Stephen Baskerville: Divorced from Reality

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Divorced from Reality
"We're from the Government, and We're Here to End Your Marriage."

by Stephen Baskerville

The decline of the family has now reached critical and truly dangerous
proportions. Family breakdown touches virtually every family and every
American. It is not only the major source of social instability in the
Western world today but also seriously threatens civic freedom and
constitutional government.

G. K. Chesterton once observed that the family serves as the principal check
on government power, and he suggested that someday the family and the state
would confront one another. That day has arrived.

Chesterton was writing about divorce, and despite extensive public attention
to almost every other threat to the family, divorce remains the most direct
and serious. Michael McManus of Marriage Savers writes that "divorce is a
far more grievous blow to marriage than today's challenge by gays."

Most Americans would be deeply shocked if they knew what goes on today under
the name of divorce. Indeed, many are devastated to discover that they can
be forced into divorce by procedures entirely beyond their control. Divorce
licenses unprecedented government intrusion into family life, including the
power to sunder families, seize children, loot family wealth, and
incarcerate parents without trial. Comprised of family courts and vast,
federally funded social services bureaucracies that wield what amount to
police powers, the divorce machinery has become the most predatory and
repressive sector of government ever created in the United States and is
today's greatest threat to constitutional freedom.

Unilateral Divorce

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.

This startling fact has been ignored by politicians, journalists, academics,
and even family advocates. "Opposing gay marriage or gays in the military is
for Republicans an easy, juicy, risk-free issue," wrote Gallagher. "The
message [is] that at all costs we should keep divorce off the political
agenda." No American politician of national stature has ever challenged
involuntary divorce. "Democrats did not want to anger their large
constituency among women who saw easy divorce as a hard-won freedom and
prerogative," observes Barbara Whitehead in The Divorce Culture.
"Republicans did not want to alienate their upscale constituents or their
libertarian wing, both of whom tended to favor easy divorce, nor did they
want to call attention to the divorces among their own leadership."

In his famous denunciation of single parenthood, Vice President Dan Quayle
was careful to make clear, "I am not talking about a situation where there
is a divorce." The exception proves the rule. When Pope John Paul II
criticized divorce in 2002, he was roundly attacked from the right as well
as the left.

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. "Public
attitudes were gradually dragged along behind laws that were generally
understood at the time to mean something very different from what they
subsequently came to represent."

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 hookups
and 50 percent 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 percent 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, counselors, 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 mobilizes 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.

Almost invariably, the involuntarily divorced spouse will want and expect to
continue enjoying the protections and prerogatives of private life: the
right to live in the common home, to possess the common property, or-most
vexing of all-to parent the common children. These claims must be
terminated, using the penal system if necessary.

Onerous Implications

Few stopped to consider the implications of laws that shifted the breakup 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 therefo 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 authorization. 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).
He can even be arrested for not paying an attorney or a psychotherapist he
has not hired.

The New York Times has reported on how easily "the divorce court leads to a
jail cell." Take the case of Marvin Singer, who was jailed without trial for
not paying an attorney he never hired $100,000-only half of what the court
claimed he "owes." In Virginia, one father was ordered to pay two years'
worth of his salary to a lawyer he also did not hire for a divorce he did
not request. Once arrested, the father is summarily jailed. There is no
formal charge, no jury, and no trial.

Family court 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. . . . We don't have to worry about
the rights."

Generated Hysteria

Why do we hear almost nothing about this? Aside from media that sympathize
with the divorce revolution, the multi-billion-dollar divorce industry also
commands a huge government-funded propaganda machine that has distorted our
view of what is happening.

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 nonpayment 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
"pedophile," "batterer," or "deadbeat dad."

It is not clear that these nefarious figures are other than bogeymen created
by divorce interests, well aware that not only the public generally but
conservatives and family advocates in particular are a soft touch when it
comes to anything concerning irresponsible behavior or sexual perversion.

Christians are especially vulnerable to credulity about such accusations,
because they are disposed to see moral breakdown behind social ills. Moral
breakdown certainly does lie behind the divorce epidemic (of which more
shortly), but it is far deeper than anything addressed by cheap witch-hunts
against government-designated malefactors.

It is also largely credulity and fear that leads Congress by overwhelming
majorities to appropriate billions for anti-family programs in response to
these hysterias. The massive federal funds devoted to domestic violence,
child abuse, and child-support enforcement are little more than what Phyllis
Schlafly calls "feminist pork," taxpayer subsidies on family dissolution
that also trample due process protections. Family law may technically be the
purview of states, but it is driven by federal policies and funded by a
Congress fearful of accusations that it is not doing enough against
pedophiles, batterers, and deadbeats.

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.

But while sensational examples can be found of anything, there is simply no
evidence that the family and fatherhood crisis is caused primarily or even
significantly by fathers abandoning their families, beating their wives, and
molesting their children. Irrefutable evidence indicates that it is driven
almost entirely by divorce courts forcibly separating parents from their
children and using these false accusations as a rationalization.

Divorce Gamesmanship

During the 1980s and 1990s, waves of child abuse hysteria swept America and
other countries. Sensational cases in Washington state, California,
Massachusetts, North Carolina, Ontario, Saskatchewan, the north of England,
and more recently France resulted in torn-apart families, blatantly unjust
prison sentences, and ruined lives, while the media and civil libertarians
looked the other way.

Today it is not clear that we have learned anything from these miscarriages
of justice. If anything, the hysteria has been institutionalized in the
divorce courts, where false allegations have become routine.

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 breakup 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."

Among scholars and legal practitioners it is common knowledge that patently
trumped-up accusations are routinely used, and virtually never punished, in
divorce and custody proceedings. Elaine Epstein, president of the
Massachusetts Women's Bar Association, writes that "allegations of abuse are
now used for tactical advantage" in custody cases. The Illinois Bar Journal
describes how abuse accusations readily "become part of the gamesmanship of
divorce." The UMKC Law Review reports on a survey of judges and attorneys
revealing that disregard for due process and allegations of domestic
violence are used as a "litigation strategy." In the Yale Law Review,
Jeannie Suk calls domestic violence accusations a system of "state-imposed
de facto divorce" and documents how courts use unsupported accusations to
justify evicting Americans from their homes and children.

The multi-billion dollar abuse industry has become "an area of law mired in
intellectual dishonesty and injustice" writes David Heleniak in the Rutgers
Law Review. Domestic violence has become "a backwater of tautological
pseudo-theory," write Donald Dutton and Kenneth Corvo in the scholarly
journal Aggression and Violent Behavior. "No other area of established
social welfare, criminal justice, public health, or behavioral intervention
has such weak evidence in support of mandated practice."

Feminists confess as much in their vociferous opposition to divorce reform.
A special issue of the feminist magazine Mother Jones in 2005 ostensibly
devoted to domestic violence focuses largely on securing child custody.

Both child abuse and domestic violence have no precise definitions. Legally
they are not adjudicated as violent assault, and accused parents do not
enjoy the constitutional protections of criminal defendants. Allegations are
"confirmed" not by jury trials but by judges or social workers. Domestic
violence is any conflict within an "intimate relationship" and need not be
actually violent or even physical. Official definitions include "extreme
jealousy and possessiveness," "name calling and constant criticizing," and
"ignoring, dismissing, or ridiculing the victim's needs."

For such "crimes" fathers lose their children and can be jailed. "Protective
orders" separating parents from their children are readily issued during
divorce proceedings, usually without any evidence of wrongdoing.
"Restraining orders and orders to vacate are granted to virtually all who
apply," and "the facts have become irrelevant," writes Epstein. "In
virtually all cases, no notice, meaningful hearing, or impartial weighing of
evidence is to be had."

Cycle of Abuse

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
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 miniscule,
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.

Despite the innuendos of child abuse advocates, it is not married fathers
but single mothers who are most likely to injure or kill their children.
"Contrary to public perception," write Patrick Fagan and Dorothy Hanks of
the Heritage Foundation, "research shows that the most likely physical
abuser of a young child will be that child's mother, not a male in the
household." Mothers accounted for 55 percent of all child murders according
to a Justice Department report. HHS itself found that women aged 20 to 49
are almost twice as likely as men to be perpetrators of child maltreatment:
"almost two-thirds were females." Given that "male" perpetrators are not
usually fathers but boyfriends or stepfathers, fathers emerge as by far the
least likely child abusers.

Yet government logic is marvelously self-justifying and self-perpetuating,
since by eliminating the father, officials can present themselves as the
solution to the problem they have created. The more child abuse there
is-whether by single mothers, boyfriends, or even (as is often the case) by
social workers and bureaucrats themselves-the more the proffered solution is
to further expand the child abuse bureaucracy.

Waxing indignant about a string of child deaths at the hands of social
workers in the District of Columbia, federal judges and the Washington Post
found solace in the D.C. government's solution: to hire more social workers
(and lawyers too, for some unspecified reason). "Olivia Golden, the Child
and Family Services' latest director . . . will use her increased budget to
recruit more social workers and double the number of lawyers." Children die
at the hands of social workers, so we must hire more social workers.

Likewise, 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. On the
contrary, if they do not remove the fathers, they may be punished by the bar
associations and social work bureaucracies whose funding depends on a
constant supply of abused 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.

Trafficking in Children

The child abuse industry also demonstrates how one threat to the family
creates another. Just as the divorce revolution eventually led to the demand
for same-sex "marriage," the child abuse deception has led to demands for
parenting by same-sex couples.

Most discussion of homosexual parenting has centered on questions of
children's welfare versus the rights of homosexuals. 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.

Current laws governing divorce, domestic violence, and child abuse render
this question open. The explosion in foster care based on the assumed but
unexamined need to find permanent homes for allegedly abused children has
provided perhaps the strongest argument in favor of same-sex "marriage" and
homosexual parenting. Yet the politics of child abuse and divorce indicate
that this assumption is not necessarily valid.

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 percent of the state's
adoptions have gone to gay and lesbian couples, rationalizes 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.

Child-Support Racket

The "deadbeat dad" is another figure largely manufactured by the divorce
machinery. He is far less likely to have deliberately abandoned offspring he
callously sired than to be an involuntarily divorced father who has been, as
attorney Jed Abraham writes in From Courtship to Courtroom, "forced to
finance the filching of his own children."

Child support is plagued by the same contradictions as child custody. Like
custody, it is awarded ostensibly without reference to "fault," and yet
nonpayment brings swift and severe punishments. Contrary to popular belief,
child support today has nothing to do with fathers abandoning their
children, reneging on their marital vows, or even agreeing to divorce. It is
automatically assessed on all non-custodial parents, even those divorced
against their will who lose their children through no legal fault or
agreement of their own. It is an entitlement for all single mothers, in
other words, regardless of their behavior.

Originally justified as a method of recovering welfare costs, child support
has been transformed into a massive federal subsidy on middle-class divorce.
No-fault divorce allowed a mother to divorce her husband for any reason or
no reason and to take the children with her. Child support took the process
a step further by allowing the divorcing mother to use the now-fatherless
children to claim her husband's income-also regardless of any fault on her
part (or lack of fault on his) in abrogating the marriage agreement.

By glancing at a child-support schedule, a mother can determine exactly how
large a tax-free windfall she can force her husband to pay her simply by
divorcing, money she may spend however she wishes with no accounting
requirement. It is collected at gunpoint if necessary, and nonpayment means
incarceration without trial.

Like the welfare it was supposed to replace, child support finances family
dissolution by paying mothers to divorce. Economist Robert Willis calculates
that child-support levels vastly exceeding the cost of raising children
create "an incentive for divorce by the custodial mother." His analysis
indicates that only one-fifth to one-third of child-support payments are
actually used for the children; the rest is profit for the custodial parent.
Kimberly Folse and Hugo Varela-Alvarez write in the Journal of
Socio-Economics that child support serves as an "economic incentive for
middle-class women to seek divorce."

Mothers are not the only ones who can profit by creating fatherless
children. Governments also generate revenue from child support. State
governments receive federal funds for every child-support dollar
collected-money they can add to their general funds and use for any purpose
they choose. This gives states a financial incentive to create as many
single-parent households as possible by encouraging middle-class divorce.
While very little child support-or government revenue-is generated from the
impecunious young unmarried fathers for whom the program was ostensibly
created, involuntarily divorced middle-class fathers have deeper pockets to
loot.

This is why state governments set child support at onerous levels. Not only
does it immediately maximize their own revenues; by encouraging middle-class
women to divorce, governments increase the number of fathers sending dollars
through their systems, thus generating more revenue. Federal taxpayers (who
were supposed to save money) subsidize this family destruction scheme with
about $3 billion annually. "Child support guidelines currently in use
typically generate awards that are much higher than would be the case if
based on economically sound cost concepts," writes Mark Rogers, an economist
who served on the Georgia Commission on Child Support. Rogers charges that
guidelines result in "excessive burdens" based on a "flawed economic
foundation." The Urban Institute reports that arrearages accrue because
"orders are set too high relative to ability to pay." Federal officials have
admitted that the more than $90 billion in arrearages they claimed as of
2004 were based on awards that were beyond the parents' ability to pay.

All this marks a new stage in the evolution of the welfare state: from
distributing largesse to raising revenue and, from there, to law
enforcement. The result is a self-financing machine, generating profits and
expanding the size and scope of government-all by generating single-parent
homes and fatherless children. Government has created a perpetual growth
machine for destroying families, seizing children from legally blameless
parents, and incarcerating parents without trial.

Responsibility 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.

Family integrity will be restored only when families are de-politicized and
protected from government invasion. This will demand morally vigorous
congregations that are willing to take marriage out of the hands of the
state by intervening in the marriages they are called upon to witness and
consecrate and by resisting the power of the state to move in. This is the
logic behind the group Marriage Savers, and it can restore the churches'
authority even among those who previously viewed a church's role in their
marriage as largely ceremonial.

No greater challenge confronts the churches-nor any greater opportunity to
reverse the mass exodus-than to defend their own marriage ordinance against
this attack from the government. Churches readily and rightly mobilize
politically against moral evils like abortion and same-sex "marriage," in
which they are not required to participate. Even more are they primary
stakeholders in involuntary divorce, which allows the state to desecrate and
nullify their own ministry.

As an Anglican, I am acutely aware of how far modernity was ushered in not
only through divorce, but through divorce processes that served the
all-encompassing claims of the emerging state leviathan. Politically, this
might be seen as the "original sin" of modern man. We all need to atone.

Stephen Baskerville is Associate Professor of Government at Patrick Henry
College and the author of Taken into Custody: The War Against Fathers,
Marriage, and the Family (Cumberland House, 2007).