Marriage Through Divorce and Custody Reform
Baskerville holds a Ph.D. from the London School of Economics and teaches
political science at Howard University in Washington, D.C.
As the battle over
same-sex marriage heats up, we may wish to consider other ways to defend and
strengthen marriage as an institution.
Any comprehensive strategy for restoring marriage must address its
nemesis: divorce. Of all the
threats to marriage and the family today, divorce is clearly the most
direct. Yet it is also the least
understood and most neglected.
Confronting divorce can strengthen the campaign for marriage by
restoring a more constructive and proactive balance to issues where traditional
marriage advocates are made to appear “intolerant.” Michael McManus writes that “divorce is
a far more grievous blow to marriage than today’s challenge by gays.” The present failure of family advocates
to address divorce is becoming conspicuous and threatens to undermine their
moral authority elsewhere. “People
who won’t censure divorce carry no special weight as defenders of marriage,”
writes columnist Froma Harrop.
This failure stems in part from the view that divorce is a private
matter in the lives of individuals, not something of political significance or
connected with public policy. The
divorce epidemic is usually depicted as a cultural spin-off of the 1960’s sexual
revolution, where loosening moral standards led to the breakdown of the family
and unleashed a plethora of social ills connected with fatherless children. Consequently, the remedy is seen as
marriage therapy, and the role of public policy is limited to funding the
therapy. The most prominent
response today, the Bush administration’s $1.5 billion plan to promote marriage
through counseling, ignores divorce and the laws which facilitate it.
In fact, the divorce revolution has always been driven by
politics. Without addressing the
political dynamic, measures to bring divorce under control — and by extension,
efforts to strengthen marriage generally — are likely to have limited
“No-fault” divorce laws were introduced in the United States and
other industrialized countries during the 1970s and are being expanded today
into other regions of the world.
The campaign was based on misleading information from the start. Laws advertised as allowing couples to
divorce without legal grounds by mutual consent actually created involuntary or
unilateral divorce, permitting one spouse to dissolve a marriage for any reason
or no reason without incurring any liability for the consequences. “In all other areas of contract law,
those who break a contract are expected to compensate their partner or
partners,” writes Robert Whelan, “but under a system of ‘no- fault’ divorce,
this essential element of contract law is abrogated. Divorce comes to be regarded as one of
those things that just happens.”
In fact, the legal implications go further, since the courts do
not remain neutral, but invariably side with the violator of the agreement to
punish the faithful spouse.
Attorney Steven Varnis points out that “the law generally supports the spouse
seeking the divorce, even if that spouse was the wrongdoer, by granting divorces
with little regard for a spouse who may not desire it.”
Most people clearly did not realize what had happened. “I never knew what no-fault divorce
really meant,” says a woman quoted by Judy Perejko. “Never, in my wildest dreams, did I
imagine that one person could force another person into a divorce.” Indeed, only now are even well-informed
people fully comprehending the implications. Not until 1996 did Maggie Gallagher
publish a book whose title accurately describes what happened: The Abolition
of Marriage. Yet those who did understand availed
themselves of the opportunity. Not
only do some estimates now predict that two-thirds of marriages will end in
some 80% of the approximately 1.5 million annual divorces are unilateral and
over the objection of one spouse.
Yet even today, it is likely that we still are not seeing the full
picture and that the consequences of abolishing one of the most universal
institutions of human civilization reach far beyond what even most educated
Three decades of unrestrained divorce have created extensive
interests, including many public officials, with a stake in encouraging it. Critics like Parejko point to a
lucrative “divorce industry,” the legal and psychotherapeutic interests who
thrive on divorce. But even more
than an industry, divorce has become a regime—a vast bureaucratic empire
spanning all three branches of federal, state, and local government. Comprising some 35% of civil
litigation, divorce and custody are the cash cow of the judiciary and bring
earnings to a host of executive and legislative officials as well, plus
semi-public hangers-on. Divorce is
now both big business and big government, often with no clear delineation
between the two.
While its ideological origins may lie in the sexual revolution,
the institutional foundations of the divorce apparatus were laid in the welfare
state. Government-enforced divorce
extended the principles of welfare to create single-parent homes among the
affluent as welfare did among the poor.
The major governmental institutions of divorce were all created as part
of welfare: juvenile/family courts, child support enforcement, child protection
the creation of single-parent homes through divorce is closely tied to the
feminist revolution. Barbara Whitehead has described how, throughout the
twentieth century, “divorce became an increasingly important measure of women’s
political freedom, as well as an expression of feminine initiative and
The effect has been to weaken the family through its most
vulnerable point: the father. The
ideologically palatable way to present this in public policy debates was
likewise borrowed from welfare experience and attributed the problem to fathers
abandoning their children.
“Husbands abandon wives and children with no looking back,” writes one
scholar. “Today, the principal
cause of fatherlessness is paternal choice … the rising rate of paternal
No evidence is provided by these scholars that this is true. In the largest federally funded study on
the subject, Sanford Braver has shown that at least two-thirds of divorces are
initiated by women, whether measured by official filings or surveys of
couples. Few of these divorces
involve grounds such as desertion, adultery, or violence; the reasons usually
given are “growing apart” or “not feeling loved or appreciated.”
Another study found similar results, adding that “who gets the children is by
far the most important component in deciding who files for divorce.”
scholarly estimates; others put the proportion much higher. Shere Hite
reports that “ninety-one percent of women who have divorced say they made the
decision to divorce, not their husbands.” David Chambers, a divorce
attorney, insists that “the wife is the moving party in divorce actions seven
times out of eight.”
This single fact changes the political dynamic fundamentally. Clearly more is at work here than
couples deciding to part ways.
Under no-fault laws, divorce became a means not simply of ending a
marriage, but of seizing monopoly control over property and above all children,
who become political instruments conferring leverage backed by penal
sanctions. Further, by extending
the reach of the state over the children and the involuntarily divorced parent,
unilateral divorce has turned children into weapons of not only parental but
governmental power. Family breakup is less a spontaneous social phenomenon than
a conscious and planned power grab.
Contrary to what governments tell us, fathers are not abandoning their
children: The government’s divorce
machinery is separating children from their fathers.
The nexus of government’s
divorce machinery lies in the judiciary: the little-understood political
underworld of family law. Unlike
other tribunals, family law courts usually exclude the public, leave no record
of their proceedings, and keep no statistics on their decisions, so information
There is even a sense in which they are not really courts, but
closer to administrative agencies; one judge describes them as a “social service
delivery system.” Uniquely, their mandate is not even to administer justice as
such, but to determine “the best interest of the child.” Because this requires no wrongdoing by
litigants, family courts would appear to be the only courts that can summon and
order law-abiding citizens who are simply minding their own business.
handle matters such as divorce, custody, child support, child protection,
domestic violence, truancy, and juvenile crime. Their workload therefore
is determined almost entirely by the existence of broken homes. Recalling
Charles Dickens’ observation that “the one great principle of the law is to make
business for itself,” it may not be overly cynical to suggest that family court
personnel have a vested interest in encouraging divorce. While family
courts, like all courts, complain of being “overburdened,” it is clearly in
their interest to be overburdened, since judicial powers and salaries, like any
other, are determined by demand. “Judges and staff work on matters that
are emotionally and physically draining due to the quantity and quality of the
disputes presented,” Judge Robert Page explains. “They should be given
every consideration for salary and the other ‘perks’ or other emoluments of
their high office.” Judge Page suggests his colleagues’ aim should be to
increase their volume of work by ensuring that divorce settlements are
attractive for divorcing parents: “With improved services more persons
will come before the court seeking their availability.... As the court
does a better job, more persons will be attracted to it as a method of dispute
resolution.... The better the family court system functions, the
higher...the volume of the persons served.”
Family court judges are usually appointed and promoted by
commissions dominated by lawyers and other professionals. They are political positions, in other
words, answerable to the bar associations who control their appointments or
finance their election campaigns and who also have an interest in maximizing the
volume of litigation. Judges,
therefore, sit atop a large political machinery in which they wield substantial
powers of patronage.
Among the clients of court patronage, along with attorneys, are
experts who help determine custody and “the best interest of the child.” To understand this, it is necessary to
remember that under no-fault divorce a parent’s role in ending a marriage has no
bearing on custody, even when it is clear who ended it; neither does the other
parent’s willingness to hold the marriage together. A parent who abrogates or violates a
marital contract he or she freely entered incurs no suggestion thereby of being
less fit or deserving of monopoly custody.
Neither is there any recognition of the centuries-old principle that a
non-divorcing, legally unimpeachable parent has a simple right to be left alone
with his or her children. Instead
we witness the peculiar spectacle of a judge taking it upon himself to determine
“the best interest of the child” on whom he is forcibly inflicting a divorce and
whose family he is using the power of his public office to dissolve.
unexceptionable phrase is in fact highly problematic. Not only is it
vague; it provides no explanation for how it is in the interest of children to
separate them from one of their parents six days out of seven, and perhaps
altogether, at the simple request of the other. The best interest standard
“is powerless to pre-empt divorce in the first place, which would be in the
child’s best interest in the majority of cases.”
Yet there is a more telling case against the “best interest.” It transfers from parents to government
officials the power to determine what is best for other people’s children, over
the objections of parents who have done nothing to forfeit the right to decide
for themselves what is best for their children. “Such a criterion is dangerous, because
it renders the claims of all parents to their natural children tenuous,” writes
Robyn Blumner, of the Florida American Civil Liberties Union. “Children could be given over to any set
of new parents who offer a more advantaged upbringing.” With respect to
adoptions, the Illinois Supreme Court has held:
If the best
interests of the child are to be the determining factor, persons seeking babies
to adopt might profitably frequent grocery stores and snatch babies when the
parent is looking the other way. Then, if custody proceedings can be
delayed long enough, they can assert that they have a nicer home, a superior
education, a better job, or whatever, and the best interests of the child are
with the baby snatchers.
“The law, thankfully, is otherwise,” the court concludes. Not in the case of divorce. The court has succinctly described
precisely the custody principles of divorce court.
this practice on the assumption that judges must decide what is best for
children when parents “cannot agree.” But allowing one parent to surrender
both parents’ decision-making rights over the children to government officials
because of “disagreement” — without any infraction by the other (who may
disagree only with the loss of his or her children) — invites collusion between
the divorcing parent and state officials. Judges and civil servants are
not necessarily disinterested parties, as Judge Page has acknowledged. “I
don’t love your children,” he tells an interviewer. “I don’t even know
them. It is a legal fiction that the law’s best interest is your
The best interest standard also provides a lucrative formula for
legal practitioners. “It provides
what might be called hair-trigger litigability,” writes Walter Olson, author of
The Litigation Explosion. “Everything comes to be relevant and
nothing, as the lawyers say, dispositive. Does your ex swear? Smoke?
Gamble?... Roam the beach gathering driftwood?... Perhaps none of
these peccadillos significantly endangers a child, but all can have some effect
and you never know what will tip the balance. So it can’t hurt to bring
them all up.”
The best interest also justifies patronage in appointing expert
consultants armed with an array of quasi-scientific child development
presentation of cases involves greater use of social sciences,” writes Judge
Page, “family courts utilize experts in many fields...to advise on issues
requiring specialized knowledge.”
Principles of justice and constitutional protections are excised from
proceedings in favor of social science theory, sometimes colored by political
ideology. “Family lawyers...
maintain that justice has no place in their courts where their decisions are
driven instead by questions of ‘need,’” writes Melanie Phillips. “Family court judges thus preside with
equanimity over injustice, having turned themselves into a division of the
therapy and social work industries.”
These experts too may not be wholly objective, since the more children
that are brought before the courts by divorcing parents expecting favorable
verdicts from the experts, the more employment is created for the experts.
Psychotherapists maintain a ubiquitous presence in family court
proceedings. Braver, himself a
psychologist, calls such expert advice “little more than guesswork.” “There is absolutely no credible
evidence that these [methods] are valid predictors of which spouse will make the
best primary parent,” he writes.
“In fact, there is no evidence that there is a scientifically valid way for a custody evaluator
to choose the best primary parent.”
Some argue the “best primary parent” is the parent who remains loyal to
the marriage agreement and the family.
Braver attributes the one-sidedness of evaluators’ recommendations to
“gender bias,” but pecuniary interest may be a sounder explanation. He quotes a custody evaluator to the
effect that “almost all” his business would be lost without custody battles
driven by pursuit of the “best interest.” “What a bonanza those courts are for my
ilk,” writes Harvard child psychiatrist Robert Coles. “We are the ones who get the
patients.” These experts rarely
testify in open court, so they are not subject to cross-examination, and they
may be covered by judicial immunity, so they are not accountable for their
Journalistic investigations have uncovered practices consistent
with Braver’s experience. David
Brown of the Ottawa Citizen has
described “how the psychology field generates business for itself” in family
court by launching investigations of parents who are under no suspicion of
unfitness or wrongdoing. “Assessors
are not required by law to have any specialized training, pass any exams, or
follow any particular rules,” reports Donna Laframboise of Canada’s
National Post. “No one evaluates them independently to
ensure that they are competent and unbiased, or keeps track of how well families
whose lives have been rearranged according to their dictates have fared
afterward.” The New York
Daily News likewise found that “there are no standards... for how much time
the experts should spend with family members, how their meetings should be
conducted, or what tests should be applied.”
While a variety of
pecuniary interests are involved, the main financial fuel of the divorce
machinery is child support. This
too grew out of the welfare apparatus.
Most people view child support as a measure requiring a relatively
small number of men to take responsibility for offspring they have sired and
then abandoned. No-fault divorce
transformed it into a regime whereby “a father is forced to finance the filching
of his own children.”
Coerced child support has thus weakened marriage by making it, almost literally,
a man’s ball-and-chain. “By allowing a faithless wife to keep her children
and a sizable portion of her former spouse’s income,” writes Bryce Christensen,
“current child-support laws have combined with no-fault jurisprudence to convert
wedlock into snare for many guiltless men.”
This system of forcing parents to subsidize divorces they oppose
is itself subsidized by federal taxpayers.
Child support enforcement was originally federalized less to provide for
abandoned children than to recover welfare costs, since no constitutional
provision mandates federal involvement.
Yet shortly after its creation in 1975, the machinery was dramatically
expanded, with no explanation, to all
child support cases, including the vast majority not on welfare.
Today welfare cases, consisting mostly of unmarried parents, account for
just 17% of all child-support cases, and the proportion is shrinking. The remaining 83% are non-welfare cases
consisting largely of involuntarily divorced middle-class fathers with pockets
to mine. These non-welfare cases
currently account for 92% of the monies collected. Promoted to help poor children whose
mostly young and unmarried fathers had allegedly abandoned them, the program
became a means to plunder previously married middle-aged and middle-class
fathers whose children were taken from them through no fault or agreement of
Advertised as a program to reduce government spending, child
support enforcement has incurred a steadily mounting deficit. Taxpayers lost $2.7 billion in
Though it provided little help for impoverished children, this funding created a
financial windfall for middle-class divorcing mothers. A program
advertised as helping the children of broken homes has become an engine for
creating more of them. Christensen describes “the linkage between
aggressive child-support policies and the erosion of wedlock”:
“Politicians who have framed such [child support] policies...have — however
unintentionally — actually reduced the likelihood that a growing number of
children will enjoy the tremendous economic, social, and psychological benefits
which the realization of that ideal [a two-parent family] can bring.”
The social devastation wrought by divorce and the horrors of the
divorce litigation itself have recently produced a crescendo of voices calling
for reform. Yet by ignoring the
politics, most remedies have proven ineffective, and some risk becoming part of
the problem. Most responses have
involved some combination of psychotherapy mixed with law enforcement.
Some jurisdictions now require divorcing couples to adopt
“mediation” as an alternative to litigation. This sounds benign, but it is unlikely
to reduce divorce, since mediation aims less to prevent divorce than to
facilitate it. “Conciliation,
understood as attempted reconciliation of spouses, appears to be less and less a
feature of divorce proceedings,” writes Helen Alvare, who notes that it is
“being replaced today by the use of mediation not to save a marriage, but to
make the terms of its dissolution more amicable.” Mediator Judy Parejko is harsher. “Mediation was pitched to the public as
a service that would reduce the costs of litigation,” she writes. “But such well-intentioned messages
served to cover up that no-fault was inherently forced divorce.”
Indeed, given that “the ranks of mediators are filled with lawyers,
mental health professionals, and social workers,” mediation can be imposed on
parents who never agreed to divorce in order to satisfy patronage clients of the
judge. Parejko reports that her
court-affiliated mediation was terminated by a judge, and she was locked out of
her office for trying to repair marriages.
She writes of her colleagues:
“They were in the business of mediation, charging a hefty fee for their
settlement work, and without a steady flow of customers, their business would
dry up.” Some suggest that
mediation further undermines due process of law, since it “takes place without
rules of evidence, without recording, and without any judicial oversight,” often
to the disadvantage of the non-divorcing parent. “Parties may be required to attend
mediation before going to court.” The
emphasized words do not likely mean the court will deny a divorce to the
belligerent, divorcing parent until that parent mediates; more likely, they mean
the court will hold the children of the resisting, non-divorcing parent until
that parent capitulates.
jurisdictions now require waiting periods and parent education for divorcing
couples, ostensibly to impress upon them the harm done to the children. A
Colorado proposal that parents with minor children wait one year is opposed by
the Colorado Bar Association, the Colorado Domestic Violence Coalition, and the
Colorado chapter of the Academy of Matrimonial Lawyers.
Parent “education” classes are sweeping the nation, which some
view as evidence of serious determination by governments to control
divorce. From 1994 to 1998, “the
number of US counties with this kind of curriculum tripled from 541 to
Yet on close inspection, the message of this curriculum is usually
not that divorce is harmful, but that failing to cooperate with divorce is
harmful. “This basically says: Divorce isn’t the death of a family,”
according to attorney Andrew Shepard.
“It’s the reorganization of a family.” The effect can therefore be to shift
blame onto the parent who opposes the reorganization. “The fact that one parent didn’t want
the divorce—or that one of them had broken the promises they’d made when they
were married—these were issues I was supposed to ignore,” writes Parejko. Conducted by divorce practitioners,
these programs add recipients to the patronage and further transfer control of
children to government officials.
The Canadian Bar Association (CBA) “urges the federal government to
require parents to take mandatory parental education before they are permitted
to pursue court proceedings involving their children.” As
with mediation, it appears that the government is requiring the classes before
it will permit the divorce; a closer look at the careful wording reveals
precisely the opposite. Officials
can still seize children at the initiation of divorce proceedings, and parents
who want them returned must first submit to “education” by government
instructors. “We want to pull away
from the idea that parents have rights in relation to their children,” says
Jennifer Cooper, chairwoman of the CBA’s family law section, which represents
2,200 divorce lawyers.
A similar measure in Virginia is likewise described awkwardly in
the Washington Post, which reports that
parent re-education is “mandatory for anyone, married or not, who goes
to court over custody, visitation, or child support.” Again, the fine
print reveals how the measure, far from checking divorce, can be used to
intimidate parents who resist it. “Even lawyers are rooting for the
The principle that citizens can be coercively “educated” into
accepting government action they regard as morally wrong (while the government
holds their children) has an Orwellian quality. Parejko reports that such education
“stayed away from presenting any of the dismal facts about how divorce increased
certain risks for children.... No
one ever addressed the simple fact that—in most cases—having both parents stay
living together was what most every child would want.”
No one pretends that parents who disagree with divorce in principle and refuse
to attend such classes or object to the curriculum are thereby denied a divorce
and left in peace with their children while the divorcing parent departs alone.
Instead, resisting parents become open to charges of being “uncooperative,”
“angry,” or “in denial,” whereupon they may be ordered into more education, such
as anger management classes, until they acquiesce. They will also likely be
refused access to their children until their education is complete.
“Divorce is a great destroyer that is eating the heart out of society as well as
savaging children’s lives,” writes Patricia Morgan. “Its depredations will
not be reversed given ever so many mediators or conciliators.”
Another avenue for reform
is investigations of the courts, which bring government practices into public
view. Yet no official inquiries
appear to have been conducted in the United States, and the few held in other
countries, dominated largely by legal practitioners, have asked limited
questions. Some proffered solutions
may serve to increase divorce.
Investigations do highlight the incontestable fact that family
courts generate by far the highest volume of complaints against the
judiciary. Yet most investigations
have ascribed shortcomings to operations that are “inefficient.” Formulated thus, such a finding can be
interpreted to mean that the courts are “overburdened” or “understaffed” and
that the solution may be found in increased funding. An investigation by the Australian Law
Reform Commission found that “procedures are so riddled with inefficiencies, and
its cases so poorly handled, that people are being denied justice.” Though harsh, the wording is consistent
with divorce practitioners’ own view that justice will come with more funding,
more courts, and higher salaries.
The Commission’s report recommends, “more judges are needed in the Family
In Britain, a report to the Lord Chancellor written largely by divorce
professionals details how children are separated from innocent parents on an
enormous scale and for extended periods as a result of divorce court
proceedings. It then recommends a large increase in the budget and powers
of the divorce court apparatus. The head of the social workers’ union
describes that apparatus as “a complete shambles,” but likewise proposes to
increase the size of the shambles with “more resources.”
The question not being asked here is why it should be assumed that
more funding, more judges, and more courts will produce any result other than
more divorces and more fatherless children.
These dynamics help
illuminate the failure of therapeutic measures adopted to address the family
crisis by both Democratic and Republican administrations over the last
The first major policy response was the fatherhood programs of the
Clinton administration. President
Bill Clinton ordered a “Presidential Fatherhood Initiative” called
“Strengthening the Role of Fathers in Families,” and Vice President Al Gore
chaired a Federal Staff Conference on Fatherhood, which issued a report entitled
Nurturing Fatherhood. Though marked by extensive use of
therapeutic language about enhancing “relationships” and “encouraging good
fathering,” in practice these programs were devoted almost entirely to expanding
federal child support enforcement.
A campaign launched by
the Department of Health and Human Services (HHS) in 1999, “challenging fathers
to remain connected to their children even if they do not live with them,” made
clear that the relationships HHS most hoped to enhance were between fathers and
funded...include Fatherhood Development Workshops on effective practices for
working with young unemployed and underemployed fathers; the development of a
manual for workers to use in helping low-income fathers learn to interact more
effectively with the child support enforcement system; and a peer learning
college for child support enforcement experts to identify systemic barriers
these young fathers face in becoming responsible fathers.
Under the Bush
administration, fatherhood programs were relabeled as marriage promotions.
Yet the substance was a strikingly similar amalgam of therapy and law
enforcement, with emphasis on the latter. In January 2003, HHS announced
$2.2 million in grants to faith-based groups to “promote fatherhood and healthy
marriage.” Yet only 25% of the funds were earmarked for marriage; the rest
deputized private groups to collect child support. In May, HHS announced
more grants “to support healthy marriage and parental relationships with the
goals of improving the well-being of children.” Here again, supporting
relationships seems to mean collecting child support. Michigan’s
enforcement agency received $1 million.
valuable in calling attention to marriage dissolution, these programs do not
address the underlying dynamic driving involuntary divorce. By placing
divorce practitioners on the federal payroll and further expanding child support
programs that subsidize divorce, these measures could arguably exacerbate the
problem. Ironically, the Bush proposals seem to realize former First Lady
Hillary Clinton’s vision that “it takes a village” to raise a child, the village
in this case directed by federal officials. “The policy is designed to
mobilize the entire community — including clerical, political, medical,
business, and judicial leaders — to support children by strengthening marriage,”
says Michigan’s child support agency.
More substantial reforms
gaining support include changes in divorce and custody law. Two proposals under consideration in
many state and national legislatures involve modification of no-fault laws and a
presumption of joint custody following divorce. Both contain promise, though they
also have limitations.
Rolling back no-fault divorce faces political opposition from
those who object that forcing people to remain married violates their civil
liberties. No prominent voice seems
to be advocating control over anyone’s personal associations. (G.K. Chesterton once pointed out that
even a complete prohibition on divorce was never in practice more than a
prohibition on remarriage.) “The
alternative to liberal or ‘no-fault’ divorce is not no divorce,” writes Robert
Whelan, “but divorce which is granted only...after due legal process to
The obvious counter-argument, that failed marriages often entail
imperfections on both sides, does not necessarily justify abandoning all
standards of justice. “There is
fault on both sides in every human relationship,” Fred Hanson acknowledged when
the new laws were being drafted.
“The faults, however, are far from equal. No secular society can be operated on
the theory that all faults are equal.”
Hanson was the dissenting member of the National Conference of
Commissioners of Uniform State Laws, which designed state no-fault laws. “To do justice between parties without
regard to fault is an impossibility,” he warned. “I wonder what’s to become of the maxim
that no man shall profit by his own wrong—or woman either, for that
matter.” Today we have the answer
to that question.
custody law, some fathers’ groups advocate a presumption of joint custody or
“shared parenting” on divorce. Some family advocates see this as making
divorce less painful, rather than preventing it. This criticism is not
entirely fair. Considerable evidence indicates that children thrive better
when they have continued contact with both parents following divorce. More
to the point, by removing children as weapons or spoils, joint custody laws have
been shown to reduce the incidence of divorce in the first place.
One obstacle to reforming divorce and custody laws is the volume
of legislation that would be required, which, judging from past experience,
could simply be ignored by the judiciary or bring unintended consequences. Family law is reserved to states in the
US, and many across the political spectrum oppose federal involvement in
families. Changes would, therefore,
have to be effected state by state with possibly uneven results.
An alternative approach that may achieve the desired effect of
strengthening family integrity and the marriage contract while avoiding
government regulation of family life is simply to enforce the already-existing
right of parents and their children not to be separated without cause. An extensive body of state and federal
case law, reflecting centuries of Common Law tradition, already recognizes the
right to parent one’s children free from government interference. Yet this body of law is simply ignored
in divorce. Enforcing it could
offer a more effective and less invasive method of preserving family bonds than
extensive “social engineering” through changes in marriage and custody laws or
government-sponsored family therapy.
As a rule governing when children may be removed from their
parents, this would entail replacing the “best interest of the child” standard
with a more precise policy explicitly and categorically stipulating what
constitutional case law already provides: that no child should be forcibly
separated from a parent without legally recognized grounds of wrongdoing or
without agreement by that parent to a divorce or separation. Thus “custody” would not so much be
actively awarded as simply passively left to remain with the parent of whichever
gender who remains true to the marriage.
Given the role of child custody in determining who files for divorce,
this would provide a powerful disincentive with virtually no government
interference in private life.
This option seems consistent with most lay people’s understanding
of basic justice and the proper scope of government power. “There’s really not much we can do about
people—male or female—who will selfishly turn their spouse and children’s lives
upside down by ripping apart a family without even offering a coherent reason,”
observes Tim O’Brien. Yet we could
reduce the consequences, “by simply amending our no-fault divorce law to give
the (rebuttable) presumption of custody of any minor children to the defendant
[who does not divorce], regardless of gender.” O’Brien elaborates on what must seem
unexceptionable to the uninitiated:
It is reasonable to
presume that “the best interests of the child” will be better served by
remaining with the parent who does not abandon commitments for frivolous reasons
and wants to maintain the family.
The spouse/parent who still wishes to leave may, of course, do so—with
his or her clothes and any other personal belongings. The more dedicated, responsible party
should keep the children, home, property and claim on future child
would both reduce divorce and render redundant most of the government’s family
machinery. “The immediate effect...would undoubtedly be a plummeting
divorce rate, reducing the necessity for child support,” O’Brien adds.
“The only parents who would incur such obligations are those who have
voluntarily taken them on in exchange for being released from the marriage
Theoretically, additional legislation is not necessary to protect
these rights; enforcement of existing constitutional rights should be sufficient
to protect the rights of citizens to their children, their property, and their
freedom. It would carry few
financial costs and could reduce the need for expensive and invasive federal
programs that thrive on family destruction by addressing its symptoms rather
than its cause. Even the federal
judiciary, whose increasing involvement in child support and domestic violence
cases contributes to what some see as “activism,” might regain its place as
constitutional defender were it required to confront the constitutional
implications of removing children from legally unimpeachable parents.
Yet recognizing that the willingness of the federal judiciary to
review practices of family courts is unlikely, the legislative and executive
branches at both the state and federal levels could also play a leadership
Several years ago, Congress considered legislation to do something
like this. The Parental Rights and
Responsibilities Act declared that parents’ rights to direct the upbringing of
their children are fundamental rights which the government can curtail only
under conditions of “compelling interest.”
It specifically stipulated that “No federal, state, or local government,
or any official of such a government acting under color of law, shall interfere
with or usurp the right of a parent to direct the upbringing of the child of the
parent.” The measure was defeated
due to intensive special interest lobbying. Yet the bill’s most significant weakness
may have been that it exempted parents who lose their children through
involuntary divorce. In other
words, the proposed law stipulated that the government could not interfere with
or separate children from a parent unless the other parent requested it by
filing for divorce, in which case the government could intervene with no further
explanation. Indeed, by
specifically exempting divorce, the proposed law could even have been
interpreted as endorsing government-enforced separation of children from
parents. A substantial constituency
that could have been mobilized to support this bill was thus specifically
excluded from its protections.
Similar legislation, this time including divorced parents, could rally
the coalition that failed to emerge in the 1990s.
Finally, given the judicial proclivity to interpret statutory
language differently from legislative intent, further measures might be
considered. Officials that
knowingly remove children from their parents without cause are violating
well-established constitutional rights. Congress and state legislatures or
federal and state inspectors general could demonstrate their commitment to
preserving family and marital bonds by investigating federal, state, and local
agencies with a view to identifying and curtailing violations of civil rights of
American parents now being carried out under color of law.
1 Michael McManus, “Is Gay Marriage Next?” (syndicated column), 12 July
2 Froma Harrop, “What God Has Joined, Let No
Man...,” Providence Journal, 26 November
3 Robert Whelan (ed.), Just a Piece of Paper?
Divorce Reform and the Undermining of Marriage (London: Institute of
Economic Affairs, 1995), introduction, 3.
4 Steven Varnis, “Broken Vows, Therapeutic
Sentiments, Legal Sanctions,” Society, vol. 35, no. 1
(November-December 1997), 35.
5 Judy Parejko, Stolen Vows: The Illusion of
No-Fault Divorce and the Rise of the American Divorce Industry (Collierville,
Tennessee: InstantPublisher, 2002), 98.
6 Teresa Casto Martin and Larry Bumpass, “Recent
Trends in Marital Disruption,” Demography, vol. 26, no. 1
(February 1989), 37-51.
7 Frank Furstenberg and Andrew Cherlin,
Divided Families: What Happens to Children When Parents Part (Cambridge, Mass.:
Harvard University Press, 1991), 22.
8 Helen Alvare, “Types and Styles of Family
Proceedings,” Report of the United States to the XII World
Association of Procedural Law, 2003, 1.
9 Barbara Dafoe Whitehead, The Divorce
(New York: Vintage, 1998), 26.
10 Cynthia Daniels (ed.), Lost Fathers: The
Politics of Fatherlessness in America (New York: St.
Martin’s, 1998), 2; David Blankenhorn, Fatherless America: Confronting Our
Most Urgent Social Problem (New York: Basic Books,
11 Sanford Braver, Divorced Dads: Shattering
the Myths (New York:
Tarcher/Putnam, 1998), chap. 7.
12 Margaret Brinig and Douglas Allen, “These Boots
Are Made for Walking: Why Most Divorce Filers Are Women,” American Economics
and Law Review, vol. 2, no. 1 (Spring
2000), 126-127, 129, 158.
13 Shere Hite, Women and Love (New York: Knopf,
1987), 459; David Chambers, Making Fathers Pay: The Enforcement of Child
(Chicago: University of Chicago Press, 1979), 29.
14 Robert Page, “‘Family Courts’: An Effective
Judicial Approach to the Resolution of Family Disputes,” Juvenile and Family
Court Journal, vol. 44, no. 1 (1993),
11, 9, 19, 20.
15 Herbert Jacob, “The Effects of Institutional
Differences in the Recruitment Process: The Case of State Judges,” Journal of
Public Law 13 (1964); G. Alan
Tarr, Judicial Process and Judicial Policymaking (Belmont, California:
West/Wadsworth, 1999), 61, 67, 69-70.
16 Jerome Corsi, Judicial
Politics (Englewood Cliffs, New
Jersey: Prentice-Hall, 1984), 107-114; Richard Watson and Rondal Downing, The
Politics of the Bench and the Bar (New York: John Wiley
and Sons, 1969), 98, 336; Harry Stumpf and John Culver, The Politics of State
(New York: Longman, 1992), 49.
17 Varnis, “Broken Vows,” 37.
18 Robyn Blumner, “Making It Easy to Steal a Man’s
Child,” St. Petersburg Times, 11 April 1999; Jeffery
Leving, Fathers’ Rights (New York: Basic Books,
19 Stephen Barr, “Refereeing the Ugliest Game in
Town,” New Jersey Monthly, May 1998, 52-55,
20 Walter Olson, “Suing Ourselves to Death:
America’s Litigation Boom Is Bad for Law and Society,” Washington
28 April 1991.
21 Page, “Family Courts,” 21.
22 Melanie Phillips, “Goodbye Lords, Hello the
Dictatorship of the Judges,” Sunday Times, 14 November
23 Braver, Divorced Dads, 221-222 (original
24 Robert Coles, “On Divorce,” New Oxford
61 (July-August 1994), 24.
25 David Brown, “Psychologists Make a Bundle While
Family Courts Fiddle,” Ottawa Citizen, 21 September 2001;
Donna Laframboise, “Custody Assessors Decide Children’s Fates, But Who Has
Control Over Them?” National Post, 30 January 1999;
Richard Pienciak and Linda Yglesias, “Who Gets the Kids?” New York Daily
25 September 1998.
26 Jed Abraham, From Courtship to Courtroom:
What Divorce Law Is Doing to Marriage (New York: Bloch,
27 Bryce Christensen, “The Strange Politics of
Child Support,” Society, vol. 39, no. 1
(November-December 2001), 65.
28 Office of Child Support Enforcement, FY 2002
Preliminary Data Report, 29 April 2003
(http://www.acf.hhs.gov/programs/cse/pubs/2003/reports/prelim_datareport/), figures 1 and
29 U.S. House of Representatives, Ways and Means
Committee, 2003 Green Book, WMCP: 108-6, section 8, p. 8-69 and table 8-5
30 Christensen, “Strange Politics of Child
Support,” 67, 63.
31 Alvare, “Types and Styles of Family
32 Parejko, Stolen Vows, 122,
33 Alvare, “Types and Styles of Family
Proceedings,” 19, 22, 21 (emphasis added).
34 Art Moore, “The High Cost of Divorce,”
WorldNetDaily, 15 March
35 Alvare, “Types and Styles of Family
36 Jeff Baron, “Learning to Quell Custody
Quarrels,” Washington Post, 30 July 2001,
37 Parejko, Stolen Vows,
38 Cristin Schmitz, “Force Divorcing Parents to
Take Courses: Lawyers,” National Post, 9 July 2001 (emphasis
39 Baron, “Learning to Quell” (emphasis
40 Parejko, Stolen Vows,
41 Patricia Morgan, “Conflict and Divorce: Like a
Horse and Carriage?” in Whelan, Just a Piece of Paper?, 32.
42 Australian Law Reform Commission, Managing
Justice: A Review of the Federal Civil Justice System, Report No. 89 (2000),
43 Advisory Board on Family Law, Making Contact
“Letter to the Lord Chancellor,” paragraph 1.16, and recommendation 16 (February
2002; http://www.lcd.gov.uk/family/ abfla/mcwrep.htm); Frances Gibb, “Head
of Children’s Courts Is Suspended,” The Times, 17 November
44 HHS press release, 18 June
45 HHS press releases, 2 January and 9 May
46 Online: http://www.michigan.gov/minewswire/
47 G.K. Chesterton, The Superstition of
(1920), chap. 7.
48 Whelan, Just a Piece of
49 Quoted in Parejko, Stolen
50 Richard Kuhn and John Guidubaldi, “Child
Custody Policies and Divorce Rates in the US,” paper presented at the 11th
Annual Conference of the Children’s Rights Council, Washington, DC, 23-26
October 1997 (http://www.vix.com/crc/sp/spcrc97.htm); David Levy (ed.),
The Best Parent Is Both Parents: A Guide to Shared Parenting in the 21st
(Norfolk, Virginia: Hampton Roads Publishing, 1993), chap.
51 See Donald Hubin, “Parental Rights and Due
Process,” Journal of Law and Family Studies, vol. 1, no. 2 (1999).
52 Tim O’Brien, “Help Child Support By Altering
Divorce Law,” Detroit News, 22 May
53 Patrick Fagan and Wade Horn, “How Congress Can
Protect the Rights of Parents to Raise Their Children,” Issue Bulletin, no. 227
(Washington, DC: Heritage Foundation, 23 July 1996),