The Divorce Industry

 

A comprehensive analysis by Stephen Baskerville, who spoke at the ManKind 2000 Conference.

Stephen Baskerville,

Howard University
Department of Political Science
Frederick Douglass Hall
Washington, DC  20059
202-806-7267

January 29, 2002



H. Richard McCord
Executive Director
Secretariat for Family, Laity, Women, and Youth
Committee on Marriage and Family
US Conference of Catholic Bishops
Fax: 202 541 3176
Marriage@usccb.org

Dear Mr. McCord,

In light of the Holy Fathers remarkable statement on divorce this week, I
thought the members of your Committee should see my recent article in
Catholic World Report (below), containing a similar message, albeit in
slightly stronger terms.  His Holiness is of course correct that divorce has
become a plague.  In addressing attorneys and judges, he has gone straight
to the heart of the problem.  If anything, his striking call understandably
and diplomatically understated the case.  In any case, clergy of all
denominations, like the public generally, are dangerously ill-informed of
the nature and extent of the problem.

As my article makes clear, the divorce industry is a massive governmental
and quasi-governmental machine that is not simply benefiting from divorce:
It is causing divorce.  Divorce today is most often forced on one spouse and
the children by the other spouse and the state.  The parent that expects to
get the children can not only petition the state to forcibly rip apart the
family; that parent will receive financial and political rewards.

The common view of marriages simply and mutually breaking down is not
accurate.  A divorcing parent can simply take the children and everything
else in the household and expel the other parent from the home with no
reasons given.  This is not a rare occurrence:  It is the major thrust
behind the divorce epidemic.  The facts are presented in the article, and I
document them further in my forthcoming book.

In light of these shocking facts, simple moral exhortation is not adequate.
Catholic clergy  must take the lead in denouncing these crimes perpetrated
by divorce practitioners and government officials against children, the
sanctity of marriage, ethical government, human decency, and the holy name
of God.  If there was ever justification for the clergy to engage in a
political campaign  in the mould perhaps of that being waged over
abortion  the Holy Father has put his finger on it.

I would be grateful if you would pass this letter and my article on to the
members of the Committee.  I would welcome the opportunity to discuss this
issue further with you and them.

Yours sincerely,

Stephen Baskerville, PhD
202-806-7267
703-560-5138


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


[The Catholic World Report, August/September 2001, pp. 54-58.]


What God Has Joined Together . . .

The advent of "no-fault" divorce in the US has given rise to a system that
strips fathers of their rights, accelerates the breakdown of families, and
makes a mockery of the marital contract.


By Stephen Baskerville


The worldwide crisis of the family is now inspiring urgent attempts to
strengthen marriage and promote responsible fatherhood. With a divorce rate
upwards of 50 percent, and with some 40 percent of children now living in
homes without their fathers  and with a growing realization of the
destructive social and personal pathologies this trend engenders  groups
like Marriage Savers and the National Fatherhood Initiative have arisen in
the United States to restore these institutions through public awareness and
education.

While such efforts are laudable, their effectiveness is likely to be limited
until we come to grips with the realities underlying the family crisis. If
we face some bitter truths about why families are breaking up, the study
will take us beyond the safe confines of vague moral exhortation into the
realms of law and politics that many of us would rather avoid.

To begin, we must realize the image many people have -- of marriages simply
and mutually "breaking down" -- is not accurate. As permitted under
"no-fault" divorce laws, some 80 percent of American divorces are
unilateral, according to Frank Furstenberg and Andrew Cherlin, authors of
Divided Families. In other words, most divorces take place over the
objection of one spouse, who is generally committed to keeping the family
together.

Contrary to another persistent myth, when minor children are involved, the
divorcing parent is overwhelmingly likely to be the mother. In Divorced
Dads: Shattering the Myths, Arizona State University psychologist Sanford
Braver has shown that at least two-thirds of American divorces are initiated
by women. Moreover, few of these divorces involve grounds such as desertion,
adultery, or violence. The reasons most often given are "growing apart" or
"not feeling loved or appreciated."

Other studies have reached similar conclusions. The proportion of divorces
initiated by women climbed to more than 70 percent when no-fault divorce was
introduced, according to Margaret Brinig of the University of Iowa and
Douglas Allen of Simon Fraser University. Mothers "are more likely to
instigate separation, despite a deep attachment to their children and the
evidence that many divorces harm children." And the "bottom line" is indeed
the children. After analyzing 21 different variables, Brinig and Allen
concluded that "who gets the children is by far the most important component
in deciding who files for divorce." Author Robert Seidenberg goes further,
reporting that "all the domestic relations lawyers I spoke with concurred
that in disputes involving child custody, women initiate divorce almost all
the time."

Nightmare scenario

It is difficult to overestimate the importance of this finding. A very
different picture of the situation is clearly assumed by political leaders
who call for repeated crackdowns on supposedly dissolute fathers. "I believe
children should not have to suffer twice for the decisions of their parents
to divorce," Senator Mike DeWine stated on the Senate floor in June 1998;
"once when they decide to divorce, and again when one of the parents evades
the financial responsibility to care for them." But most fathers (and some
mothers) have made no such decision. They are expelled by a divorce to which
they have not consented.

Family law today allows mothers to walk away from marriages whenever they
feel like it and take the children with them. Not only is this behavior
permitted; it is encouraged and rewarded with financial incentives. Even
more disturbing, in some cases it appears mothers are actually being
pressured into filing for a divorce they do not necessarily want by
social-service agencies.

The problem runs much deeper than the bias against fathers in custody
decisions. Such bias certainly exists, but it goes well beyond the
supposition that "all else being equal," children should stay with their
mothers. "Washing their hands of judgements about conduct . . . the courts
assume that all children should normally live with their mothers, regardless
of how the women have behaved," observes Sunday Times columnist Melanie
Phillips. "Yet if a mother has gone off to live with another man, does that
not indicate a measure of irresponsibility or instability, not least because
by breaking up the family . . . she is acting against their best interests?"

Mothers who take and keep children from their fathers are routinely given
immediate "temporary" custody. In fact this custody is seldom temporary.
Once a mother has custody, the situation cannot be changed without a lengthy
(and costly  or, for the lawyers, lucrative) court battle. The sooner and
the longer the mother can establish herself as the childrens sole caretaker
the more difficult and costly it is to dislodge her. Further, the more she
cuts the children off from the father, poisons them against him, levels
false charges, delays the proceedings, and obstructs his efforts to see his
children, the more likely she is to retain sole custody.

As for the father, any restraint he shows is likely to cost him dearly, as
most fathers 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. It is significant and revealing that the latest
tactical wisdom suggests to nervous fathers that the game is so rigged that
their best chance may not be to wait for their day in court but to snatch
the children right away, before the litigation begins. Then the fathers
who are now the ones with custody  are advised to conceal, obstruct, delay,
and so forth. "If you do not take action," writes Robert Seidenberg in The
Fathers Emergency Guide to Divorce-Custody Battle, "your wife will." Thus
we seem to have the nightmare scenario, reminiscent of the strategies for
nuclear warfare, complete with the threat of a pre-emptive strike. There is
a race to pull the trigger; whoever strikes first, survives.

The Dickens principle

Far from merely exploiting family breakdown after the fact, then, American
domestic relations law has turned the family into a game of "prisoners
dilemma," in which only the most trusting marriage can survive and the
emergence of marital discord renders the decision not to abscond with the
children perilous and even irrational. Willingly or not, all parents are now
prisoners in this game.

How did all this come about? The advent of "no-fault" divorce, 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, for the new laws did not stop at removing grounds for divorce, so
as to allow divorce by mutual consent (as their sponsors promised that they
would); they also created what Maggie Gallagher, in The Abolition of
Marriage, calls "unilateral" divorce, allowing either spouse to end the
marriage at any time without any agreement or fault by the other.

What is striking about these laws is that they were passed "while no one was
looking," largely at the prompting of lawyers and judges. There had been no
popular clamor to dispense with restrictions on divorce prior to their
passage; no public debate was ever held in the national media. "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 in her book The Sex-Change Society. "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." Attorney Ed Truncellito agrees. In
August 2000 he filed suit with the Texas supreme court against the state
bar. Truncellito contends the legislative history of no-fault divorce law in
Texas makes clear that the law was meant to be applied only in uncontested
cases. He insists that "the state bar knew all along that the no-fault law
was being misapplied, but they covered it up for financial gain."
Truncellito claims that for practical purposes, under Texas law today, "no
one is married" because the laws created "unilateral divorce on demand."
Although feminist groups were involved in the drive for no-fault divorce,
they were not usually the most important proponents; the changes were passed
largely by and for the legal industry.

Dickens observation "the one great principle of the . . . law is to make
business for itself" could hardly be more starkly validated. Nothing in the
law requires a judge to grant the divorcing parents initial request to
strip the other parent of his children. A judge could simply rule that,
prima facie, neither the father nor the children had committed any
infraction that would justify their being forcibly separated, and that
neither the mother nor the court had any grounds on which to separate them.
Yet such rulings are virtually unheard of. One need not be cynical to notice
that judges who made such judgments would be rendering themselves largely
redundant -- and denying earnings to a massive entourage of lawyers, custody
evaluators, psychologists and psychiatrists, guardians ad litem, mediators,
counselors, child-support enforcement agents, social workers, and other
hangers-on of the court  all of whom profit from the custody battle and
also have a strong say in the appointment and promotion of judges.

The power of family courts

For all the concern that has been voiced in recent years about both family
destruction and judicial power it is surprising so little attention has been
focused on family courts. Without doubt they are the arm of the state that
routinely reaches furthest into the private lives of individuals and
families. Though lowest in the ranking of the judicial hierarchy, the family
coruts have the greatest discretionary power. "The family court is the most
powerful branch of the judiciary," according to Robert W. Page, Presiding
Judge of the Family Part of the Superior Court of New Jersey. By their own
assessment, according to Judge Page, "the power of family court judges is
almost unlimited." Others have commented on their vast power rather less
respectfully. Former US Supreme Court Justice Abe Fortas once used the term
"kangaroo court" in reference to the family courts. Contrary to basic
principles of open government, these courts generally operate behind closed
doors, excluding even family members, and most leave no record of their
proceedings.

These courts emerged in the 1960s and 1970s alongside the revolution in
divorce laws. Their existence, and virtually every problem they address
divorce, custody, child abuse, child-support enforcement, even juvenile
crime  revolve around one overriding principle: removing the father from
the family. If fathers remained with their families, family courts would
have little reason to exist, since the problems that they handle seldom
appear in intact families. While mothers also fall afoul of family court
judges, it is fathers against whom their enmity is largely directed, because
fathers are their principal rivals.

The judges contempt for both fathers and constitutional rights was openly
expressed by New Jersey municipal court judge Richard Russell. Speaking to
his colleagues during a training seminar in 1994, he said:

Your job is not to become concerned about the constitutional rights of the
man that youre violating. Throw him out on the street, give him the clothes
on his back and tell him, "See ya around." . . . We dont have to worry
about their rights.

Family court judges are generally appointed and promoted by commissions that
are dominated by bar associations and other professional groups which have
an interest in maximizing the volume of litigation. The politics of court
appointments operate 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 judges 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), only there
what is passed out is control over children.

Like all courts, family courts complain of being overburdened. Yet it is
clearly in their interest to be overburdened, since judicial powers and
salaries 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," suggests Judge Page, adding that
divorce court judges aim, and should aim, to increase their volume of
business. "As the court does a better job more persons will be attracted to
it," he observes. "The better the family court system functions the higher .
. . the volume of the persons served." A court "does a better job" by
attracting more divorcing mothers with more windfall settlements.

Fathers with no rights

Once the father "loses custody," in the jargon of the court, he becomes in
many ways a virtual outlaw and subject to plunder by a variety of officials.
His contact with his own children becomes criminalized in that he can be
arrested if he tries to see them outside of court-approved times and places.
Unlike anyone else, he can be (and fathers are) arrested for running into
his children in a public place such as the zoo, a sporting event, or a
parish church. He can also be arrested for telephoning his children when he
is not authorized to do so or for sending them birthday cards.

Fathers are routinely summoned to court and subjected to questioning about
their private lives and how they raise their children. Whether or not they
have been accused of any wrongdoing, they are subject to questioning that
attorney Jed Abraham has characterized as an "interrogation." Their personal
papers, bank accounts, and homes must be opened and surrendered on request
to government officials, who are not required to produce warrants. Their
children are taught to suspect them with the backing of government officials
and given directions to inform on them.

Anything a father has said to his spouse or children can be used against him
in court. His personal habits, movements, conversations, purchases, and even
his relationship with his own children are all subject to inquiry and
control by the court. A Virginia father had his visitation time reduced when
a judge decided that soccer was a more important Sunday-morning activity
than attending church services. Another father in Tennessee may face a jail
term for giving his son an unauthorized haircut. Jed Abraham describes how
fathers against whom no evidence of wrongdoing is presented are ordered to
submit to "plethysmographs," in which an electronic sheath is placed over
the penis while the father is forced to watch pornographic films involving
children.

Despite the constitutional prohibition 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 father forcibly
separated from his son for three years now faces jail in Virginia if he
cannot pay two years of his salary to a lawyer he never hired, for a divorce
he never requested. The judge has summoned a legally unimpeachable citizen
and ordered him to write a check or go to jail. And the weapon he is using
is a child.

Litigants have long claimed that family courts tamper with transcripts and
other evidence, but were unable to document their claims until Zed McLarnon,
a forensic audio-visual expert, showed photographic evidence that hearing
records in his case were being doctored. For his complaint, later aired in
the Massachusetts News, McLarnon was assessed $20,000 in fees for attorneys
he had not hired, and jailed without trial by the same judges who were
responsible for the doctored tapes. The court is currently moving to seize
his house and car. His attorney claims 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."

The child-support conundrum

The criminalization of fathers is further consolidated through child-support
burdens, which constitute the principal financial fuel of the divorce
machinery, underwriting divorce and giving both mothers and the state
further incentive to remove children from their fathers.

We often hear the imprecations of politicians and enforcement officials
against fathers who fail to pay child support. What we do not hear is that
child-support obligations are determined not by the needs of children but by
the politics of interest groups involved in collection. Guidelines are
generally set by the same agencies and courts who enforce and adjudicate
them. Such de facto legislation by courts and enforcement agents raises
serious questions about the separation of powers and the constitutionality
of the process. Where government officials develop an interest in hunting
"delinquents," it is predictable that they will find delinquents to hunt.
The more onerous the child support levels, and the more defaults and
arrearages that accumulate, the more demand there will be for coercive
enforcement and for the personnel and powers required.

A presumption of guilt pervades courts and prosecutions, where "the burden
of proof may be shifted to the defendant" according to a legal analysis by
the National Council of State Legislatures. In clear violation of the US
Constitution, courts have held 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 citizens who  when they are fortunate enough to be
formally charged and tried at all before being incarcerated  must prove
their innocence without the help of an attorney and without the opportunity
to present their case before a jury of their peers.

Federal policies (which provide incentive payments attached to each dollar
of child support collected by state governments) give another reasons for
the states channel all child-support payments questions through the
machinery of the criminal justice system, so that they will show up on the
relevant federal ledgers. This policy aggravates the criminalization of
fathers, and encourages agencies to squeeze every dollar out of every
available parent. The result is systematic bullying by courts and
enforcement agents: a pattern of activity that is now too common to ignore.

In Milwaukee a father is hauled into court and threatened with jail when a
40-cent arrearage is compounded by penalties and late fees until it reaches
to hundreds of dollars. Another fathers is arrested for not paying child
support while he was a hostage for five months in Iraq. In Texas a father is
exonerated of a serious crime after ten years on death row, to be presented
with a bill for child support not paid during his imprisonment. A decorated
hero of the Oklahoma City bombing is driven to suicide by hounding from
child support agencies. In Nebraska and elsewhere men must pay support for
the children who are produced by their former wives adulterous affairs. In
Los Angeles, 350 orders are established each month based on mistaken
paternity claims, but the DA insists the men must pay  even if the children
are not their own. (Also in Los Angeles, two assistant district attorneys
resign because of ethical scruples connected with child support enforcement
policies). In Virginia child support is sought for 45-year-old "children,"
while in Kansas and California teenage boys are ordered to pay child support
to grown women convicted of criminally raping them. In Indiana a father must
pay to be shackled with an electric ankle bracelet and turn over
three-fourths of his salary, ostensibly for a 21-year-old "child," while his
12-year-old goes without medical treatment. The list of such abuses is
virtually endless. Are these merely anecdotes or occasional excesses of the
system? That is possible, but if the abandonment of children by their
fathers such a widespread problem, why are government agencies concentrating
scarce resources on these absurd cases, rather than devoting themselves
assiduously to the most flagrant abuses?

Driven to despair

In March 2000 a Canadian man named Darrin White was denied all contact with
his three children, evicted from his home, and ordered to pay more than
twice his annual income as child and spousal support, plus court costs for a
divorce to which he had never agreed. Shortly after that judgment, White
hanged himself from a tree. No evidence of any wrongdoing had ever been
presented against him.

The fate of Darrin White is increasingly common. "There is nothing unusual
about this judgment," former British Columbia Supreme Court Judge Lloyd
McKenzie told the Vancouver Sun when he was questioned about Whites case.
McKenzie pointed out that the judge in Whites case applied standard
guidelines for spousal and child support -- the same guidelines used in the
US and other western countries.

In fact there are those who would argue that the y phenomenon of fathers who
are driven to suicide by family courts now threatens to become an epidemic.
In Britain the National Association for Child Support Action has published a
"Book of the Dead" chronicling 55 cases where they report that the official
Court Coroner concluded fathers were driven to suicide because of judgments
from divorce courts and/or harassment by child-support agencies. The suicide
rate among divorced fathers has increased dramatically, according to
Augustine Kposowa of the University of California, who reported his findings
in the Journal of Epidemiology and Community Health. Kposowa attributes his
finding directly to family court judgments. Yet reports on his study by
several major media outlets studiously avoided that conclusion of his study,
instead accentuating therapeutic explanations that emphasized the fathers
lack of "support networks." One reporter bluntly told Kposowa that his
finding was not "politically correct."

Family law is now denying rights as basic as freedom of speech, freedom of
the press, and even the right to hold private conversations. An Arizona
father has been ordered not to criticize judges in his conversations with
members of his own family. British and Australian family courts have closed
Internet sites and prosecuted fathers for criticizing judges. In many
American jurisdictions it is a crime to criticize family court judges. On
Fathers Day 1998, a California father who had been 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 courts misconduct to a congressional
committee," said Sonny Burmeister, president of the Georgia Council.

As the logic of involuntary divorce plays itself out, we now find instances
in which divorce is forced on not only one parent but both. Mothers are not
only being enticed into filing for divorce with financial and emotional
incentives; they are being pressured toward divorce by threats against their
children. On February 20, 2001, the Massachusetts News reported that Heidi
Howard was ordered by the states Department of Social Services to divorce
her husband Neil or lose her children, although the Department acknowledged
he had not been violent. When she refused to accept their advice, the social
workers seized her children, including a newborn, and attempted to terminate
the Howards parental rights. Massachusetts News reporter Nev Moore says she
has seen hundreds similar cases. In short, the state can now tear apart
families by imposing divorce on married parents.

What can be done?

The divorce industry has rendered marriage, in effect, a fraudulent
contract. Until marriage is made an enforceable contract, there is little
point in exhorting young people to put their trust in the legal institution.
Young men in particular who are lured into marriage and family today can
lose their children, their homes, their freedom, and even their lives. It is
not surprising that ever fewer men are ready to make the marital commitment.

More than anyone else, the ones who must stand up and demand that marriage
be made an enforceable contract are fathers. This does not necessarily
require "turning back the clock" to fault-based divorce  a move that many
observers now believe is not politically feasible. What it does require is
the recognition that marriage confers legal rights on parents and their
children, including the right not to be separated without compelling legal
grounds. Except in extreme circumstances, that right should prevail over
what government officials deem to be in the childrens "best interest."

The others who must speak out in defense of marriage are the clergy. The
destruction of marriage and families by the state directly concerns the
churches, not simply because all matters of morality and justice concern the
churches, but also because this particular controversy touches upon the
integrity of their pastoral ministry. As long as marital and parental bonds
can simply be legally dissolved by the state at the request of one spouse --
with no grounds, wrongdoing, legal action, or agreement by the other, our
priests and pastors must consider how far they may be, however
inadvertently, deceiving their flock and dishonoring their calling by
encouraging young people to enter into a legal contract that has been
stripped of its practical meaning.

The words "divorce" and "custody" now sound deceptively innocuous. We should
remind ourselves that they involve bringing the law-enforcement and penal
system into the home, for use against family members who have not
necessarily done anything legally wrong. Fathers are not without sin, of
course, and marital difficulties are seldom the fault of one party alone.
But our justice system is supposed to be based on a distinction between
legal wrongdoing (criminal or civil) and human imperfection or sin.
Ironically, that distinction has been obliterated -- not by churches or
ecclesiastical courts, but by secular ones.



Stephen Baskerville is a professor of political science at Howard University
in Washington, DC.