DIVORCE LAW: by Stephen BaskervilleNews Weekly
The continuing war on marriage and fatherhood
, October 2, 2010
Some four decades ago, while few were paying attention, the Western world embarked on the boldest social experiment in its history. With no public discussion of the possible consequences, laws were enacted in virtually every jurisdiction that effectively ended marriage as a legal contract.
Today it is not possible to form a binding agreement to create a family. The government can now, at the request of one spouse, simply dissolve a marriage over the objection of the other. Maggie Gallagher aptly titled her 1996 book The Abolition of Marriage
The full implications of the "no-fault" revolution have never been publicly debated. "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 Melanie Phillips in The Sex-Change Society
Today's disputes over marriage in fact have their origin in this one. Demands to redefine marriage to include homosexual couples are inconceivable apart from the redefinition of marriage already effected by heterosexuals through divorce.
Though gays cite the very desire to marry as evidence that their lifestyle is not inherently promiscuous, activist Andrew Sullivan acknowledges that that desire has arisen only because of the promiscuity permitted in modern marriage.
"The world of no-strings heterosexual hook-ups and 50 per cent divorce rates preceded gay marriage," he points out. "All homosexuals are saying ... is that, under the current definition,
there's no reason to exclude us. If you want to return straight marriage to the 1950s, go ahead. But until you do,
the exclusion of gays is ... a denial of basic civil equality" (emphasis added). Gays do not want traditional monogamous marriage, only the version debased by divorce.
Contrary to common assumptions, divorce today seldom involves two people mutually deciding to part ways. According to Frank Furstenberg and Andrew Cherlin in Divided Families,
80 per cent of divorces are unilateral, that is, over the objection of one spouse. Patricia Morgan of London's Civitas think tank reports that in over half of divorces, there was no recollection of major conflict before the separation.
Under "no-fault", or what some call "unilateral", divorce - a legal regime that expunged all considerations of justice from the procedure - divorce becomes a sudden power grab by one spouse, assisted by an army of judicial hangers-on who reward belligerence and profit from the ensuing litigation: judges, lawyers, psychotherapists, counsellors, mediators, custody evaluators, social workers and more.
If marriage is not wholly a private affair, as today's marriage advocates insist, involuntary divorce by its nature requires constant government supervision over family life. Far more than marriage, divorce mobilises and expands government power.
Marriage creates a private household, which may or may not necessitate signing some legal documents. Divorce dissolves a private household, usually against the wishes of one spouse. It inevitably involves state functionaries - including police and jails - to enforce the divorce and the post-marriage order.
Few stopped to consider the implications of laws that shifted the break-up of private households from a voluntary to an involuntary process. Unilateral divorce inescapably involves government agents forcibly removing legally innocent people from their homes, seizing their property and separating them from their children. It inherently abrogates not only the inviolability of marriage but the very concept of private life.
By far the most serious consequences involve children, who have become the principal weapons of the divorce machinery. Invariably the first action of a divorce court, once a divorce is filed, is to separate the children from one of their parents, usually the father. Until this happens, no one in the machinery acquires any power or earnings. The first principle and first action of divorce court is therefore: Remove the father.
This happens even if the father is innocent of any legal wrongdoing and is simply sitting in his own home minding his own business. The state seizes control of his children with no burden of proof to justify why. The burden of proof (and the financial burden) falls on the father to demonstrate why they should be returned.
Though obfuscated with legal jargon (losing "custody"), what this means is that a legally unimpeachable parent can suddenly be arrested for seeing his own children without government authorisation. Following from this, he can be arrested for failure or inability to conform to a variety of additional judicial directives that apply to no one but him. He can be arrested for domestic violence or child abuse, even if no evidence is presented that he has committed any. He can be arrested for not paying child support, even if the amount exceeds his means (and which may amount to most of his salary).Divorce machinery
The growth of the divorce machinery during the 1970s and 1980s did not follow but preceded
(in other words, it generated) a series of hysterias against parents - especially fathers - so hideous and inflammatory that no one, left or right, dared question them or defend those accused: child abuse and molestation, wife-beating and non-payment of "child support". Each of these hysterias has been propagated largely by feminists, bar associations and social work bureaucracies, whose federal funding is generously shared with state and local law-enforcement officials.
The parent on the receiving end of such accusations - even in the absence of any formal charge, evidence, or conviction - not only loses his children summarily and often permanently; he also finds himself abandoned by friends and family members, parishioners and pastors, co-workers and employers (and he may well lose his job) - all terrified to be associated with an accused "paedophile", "batterer" or "deadbeat dad".
In fact, each of these figures is largely a hoax, a creation of feminist ideology disseminated at taxpayers' expense and unchallenged by journalists, academics, civil libertarians and family advocates who are either unaware of the reality or cowed into silence. Indeed, so diabolical are these hysterias that some family advocates simply accept them as additional evidence of the family crisis.Domestic violence
What is ironic about these witch-hunts is the fact that it is easily demonstrable that the child abuse epidemic - which is very real - is almost entirely the creation of feminism and the welfare bureaucracies themselves. It is well established by scholars that an intact family is the safest place for women and children and that very little abuse takes place in married families. Child abuse overwhelmingly occurs in single-parent homes, homes from which the father has been removed. Domestic violence, too, is far more likely during or after the break-up of a marriage than among married couples.
Yet patently false accusations of both child abuse and domestic violence are rampant in divorce courts, almost always for purposes of breaking up families, securing child custody, and eliminating fathers. "With child abuse and spouse abuse you don't have to prove anything," the leader of a legal seminar tells divorcing mothers, according to the Chicago Tribune
. "You just have to accuse."
Trumped-up accusations are thus used to create precisely the single-parent homes in which actual abuse is most likely to occur. According to the U.S. Department of Health and Human Services (HHS), "Children of single parents had a 77% greater risk of being harmed by physical abuse, an 87% greater risk of being harmed by physical neglect, and an 80% greater risk of suffering serious injury or harm from abuse or neglect than children living with both parents." Britain's Family Education Trust reports that children are up to 33 times more likely to be abused in a single-parent home than in an intact family.
The principal impediment to child abuse is thus precisely the figure whom the welfare and divorce bureaucracies are intent on removing: the father. "The presence of the father ... placed the child at lesser risk for child sexual abuse," concludes a 2000 study published in Adolescent and Family Health
. "The protective effect from the father's presence in most households was sufficiently strong to offset the risk incurred by the few paternal perpetrators."
In fact, the risk of "paternal perpetrators" is minuscule, since a tiny proportion of sexual abuse (which is far less common than physical abuse) is committed by natural fathers, though government statistics lump them in with boyfriends and stepfathers to make it appear that incest is widespread.
It is difficult to believe that judges are not aware that the most dangerous environment for children is precisely the single-parent homes they themselves create when they remove fathers in custody proceedings. Yet they have no hesitation in removing them, secure in the knowledge that they will never be held accountable for any harm that may come to the children.
A commonplace of political science is that bureaucracies relentlessly expand, often by creating the very problem they exist to address. Appalling as it sounds, the conclusion is inescapable that we have created a massive army of officials with a vested interest in child abuse.
Few have questioned the politics whereby prospective homosexual parents obtain the children they wish to parent. Granting same-sex couples the right to raise children means, by definition, giving at least one of the partners the right to raise someone else's children, and the question arises whether the original parent or parents ever agreed to part with them or did something to warrant losing them.
The government-generated child abuse epidemic and the mushrooming foster-care business that it feeds have allowed government agencies to operate what amounts to trafficking in children. A San Diego grand jury reports "a widely held perception within the community and even within some areas of the Department [of Social Services] that the Department is in the 'baby-brokering' business".
Introducing same-sex "marriage" and adoption into this political dynamic could dramatically increase the demand for children to adopt, thus intensifying pressure on social service agencies and biological parents to supply such children. While sperm donors and surrogate mothers supply some children for homosexual parents, most have been taken from their natural parents because of divorce, unwed parenting, child abuse accusations or connected reasons.
Massachusetts Senator Therese Murray, claiming that 40 per cent of the state's adoptions have gone to gay and lesbian couples, rationalises the practice by invoking "children who have been neglected, abandoned, abused by their own families". But it is far from evident that these children are in fact victims of their own parents. What seems inescapable is that homosexual parenting has arisen as the direct and perhaps inevitable consequence of government officials getting into the business - which began largely with divorce - of distributing other people's children.Role of churches
While many factors have contributed to this truly diabolical, bureaucratic onslaught against the family, we might begin by looking within. The churches' failure or refusal to intervene in the marriages they consecrated and to exert moral pressure on misbehaving spouses (perhaps out of fear of appearing "judgmental") left a vacuum that has been filled by the state. Clergy, parishioners, and extended families have been replaced by lawyers, judges, forensic psychotherapists, social workers, and plainclothes police.Stephen Baskerville, PhD, is associate professor of government at Patrick Henry College and past president of the American Coalition for Fathers and Children (ACFC). He is a fellow at the Howard Center for Family, Religion and Society. He is author of Taken into Custody: The War Against Fathers, Marriage, and the Family (Nashville, Tennessee: Cumberland House, 2007), which is available from News Weekly books. His above piece is from an article in Touchstone: A Journal of Mere Christianity (Fellowship of St James, Chicago), Vol. 22, No. 1, January/February 2009.