what most Western democracies have been doing for almost four decades, creating precisely the tyranny she predicts.
The most destructive and dangerous injustice in our society today is the systematic seizure of children by government officials and the criminalization of their parents. A parent today who has committed no legal infraction can have his parenthood criminalized entirely through the actions of others in ways that are completely beyond his control.

The Machinery of Divorce
Few people to whom it has not happened realize how easily and how frequently children are taken from their parents with no grounds or allegations of wrongdoing. “People who have not personally gone through divorce and custody ‘wars’ may believe that it would never happen to them or their children,” writes Anna Keller. “They believe that their own relationships with their children are inviolable; that their importance to their children or their value as loving parents could never be publicly or legally challenged; they believe that they would never be refused information about their children by their children’s school or doctors, or drive by their children’s house and be forbidden to see them or find that they don’t know where and with whom their children are.”4

The separation of children from their parents for reasons that have nothing to do with the children’s wishes, safety, health, or welfare is now routine. Though the number of mechanisms by which this can happen is growing, the most common is involuntary divorce. As family law now operates in America and elsewhere, one parent can have the other summoned to court and, without presenting any evidence of legal wrongdoing, request that he be stripped of all rights over his children and effectively ejected from the family, and in every case the judge will oblige.5 Government officials acting on their own can do much the same to both parents.

The very words “divorce” and “separation,” now so common, carry connotations that are very different from the present reality, and the vast literature on divorce that continues to pour forth from the presses, both popular and scholarly, is full of highly misleading information. Modern divorce too often involves government officials evicting people from their homes, seizing their property, taking away their children, and incarcerating them without trial. Divorce today means the invasion and destruction of private life by the state.

Likewise, the term “custody” is not the right to parent one’s children, as is commonly assumed; it is the power to prevent someone else from parenting his children and to marshal the penal apparatus—courts, police, and jails—to ensure that he cannot engage in any unauthorized parenting. Custody is only partly about children, in other words; custody also confers power on grown-ups. Custody now includes the power to bring the penal system into the home to punish family members—not for legally recognized offenses but for ordinary family differences. Throughout the U.S. and abroad, large numbers of fathers and some mothers are being criminalized and incarcerated for what begins as nothing more than a spouse’s hurt feelings. What we call winning “custody” means the power to turn family members into outlaws.

For centuries our legal order has been based on the principle that authority over children resides with their parents, unless the parents have done something to forfeit it.6 Yet that power has now been transferred to state officials such as family court judges and their clients in the bar associations, psychotherapy professions, and social work bureaucracies. “Our society has chosen to leave all such family-role decisions to the free choice of the people until one of the parties decides to end the marital relationship and files that request with the government,” writes Wayne Anderson. “At that moment the government assumes control of family decisions and ends the free choice of the divorcing parents.”7 This government takeover of the family was traditionally justified when both parents agreed to divorce or when one violated the terms of the marriage contract and incurred the legal consequences for doing so. What was innovative in “no-fault” divorce is that the government now assumes this control over the family and an innocent parent not by the mutual agreement of both parents but at the mere request of one.

Euphemisms have rendered it difficult for even well-informed people to grasp what is happening, and the commonplace of divorce has left us too ready to abdicate our most fundamental rights and responsibilities over our private lives without realizing the full implications. We are told a marriage has “broken down” or the parents “can’t agree.” Therefore government officials “must” step in and assume control of the children. But this begs critical questions. The state and its agents are not neutral parties. They have a very tangible interest in declaring such an impasse—it creates a major extension of state power. Through divorce, the modern state achieves its most coveted and dangerous ambition: to control the private lives of its citizens.

Through “no-fault” divorce, one parent can now declare unilaterally that the marriage has “broken down” and petition the state to remove the other parent without that parent having committed any legal transgression. What the government then offers to the parent who invites its intervention is the promise that her invitation will be rewarded; the state will establish her as a puppet government, the state’s satrap within the family. This requires that not the faithless but the faithful parent be punished.

The divorce industry consists of a massive and largely hidden governmental machinery consisting of judges, lawyers, psychologists and psychiatrists, social workers, child protective services, child support enforcement agents, mediators, counselors, and feminist groups, plus an extensive host of economic interests, such as divorce planners, forensic accountants, and many others. These officials and professionals invariably profess to be motivated by concern for the “best interest” of other people’s children. Yet their services are activated only with the dissolution of families and the removal of parents. Whatever pieties they may proclaim, the hard reality is that they have a concrete interest in encouraging family break-up, and virtually all their power and earnings derive from the harm that divorce inflicts on children. “Fights over control of the children,” reports one former divorce insider, “are where most of the billable hours in family court are consumed.”8

Harsh as it may sound, it cannot be denied that these officials are united by one overriding interest: having children separated from their parents. Without the power to remove children from legally guiltless parents—most often their fathers—this industry cannot thrive, and these officials will have no business. And so it must declare that the parents are criminals and that the fathers have “abandoned” their children, even when this is plainly not true. Put simply, the first principle of the divorce industry, the basic premise without which it has no reason to exist, is the removal of the father from the family. Once this is accomplished, the state is free to assume control over mothers and children as well.

The media generally report on these phenomena with a series of clichés and euphemisms—“divorce,” “custody battle,” “fatherlessness,” “deadbeat dads,” “domestic violence,” “child abuse,” and “parental kidnapping”—while ignoring the underlying legal framework that connects them all. We hear about the high rate of “divorce,” but we are seldom told that the vast majority of divorces with children are the actions of one parent acting alone. We hear of ugly “custody battles” involving “warring parents,” with no hint that most begin as unilateral child snatchings that are planned with the assistance of court officials and rewarded by the courts. We witness the official witch hunt against “deadbeat dads,” with seldom a word to the effect that none of these men have ever been convicted of anything, or that most were divorced over their objections and without grounds and therefore did nothing to incur “obligations” imputed to them that are often patently impossible to pay. We are besieged with daily reports of “domestic violence” with little indication that almost none of it involves any physical contact. We hear harrowing tales of child abuse but not the fact that it is overwhelmingly committed by single mothers and their boyfriends once the father has been forcibly removed and is no longer able to protect his children. We have been told that more than 2,000 child kidnappings occur in America every day and that they are overwhelmingly by a parent, but there is no indication that most are instigated following family court orders. We hear about fathers who “abandon” their children, but not that virtually every one of these fathers is under a court order to stay away from them.9

The Gender Divide
Contrary to popular perception and what limited media attention it does attract, the problem is much deeper than simply bias against fathers in custody decisions, though such bias certainly exists.10 Most people can probably understand and tolerate some discrimination against fathers when divorces are agreed by mutual consent. What is happening in family courts today is entirely different. It is one thing to recognize that young children need their mother; it is another altogether to say they need her to have the arbitrary power to keep away their father. Yet current judicial practice allows her to do precisely that. Under the terms of no-fault divorce, she can have a half-dozen previous divorces, she can desert the marital home, she can abscond with the children, she can commit adultery, she can level false charges, she can assault the father, she can even abuse the children, and none of these (except the last, perhaps) can even be introduced as evidence in a custody hearing. 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 with or without his agreement.11

For many, the key factor in our acceptance of mother custody is the perception that fathers are initiating or at least acquiescing in the dissolution of marriages. Among researchers, however, this assumption has long been known to be false. In the largest federally-funded study conducted on issues divorced fathers face, Sanford Braver has shown that at least two-thirds of divorces are initiated by women, whether measured by official filings or surveys of couples. Moreover, few of these divorces involve grounds, such as desertion, adultery, or violence. Most often the reasons given are “growing apart” or “not feeling loved or appreciated.” Other studies have reached similar conclusions.12

It is difficult to overestimate the importance of this fact. All the hardships, indignities, and prosecutions fathers now endure might be understandable if, as is still popularly believed, it was they who were walking out on their families, giving legitimate grounds for divorce, or even agreeing to it. Understandably, Braver observes, “this belief appears to fuel much of the vindictiveness of gender-based divorce debates, since the logical conclusion is that society should find a way to punish divorced men for their escapades . . . by imposing various sanctions.”13 From the unchallenged scientific evidence, however, the vast majority of fathers and some mothers are the ones being abandoned—or perhaps more precisely expelled—by a divorce that is over their objections and over which they have no say.14 The regime engineered by the divorce industry is based on a legal anomaly whereby parents can be forcibly divorced and then blamed for the divorce that is beyond their control. Braver calls this the “dirty little secret” of modern divorce.

More is at work here than couples deciding to part ways. Under “no-fault” laws, divorce has become a means not simply of ending a marriage but of seizing monopoly control of the children, who become potent political weapons conferring leverage backed by penal sanctions. Divorce today is less likely to be a reasoned, mutual decision than a power grab by one parent, assisted by lawyers, judges, and other officials. By extending the reach of the state over the children and the forcibly divorced parent, unilateral divorce has turned children into weapons of not only parental but governmental power.

“Gender bias” is not an adequate explanation for why this is happening. Though the courts promiscuously invoke both traditional concepts about motherhood and modern ideas of women’s rights, it is really a question of money and power, specifically that of the lucrative divorce industry, which offers parents—usually but not necessarily mothers—a tempting package of financial and emotional incentives to file for divorce. As one lawyer reportedly told a client who asked him to stop a divorce, “There’s too many people making too much money in the divorce business.”15 Family courts, in other words, far from providing a remedy to parental child-snatching, are almost certainly part of the problem. So willing are family courts to reward this practice that some parents describe the courts themselves as a legal child-kidnapping and extortion racket. From the perspective of the father whose children have been taken, a “gang of four”—the mother, two lawyers, and a judge—has colluded to kidnap his children and hold them for ransom. “Rather than hold my wife accountable for kidnapping my daughter,” one father told a public hearing in Virginia, “the system was eager to reward her for it.”16

In fact 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 strategy for gaining custody is simply to take the children and their effects and leave without warning. If she has no place to go, she will be told that by accusing the father of domestic violence or child abuse she can obtain a restraining order immediately forcing him out of the family home. She will also learn that not only can she not be punished for either of these actions, but they cannot even be used against her in a custody decision. In fact they work so strongly in her favor that failure to apprise a female client of these options may constitute legal malpractice.17

Far from being punished for child-snatching and false accusations, then, the mother is certain to be generously rewarded. “No matter how faithless,” writes Bryce Christensen, “a wife who files for divorce can count on the state as an ally.”18 Mothers who abduct children and keep them from their fathers, with or without abuse charges, are routinely given immediate “temporary” custody. In fact, this is only temporary if he is willing to pay to get them back. Once she has custody it cannot be changed without a lengthy (and for the lawyers 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. The more she cuts the children off from the father, alienates them from the father, levels false charges, delays the proceedings, and obstructs his efforts to see his children, the more she makes the path of least resistance (and highest earnings) to leave her with sole custody.19 In short, the more belligerence she displays and the more litigation she creates, the more grateful the courts will be for the business she generates.

As for the father, any restraint he shows throughout this ordeal is likely 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. Revealingly, the latest wisdom counsels nervous fathers that the game is so rigged that their best chance is not to wait for their day in court but to imitate the techniques of mothers: If you think she is planning to snatch, snatch first. Then conceal, obstruct, delay, and so forth. “If you do not take action,” writes Robert Seidenberg, “your wife will.”20 Thus we have the nightmare scenario of a race to the trigger, to adopt the terms of nuclear deterrence replete with the pre-emptive strike. Whoever snatches first survives.

“No-Fault” Divorce
Far from merely exploiting family breakdown after the fact then, domestic relations law has turned the American family into a game of “prisoners’ dilemma,” in which only the most trusting marriage can survive and the emergence of the slightest marital discord renders not absconding with the children perilous and even irrational. Willingly or not, all parents are now captives in this game.

That this is indeed the dynamic behind the divorce epidemic is further confirmed as the logic is taken to its macabre conclusions. Not only are mothers enticed into filing for divorce with financial and emotional incentives; in some cases, they are being forced into it with threats and actions against their children. Mothers now report being told by social service agencies that they must leave their husbands or lose their children, even in instances where neither parent is charged with any wrongdoing.21 In short, state officials now possess the power to break up families by imposing divorce on happily married parents.

How did all this come about? The advent of “no-fault” divorce in the early 1970s, 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 (taken from car insurance), for the new laws did not stop at removing the requirement that grounds be cited for a divorce, so as to allow for divorce by “mutual consent,” as they were misleadingly promoted at the time; they also created involuntarily what Maggie Gallagher calls “unilateral” divorce. This means that either spouse may end the marriage at any time without any agreement or fault by the other. “No-fault divorce gave judges, at the request of one-half of the couple, the right to decide when a marriage had irretrievably broken down,” writes Gallagher. “Today, while it still takes two to marry, it takes only one to divorce.”22 Moreover, the spouse that divorces or violates the marriage contract through adultery or desertion incurs no liability for the costs or consequences, creating a unique and unprecedented legal anomaly. “In all other areas of contract law those who break a contract are expected to compensate their partner or partners,” writes Robert Whelan, “but under a system of ‘no fault’ divorce, this essential element of contract law is abrogated. Divorce comes to be regarded as one of those things that just happens.”23

No justice system can possibly operate on such principles. “In every other area of law, it aims to make people who have done wrong accept the consequences of their actions,” notes Melanie Phillips.24 “What if American law refused to enforce business contracts and indeed systematically favored the party that wished to withdraw, on the grounds that ‘fault’ was messy and irrelevant and exposed judges and attorneys to unpleasant acrimony,” asks Gallagher, “ . . . so that when disputes arose, thieves and owners would be left to work things out among themselves, because after all, one cannot legislate morality?”25

In fact the legal implications go much further, since the courts do not remain neutral but actively ally themselves with the wrongdoers and punish their victims. Attorney Steven Varnis points out that “the law generally supports the spouse seeking the divorce, even if that spouse was the wrongdoer, by granting divorces with little regard for a spouse who may not desire it.”26 Selective media reporting means that few people who have not experienced it directly understand the full implications of “no-fault” divorce, even more than four decades after its advent. “I never knew what no-fault divorce really meant,” said one woman after her first visit to a lawyer. “Never, in my wildest dreams did I imagine that one person could force another person into a divorce.”27

These laws, enacted throughout the Western world, can in retrospect be seen as one of the boldest social experiments in modern history. The result effectively ended marriage as a legal contract. Today it is not possible to form a binding agreement to create a family. Regardless of the terms by which it is created, government officials can, at the request of one spouse, simply dissolve a marriage—and the private household it creates—over the objection of the other. Gallagher notably and aptly titled her 1996 book The Abolition of Marriage.

Strikingly, these laws were passed while no one was looking, largely for the benefit of divorce practitioners28: no popular clamor to dispense with restrictions on divorce preceded their passage; no public outrage at any perceived injustice provided the impetus; no public debate was ever held. “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. “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.”29 Relieved of the burden of dispensing justice, the courts were set free to generate business for their officials and political clients by assuming control over the children of parents whom they forced into divorce.

Dickens’ observation—“the one great principle of the . . . law is to make business for itself”—could hardly be more strikingly validated.30 Family courts, in the words of one legal authority, “interpret their ‘social responsibility’ to mean accommodating and streamlining adult choices to end marriages.”31 Nothing in the law requires a judge to honor the divorcing parent’s initial request to strip the other parent of his children. A judge could “just say no” and rule that, prima facie, neither the father nor the children has committed any infraction that justifies being forcibly separated, even “temporarily,” that they have a fundamental human and constitutional right not to be separated, and that neither the mother nor the court has any grounds to separate them; if she wishes to divorce without giving recognized grounds, she may leave without hindrance, but she has no right to interfere with the relationship between the other parent and his children. Yet such rulings are unheard of. Judges who refused to reward divorce and child snatching would be rendering themselves redundant and denying earnings to a huge entourage of lawyers, psychologists and psychiatrists, attorneys ad litem, mediators, counselors, child-support enforcement agents, social workers, and other hangers-on of the court. All these officials have a central role in the appointment and promotion of judges.32

Similar relationships connect judges with other patronage clients whose role is ostensibly to help determine custody and “the best interest of the child.” This innocuous-sounding phrase is a masterpiece of legal obfuscation, all the more cynical for its professed compassion. For all the posturing it permits, the best interest standard “is powerless to pre-empt divorce in the first place,” Varnis points out, “which would be in the child’s best interest in the majority of cases.”33 Not only is the phrase vague, however; it provides a pretext for radical legal innovations. Fathers’ groups complain it is a ruse for judges to award automatic mother custody, regardless of her behavior or legal guilt. “When someone mentions the best interests of the child,” writes columnist Al Knight, “it is code for the best interests of the mother.”34 Courts have indeed held simply that “what is good for the custodial parent is good for the child.”35 No explanation is given for how it can be in the best interest of children to arbitrarily order one of their parents to stay away from them six days out of seven, and perhaps altogether.

Yet an even more telling case against the “best interest” standard is that it transfers from parents to the state the power to determine what this best interest is, over the objections of parents who have done nothing to forfeit the right to decide for themselves what is best for their children. It gives state officials virtually absolute control over children to dispose of as they please, and its perils are not limited to fathers. “Such a criterion is dangerous because it renders the claims of all parents to their natural children tenuous,” writes Robyn Blumner of the American Civil Liberties Union. “Children could be given over to any set of new parents who offer a more advantaged upbringing.”36 The Illinois Supreme Court has likewise held with respect to adoptions:

If the best interests of the child are to be the determining factor, persons seeking babies to adopt might profitably frequent grocery stores and snatch babies when the parent is looking the other way. Then, if custody proceedings can be delayed long enough, they can assert that they have a nicer home, a superior education, a better job, or whatever, and the best interests of the child are with the baby snatchers.37

“The law, thankfully, is otherwise,” the court concludes. Not so for parents pulled into divorce. The court has succinctly described precisely the custody principles of divorce court.38

Many accept this practice on the assumption that a judge must decide what is best for a child when the parents “cannot agree.” But allowing one parent to surrender both parents’ decision-making rights over the children to government officials because of “disagreement”—without any infraction by the other, who may disagree only about losing his or her children—is a dangerous principle and invites collusion between the divorcing parent and state officials. Judges and civil servants are far from disinterested parties. “I represent your kids, but I don’t want to,” Judge Robert Page of New Jersey confesses. “Because I don’t love your children. I don’t even know them. It is a legal fiction that the law’s best interest is your children.”39

The “best interest” standard is also a money-maker for the legal industry. “It provides what might be called hair-trigger litigability,” writes Walter Olson, author of The Litigation Explosion. “Everything comes to be relevant and nothing, as the lawyers say, dispositive.”40 The courts having dispensed with all objective standards for determining guilt or innocence, fault becomes a subjective free-for-all, cynically couched in terms of what officials claim is good for children they do not know and about whom, as Judge Page acknowledges, they do not care.

The “best interest” also transforms judges from dispensers of justice into dispensers of patronage in appointing any number of “experts” or cronies for lucrative employment as “custody evaluators.”41 In pursuit of the elusive “best interest,” the judge may dispense entirely with questions of justice in favor of whatever quasi-scientific child development theories are currently popular among the court’s favored experts. “As society has become more complex and the presentation of cases involves greater use of social sciences,” writes Judge Page, “ . . . family courts utilize experts in many fields, both court-appointed and privately retained, to advise on issues requiring specialized knowledge.”42 In practice this means that principles of justice and even constitutional rights are excised from the proceeding in favor of social science theory colored by political ideology. “Family lawyers . . . maintain that justice has no place in their courts,” writes Phillips. “Family court judges thus preside with equanimity over injustice, having turned themselves into a division of the therapy and social work industries.”43 And the more children brought before the courts by divorcing parents expecting favorable verdicts from the experts, the more employment is created for the experts.

Foremost among these experts are psychologists and psychiatrists, who are ubiquitous in family court proceedings and who have achieved unprecedented power in the legal system.44 Yet it is not clear that these experts serve any purpose other than to provide judges with a rationale for what they are already disposed to do: remove children from their fathers. One highly influential psychological authority opines that “the non-custodial parent should have no legally enforceable right to visit the child, and the custodial parent should have the right to decide whether it is desirable for the child to have such visits.”45 This is not a clinical opinion; it is a political one. It says nothing about the mental health of children. It pertains solely to the use of coercive government power to arbitrarily seize the children of legally guiltless parents.

The removal of the children is only the beginning. Following the logic of involuntary divorce, forcibly divorced parents are then subject to a panoply of arbitrary and repressive measures over the most intimate corners of the private lives that often end in poverty, homelessness, and prison. As indicated, patently trumped-up accusations of child abuse and domestic violence are issued to rationalize the removal of parents from their homes and their children. The parents’ relationship with their children and the children’s entire upbringing is then controlled by the courts through a series of “orders” governing the terms by which the parents can have access to their own children and what they may do with them and say to them.46 Parents are then subject to wholesale expropriation and plunder in the form of “reasonable attorneys’ fees” (that is, they are forced to pay the fees of lawyers they have not hired for services they did not request) and “child support,” by which, in the words of attorney Jed Abraham, “a father is forced to finance the filching of his own children.”47 These exactions reward the judge’s cronies and can easily exceed the parent’s entire income and assets, whereupon he is subject to incarceration without trial.

As Shell indicates, no free society can endure the arbitrary confiscation of children from their parents. Trivializing this practice with banal euphemisms like “ugly divorce” and “nasty custody battle” does nothing to change the reality that what is commonly taking place is the wholesale stealing of children from innocent parents. Neither does the fact that one parent is a party to the judicial attack on the other parent. Abraham calls the machinery “Orwellian”: “The government commands . . . a veritable gulag, complete with sophisticated surveillance and compliance capabilities such as computer-based tracking, license revocation, asset confiscation, and incarceration.”48 The arbitrary and repressive measures used to confiscate children and incarcerate parents in the divorce courts cannot and have not remained confined to divorce. Already the principles of Anglo-American family law are being used to rationalize limitations on the rights of other parents, including freedom of speech and religion.49 As Bryce Christensen writes, the practices of family law “have moved us a dangerous step closer to a police state.”50

Stephen Baskerville, Ph.D., is professor of government at Patrick Henry College and author most recently of Taken Into Custody: The War Against Fathers, Marriage, and the Family. He is writing a book on sexual politics.

1 Bai Macfarlane, And Justice for None (Westlake, Ohio: Mary’s Advocates, 2004): 34.

2 “How the Church Betrayed Fatherhood,” Church of England Newspaper, June 14, 2004.

3 Susan Shell, “The Liberal Case Against Gay Marriage,” The Public Interest 156 (Summer 2004): 5-7.

4 Anna Keller, “Parenting Post-Divorce: Problems, Concerns,” in The Best Parent is Both Parents, ed. David Levy(Norfolk: Hampton Roads Publishing, 1993): 56.

5 Donald Hubin, “Parental Rights and Due Process,” Journal of Law and Family Studies 1.2 (1999): 136.

6 Ibid., 123 and passim.

7 Wayne Anderson, The Custody Hoax (Goodland, KS: Vindicator, 1992): 1.

8 Judy Parejko, Stolen Vows: The Illusion of No-Fault Divorce and the Rise of the American Divorce Industry (Collierville, TN: InstantPublisher, 2002): 99.

9 Stephen Baskerville, Taken Into Custody: The War Against Fathers, Marriage, and the Family (Nashville: Cumberland House, 2007).

10 Cynthia McNeely, “Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family Court,” Florida State University Law Review 25.4 (Summer 1998): 891-956; Christopher Tillitski, “Fathers and Child Custody: Issues, Trends, and Implications for Counseling,” Journal of Mental Health Counseling 14.2 (July 1992): 351-61; Jeffery Leving, Fathers’ Rights (New York: Basic Books, 1997): ch. 2; Robert Seidenberg, Father’s Emergency Guide to Divorce-Custody Battle (Takoma Park, MD: JES, 1997): ch. 1 and passim. The literature is surveyed in Sanford Braver, et al., “Experiences of Family Law Attorneys Regarding Current Issues in Family Law: Results of a Survey Conducted at a Bar Association Conference,” Family Relations 51.4 (2002): 325-34.

11 Fathers’ and women’s groups seem to agree that a father is likely to be awarded custody less because of his merits as a parent, or any failings in the mother, than because he has political connections. If old-fashioned gender bias were responsible for the treatment of fathers, we would expect mothers who lose custody to be obviously unfit. Yet there is little evidence that non-custodial mothers are unfit any more than non-custodial fathers. Fathers and Children’s Equality reports that “of the non-custodial mothers who come to FACE, 50% have ex-husbands who are in some way connected with the justice system – lawyers, owner of a court reporting service, court employees, etc.” (correspondence with Jeff Golden, president of FACE, August 31, 2000).

12 Sanford Braver, Divorced Dads: Shattering the Myths (New York: Tarcher, 1998): ch. 7 and passim. See also figures quoted from the National Center for Health Statistics in Warren Farrell, Father and Child Reunion (New York: Tarcher/Putnam, 2001): 169, 278 note 1. For more references, see Baskerville, Taken Into Custody, ch. 1.

13 Braver, Divorced Dads, 125.

14 Research suggests that, if anyone is abandoning their children, it appears to be mothers under feminist influence. Cf. Jonathan Leake, “Dumped Dads Left Holding the Baby,” Sunday Times, August 8, 2004, Web, citing an unpublished report from the British Office of National Statistics.

15 Quoted in Parejko, Stolen Vows, 98.

16 Quoted in Robert Seidenberg, Father’s Emergency Guide, 22. Some mothers push the system’s logic too far and encroach on the state’s turf: “A woman accused of trying to swap her 19-month-old son to his father for $2,000 and a sport utility vehicle was jailed on kidnapping and extortion charges.” (“Mom Tried to Sell Kid to Dad, Police Say,” Associated Press, August 25, 2003.)

17 Seidenberg, Father’s Emergency Guide, 35-42, 67-70.

18 Bryce Christensen, “The Strange Politics of Child Support,” Society 39.1 (November-December 2001): 65.

19 Cf. Ira Daniel Turkat, “Divorce Related Malicious Mother Syndrome,” Journal of Family Violence 10. 3 (1995): 253-64.

20 Seidenberg, Father’s Emergency Guide, 92 (original emphasis).

21 The case of Heidi Howard is typical: Baskerville, Taken Into Custody, 210-211; Ed Oliver, “Why Was Mother Shackled for Not Giving Baby to Strangers?” Massachusetts News, February 20, 2001, and interviews with Heidi Howard (April 16, May 25, June 27, and July 18, 2001), Neil Howard (July 5, 2001), reporter Nev Moore (April 13, 2001), attorney Gregory Hession (May 30, 2001), and attorney David Grossack (June 17, 2001).

22 Maggie Gallagher, The Abolition of Marriage (Washington, D.C.: Regnery, 1996): 144.

23 Robert Whelan, ed., Just a Piece of Paper? (London: Institute of Economic Affairs, 1995): introduction, 3.

24 Melanie Phillips, “Death Blow to Marriage,” in Whelan, Just a Piece of Paper?,15.

25 Gallagher, Abolition of Marriage, 149.

26 Steven Varnis, “Broken Vows, Therapeutic Sentiments, Legal Sanctions,” Society 35.1 (November-December 1997): 35.

27 Quoted in Parejko, Stolen Vows, 98.

28 Gallagher, Abolition of Marriage, 147.

29 Phillips, Sex-Change Society, 261 (original emphasis). See a similar appraisal by Bryce Christensen, “Taking Stock: Assessing Twenty Years of ‘No Fault’ Divorce,” in Whelan, Just a Piece of Paper?, 58-59.

30 A George Washington University law professor writes: “The modus operandi of lawyers” is to “delay as much as they can and frequently lay the groundwork for future conflict (which ensures future business for themselves).” In Susan Tolchin and Martin Tolchin, Dismantling America (Boston: Houghton Mifflin, 1983): 20.

31 Helen Alvare, “Types and Styles of Family Proceedings,” Report of the United States to the VII World Congress, International Association of Procedural Law (2003): 26.

32 Herbert Jacob, “The Effects of Institutional Differences in the Recruitment Process,” Journal of Public Law 13 (1964): 104-19. Jacob concludes, “The bar has now a veto power over prospective judges.” See also Justice in America: Courts, Lawyers, and the Judicial Process, Herbert Jacob, ed., (Boston: Little Brown, 1984): 112. More recently: G. Alan Tarr, Judicial Process and Judicial Policymaking (Belmont: West/Wadsworth, 1999): 61, 67, 69-70. For the “cronyistic” politics of judicial appointments, see Richard Watson and Rondal Downing, The Politics of the Bench and the Bar (New York: John Wiley and Sons, 1969): 98, 336. The bar exercises “the leading role in influencing judicial selection, be it by appointment or election.” Harry Stumpf and John Culver, The Politics of State Courts (New York: Longman, 1992): 49.

33 Varnis, “Broken Vows,” 37.

34 Al Knight, “Another Blow to Marriage,” Denver Post, June 20, 2001.

35 Quoted in Braver, et al., “Experiences of Family Law Attorneys.”

36 Robyn E. Blumner, “Making It Easy to Steal a Man’s Child,” St. Petersburg Times, April 11, 1999.

37 Quoted in Leving, Fathers’ Rights, 196.            

38 “One of the factors used to determine ‘best interests’ is the length of time the child has been separated from the parent who is seeking custody.” In “Custody Decision-Making in Maryland: Practice, Principles, and Process,” proceedings of a discussion held at the University of Maryland School of Law, December 9, 2003, Woodrow Wilson International Center for Scholars, 14.

39 Stephen Barr, “Refereeing the Ugliest Game in Town,” New Jersey Monthly, May 1998, 52-5, 71-4.

40 Walter Olson, “Suing Ourselves to Death: America’s Litigation Boom Is Bad for Law and Society,” Washington Post, April 28, 1991.

41 “The judge occupies a vital position . . . because of his control over lucrative patronage positions.” Such appointments “are generally passed out to the judge’s political cronies or to persons who can help his private practice.” In Herbert Jacob, Justice in America, 112.

42 Robert Page, “‘Family Courts’: An Effective Judicial Approach to the Resolution of Family Disputes,” Juvenile and Family Court Journal 44.1 (1993): 21.

43 Melanie Phillips, “Goodbye Lords, Hello the Dictatorship of the Judges,” Sunday Times, November 14, 1999.

44 Margaret Hagan, Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice (New York: HarperCollins, 1997), esp. 234.

45 Joseph Goldstein, Anna Freud, and Albert Solnit, Beyond the Best Interests of the Child (New York: Free Press, 1973): 38.

46 Eugene Volokh, “Parent-Child Speech and Child Custody Speech Restrictions,” New York Law Review 81 (May 2006): 631-733; Baskerville, Taken Into Custody.

47 Jed Abraham, From Courtship to Courtroom (New York: Bloch, 1999): 151.

48 Ibid., 154-5.

49 Volokh, “Parent-Child Speech”; Baskerville, Taken Into Custody.

50 Christensen, “The Strange Politics of Child Support,” 63-4.

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