Why Is Daddy in Jail?
--for the crime of wanting to see his child.
by Stephen Baskerville
The Fourth Amendment's protection against "unreasonable searches and seizures" similarly seems to mean little to family court judges. Parents who are accused of no crime and who have given no grounds or agreement for divorce are routinely required to surrender personal diaries, notebooks, correspondence, financial records, and other documentsall ostensibly to determine their fitness as parents, even when it has never been questioned. They are regularly interrogated behind closed doors about intimate family matters that most parents would not normally discuss with strangers. If the strains of losing their children or undergoing this legal nightmare are too great, they are wise to conceal any contact with therapists, family counselors, psychologists and psychiatrists, since these otherwise privileged consultations and records can be subpoenaed and used to separate them from their children. Parents swept into this litigation are terrified to discuss anything with their children or spouses for fear that what they say will be used against them in court. The use of children as informers is common.
As well, a custody trial will likely be held behind closed doors and without any record of what is said, free of scrutiny by press and public. Delays of months and years are common, as the parent with "temporary" custody tries to stall. Since custody cases are not criminal prosecutions, they do not fall under the protections of the Sixth Amendment, but given other abuses they often amount to the same thing, being the first stage in the criminalization and incarceration of fathers.
Indeed, while the same article stipulates a right to counsel in criminal cases, fathers can be jailed without a lawyer. One of the most notorious and common abuses in family courts is the incarceration of fathers for extended periods without charge and without trial. The guarantee of "due process" does not prevent family courts from jailing parents on civil contempt for weeks, months, or even years without trial.
The notorious Elizabeth Morgan case in which a mother abducted her child and, for refusing to to reveal her whereabouts, spent two years in prison for civil contempt, was publicized only because it involved a mother. Much more common instances of fathers languishing in prison for years seldom receive any publicity. Buried as a filler in the Washington Post last January was an Associated Press report that Odell Sheppard, a father in Chicago who also would not or could not reveal the whereabouts of his 2-year-old daughter, was released after serving ten years for civil contempt. Despite what "may have been the longest jail term for civil contempt ever in the United States," the case seems to have prompted no comment in either the local or national press or among civil libertarians.
Courts routinely order fathers whose children have been taken from them involuntarily and with no grounds to support those children financially. They can and do summon fathers to court so frequently that they lose their jobs and then incarcerate them for failure to pay child support. Courts these days will even order men to support children who are acknowledged not the be theirs. In 1994 Maryland court of appeals refused to rescind a child support order against a man who, according to DNA tests, could not possibly have been the father of the child he was ordered to support. This was despite the fact that the mother and the true father joined the falsely-accused man in requesting the order be changed. An October series in the Los Angeles Times reported that in Los Angeles alone there are 350 new cases each month of men required to support children who are established by DNA testing not to be theirs. Yet the Los Angeles County District Attorney has insisted that he had no intention of seeking to overturn support orders based on false identifications.
The Eighth Amendment's prohibition of "cruel and unusual punishment" does not stop family courts from summarily depriving fathers of professional licenses, drivers' licenses, and passports that bear no connection with their alleged offence. Fathers who are alleged (but again not formally charged and never proven) to be delinquent in child support payments have had their cars booted and confiscated and their names published in the newspapers.
Fathers are also ordered by courts into employment, the wages from which are then confiscated. Last February the California Supreme Court overturned 100 years of precedent when it ruled in the case of Moss v. Superior Court that this is not contrary to the Thirteenth Amendment prohibition on involuntary servitude. In the past the Supreme Court has recognized that "Congress has put it beyond debate that no indebtedness warrants a suspension of the right to be free from compulsory service. This congressional policy means that no state can make the quitting of work any component of a crime, or make criminal sanctions available for holding unwilling persons to labor." Yet states now routinely do precisely this.
In April 1998, a custodial father in Illinois who stayed at home to care for his three children and who received no child support from the mother was arrested under "a little known state law that makes it a felony for a man to be deliberately unemployed.'" "Men in Illinois have become the target of a witch hunt," the man's attorney told Reuters. "Men are hounded if they owe child support and Mom is on welfare. Now Mom is the deadbeat parent, and the man is hounded because he is on welfare."
As for the children, courts that piously proclaim their commitment to "the best interest of the child" seldom hesitate to employ heavy-handed methods against them as well. To take only a recent, documented example, in April the Los Angeles Times reported that "three children, whose only crime was their reluctance to testify against their father, were jailed for 12 days in Los Angeles County's overcrowded Central Juvenile Hall and brought to court in handcuffs and leg chains."
For their part, a few fathers' groups have countered by filing federal class action suits claiming abrogation of civil rights "under color of law," including denial of due process and equal protection. Violations of the First, Fourth, Fifth, Sixth, Eighth, and Ninth Amendments are also alleged, and some go so far as to invoke anti-racketeering statutes. There is a substantial body of federal case law recognizing parenting as a basic constitutional right and requiring its protection under the Fourteenth Amendment: "The liberty interest and the integrity of the family encompass an interest in retaining custody of one's children, and thus a state may not interfere with a parent's custodial right absent due process protections," according to the 1981 decision, Langton v.Maloney. Justice Thurgood Marshall also held for the majority in the 1978 case Quilloin v. Walcott that a divorced father could not be treated differently from a father who is married and still living with his child. Yet such apparently unequivocal constitutional principles are almost never applied by state courts, and the federal courts steadfastly resist becoming involved.
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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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