AN OPEN LETTER TO JUDGE ————
EXPLAINING WHY I CANNOT OBEY YOUR ORDER
submitted by: Stephen Baskerville
Dear Judge ——-,
Two years ago I appeared in your court. I was summoned there with only a
few hours notice and appeared without a lawyer. Though no charges were
pronounced against me, you legally removed my child from my care and
protection, eliminated my right to make any decisions about her, and ordered
me to stay away from her most of the time.
From what I have been able to gather about such proceedings, this outcome
was nothing out of the ordinary. In fact it quickly became apparent to me
that this outcome came very close to being decided in advance. What
precisely was said during this brief hearing seems to have made very little
difference. As it began, a gentleman who did not know me proceeded to
assassinate my character as confidently as if he had personally witnessed
each item in his litany of my imperfections. While again, there were no
specific charges and nothing legally actionable, it was clear that his role
was to translate somewhat vague private grievances against me into a formula
that would appear to justify taking away my child.
What struck me at the time was how quickly and effortlessly a child was
removed from the care and protection of her father and her life carved up as
if it were the bookings of a holiday cottage. Such and such days she would
spend with her father, the rest with her mother. You asked very few
questions and sought very little information. The hearing was very brief,
and suddenly, I was told, it was over. During the hearing I was allowed to
speak very little and interrupted every time I tried. There seemed to be no
burden of proof on those who sought to separate me from my child.
I realize that, given the number of similar cases that come before you, you
issue these rulings as a matter of routine. I would not be surprised if you
have no recollection of this particular case. Nevertheless, for me it was
an eye-opening experience and probably the most important thirty minutes or
so of my life.
You did not strike me as an unusually malicious or callous person. I am
told you are considered among the more favorable judges for fathers, and
that the time you assigned permitting me to be with my children is
relatively generous.
All this may be true. Yet it has also become apparent to me that what I
witnessed in your courtroom was a tiny part of a vast system of largely
impersonal and unaccountable power that was previously unknown to me, as it
still is to most citizens. I am fully aware that you did not create this
system and that you yourself may have very little control over it.
Nevertheless you are a principal and active participant. So vast and so
routine has this power become that you are able, with no background
information and in a hearing lasting only a few minutes, to permanently
separate a child from her father without any indication that you were aware
of the gravity of what you were doing.
While this central act was disturbing enough, what was again striking were
the questions that were not asked, the subjects that were not brought up,
the consequences that were not anticipated. You knew that I was accused of
no wrongdoing and had agreed to no separation or divorce. You were also
aware that I had never lived in this country with my family and that I had
neither a residence nor a livelihood here. Yet a number of important
matters were never discussed. Did I have a place to live? Did I have a way
to get to where my daughter was? Could I work here? Did I have access to a
car? Did the hours you permitted me to be with her bear any relation to
when I might be able to find or keep employment? What costs would be
involved for me or other parties?
You may recall that when my mother attempted to sit in on the hearing she
was refused and escorted out. Yet the results of this hearing have
profoundly and adversely affected her life. She was forced to take in and
support a grown son who was now unemployed. She was forced to cancel the
sale of her house so that I would have a place to stay. Her car has been
commandeered so that I can see my children and get to work. Did these
hardships for her enter into your ruling? They certainly were not brought
up in the hearing. It did occur to me at the time, but I was cut off each
time I attempted to speak.
What is also noteworthy is that I can recount my recollection of these
proceedings without fear of contradiction or inaccuracy, not only because
you probably do not remember details of the hearing, but also because no
record of it now exists and no impartial witnesses were permitted to be
present. In other words, there is nothing and no one to contradict or
corroborate my recollection. By the same measure, there is no
accountability or recorded reasoning for a ruling that has torn apart the
home and world of an innocent child.
In short, it struck me that for the first time in my life I was personally
witnessing an instance of what Hannah Arendt called the “banality of evil”:
evil that has become so routinized and bureaucratized that otherwise decent
people are able to tell themselves they are doing good when they are doing
evil. It is profoundly ironic that I should have returned from five years
in a post-totalitarian society to be confronted here in the United States
with a new and unexpected version of the kind of bureaucratic dictatorship
that has been perhaps the most notable feature of the politics of this
century.
When we hear about children being forcibly taken from their parents by Nazi
doctors or Communist apparatchiks we are filled with the deepest revulsion.
In accounts of American slavery the division of slave families pierces
deeper into our hearts than even the physical cruelties of that institution.
What family court judges such as yourself do as a daily routine is not on
the same level of evil. But it is not so completely different that we
should classify the one as among the most detestable “crimes against
humanity” and accept the other as desirable treatment for our own children.
You may think this comparison offensive. But a government which
criminalizes ordinary law-abiding citizens for something so basic as
exercising their parental responsibilities is itself on the way to becoming
a criminal regime. Parents such as I who are accused of nothing routinely
have their children removed from their care and protection, are ordered to
stay away from them and to pay money to those who have taken them, and are
incarcerated if they refuse or are unable. These parents receive fewer
constitutional protections for their basic civil rights and liberties than
persons accused of vicious crimes. Yet there is no public outcry, no expose
by muckraking journalists, no petition of outraged intellectuals, no review
by international tribunals, no inquiries by human rights organizations, no
voice of opposition.
Whatever may be said in favor of this practice, there is no justification
for ordering me or any other innocent parent to stay away from our children
in terms of their well-being. This is a practice that exists not for the
welfare of children but for the power and enrichment of adults. It is a
practice I cannot in conscience accept, and I believe no other parent can
either.
The purpose of this letter is to inform you that I no longer consider your
order binding on me and that it is my intention to disobey it. From this
time forth I will consider myself free to be with my children whenever I or
they choose. I will not hesitate to remove them from any institutional care
center at which they are being stored. I will consider myself at liberty to
go to any residence where they are being kept with the expectation that I
will be permitted to be with my children. In short, I will behave as if I
have the same right to do what I choose with my children when and where I
choose as any other parent or as I had they day my eldest daughter was born,
secure in the knowledge that I have done nothing to forfeit that right. All
this will be done in the open view of the world.
At no time will I, as I have never done previously, behave in a disorderly
manner; much less will I use any physical force. Consistent with what has
always been my parental practice, I will quarrel with no one in the presence
of my children. Should I be confronted, as I have been in the past, with
contention, disrespect, or physical coercion, I will do my utmost not to
respond in kind. Should I, as a creature endowed with my share of
imperfections, be provoked to an indiscretion in the presence of my
children, I will invoke the only tried and true remedy available to any
parent in such circumstances, which is to say I will apologize. Witnessing
this will do my children no harm and may possibly set an example they are
not likely to see elsewhere. But I will also make it clear, as I must now
make it clear to you, that I can no longer tolerate forced separation from
my children.
I realize this is not the usual and, from your standpoint, preferred method
of responding to a court order. I know that I am expected to hire a
professional advocate to argue my case in a courtroom. Yet after prolonged
and careful consideration, I have decided that I cannot pursue this course.
In the first place, to be brutally practical, I do not have the means. As a
direct result of your ruling I was forced to resign my position, leave the
only residence my family had ever had, and relocate here in order to be with
my children. There is also something I find basically objectionable about
any parent having to pay money to see his own children when he has been
presented with no grounds for why they were taken in the first place. As
with a conventional kidnapping, if I begin to pay money for this purpose,
where does it end?
More to the point, it is not clear to me what I would argue in a courtroom,
since not only have I have been accused of nothing; I have not accused
anyone else of anything. In the absence of charges against me, I cannot and
will not cooperate with an inquisition into my family life. It is also not
my practice to discuss the shortcomings of members of my family with third
parties, let alone to construct legal cases against them. Forcing me to do
so as a condition of retaining my rights as a parent strikes me as morally
equivalent to staging a cockfight. And again, I fail to see where it would
end. Frankly, it appears to me that this entire process is designed less to
arrive at any determination relevant to the welfare of my children than to
provide business for associations of legal entrepreneurs.
Even more fundamentally, I cannot pursue this course because I cannot accept
that you or anyone else has any grounds to intervene in my family and tell
me when, where, and under what circumstances I may be with my children or to
deny me the right to raise and protect them and make decisions for their
welfare. In other words, it is not so much a particular ruling that I
cannot accept as an unprovoked and unwarranted assumption of jurisdiction
over my family. You may reply that this was solicited by parties that
include members of my family. Yet this does not alter the fact that it was
done without any grounds whatever. It is equally true to say that some 30
years ago the armies of the Warsaw Pact were “invited” to enter the
Socialist Republic of Czechoslovakia, but this does not make it any less of
any invasion.
I am also aware of the arguments against the alternative course of action I
have chosen. No doubt I will be accused of inflicting an unpleasant
experience upon my children by going to see them when I have not been
authorized to do so. I have considered this at some length. It is this
consideration, in part, that prevented me from responding in kind when my
child was originally abducted from her home and before I was summoned to
your court. I am sure that I was assisted in this restraint by the
conviction that this country’s system of justice is fair and that justice
would eventually prevail. (Yet I must regretfully note that this restraint
seems to have counted nothing in my favor in your courtroom.) I would like
to believe that conviction is still justified, though I am now convinced
that this is more likely to be the case by refusing to accept your power to
arbitrarily keep me from my children than by hiring a professional advocate
to quibble over precisely how much you should do so.
I have also come to the conclusion that I cannot submit indefinitely to what
amounts to a kind of blackmail, a blackmail rendered all the more heinous
for holding as hostages two children and forcing their father to stay away
from them for fear of how others will respond to his presence. I trust you
are familiar with the concept of a “heckler’s veto” and with its legal
standing.
It is one thing to refrain from contention in the presence of children,
which I have always done and will continue to do. It is another to
acquiesce indefinitely in a crime committed against them. In fact it is
precisely my concern to avoid further contention that leads me to take a
public and open stand against this patent injustice rather than
participating in a privately litigated battle that I cannot see will be to
anything other than the detriment of my family.
The principal trauma being inflicted on my children is the forced
destruction of their family and separation from one or both of their
parents, a trauma that has been inflicted by your ruling. Given this, I
firmly believe that, far from my harming my children, there are certain
lessons in this that they need to be made aware of and that it is my
responsibility as a father to teach them. While I believe I have valid
reasons as a citizen to disobey the law in this instance, I want to make
clear to you that I also have connected but even more imperative ones as a
parent.
It is my responsibility to teach my children that the proper course of
action when faced with injustice is to resist and oppose it in a peaceful
and dignified way. At some point they must learn that there are higher
principles and a higher law they must always obey, even when it means they
must break the civil law and accept the consequences for doing so. These are
not only lessons that they can learn; they are lessons that they must learn
and lessons that, in other contexts, we go to considerable lengths to teach
them. In Sunday school my eldest daughter has already been exposed to the
quiet courage of the Hebrew women, to the defiant stand of Shadrach,
Mishach, and Abednego, and to the public crucifixion of Jesus of Nazareth.
In school she will soon be reading about the teachings and examples of
Socrates, Henry David Thoreau, Mohandas Gandhi, and Dr Martin Luther King,
Jr. As both a teacher of these ideas myself and a parent, I am acutely
aware that there is no point in teaching our children one set of principles
as being right in the abstract when we teach them the opposite by our own
acts or failure to act precisely at the time when those principles are most
needed to confront an injustice. It is perhaps unfortunate, but
nevertheless unavoidable, that the circumstances of her life are now such
that she must now witness the application of these principles sooner rather
than later.
On the other hand, if I do not act I fear that the lessons my children are
already learning are far more harmful than witnessing their father peaceably
and openly disobey an unjust court order. Virtually every principle of
sound child-rearing is contravened by this immoral practice of forcibly
separating children from their parents. For the sake of clarity and
emphasis I will list the harmful messages I see them absorbing:
? They are learning that we put our own desires before the needs of others,
including those we profess to love such as our own children.
? They are learning that children like themselves are not to be treated as
people with needs and rights of their own, but used as tools and weapons in
the quest for power and profit by adults.
? They are learning that ordinary family differences and disagreements are
to be resolved not with love, understanding, and compromise, but with the
courts and police.
? They are learning that the vows of marriage – and by extension all other
pledges, promises, commitments, and agreements – mean nothing and can be
abrogated when they are no longer to our advantage.
? They are learning that principles and values are something we adhere to
only so long as they are convenient, and that we can invent the rules
according to our momentary pleasure.
? They are learning that contrition and forgiveness mean nothing and that
injuries to others are not to be atoned for and forgiven but nursed as
grievances to be revenged when the opportunity presents itself.
? They are learning that when someone disagrees with us or has other ideas
or beliefs than ours, we need not listen to him, even within our own family,
because now we can use the courts to silence him and have the police keep
him away.
? They are learning the methods of the bully, which in other contexts we
attempt to discourage and protect them from.
? They are learning that anyone in their family can be eliminated when they
fall out of favor – including, perhaps, our children themselves.
? They are learning that the instruments of the state and the justice system
are not public tribunals for redressing public wrongs and establishing
public justice but rather a system of hired force which we can marshal for
private hurts, domestic differences, and personal grievances.
? They are learning that both the family and the state are dictatorships,
ruled by an arbitrary power which can be marshaled against private enemies
for private injuries.
? They are learning that they need not accept or obey the authority of their
father – and by extension any other authority as well, including their
teachers, ministers, mother, and eventually the laws and tribunals of the
public state.
? They will learn that the police are not instruments for maintaining public
order and protecting the weak, but hired mercenaries that we can marshal
against members of our own family when we don’t agree with what they do or
say.
? They will learn that the justice system of this country is not based on
due process of law but instead rounds up and incarcerates citizens who are
accused of no crime and uses the lives of innocent people – including
children – for the aggrandizement of its own power.
? They will learn that a citizen of this country need not be charged with
any offense that is actionable in a court of law in order to be summoned to
one and stripped of his most fundamental constitutional rights.
? They will learn that the Constitution of the United States is a lie, and
the Bill of Rights is a meaningless piece of paper that can be ignored by
those whose responsibility it is to protect it from abuse by others.
I believe it is these lessons that account for the alienation and the
adversarial relationship that so many children – especially the children of
divorce – are now developing toward the justice system, the society in which
they live, and their own families. I know that so long as these messages
are being imparted to my children by those who seek to separate me from them
and by the instruments of the public state such as your court (and by me as
well so long as I acquiesce in your ruling) any attempt by me to impart
contrary messages will be at cross-purposes with forces too massive for me
to compete with and prevail against.
I am aware of a more serious objection to this course of action I am taking.
This is the possibility that you will punish my disobedience by further
reducing access to my children. This has indeed weighed heavily on my mind.
The obvious rejoinder – that such an act of judicial bullying would belie
any pretence that this process is concerned with “the best interest of the
child” – is little comfort to me. As with other objections, this fear
prevents most fathers from responding as I have.
I certainly do value my time with my children, and am very reluctant to do
anything that may jeopardize it. Until now I have tried to work within
these constraints to have as much positive influence on my children as
possible.
Yet I find I cannot remain content with this choice indefinitely, and in the
long run I cannot hold it up to my children as an example worthy for them to
follow. For one thing, I observe from the experience of many forcibly
separated fathers that their allotted “visitation” is only one factor
contributing to the gradual erosion of bonds with their children, and that
it is not possible to be an adequate parent to children from whom one is
kept separated by the police. Unlike some, I am not convinced that
preserving or increasing my legally permitted time with my children, while
still preserving the power to dictate the terms under which I may be a
parent to them, is likely to make this system any less of an injustice or
any less of a detriment to my relationship with my children.
To rest content with this would be to admit that this allotment of time you
have decreed for me is really little more than what amounts to a bribe.
Those who have more experience with the family judiciary than I inform me
that bribery is widespread. I myself have not otherwise observed it first
hand, and it is not my purpose here to make accusations. But in this
instance I can see – and so can the world – that a kind of bribery has been
openly offered and accepted. Vaclav Havel, the Czech former dissident and
now president, has said that a truly corrupt system is one where the bribery
is so systemic that it extends even to the public. They are bribed with
material or other inducements to accept and acquiesce in a system they know
to be corrupt and immoral. I believe something similar is at work here.
Like many other parents, I have been effectively bribed with enough time
with my children to buy my acquiescence in a system that is patently unjust,
immoral, and illegal and one that reduces me to the status of something less
than a true father.
While I value time with my children and know it to be important to their
well-being, I also know that the benefits it bestows cannot continue
indefinitely and under any circumstances. At some point, as my children
come to understand the choice their father has made – that he has made his
peace with a system that has robbed them of their most basic rights and
needs in order to be permitted to “get along” with his life – the net effect
will become more harmful to them than healthy. All the “visitation” and
“custody” and “child support” in the world will not provide them with the
father they need if he bends his back and holds his tongue when he had the
opportunity to stand upright and speak out.
There is, in other words, something here much more fundamental than disputes
over “visitation”, “custody”, “child support”, and the other jargon of your
trade. It concerns the unnatural power to take a child away from a parent
they love and who loves them, to dictate to a parent who has done nothing
wrong when and where he may see his children and what he can say and do with
them, to invade and occupy a family and run it by judicial fiat. This is
the arrogance of power. No parent can accept this and remain a parent.
This is why I am acting.
Yours respectfully,