Why Is Daddy in Jail?
--for the crime of wanting to see his child.
by Stephen Baskerville
There is nothing in the no-fault laws that requires a judge to honor a mother's initial request to remove the children from the father's care and protection. A judge could simply decide that, prima facie, neither the father nor the children have committed any infraction that justifies their being forcibly separated, that they have a fundamental human and constitutional right not to be forcibly separated, and that neither the mother nor the court has any grounds to separate them.
Unfortunately, not only is the legal machinery an accomplice; in some ways it is the principal instigator. A mother who consults a divorce attorney will be advised that her best chance of gaining custody is simply to take the children and all their effects and leave without warning. If she has no place to go, she will be told that by accusing the father of sexual or physical abuse, however vaguely (often simply stating that she is "in fear"), she can easily obtain a restraining order immediately forcing him out of the family home. She will also learn that even if her claims are false, there are no legal consequences she will face for making them; her trumped-up accusations cannot even be used against her in a custody decision. In fact, they work so strongly in her favor that failure to advise a female client of these options may constitute legal malpractice.
Far from being punished for child-snatching and false accusations, then, she is almost certain to be rewarded. Mothers who abduct children and keep them from their fathers, with or without abuse charges, are routinely given immediate "temporary" custody. But it is almost never "temporary." Once a mother has custody, it cannot be changed without a lengthy (and, for the lawyers involved, lucrative) court battle. The sooner and the longer she can establish herself as the sole caretaker, the more difficult and costly it is to dislodge her. Further, the more she cuts the children off and alienates them from the father, slings false charges, delays the proceedings, and obstructs his efforts to see his children, the better her chance for obtaining sole custody. She can then claim child support and perhaps her own legal fees from the father.
In the absence of paternal wrongdoing, the Kafkaesque logic of family courts readily supplies a rationale for summarily stripping the father of custody. Usually it is said that the parents "can't agree," so naturally the parent who is trying to exclude the other should get the children and make the decisions, even if the only thing the left-behind parent can't agree to is the taking of his children. Or the father is alleged to be planning to "kidnap" his children backusually with no evidence other than his opposition to the initial abduction by the mother.
As for the father, any restraint he shows throughout all this is certain to cost him dearly, as most 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 in the game. But the vast majority (about 90 percent who cannot pay the five- and six-figure sums required to fight a full-scale custody battle are branded as having "abandoned" their children and simply pushed out of the family.
Some fathers' rights activists are now determined to fight fire with fire, and imitate the techniques of mothers: If you think she is about to snatch, snatch first. Then conceal, obstruct, delay, accuse, and so forth. "If you do not take action," writes Robert Seidenberg, author of The Father's Emergency Guide to Divorce-Custody Battle, "your wife will." Thus we now have the nightmare scenario of a race to the trigger: Whoever snatches first survives.
For the left-behind parent, the loss of his children is only the beginning of his troubles. It may also be the beginning of ours as well, for the legal and political implications of these decisions extend well beyond the family. Other violations of basic civil rights and liberties logically follow when courts successfully assert the power to invade a family and remove children from the care of parents who have done no wrong.
Despite the protection of the First Amendment, family courts may decide what religious worship parents may take their children to: The 1997 ruling by the Massachusetts Supreme Court preventing a fundamental Christian father from taking his children to services against the opposition of the Orthodox Jewish mother was unusual only in that it made the papers. A judge in Virginia sparked a protest, but little news coverage, last year when he enjoined a father from taking his son to synagogue on Passover.
Parents' discussions with their children about matters such as religion and politics may also be controlled by family court judges. Tom's court order preventing him from discussing a vegetarian diet with his children is not unusual. Another father in the group had weekend visits with his children reduced when a judge decided that soccer was a more important Sunday activity than church.
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Copyright © 1999 Stephen Baskerville. All rights reserved.
Stephen Baskerville teaches political science at Howard University.
This article is reprinted from the Winter 1999 issue of The Women's Quarterly, a publication of the Independent Women's Forum (www.iwf.org). For information write email@example.com or call 800-224-6000.
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