http://www.spcm.org/Journal/spip.php?article7412

OPINION: What "no-fault" divorce has wrought

The advent of "no-fault" divorce has given rise to a system that strips fathers of their children, accelerates the breakdown of families, and makes a mockery of the marital contract

By Dr Stephen Baskerville

March 14, 2007, Journal Chrètien (FR)—For the moment, while the Federal Marriage Amendment is moved to a back burner, it’s a good time to heighten our awareness of a broader menace. Same-sex marriage is a symptomatic threat to families, compared to the more fundamental effect of "no fault" divorce. “Commentators miss the point when they oppose homosexual marriage on the grounds that it would undermine traditional understandings of marriage," writes Bryce Christensen of Southern Utah University. "It is only because traditional understandings of marriage have already been severely undermined that homosexuals are now laying claim to it." Michael McManus of Marriage Savers writes that "divorce is a far more grievous blow to marriage than today’s challenge by gays."

The Bush administration and Congress have allocated $150 million annually to promote "healthy marriages and responsible fatherhood." The effectiveness of these efforts turns on how well they mesh gears with the underlying realities of the family crisis. In order to face the bitter truths about why families are dissolving at such an alarming rate, we must move from the precincts of moral exhortation, to take an analytical look at the mechanics of the family court system and related legal agendas.

It is a grievous misconception that an increase in marital "break downs" warranted new laws to simplify the divorce process, as if to minimize a futile expense for an unavoidable outcome. Under "no-fault" divorce laws, 80% of divorces are unilateral. In other words, most "no-fault" divorces are unilateral, over the objection of one spouse, who is often committed to keeping the family together. Further, it is more often the spouse who is opposed to the divorce that will be burdened with on-going legal fees and court actions. Evidence suggests that those who influenced the new laws had an ulterior motive which " divorce is a misnomer for the creation of what Maggie Gallagher calls in her book The Abolition of Marriage "unilateral" divorce, allowing either spouse to end the marriage, without any agreement or fault by the other.

What’s more alarming is that these laws were passed while no one was looking ; no clamor to dispense with divorce restrictions preceded their passage ; no public debate was held in the national media. "The divorce laws…were reformed by unrepresentative groups with very particular agendas of their own and which were not in step with public opinion," writes Phillips in her book The Sex-Change Society. "All the evidence suggests that public attitudes were gradually dragged along behind laws that were generally understood at the time to mean something very different than what they subsequently came to represent." Attorney Ed Truncellito agrees. In August 2000, he filed suit with the Texas Supreme Court against the state bar. Truncellito contends the legislative history of no-fault divorce law in Texas makes clear that the law was meant for "uncontested-only" cases. He insists that "the state bar knew all along that the no-fault law was being misapplied, but they covered it up for financial gain." Truncellito claims that, effectively, "no one is married" because the laws created "unilateral divorce on demand." Dickens’ observation "the one great principle of the...law is to make business for itself" couldn’t be more starkly validated. Nothing in the law requires a judge to grant the divorcing parent’s initial request to strip the other parent of his children. A judge could simply rule that, prima facie, neither the father nor the children has committed any infraction that justifies being forcibly separated and that neither the mother nor the court has any grounds to separate them. Yet such rulings are virtually unheard of. One need not be cynical to recognize that judges who refused to grant the request would be denying earnings to an entourage of lawyers, custody evaluators, psychologists and psychiatrists, guardians ad litem, mediators, counselors, child-support enforcement agents, social workers, and others – all of whom profit from the ensuing custody battle and have a strong say in the promotion of judges.

With all the concern shown for family breakdown and judicial power, it is surprising that family advocates and judicial critics have paid so little attention to family courts. Without a doubt they are the arm of the state that reaches farthest into the private lives of individuals and families. Though lowest in the judicial hierarchy, they are the most powerful. "The family court is the most powerful branch of the judiciary," according to Robert Page, Presiding Judge of the Family Part of the Superior Court of New Jersey. According to Judge Page, "the power of family court judges is almost unlimited." Others have commented on their vast power rather less respectfully. Former Supreme Court Justice Abe Fortas once characterized them with the term "kangaroo court." Contrary to basic principles of open government, they generally operate behind closed doors, often excluding even family members and leaving no record of their proceedings.

These bureaucratic courts emerged in the 1960s and 1970s along with the divorce revolution. Their existence and virtually every problem they address – divorce, custody, child abuse, child support enforcement, even juvenile crime – depend upon one overriding principle : The removal of the father as head of the family. When parental authority functions properly, family courts have little reason to exist, since these problems seldom appear among intact families. While both fathers and mothers may fall afoul of family court judges, it is fathers against whom their enmity is largely directed, because fathers are their principal rivals.

The judges’ contempt for both fathers and constitutional rights was openly expressed by New Jersey municipal court judge Richard Russell : "Your job is not to become concerned about the constitutional rights of the man that you’re violating," he told his colleagues at a judges’ 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."

While all courts complain of being "overburdened," judicial powers and salaries, like any other service, are determined by demand. Family court judges are generally appointed and promoted by commissions dominated by bar associations and other professional groups who have an interest in maximizing the volume of litigation. Political scientist Herbert Jacob describes how "the judge occupies a vital position not only because of his role in the judicial process but also because of his control over lucrative patronage positions." Jacob cites probate courts, where positions as estate appraisers "are generally passed out to the judge’s political cronies or to persons who can help his private practice." The principles are similar, only in family courts what is passed out is control over children. Once the parent "loses custody," in the jargon of the court, he can be arrested for trying to see them outside of authorized times and places. He can be arrested for running into his children in a public place such as the zoo, sporting events, or church. Additionally, parents are routinely summoned to court for questioning about their private lives, which attorney Jed Abraham has characterized as an "interrogation." Their personal documents and homes must be surrendered to government officials without warrants. Their children are alienated with the backing of government officials and then are required to inform on them.

Despite the constitutional prohibition on incarceration for debt, a parent can be jailed without trial for failure to pay not only child support but the fees of lawyers and psychotherapists he has not hired. In these cases, the judge is summoning legally unimpeachable citizens and ordering them to write a check or go to jail. And the weapon he is using to do it is children. If this systematic bullying by courts and enforcement agents begins to sound like a reign of terror, that is precisely how many now see it.

Aside from countless absurd and bizarre injustices, the family court system has been cited as a cause for a growing percentage of fathers being driven to suicide. In March 2000, Darin White was denied all contact with his three children, evicted from his home, and ordered to pay more than twice his income as child and spousal support, plus court costs for a divorce he never agreed to. White hanged himself from a tree. No evidence of any wrongdoing was presented against him. White’s fate is increasingly common. "There is nothing unusual about this judgment," the Vancouver Sun quotes former British Columbia Supreme Court Judge Lloyd McKenzie, who pointed out that the judge in White’s case applied the same guidelines used in the US and other western countries. Augustine Kposowa of the University of California Riverside writing in the Journal of Epidemiology and Community Health attributes a dramatic increase in the suicide rate of divorced fathers directly to family court judgments. Family law denies rights as basic as free speech and freedom of the press. In American jurisdictions it is a crime to criticize family court judges. Earlier this year, Kevin Thompson received an order from Massachusetts Judge Mary Manzi prohibiting distribution of his book, Exposing the Corruption in the Massachusetts Family Courts. Following his congressional testimony critical of the family courts, Jim Wagner of the Georgia Council for Children’s Rights was stripped of custody of his two children and jailed. "We believe…the court is attempting to punish Wagner for exposing the court’s misconduct to a congressional committee," said Sonny Burmeister, president of the Council.

The divorce industry has, in affect, rendered marriage a fraudulent contract. While the dissolution of families affects the health of the entire society, parents and especially fathers must demand that marriage be made an enforceable contract. "No fault" divorces granted by family courts also confront church leadership, not only along lines of morality, but as it touches on the validity of their ministry. If marital bonds can be dissolved by government officials with no grounds or agreement between the marriage partners, the sanctity of a wedding ceremony is subject to disregard. Unless marriage is an enforceable contract, there is little point in preaching trust in it. It is not surprising that ever fewer are willing to marry while the marriage contract offers no protection of family, children, homes, or privacy, even to the extent of life-threatening impositions.

It is one thing to tolerate divorce. It is another to allow government to impose it on unwilling spouses. When courts stop dispensing justice, they must start dispensing injustice. There is no middle ground.

Stephen Baskerville, PhD is president of the American Coalition for Fathers and Children.