By Stephen Baskerville, Crisis magazine, November 2002.
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 and “education.”
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 clich�s 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 writes.
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 of wedlock.”
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” is unemployment.
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 own firms.
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 in it.
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.