Why Is Daddy in Jail?

by Stephen Baskerville

page two

Worse still, these men–and millions more like them–have suddenly found that the assumptions they had made about wife beaters, child molesters, "deadbeat dads," and O.J. Simpson are now being made about them. Many see themselves as having been abandoned not only by their wives but by friends and family members, who assume they "must have done something" to deserve losing their children. What their children "must have done" to deserve losing the care of even an imperfect father is seldom asked.

Fathers who attempt to contact their confiscated children or separated spouses can be arrested for "harassment" or "stalking," an offense that can be defined as "unwelcome conversation." "Stories of violations for minor infractions are legion," the Boston Globe reported in May. "In one case, a father was arrested for violating an order when he put a note in his son's suitcase telling the mother the boy had been sick over a weekend visit. In another, a father was arrested for sending his son a birthday card."

The practice of arresting fathers for attending public events such as their children's musical recitals or sports activities–events any stranger may attend–is one many find difficult to believe, but it is common. Last year National Public Radio broadcast a story on restraining order abuse centering on a father who was 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 on the phone. The answer, because of a "lifetime" restraining order, is "never."

At once the most extensive and well-concealed denial of civil rights in America today, the plight of fathers and children is all-but-ignored by the media and virtually unknown beyond the rapidly increasing circle of its victims. Few people realize how easily and frequently children are now taken from fathers who have committed no actionable offense and for reasons that have nothing to do with the children's wishes, safety, health, or welfare.

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Contrary to common assumption, the prevalence of mother-custody is not a matter of simple sex-bias against fathers in mutually-agreed-to divorces. As American family courts now operate, a mother can have the father summoned to court and, without producing any evidence of wrongdoing, request that he be stripped of custody of his children and effectively ejected from his family, and in almost every case the judge will duly oblige.

Despite formal legal equality between parents, some 85 to 90 percent of custody awards go to mothers. One study in Arlington found that over a recent eighteen-month period, maternal custody was awarded in a hundred percent of decisions. This includes divorces in which the father has given neither grounds nor agreement. Most people probably accept some bias against fathers in custody cases when divorce is mutual. What is happening in family courts, however, is very different. It is one thing to say that young children need their mother; it is quite another to say a mother should have the arbitrary power to keep their father away.

Yet current judicial practice throughout most of the United States allows her to do just that. In fact, a mother can have had a half-dozen previous divorces, she can have deserted the marital home, she can abscond with the children, she can have committed adultery, she can level false charges, she can have assaulted the father, and none of these can be introduced as evidence against her in a custody decision. For a father, the simple fact of his being a father will be used to keep him away from his children six days out of seven, deprive him of any decision-making role, and dissolve his marriage over his objections.

Part of the problem originates in the advent of no-fault divorce in the early 1970s, which is often blamed by conservatives for leaving wives vulnerable to abandonment. Yet it has also left fathers with no protection against the confiscation of their children. No-fault divorce laws did not stop at removing the requirement that there be grounds for a divorce, so as to allow for divorce by mutual consent; they also provided for what writer Maggie Gallagher calls "unilateral" divorce and removed any consideration of grounds from custody decisions.

Though changes in the divorce laws were legislative, it is the practitioners of family law who have benefited both in terms of power and profit, and they have not hesitated to exploit the opportunities to the full. Dickens' observation "the one great principle of the...law is to make business for itself" could hardly be more strikingly (or destructively) validated.