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Massachusetts' Family 'Justice'










By Professor Stephen Baskerville, Ph.D.
July 22, 2004

For some thirty years now a quiet revolution has been waged throughout the Western world. Most people are now familiar with the social consequences of the divorce explosion: the growth of single-parent homes and massive increase in fatherless children. The Pandora�s box of social problems this has released has also reached general awareness. Virtually every major personal and social pathology can be traced to fatherlessness more than to any other single factor: violent crime, substance abuse, unwed pregnancy, truancy, suicide, and more. Fatherlessness far surpasses both poverty and race as a predictor of social deviance.

These problems are alarming enough in themselves. What is seldom appreciated is that they are also responsible for a vast expansion in the power and reach of the state. In fact, so is divorce itself. In contrast to its social fallout, the political consequences of divorce are hardly understood at all, yet they may ultimately be the most destructive.

The result of three decades of unrestrained divorce is that huge numbers of people � many of them government officials � now have a vested professional and financial interest in encouraging it. Divorce today is not simply a phenomenon; it is a regime � a vast bureaucratic empire that permeates national and local governments, with hangers-on in the private sector. In the United States divorce and custody comprise over half of civil litigation, constituting the cash cow of the judiciary and bringing employment and earnings to a host of public and private officials, including judges, lawyers, psychotherapists, mediators, counsellors, social workers, child support enforcement agents, and others.

This growth industry derives from the impact of divorce on children. The divorce revolution has spawned a public-private industrial complex of legal, social service, and psychotherapeutic professionals devoted to the problems of children, and especially children in single-parent homes. Many are women with feminist leanings. Whatever pieties they may voice about the plight of fatherless, poor, and violent children, the fact remains that these practitioners have a vested interest in creating as many such children as possible. The way to do it is to remove the fathers.

It is commonplace today that fathers are disadvantaged in divorce courts everywhere when it comes to child custody. In today�s political jargon we attribute this to �discrimination� and �gender bias�. But this does not convey the half of it. Divorce courts and their huge entourage of personnel depend for their existence on broken, single-parent homes. The first principle of family court is therefore: remove the father. So long as fathers remain with their families, the divorce practitioners earn nothing. This is why the first thing a family court does when it summons a father on a divorce petition � even if he has done nothing wrong and not agreed to the divorce � is to strip him of custody of his children. While mothers also fall afoul of divorce courts, fathers are their principal rivals.

Once the father is eliminated, the state functionally replaces him as protector and provider. By removing the father, the state also creates a host of problems for itself to solve: child poverty, child abuse, juvenile crime, and other problems associated with single-parent homes. In this way, the divorce machinery is self-perpetuating and self-expanding. Involuntary divorce is a marvelous tool that allows for the infinite expansion of government power.

No-fault divorce is the middle-class equivalent of public assistance, creating single-parent homes among the affluent as welfare did among the poor. In the United States, where the trend began, all the major institutions of the divorce industry were originally created as ancillary to welfare: juvenile/family courts, child support enforcement, child protection services. No-fault divorce extended these �services� to the middle class because that was where the money was, and with it political power.

Like welfare, divorce involving children is almost wholly female-driven. Though governments invariably claim that fathers �abandon� their children, there is no evidence this is true, nor even that fathers agree to most divorces. Cautious scholars like Sanford Braver of Arizona State University consistently find that at least two-thirds of divorces are filed by women, usually with no legal grounds. Yet lawyers and feminists report much higher proportions. Shere Hite, the popular researcher on female sexuality, found �ninety-one percent of women who have divorced say they made the decision to divorce, not their husbands.�

This is hardly surprising, given the almost irresistible emotional and financial incentives the industry offers mothers to divorce, including automatic custody plus windfall child support and other financial rewards, regardless of any fault on their part. A Canadian/American research team found that �who gets the children is by far the most important component in deciding who files for divorce.� What we call �divorce� has in effect become a kind of legalised parental kidnapping.

Once the father loses custody, he becomes in many ways an outlaw and subject to plunder by a variety of officials. His contact with his own children becomes criminalised in that he can be arrested if he tries to see them outside of authorised times and places. Unlike anyone else, he can be arrested for running into his children in a public place such as the zoo or church. In the United States fathers are arrested for telephoning their children when they are not authorised or for sending them birthday cards. Fathers are routinely summoned to court and subjected to questioning about their private lives. Their personal papers, bank accounts, and homes must be opened and surrendered to government officials. Anything a father has said to his spouse or children can be used against him in court. His personal habits, movements, conversations, purchases, and his relationship with his own children are all subject to inquiry and control by the court.

Despite prohibitions on incarceration for debt, a father can be jailed without trial for failure to pay not only child support but the fees of lawyers and psychotherapists he has not hired. A judge can summon a legally unimpeachable citizen who is minding his own business and order him to turn over his earnings or go to jail.

As the logic of involuntary divorce plays itself out, divorce is forced on not only one parent but both. Mothers are not only enticed into divorce with financial incentives, in other words; they are being pressured into it by threats against their children. Last year, Heidi Howard was ordered by the Massachusetts Department of Social Services to divorce her husband or lose her children, although authorities acknowledged neither parent had been violent. When she refused, the social workers seized her children and attempted to terminate the couple�s parental rights. Massachusetts News reporter Nev Moore says such cases are common in Massachusetts.

Family law is now criminalising rights as basic as free speech and freedom of the press. In many jurisdictions it is a crime to criticise family court judges or otherwise discuss family law cases publicly. Under the pretext of �family privacy�, parents are gagged from publicly disclosing how government officials have seized control of their children. In Australia it is a crime for a litigant to speak publicly concerning family courts, even without mentioning specific cases.

In Australia, the US, and Britain, family courts have closed web sites operated by fathers� groups. Britain, Australia, and Canada have all resurrected archaic laws prohibiting the criticism of judges in order to prosecute fathers� groups. In the United States judges cannot be sued, but they can sue citizens who criticise them. The confiscation of property can also be used to criminalise political opinions. Following his testimony to the US Congress critical of the family courts, Jim Wagner of the Georgia Council for Children�s Rights was stripped of custody of his two children and ordered to pay $6,000 in the fees of attorneys he had not hired. When he could not pay, he was arrested.

The swelling hysteria over �domestic violence� appears fomented largely for similar ends. �All of this domestic violence industry is about trying to take children away from their fathers,� writes Irish Times columnist John Waters. �When they've taken away the fathers, they'll take away the mothers.� Donna Laframboise of Canada�s National Post investigated battered women�s shelters and concluded they constituted �one stop divorce shops�, whose purpose was not to protect women but to promote divorce. These shelters, often federally funded, issue affidavits against fathers sight-unseen that are accepted without corroborating evidence by judges to justify removing their children. Special domestic violence courts in Canada can now remove fathers from their homes and seize their houses on a mere allegation of domestic violence.

Divorce, not violence, is also behind the explosion of restraining orders, which are routinely issued without evidence of wrongdoing, separating fathers from their children and homes. Almost 90% of judicial magistrates in New South Wales acknowledged that protective orders were used in divorce � often on the advice of a solicitor � to deprive fathers of access to their children. Elaine Epstein, former president of the Massachusetts Women�s Bar Association, writes that restraining orders are doled out �like candy.� �Everyone knows that restraining orders and orders to vacate are granted to virtually all who apply,� and �the facts have become irrelevant,� she reports.

Fathers are further criminalised through child-support burdens, which constitute the financial fuel of the divorce machinery, underwriting unilateral divorce and giving everyone involved further incentives to remove children from their fathers. Government claims of unpaid child support constitute one of the most dishonest and destructive hoaxes ever foisted on the public. In a US government-funded study, Sanford Braver discovered that most fathers pay fully and on time and that �estimated� arrearages are derived not from official records but from surveys of mothers. Braver�s findings have never been refuted by any official or scholar. Yet ever-more draconian �crackdowns� and arrests continue.

Last summer Liberty magazine published documentary evidence that �deadbeat dads� are largely the creation of civil servants and law-enforcement agents with an interest in giving themselves criminals to prosecute. In most jurisdictions, child support guidelines are set by enforcement personnel, the equivalent of the police making the laws. These officials can separate children from their fathers, impose impossible child support obligations, and then jail fathers who inevitably fail to pay.

Child support trials operate on a presumption of guilt, where �the burden of proof may be shifted to the defendant,� according to the US National Conference of State Legislatures, which favours aggressive prosecutions. Contrary to Common Law and the US Constitution, courts have ruled 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.� Thus impoverished parents who lose their children through literally �no fault� of their own are the only defendants who must prove their innocence without counsel and without a jury of their peers.

Cases like Darrin White of British Columbia are the result. With no evidence of wrongdoing, White was denied all contact with his children, evicted from his home, and ordered to pay more than twice his income as child and spousal support, plus court costs for a divorce he never agreed to. White hanged himself from a tree. �There is nothing unusual about this judgement,� said a British Columbia Supreme Court Judge, who pointed out that the judge applied standard support guidelines.

Fathers driven to suicide by family courts are acknowledged by officials in Canada, Australia, and Britain. A suicide epidemic has been documented by Augustine Kposowa of the University of California in the Journal of Epidemiology and Community Health. Kposowa attributes his finding directly to family court judgements, though media reports of his study emphasised fathers� lack of �support networks�.

Why is so little opposition heard? Though the conservative media are waking up, the silence of conservative politicians is deafening, given that every prophecy about the dangers of judicial activism, bureaucratic aggrandizement, and ideological extremism is vindicated in the war on fathers. What is perhaps most diabolical about the divorce industry is its ability to co-opt so many people, including its critics. By creating problems to be solved � and then dispensing government money to solve them � the machine gives everyone an interest in fatherless children. Even critics develop a stake in having something to criticise.

In Canada and the US, domestic violence legislation dispenses a gravy train of federal money to the states/provinces and localities. This is often earmarked with appeals to �law enforcement�, though the effect is to divert it from the prosecution of criminals to the prosecution of fathers. Likewise, child support enforcement is propelled by federal payments rewarding local governments for each dollar collected, filling local coffers and giving officials an incentive to squeeze revenue from (after they have forced divorce on) as many fathers as they can find.

Especially questionable are government enterprises to �promote fatherhood�, which disperse grants to local governments and organizations ostensibly to �reunite fathers with their children�. Yet they are premised on first separating them from one another. What is advertised as a program to facilitate �access and visitation� means supervised contact centers, where fathers must pay to see their children in institutions. �Encouraging good fathering� means state-sponsored television advertisements with actors depicting fathers abandoning their children. One American state receives federal money to implement �Five Principles of Fatherhood�, including: �give affection to my children� and �demonstrate respect at all times to the mother of my children�. One cannot help but wonder what penalties the state will bring to bear on fathers who fail to show sufficient �affection� and �respect�.

Involuntary divorce is the instrument not simply of tyrannical judges, unscrupulous lawyers, and doctrinaire feminists, but of a new political class whose interest is to subject the private corners of life to state control. Two conservative scholars recently argued in the Journal of Political Economy that the vast expansion of governmental machinery during the twentieth century proceeded largely from women acquiring the vote. Women, far more than men, voted to create the welfare state. But: �Why would men and women have differing political interests?� ask John Lott and Larry Kenny. �If there were no divorces . . . the interests of men and women would appear to be closely linked together.� The premise of their question invites the answer: �As divorce or desertion rates rise, more women will be saddled with the costs of raising the children.� Conservatives have accepted the feminist argument that the arm of the state is a necessary defensive shield to protect women from the costs of divorce, attributed to male desertion. But male desertion is not a major cause of divorce. The welfare state and expansive government therefore are not defenses against divorce but preconditions for it. Divorce is a political weapon and an offensive one at that, promoted by the same bureaucratic and ideological interests that are undermining and politicising fatherhood and expanding the power and reach of the state to deal with the consequences.

What then can check the march of the unilateral divorce machine?

One theme of intellectuals who dissented from the ideological-bureaucratic dictatorships of eastern Europe was �nonpolitical politics�: to oppose ideology not with contrary ideology but with non-ideology, to resist politicisation by re-creating the ordinary business of �civil society� and private life. If any group should adopt this philosophy today, it is fathers. For all the effort to �restore fatherhood� through programs like Fathers Direct, ultimately the only ones who can restore fatherhood are, of course, fathers themselves. Almost by definition, fathers alone can truly �save the children� by re-creating the family with themselves in it.

In so doing, fathers may also hold the potential to start redeeming a political culture that for thirty years has been sinking into the mire of permanent rebellion. Their current plight indicates how far the divorce �revolution� has brought us all into a brave new quasi-Freudian world where not only traditional institutions are attacked and brought low, but so now are private individuals, simply because they hold the most basic position of human authority, the head of a family. Whether they are up to the challenge remains to be seen.

This article first appeared in the The Salisbury Review. Re-Printed with permission.

� 2004 Stephen Baskerville Ph.D. - All Rights Reserved

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Stephen Baskerville holds a PhD from the London School of Economics and teaches political science at Howard University in Washington, DC. In January 2004 he became President of the American Coalition for Fathers and Children.

He has appeared on national radio and television programs, including The O�Reilly Factor, Hardball with Chris Matthews, Court TV with Fred Graham and Katherine Crier, Think Tank with Ben Wattenberg, Endangered Liberties with Paul Weyrich, Legal Notebook with Tom Jipping, the Armstrong Williams Show, Take Action America, and others. He is a regular radio commentator for the Free Congress Foundation.

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The result of three decades of unrestrained divorce is that huge numbers of people � many of them government officials � now have a vested professional and financial interest in encouraging it. Divorce today is not simply a phenomenon; it is a regime � a vast bureaucratic empire that permeates national and local governments...