Issues - Gender Bias - Politics of family
The debate on the family is becoming increasingly politicized.
President George W. Bush proposes federal programs to promote
marriage and fatherhood and to enlist churches. Liberals respond
that government does not belong in the family but then advocate
federal programs of their own.
Yet the more polarized the issues become the less willing
we are to look at the hard politics of the family crisis.
Family policy is still discussed in terms set by therapists
and social scientists: the rate of divorce and unwed motherhood,
the level of poverty, the impact on children, the social costs.
As if we don’t know.
As a social scientist, I do not deny the value of data (I
intend to marshal some myself). But therapeutic practitioners
have established such a hold over family policy that they
have paralyzed our capacity to act. Writing on single motherhood
in Commentary magazine, the eminent political scientist James
Q. Wilson grimly concludes, "If you believe, as I do,
in the power of culture, you will realize that there is very
little one can do." Like many others (including the Bush
administration), Wilson is reduced to advocating counseling
What seems missing here is old-fashioned politics, the kind
that did not hesitate to make moral judgments and even express
outrage. The politics of the prophets, for example.
The facts are well-established among social scientists, but
a kind of ideological correctness on both left and right seems
to keep us from confronting the full implications of what
we know. We are afraid to challenge the accepted clichés
about marriage breakdown, even when it becomes clear that
they don?t correspond to the evidence.
We should begin, therefore, with the uncontested but seldom-mentioned
facts. First, marriages do not simply "break down"
by themselves. Legally, someone?and it is usually one?consciously
ends it by filing official documents and calling in the government
against his or her spouse. According to Frank Furstenberg
and Andrew Cherlin, the authors of Divided Families, some
80 percent of divorces are unilateral. One spouse usually
wishes to keep the family together.
When children are involved, the divorcing parent is overwhelmingly
likely to be the mother. Scholarly studies by Sanford Braver,
Margaret Brinig and Douglas Allen, and others estimate that
between 67 and 75 percent of such divorces are instigated
by the mother. Feminists and divorce attorneys report that
the number is closer to 90 percent. Few of these divorces
involve grounds like desertion, adultery, or violence. "Growing
apart" or "not feeling loved or appreciated"
are the usual explanations.
The divorcing parent is likely to get custody of the children
and coerced financial payments from the divorced parent. Brinig
and Allen even concluded that of 21 variables, "who gets
the children is by far the most important component in deciding
who files for divorce."
Clearly more is at work here than husbands and wives deciding
to go their separate ways. Under no-fault laws, divorce has
become a means not only of ending a marriage but of seizing
monopoly control of the children, who become weapons conferring
leverage backed by penal sanctions. The devastating effects
of divorce and fatherlessness on both children and society
are now so well-known that there is no need to belabor them
here. What is seldom appreciated is the broader threat the
divorce regime poses to ethical and constitutional government.
In fact, there is today no better example of the link between
personal morality and public ethics?between the fidelity of
private individuals and the faithfulness of public servants?or
the connection of both with the civilized order.
Significantly, as secular political sophisticates focus narrowly
on the sociological, it is Pope John Paul II who has come
closest to the root of the problem. In January, he issued
what many saw as a surprisingly strong statement against divorce
that specifically singled out lawyers and judges for criticism.
For his pains he was attacked by lawyers, journalists, and
politicians from both the left and right. Yet his characterization
of divorce as a "festering wound" with "devastating
consequences that spread in society like the plague"
is as accurate politically as it is socially.
Since the advent of no-fault divorce, a multibillion-dollar
industry has grown up around the divorce courts: judges, lawyers,
psychotherapists, mediators, counselors, social workers, and
bureaucratic police. All these people have a professional
and financial stake in divorce. In fact, despite pieties to
the contrary, public officials at all levels of government?including
elected leaders in both parties?now have a vested interest
in increasing the number of single-parent homes.
The politics of divorce begins in family court, a relatively
new and little-examined institution. Family courts are usually
closed to the public and their proceedings are usually unrecorded.
Yet they reach further into private lives than any other arm
of government. Though lowest in the hierarchy, they are "the
most powerful branch of the judiciary," according to
Judge Robert Page of the New Jersey family court. "The
power of family court judges is almost unlimited," Page
Secret courts have long been recognized as an invitation to
chicanery. "Where there is no publicity, there is no
justice," wrote British philosopher and jurist Jeremy
Bentham. "It keeps the judge himself while trying under
trial." Judges claim the secrecy protects family privacy,
though in fact it seems to provide a cloak to violate family
privacy and other protections with impunity.
Family court judges are appointed and promoted by commissions
dominated by bar associations. That means they are answerable
to those with an interest in maximizing the volume of divorce
litigation. Though family courts complain of being "overburdened,"
it is clearly in their interest to be overburdened, since
judicial powers and salaries are determined by demand. The
aim of the courts, therefore, is to increase their workload
by attracting customers, and the divorce industry has erected
a series of financial and emotional incentives that encourage
people to divorce. "With improved services, more persons
will come before the court seeking their availability,"
Page explains. "As the court does a better job more persons
will be attracted to it as a method of dispute resolution."
Doing a "better job" really means attracting more
divorcing parents with generous settlements.
A substantial body of federal and state case law recognizes
parenthood as an "essential" constitutional right
"far more precious than property rights" (May v.
Anderson). In Doe v. Irwin, a federal court held that parenthood
"cannot be denied without violating those fundamental
principles of liberty and justice which lie at the base of
all our civil and political institutions." Yet such apparently
unequivocal principles are never applied in divorce cases,
where judges routinely remove children from forcibly divorced
parents without providing any reason.
Once a parent loses custody, he or she no longer has any say
in where the children reside, attend school or day care, or
worship. Worse, the parents who have been stripped of custody
are in many ways treated as outlaws. A personalized criminal
code is legislated around them by the judge, controlling their
association with their children, their movements, and their
finances. Unauthorized contact with their children can be
punished with arrest. Involuntarily divorced parents have
been arrested for running into their children in public places
such as sporting events and church, for making unauthorized
telephone calls, and for sending unauthorized birthday cards.
Parents whose spouses want a divorce are ordered to surrender
personal diaries, correspondence, financial records, and other
documents normally protected by the Fourth Amendment. Their
personal habits, movements, conversations, writings, and purchases
are all subject to inquiry by the court. Their home can be
entered and their visits with their children monitored in
a "supervised visitation center." Anything they
say to their spouses, family, friends, counselors, and others
can be used against them in court. Their children, too, can
be used as informers.
Forcibly divorced parents are also ordered, on pain of incarceration,
to hire cronies of the judge. In what some see as little less
than a shakedown, family courts routinely order forcibly divorced
and legally unimpeachable parents to pay attorneys, psychotherapists,
and other professionals with the threat of jail for not complying.
Family law is now criminalizing constitutionally protected
activities as basic as free speech, freedom of the press,
and even private conversations. In many jurisdictions it is
now a crime to criticize judges, and parents have been arrested
for doing so. Following his congressional testimony critical
of the family courts in 1992, Jim Wagner of the Georgia Council
for Children?s Rights was stripped of custody of his two children,
ordered to pay $6,000 to lawyers he did not hire, and jailed
when he could not pay.
The principal tool for enforcing divorce and keeping ejected
parents away from their children is a restraining order. Orders
separating parents from their children for months, years,
and even life are routinely issued without the presentation
of any evidence of wrongdoing. They are often issued at a
hearing where the parent is not present; they are sometimes
issued with no hearing at all. "The restraining order
law is one of the most unconstitutional acts ever passed,"
says Massachusetts attorney Gregory Hession, who has filed
a federal suit on civil rights grounds. "A court can
issue an order that boots you out of your house, never lets
you see your children again, and takes your money, all without
you even knowing that a hearing took place."
Hession?s description is confirmed by judges themselves. "Your
job is not to become concerned about the constitutional rights
of the man that you?re violating as you grant a restraining
order," New Jersey Judge Richard Russell told his colleagues
at a training seminar in 1994. "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."
Elaine Epstein, former president of the Massachusetts Women?s
Bar Association, wrote in a column in the association?s newsletter
that divorce-connected 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.
"In virtually all cases, no notice, meaningful hearing,
or impartial weighing of evidence is to be had." Yet
a government analysis found that fewer than half of all orders
involved even an allegation of physical violence.
It doesn?t take much to violate such restraining orders. "Stories
of violations for minor infractions are legion," the
Boston Globe reported on May 19, 1998. One father was arrested
"when he put a note in his son?s suitcase telling the
mother the boy had been sick over a weekend visit." Another
was arrested "for sending his son a birthday card."
Parents are arrested for attending their children?s worship
services, music recitals, and sports activities?events any
stranger may attend. National Public Radio broadcast a story
in 1997 about a father arrested in church for attending his
daughter?s first communion. During the segment, an eight-year-old
girl wails and begs to know when her father will be able to
see her or call her. The answer, because of a "lifetime"
restraining order, is never. Even accidental contact in public
places is punished with arrest.
Restraining orders are in fact more likely to cause than to
prevent violence, since laws separating parents from their
children can provoke precisely the violence they are designed
to prevent. "Few lives, if any, have been saved, but
much harm, and possibly loss of lives, has come from the issuance
of restraining orders," retired Dudley district court
justice Milton Raphaelson wrote last year in the Western Massachusetts
Law Tribune. "It is the opinion of many who remain quiet
due to the political climate. Innocent men and their children
are deprived of each other."
Domestic violence has now been federalized in a legislative
agenda whose conscious aim is to promote easy divorce. Donna
Laframboise of Canada?s National Post wrote that federally
funded battered women?s shelters in the United States and
Canada constituted "one-stop divorce shops" whose
purpose was not to shelter women but to secure custody for
divorcing mothers. The Violence Against Women Act, renewed
by Congress in 2000, "offers abundant rewards" for
making false accusations, writes Professor Susan Sarnoff of
Ohio State University, "including the ?rights? to refuse
custody and even visitation to accused fathers, with virtually
no requirements of proof." The law?s definition of domestic
violence is so broad that "it does not even require that
the violence be physical."
Authorities bully some women into taking out restraining orders
by threatening to take away their children. The February 20,
2001, edition of the Massachusetts News described how Heidi
Howard was ordered by the Massachusetts Department of Social
Services to take out a restraining order against her husband
and divorce him, though neither parent was charged with any
wrongdoing. When she refused, the social workers seized her
children. Reporter Nev Moore claims to have seen hundreds
of similar cases. Government officials can now impose divorce
not only on one unwilling parent but on both.
While the domestic violence industry is driven by federal
funding, the main financial fuel of the divorce machinery
is "child support," which subsidizes and encourages
unilateral divorce. Bryce Christensen of the Howard Center
for Family, Religion, and Society argues for a "linkage
between aggressive child-support policies and the erosion
Those accused of failing to pay child support?"deadbeat
dads"?are now the subject of a national demonology. Yet
a federally funded study by Sanford Braver, published as Divorced
Dads: Shattering the Myths, found government "estimates"
of nonpayment are produced not from any official statistics
but entirely from surveys of custodial parents. Braver concluded
that "the single most important factor relating to nonpayment"
Braver is not alone. Columnist Kathleen Parker has concluded
that "the ?deadbeat dad? is an egregious exaggeration,
a caricature of a few desperate men who for various reasons?sometimes
pretty good ones?fail to hand over their paycheck, assuming
they have one." Deborah Simmons of the Washington Times
likewise found "scant evidence that crackdowns...serve
any purpose other than to increase the bank accounts of those
special-interest groups pushing enforcement."
Child support enforcement is now a massive industry, where
revolving doors, financial transfers, and other channels connect
family courts with legislators, interlocking executive agencies
on the federal, state, and local level, with private contractors.
To encourage divorce, child support must be set high enough
to make divorce attractive for mothers, and setting it is
a political process conducted by officials and groups that
thrive on divorce. About half the states use guidelines devised
not by the legislature but by courts and enforcement agencies.
Yet even legislative enactment is no guarantee of impartiality,
since legislators may divert enforcement contracts to their
The ethical conflicts extend to the private sector, where
collection firms also help to decide the levels of what they
are to collect. Not only does an obvious conflict of interest
impel them to make the burdens as high as possible to increase
their take in absolute terms (and to encourage divorce), but
the firms can set the levels high enough to ensure the arrearages
on which their business depends.
While working as a paid consultant with the Department of
Health and Human Services (HHS) during the 1980s, Robert Williams
helped to establish uniform state guidelines in the federal
Child Support Guidelines Project. Predictably, Williams?s
guidelines sharply increased support obligations in many states.
Economist Mark Rogers charges in Family Law Quarterly that
they resulted in "excessive burdens" based on a
"flawed economic foundation." Williams himself acknowledges
that "there is no consensus among economists on the most
valid theoretical model to use in deriving estimates of child-rearing
expenditures." Donald Bieniewicz, author of an alternative
guideline published by HHS, writes, "This is a shocking
vote of ?no confidence? in the...guideline by its author"?a
guideline used to incarcerate parents without trial.
Governments also profit from child support. "Most states
make a profit on their child support program," according
to the House Ways and Means Committee, which notes that "states
are free to spend this profit in any manner the state sees
fit." With substantial sums at stake, officials have
no incentive to discourage divorce, regardless of their party
affiliation. Notwithstanding rhetoric about strengthening
the family, neither Democratic nor Republican lawmakers are
likely to question any policy that fills the public coffers.
The trampling of due process in child support prosecutions
parallels that in domestic violence cases, since a parent
may legally be presumed guilty until proven innocent, and
the parent will not necessarily have a lawyer or a jury of
his or her peers. "The burden of proof may be shifted
to the defendant," according to the National Conference
of State Legislatures (NCSL), which approves these methods.
"Not all child support contempt proceedings classified
as criminal are entitled to a jury trial," adds NCSL,
and "even indigent obligors are not necessarily entitled
to a lawyer."
In the decades since the inception of no-fault divorce, family
law has gradually become an ethical cesspool. Attorneys such
as Hession charge that tapes and transcripts of hearings are
routinely altered in family court. Hession?s forensic evidence
was published last year in the Massachusetts News. When his
client, Zed McLarnon, complained about the tampering and other
irregularities, he was assessed $3,500 for attorneys he had
not hired and jailed without trial by the same judges whose
tapes were allegedly doctored. "This is criminal misconduct,"
attorney Eugene Wrona says of similar practices in Pennsylvania,
"and these people belong in jail." In May 1999,
Insight magazine exposed a "slush fund" for Los
Angeles family court judges into which attorneys and court-appointed
"monitors" paid. These monitors are hired by the
court to watch parents accused of spousal or child abuse while
they are with their children.
The corrupting power of forced divorce now extends beyond
the judiciary, validating the pope?s observation that its
consequences spread "like the plague." In 2000,
four leading Arkansas senators were convicted on federal racketeering
charges connected with divorce. One scheme involved hiring
attorneys to represent children during divorce, a practice
generally regarded as a pretext to appoint cronies of the
judge. In the April 29, 1999, edition of the Arkansas Democrat-Gazette,
John Brummett wrote that "no child was served by that
$3 million scam to set up a program ostensibly providing legal
representatives to children in custody cases, but actually
providing a gravy train to selected legislators and pals who
were rushing around to set up corporations and send big checks
to each other."
The affair illustrates one reason legislators protect judges
and their associates in the courts. Divorce attorneys are
prominent in state legislatures. Tony Perkins, who sponsored
Louisiana?s celebrated "covenant marriage" law,
reports that similar measures have failed in some "seemingly
sympathetic legislatures" because of "opposition
from key committee chairmen who were divorce lawyers."
The potential of child support to become what one Arkansas
player termed a "cash cow," providing officials
with "steady income for little work," has been exploited
elsewhere. The Washington Post reported in July 2000 that
a top adviser to Prince George?s County, Maryland, executive
Wayne Curry received contracts without competitive bidding
for child support enforcement within days of leaving the county
payroll. In March 2002, Maryland announced a criminal investigation
of Maximus, which runs Baltimore?s program. The alleged misconduct
included collecting money from parents even after their children
had reached adulthood and then refusing to refund it. The
whistle-blower expressed fear for her personal safety, according
to the Baltimore Sun.
Throughout the United States and abroad, child support enforcement
has been plagued with corruption. Kansas awarded a contract
to Glenn and Jan Jewett, who were involved in bingo operations
in Las Vegas and spent time in federal prison for drug trafficking,
forgery, concealing stolen property, and writing bad checks.
The DuPage County, Illinois, child support system has been
under investigation for fraud. "A string of foul-ups
plaguing Ohio?s child support system," included "millions
of dollars worth of improperly intercepted income tax refunds
and child support payments," according to the Cleveland
Plain-Dealer and WHIO television in Dayton. In Wisconsin,
"Parents who owe nothing have been billed thousands of
dollars," according to the Milwaukee Journal Sentinel,
including a man billed for children in their 40s, who "was
compelled to prove his innocence."
In October 1998 the Los Angeles Times investigated fraud and
due process violations in the L.A. child support enforcement
system. Deputy District Attorney Jackie Myers had left office
in 1996 because, he said, "I felt we were being told
to do unethical, very unethical things." In December
1999, Insight reported on the case of a father left by the
district attorney?s office with $200 a month to care for a
family of four. One month, the district attorney "took
all but $1 of his $1,200 paycheck."
Following the Times series, HHS was moved to investigate criminal
fraud in the city?s system, but the General Accounting Office
found the investigation "consisted of just two phone
calls"?one to "one of the DA office employees who
had engaged in misconduct." HHS apparently "did
not interview any of more than a dozen people who a confidential
informant claimed had firsthand knowledge of wrongdoing within
the child support program."
The divorce industry depends on the widespread
violation of what most people still hold to be the most solemn
promise one makes in life. It is no coincidence that public
officials whose livelihoods depend on encouraging citizens
to betray their private trust will not hesitate to betray
the trust conferred on them by the public. Likewise, a society
where private citizens are encouraged not to honor their commitments
is a society that will not hold public leaders to their promises.
Maggie Gallagher?s observation that marriage has become "the
only contract where the law now sides with the party who wants
to violate it" raises the question of whether we are
willing to allow our government to be an active party to deceit
and faithless dealing.
Our present divorce system is not only unjust but fundamentally
dishonest. For all the talk of a "divorce culture,"
it is not clear that most people today enter the marriage
contract with the intention of breaking it. "If the marital
vows were changed to ?...until I grow tired of you,? or ?...for
a period of five years unless I decide otherwise,? and the
state were willing to sanction such an agreement, then divorce
would not be such a significant event from a moral point of
view," attorney Steven L. Varnis writes in Society. "But
there is no evidence that the content of marital vows or marital
expectations at the time of marriage has changed." Varnis
may be only half right, but even so, the point is that the
marriage contract has become unenforceable and therefore fraudulent.
Until this changes, it seems pointless and even irresponsible
to encourage young people to place their trust and their lives
One may argue that government should not enforce the marriage
contract, or any contracts for that matter (though the Constitution
holds otherwise). But I am not aware of anyone who suggests
the government should be forcibly abrogating contracts, let
alone luring citizens into contracts that it then tears up.
If we truly believe our present divorce policy is appropriate,
we should at least have the honesty to tell young people up
front that marriage provides them with no protection. Let
us inform them at the time of their marriage that even if
they remain faithful to their vows, they can lose their children,
their home, their savings and future earnings, and their freedom.
Not only will the government afford them no protection; it
will prosecute them as criminals, though without the due process
of law afforded to formally accused criminals. And let us
then see how many young people are willing to start families.
It is one thing to tolerate divorce, as perhaps we must do
in a free society. It is another to use the power of the state
to impose it on unwilling parents and children. When courts
stop dispensing justice, they must start dispensing injustice.
There is no middle ground.
Stephen Baskerville teaches political science at Howard University
and is author of Not Peace But a Sword: The Political Theology
of the English Revolution.