magazine, November 2002
The Politics of Family
By Stephen Baskerville
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 dont 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
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 clichés about marriage breakdown, even when it becomes clear that they
dont 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, someoneand it is usually oneconsciously
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
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
ethicsbetween the fidelity of private individuals and the faithfulness of public
servantsor 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 governmentincluding
elected leaders in both partiesnow 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
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
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
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
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
Childrens 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."
Hessions description is
confirmed by judges themselves. "Your job is not to become concerned about the
constitutional rights of the man that youre 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 dont have to worry about the rights."
Elaine Epstein, former president of
the Massachusetts Womens Bar Association, wrote in a column in the
associations 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 doesnt 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 sons 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 childrens worship services,
music recitals, and sports activitiesevents any stranger may attend. National Public
Radio broadcast a story in 1997 about a father arrested in church for attending his
daughters 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 Canadas National Post wrote that federally funded battered
womens 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
laws 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
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
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 reasonssometimes
pretty good onesfail 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
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, Williamss 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. Hessions 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 popes 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 Louisianas 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
Post reported in July 2000 that a top adviser to Prince Georges 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 Baltimores 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 Ohios 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 attorneys 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 citys 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 Gallaghers 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.
[Maggie Gallagher participated in producing the 2008 study
[US] Taxpayer Costs of Divorce and Unwed Childbearing: at least $112 billion a
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
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.
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