Friday, May 19, 2006

Fathers and Family Law

The American Coalition for Fathers and Families (apologists for domestic violence, as well as advocates for "reform" of the family law system to provide "equal rights" to fathers) is stumping for a new law in North Dakota, as detailed in this article from the Grand Forks Herald (courtesy of an internet friend from ND). The law's backers are currently seeking signatures sufficient for a statewide vote on two measures seeking to change family law in the state. As I said in my previous post, I've practiced family law as a student attorney in Massachusetts for the last two years, spending 20 hours per week or more at it--and so this is something that I know something about. And given the nature of my organization's practice, which served primarily battered women, I find the ND proposals upsetting. And, also, angering.

Both measures would "require that parents go through mediation to come up with a 'family plan' where children would be split between two households." Which is, in itself, of questionable merit, since joint custody truly doesn't work for every family--and mediation is absolutely inappropriate in any divorce or custody dispute in which violence or coercion has been a hallmark of the relationship. The proposals are similar enough that I'm focusing, here, on the proposal that's more detailed (and therefore more extreme--so it's fair to note here that the American Coalition for Fathers and Families has focused its support on the less extreme proposal) which has the following provisions:

One measure, touted by Roland Riemers of Emerado, N.D., would require couples to have a prenuptial agreement before marriage, limit child support payments after divorces and eliminate penalties for parents who refuse to make them. Riemers, who has filed more than a dozen North Dakota Supreme Court appeals on his two divorces and related disputes, put in a bid for North Dakota governor in 2004.
I enjoy how the paper includes a description of Mr. Riemers' personal history with the family court system in its discussion of his proposal, making him look like a total nut driven by malice against his ex-wife. Not that I can assert that he is any such thing, of course. But while on the topic--and without, quite seriously, making any accusation against him specifically--I will note that using the courts to harass women is a common behavior of batterers. I saw this in my cases, and it's born out in the research available on this topic as well. For example, studies show that batterers are more than twice as likely as other fathers to contest custody at all.* In my cases, I saw fathers contest custody (when they clearly didn't want it, were not equipped to have a child live with them, and were not going to succeed in getting custody) fight for visitation (and then not visit, because all they really wanted was to assert the *right* to visit) and refuse to pay child support (when they were perfectly capable of paying).

Which brings me to the merits of Mr. Reimers' proposal. The first requirement--that couples have a pre-nup--sounds innocuous but may well not be. The article is somewhat unclear, but given the context of these proposals, which are meant to change how child custody is decided, I presume that the prenups contemplated would deal with child custody as well, rather than with division of the couple's assets. It is clearly outrageous to suggest that a couple should decide before marriage and before the birth of their children how they will jointly divide custody of their (imaginary) children at the time of their (imaginary, and from unknown causes) divorce. It's also outrageous to suggest that such an agreement would be enforceable. What about the woman who marries the "great guy" who turns out to abuse her? Is she bound by the agreement that she made to let her kids sleep at his 3 out of 7 nights now that she knows that, while there, they'll be exposed to his violence against his new wife? Notably, Mr. Reimers has anticipated this scenario:
The measure proposed by Riemers specifically indicates that no child should be kept from a parent based on a domestic violence protection order unless there's clear and convincing evidence that shows the parent poses a threat to the child.
This ignores, of course, vast bodies of evidence showing that domestic violence does, by definition, pose a threat to children; first, children may be actually harmed when it occurs even if they're not its target; second, they are often targeted, since one good way to hurt a woman is to hurt her children; and finally, they suffer emotionally, behaviorally, academically, as a result of exposure to domestic violence even if they aren't actually harmed. Also notably, batterers are not great parents; they tend to be uninvolved with their children's care, they tend to use their children as weapons against the other parent, and thanks to the frequency of their recidivism, there is a real risk that their continued involvement with their children will lead to the children's exposure to further violence.**

Beyond the problems with requiring parents to decide the custody of their prospective children pre-marriage, prenups deciding issues having to do with children generally are problematic. In Massachusetts, there are very strict rules for when a parental agreement regarding child support can be enforced--briefly, it has to be fair in light of Massachusetts child support law, not signed under coercion, and approved by a court. There are good reasons for these requirements--first, the lack of such guidelines is an invitation to batterers to coerce women into signing agreements regarding child support. But secondly, child support is not meant to support either spouse after a divorce (that's what division of property and alimony are all about). It's meant to support children, and so we don't allow either parent to bargain away their children's rights.

Of course, under Mr. Reimers' proposal, children wouldn't have all that many rights, since child support payments would be lowered and would be, essentially, voluntary. Having gone on this long already, I have almost nothing to say about that. It's interestingly different from the complaint you hear from many fathers, that if they do pay child support they should be entitled to visitation, to joint custody, to any one of a number of rights they feel they have (or alternatively, that if they're denied said entitlements, they shouldn't have to pay child support). I have things to say about that argument--there are plenty of reasons that we don't tie child support and visitation together. But this proposal preserves the distinction between child support and visitation, while saying that noncustodial parents should be able to just not pay--and at that point, where the argument is the raw assertion that parents shouldn't have to support their children, I don't think the argument merits my time.

A final note--I've talked here largely about fathers and mothers, because that's how these debates are typically framed (there's a reason that it's not the Coalition for Non-custodial parents and children) and because gender does play a role in these discussions, and I don't see any point in obscuring that fact. I don't want to imply, however, that these roles are fixed, that women are never abusive or that men are never great custodial parents. My father was a great custodial parent, for one thing, so I know that isn't the case.

*Peter Jaffe et al., Domestic Violence and High-Conflict Divorce: Developing a New Generation of Research for Children, in DOMESTIC VIOLENCE IN THE LIVES OF CHILDREN 189, 193 supra note 9 (citing J. Bowermaster & D. Johnson, The Role of Domestic Violence in Family Court Child Custody Determinations: An Interdisciplinary Investigation, Presented at the Fourth International Conference on Children Exposed to Family Violence, San Diego (1998) and J. Zorza, How Abused Women Can Use the Law to Protect their Children, in ENDING THE CYCLE OF VIOLENCE 147 (E. Peled ed, 1995). (Excuse the academic citation--I cited this study in a paper I wrote recently but don't have a link to it).
**See generally LUNDY BANCROFT & JAY G. SILVERMAN, THE BATTERER AS PARENT: ADDRESSING THE IMPACT OF DOMESTIC VIOLENCE ON FAMILY DYNAMICS 5-7 (2002). This is a very well-researched and useful book--that is to say, it was useful to me in writing my 3L paper, and is one of few to focus on how batterers parent rather than on how battered women parent.