The Fix is In
No man can count on justice in family court, argues an angry professor

by Stephen Baskerville

Trevor Gallahan's father is going to jail. He has not been charged with any crime. He is not behind in child support. He has not battered anyone. Yet Ken Gallahan could conceivably remain in jail for the rest of his life. What is his infraction? He does not have $15,000 to pay a lawyer he never hired. He was already jailed indefinitely when he could not pay a psychotherapist he also had not hired and was released only when his mother paid the fees.

Debtors' prisons were theoretically abolished long ago, but this does not stop family court judges from using the bench to shake down fathers who have done nothing wrong and funnel everything they have into the pockets of the court's cronies. In fact the looting and criminal-ization of fathers like Ken Gallahan is now routine in divorce courts.

Family courts are the arm of the state that routinely reaches farthest into the private lives of individuals and families, yet they are answerable to virtually no one. By their own assessment, according to Robert W. Page of the New Jersey Family Court, "the power of family court judges is almost unlimited." Others have commented on their vast and intrusive powers less charitably. Malcolm X once called family courts "modern slavery," and former Supreme Court Justice Abe Fortas termed them "kangaroo" courts. One father was told by a judicial investigator in New Jersey, "The provisions of the US Constitution do not apply in domestic relations cases, since they are determined in a court of equity rather than a court of law."

The plunder of fathers invariably begins with the taking of their children. Despite formal legal equality between parents, some 85-90% of custody awards go to mothers. This is despite the fact that it is usually the mother who seeks the divorce, and most often without grounds of wrongdoing by the father. In fact a mother can have a half-dozen previous divorces, she can commit adultery, she can level false charges, she can assault the father, in some cases she can even abuse the children, and none of these (except in extreme cases the last) has any bearing on a custody decision.

A mother who consults a divorce attorney today will be advised that her best strategy is simply to take the children and their effects and leave without warning. If she has no place to go, she will be told that by accusing the father of sexual or physical abuse (or even simply stating that she is "in fear") she can obtain a restraining order immediately forcing him out of the family home, often without so much as a hearing. She will also learn that not only can she not be punished for either of these actions, they cannot even be used against her in a custody decision. In fact they work so strongly in her favor that failure to apprise a female client of these options may be considered legal malpractice.

Mothers who abduct children and keep them from their fathers are routinely rewarded with immediate "temporary" custody. In fact this is almost never temporary. Once she has custody it cannot be changed without a lengthy and expensive court battle. The sooner and the longer she can establish herself as the sole caretaker the more difficult and costly it is to dislodge her. The more she cuts the children off from the father, alienates them from the father, slings false charges, and delays the proceedings, the more she makes the path of least resistance (and highest earnings) to leave her with sole custody. In short, the more belligerence she displays and the more litigation she creates, the more grateful the courts will be for the business she provides.

For a father the simple fact of his being a father is enough for him to be summoned to court, stripped of all decision-making rights over his children, ordered to stay away from them six days out of seven, and ordered to make child support payments that may amount to two-thirds or more of his income. Like Ken Gallahan, he can also be forced to pay almost any amount to lawyers and psychotherapists and summarily jailed if he is unwilling or unable.

What is happening to fathers in divorce courts is much more serious than unfair gender bias. An iron triangle of lawyers, judges, and women's groups is finding it increasingly easy - and lucrative - to simply throw fathers out of their families with no show of wrongdoing whatever and seize control of their children and everything they have. Family courts have in effect declared to the mothers of America: If you file for divorce we can take everything your husband has and divide it among ourselves, with the bulk of it going to you. We can take his children, his home, his income, his savings, and his inheritance and reduce him to beggary. And if he raises any objection we can throw him in jail without trial.

The astounding fact is that, with the exception of convicted criminals, no group today has fewer rights than fathers. Even accused criminals have the right to due process of law, to know the charges against them, to face their accusers, to a lawyer, and to a trial. A father can be deprived of his children, his home, his savings, his livelihood, his privacy, and his freedom without any of these constitutional protections. And not only a divorced father or a unmarried father: Any father at any time can find himself in court and in jail. Once a man has a child he forfeits his most important constitutional rights.

The words "divorce" and "custody" have become deceptively innocuous-sounding terms. We should remind ourselves that they involve bringing the coercive apparatus of the state - police, courts, and jails - into the home for use against family members. When we recall that those family members may not even be charged with any legal wrongdoing we can begin to grasp the full horror of what is taking place and how far the divorce machinery has been fashioned into an instrument of terror. As citizens of communist Eastern Europe once did, it is now fathers who live in fear of the "knock on the door."

So what can a father do to escape the fate of Ken Gallahan and millions like him? Very little, and divorce manuals encouraging fathers with advice on how to win custody are not doing them any favors. The latest wisdom informs fathers that the game is so rigged that their best hope of keeping their children is not to wait for their day in court but to adopt the techniques of mothers: If you think she is about to snatch, snatch first. "If you do not take action," writes author Robert Seidenberg, "your wife will. If this advice is sound, the custody industry has turned marriage into a "race to the trigger," to adopt the terms of nuclear deterrence replete with the pre-emptive strike: Whoever snatches first survives.

If you don't have the stomach for this, then you probably should not marry and not have children.

Stephen Baskerville is a professor of Political Science at Howard University.