The debate on the
family is becoming increasingly politicized.
President George W. Bush proposes
federal programs to promote marriage
and fatherhood and to enlist churches.
Liberals respond that government does
not belong in the family but then
advocate federal programs of their
Yet the more polarized
the issues become the less willing
we are to look at the hard politics
of the family crisis. Family policy
is still discussed in terms set by
therapists and social scientists:
the rate of divorce and unwed motherhood,
the level of poverty, the impact on
children, the social costs. As if
we don’t know.
As a social scientist,
I do not deny the value of data (I
intend to marshal some myself). But
therapeutic practitioners have established
such a hold over family policy that
they have paralyzed our capacity to
act. Writing on single motherhood
in Commentary magazine, the eminent
political scientist James Q. Wilson
grimly concludes, "If you believe,
as I do, in the power of culture,
you will realize that there is very
little one can do." Like many
others (including the Bush administration),
Wilson is reduced to advocating counseling
What seems missing
here is old-fashioned politics, the
kind that did not hesitate to make
moral judgments and even express outrage.
The politics of the prophets, for
The facts are well-established
among social scientists, but a kind
of ideological correctness on both
left and right seems to keep us from
confronting the full implications
of what we know. We are afraid to
challenge the accepted clichés about
marriage breakdown, even when it becomes
clear that they don’t correspond to
We should begin,
therefore, with the uncontested but
seldom-mentioned facts. First, marriages
do not simply "break down"
by themselves. Legally, someone—and
it is usually one—consciously ends
it by filing official documents and
calling in the government against
his or her spouse. According to Frank
Furstenberg and Andrew Cherlin, the
authors of Divided Families, some
80 percent of divorces are unilateral.
One spouse usually wishes to keep
the family together.
When children are
involved, the divorcing parent is
overwhelmingly likely to be the mother.
Scholarly studies by Sanford Braver,
Margaret Brinig and Douglas Allen,
and others estimate that between 67
and 75 percent of such divorces are
instigated by the mother. Feminists
and divorce attorneys report that
the number is closer to 90 percent.
Few of these divorces involve grounds
like desertion, adultery, or violence.
"Growing apart" or "not
feeling loved or appreciated"
are the usual explanations.
The divorcing parent
is likely to get custody of the children
and coerced financial payments from
the divorced parent. Brinig and Allen
even concluded that of 21 variables,
"who gets the children is by
far the most important component in
deciding who files for divorce."
Clearly more is
at work here than husbands and wives
deciding to go their separate ways.
Under no-fault laws, divorce has become
a means not only of ending a marriage
but of seizing monopoly control of
the children, who become weapons conferring
leverage backed by penal sanctions.
The devastating effects of divorce
and fatherlessness on both children
and society are now so well-known
that there is no need to belabor them
here. What is seldom appreciated is
the broader threat the divorce regime
poses to ethical and constitutional
government. In fact, there is today
no better example of the link between
personal morality and public ethics—between
the fidelity of private individuals
and the faithfulness of public servants—or
the connection of both with the civilized
secular political sophisticates focus
narrowly on the sociological, it is
Pope John Paul II who has come closest
to the root of the problem. In January,
he issued what many saw as a surprisingly
strong statement against divorce that
specifically singled out lawyers and
judges for criticism. For his pains
he was attacked by lawyers, journalists,
and politicians from both the left
and right. Yet his characterization
of divorce as a "festering wound"
with "devastating consequences
that spread in society like the plague"
is as accurate politically as it is
Since the advent
of no-fault divorce, a multibillion-dollar
industry has grown up around the divorce
courts: judges, lawyers, psychotherapists,
mediators, counselors, social workers,
and bureaucratic police. All these
people have a professional and financial
stake in divorce. In fact, despite
pieties to the contrary, public officials
at all levels of government—including
elected leaders in both parties—now
have a vested interest in increasing
the number of single-parent homes.
The politics of divorce
begins in family court, a relatively
new and little-examined institution.
Family courts are usually closed to
the public and their proceedings are
usually unrecorded. Yet they reach
further into private lives than any
other arm of government. Though lowest
in the hierarchy, they are "the
most powerful branch of the judiciary,"
according to Judge Robert Page of
the New Jersey family court. "The
power of family court judges is almost
unlimited," Page writes.
Secret courts have
long been recognized as an invitation
to chicanery. "Where there is
no publicity, there is no justice,"
wrote British philosopher and jurist
Jeremy Bentham. "It keeps the
judge himself while trying under trial."
Judges claim the secrecy protects
family privacy, though in fact it
seems to provide a cloak to violate
family privacy and other protections
Family court judges
are appointed and promoted by commissions
dominated by bar associations. That
means they are answerable to those
with an interest in maximizing the
volume of divorce litigation. Though
family courts complain of being "overburdened,"
it is clearly in their interest to
be overburdened, since judicial powers
and salaries are determined by demand.
The aim of the courts, therefore,
is to increase their workload by attracting
customers, and the divorce industry
has erected a series of financial
and emotional incentives that encourage
people to divorce. "With improved
services, more persons will come before
the court seeking their availability,"
Page explains. "As the court
does a better job more persons will
be attracted to it as a method of
dispute resolution." Doing a
"better job" really means
attracting more divorcing parents
with generous settlements.
A substantial body
of federal and state case law recognizes
parenthood as an "essential"
constitutional right "far more
precious than property rights"
(May v. Anderson). In Doe v. Irwin,
a federal court held that parenthood
"cannot be denied without violating
those fundamental principles of liberty
and justice which lie at the base
of all our civil and political institutions."
Yet such apparently unequivocal principles
are never applied in divorce cases,
where judges routinely remove children
from forcibly divorced parents without
providing any reason.
Once a parent loses
custody, he or she no longer has any
say in where the children reside,
attend school or day care, or worship.
Worse, the parents who have been stripped
of custody are in many ways treated
as outlaws. A personalized criminal
code is legislated around them by
the judge, controlling their association
with their children, their movements,
and their finances. Unauthorized contact
with their children can be punished
with arrest. Involuntarily divorced
parents have been arrested for running
into their children in public places
such as sporting events and church,
for making unauthorized telephone
calls, and for sending unauthorized
Parents whose spouses
want a divorce are ordered to surrender
personal diaries, correspondence,
financial records, and other documents
normally protected by the Fourth Amendment.
Their personal habits, movements,
conversations, writings, and purchases
are all subject to inquiry by the
court. Their home can be entered and
their visits with their children monitored
in a "supervised visitation center."
Anything they say to their spouses,
family, friends, counselors, and others
can be used against them in court.
Their children, too, can be used as
parents are also ordered, on pain
of incarceration, to hire cronies
of the judge. In what some see as
little less than a shakedown, family
courts routinely order forcibly divorced
and legally unimpeachable parents
to pay attorneys, psychotherapists,
and other professionals with the threat
of jail for not complying.
Family law is now
criminalizing constitutionally protected
activities as basic as free speech,
freedom of the press, and even private
conversations. In many jurisdictions
it is now a crime to criticize judges,
and parents have been arrested for
doing so. Following his congressional
testimony critical of the family courts
in 1992, Jim Wagner of the Georgia
Council for Children’s Rights was
stripped of custody of his two children,
ordered to pay $6,000 to lawyers he
did not hire, and jailed when he could
The principal tool
for enforcing divorce and keeping
ejected parents away from their children
is a restraining order. Orders separating
parents from their children for months,
years, and even life are routinely
issued without the presentation of
any evidence of wrongdoing. They are
often issued at a hearing where the
parent is not present; they are sometimes
issued with no hearing at all. "The
restraining order law is one of the
most unconstitutional acts ever passed,"
says Massachusetts attorney Gregory
Hession, who has filed a federal suit
on civil rights grounds. "A court
can issue an order that boots you
out of your house, never lets you
see your children again, and takes
your money, all without you even knowing
that a hearing took place."
is confirmed by judges themselves.
"Your job is not to become concerned
about the constitutional rights of
the man that you’re violating as you
grant a restraining order," New
Jersey Judge Richard Russell told
his colleagues at a training seminar
in 1994. "Throw him out on the
street, give him the clothes on his
back and tell him, see ya around....
We don’t have to worry about the rights."
Elaine Epstein, former
president of the Massachusetts Women’s
Bar Association, wrote in a column
in the association’s newsletter that
divorce-connected restraining orders
are doled out "like candy."
"Everyone knows that restraining
orders and orders to vacate are granted
to virtually all who apply,"
and "the facts have become irrelevant,"
she reports. "In virtually all
cases, no notice, meaningful hearing,
or impartial weighing of evidence
is to be had." Yet a government
analysis found that fewer than half
of all orders involved even an allegation
of physical violence.
It doesn’t take much
to violate such restraining orders.
"Stories of violations for minor
infractions are legion," the
Boston Globe reported on May 19, 1998.
One father was arrested "when
he put a note in his son’s suitcase
telling the mother the boy had been
sick over a weekend visit." Another
was arrested "for sending his
son a birthday card." Parents
are arrested for attending their children’s
worship services, music recitals,
and sports activities—events any stranger
may attend. National Public Radio
broadcast a story in 1997 about a
father arrested in church for attending
his daughter’s first communion. During
the segment, an eight-year-old girl
wails and begs to know when her father
will be able to see her or call her.
The answer, because of a "lifetime"
restraining order, is never. Even
accidental contact in public places
is punished with arrest.
are in fact more likely to cause than
to prevent violence, since laws separating
parents from their children can provoke
precisely the violence they are designed
to prevent. "Few lives, if any,
have been saved, but much harm, and
possibly loss of lives, has come from
the issuance of restraining orders,"
retired Dudley district court justice
Milton Raphaelson wrote last year
in the Western Massachusetts Law Tribune.
"It is the opinion of many who
remain quiet due to the political
climate. Innocent men and their children
are deprived of each other."
has now been federalized in a legislative
agenda whose conscious aim is to promote
easy divorce. Donna Laframboise of
Canada’s National Post wrote that
federally funded battered women’s
shelters in the United States and
Canada constituted "one-stop
divorce shops" whose purpose
was not to shelter women but to secure
custody for divorcing mothers. The
Violence Against Women Act, renewed
by Congress in 2000, "offers
abundant rewards" for making
false accusations, writes Professor
Susan Sarnoff of Ohio State University,
"including the ‘rights’ to refuse
custody and even visitation to accused
fathers, with virtually no requirements
of proof." The law’s definition
of domestic violence is so broad that
"it does not even require that
the violence be physical."
some women into taking out restraining
orders by threatening to take away
their children. The February 20, 2001,
edition of the Massachusetts News
described how Heidi Howard was ordered
by the Massachusetts Department of
Social Services to take out a restraining
order against her husband and divorce
him, though neither parent was charged
with any wrongdoing. When she refused,
the social workers seized her children.
Reporter Nev Moore claims to have
seen hundreds of similar cases. Government
officials can now impose divorce not
only on one unwilling parent but on
While the domestic
violence industry is driven by federal
funding, the main financial fuel of
the divorce machinery is "child
support," which subsidizes and
encourages unilateral divorce. Bryce
Christensen of the Howard Center for
Family, Religion, and Society argues
for a "linkage between aggressive
child-support policies and the erosion
Those accused of
failing to pay child support—"deadbeat
dads"—are now the subject of
a national demonology. Yet a federally
funded study by Sanford Braver, published
as Divorced Dads: Shattering the Myths,
found government "estimates"
of nonpayment are produced not from
any official statistics but entirely
from surveys of custodial parents.
Braver concluded that "the single
most important factor relating to
nonpayment" is unemployment.
Braver is not alone.
Columnist Kathleen Parker has concluded
that "the ‘deadbeat dad’ is an
egregious exaggeration, a caricature
of a few desperate men who for various
reasons—sometimes pretty good ones—fail
to hand over their paycheck, assuming
they have one." Deborah Simmons
of the Washington Times likewise found
"scant evidence that crackdowns...serve
any purpose other than to increase
the bank accounts of those special-interest
groups pushing enforcement."
Child support enforcement
is now a massive industry, where revolving
doors, financial transfers, and other
channels connect family courts with
legislators, interlocking executive
agencies on the federal, state, and
local level, with private contractors.
To encourage divorce,
child support must be set high enough
to make divorce attractive for mothers,
and setting it is a political process
conducted by officials and groups
that thrive on divorce. About half
the states use guidelines devised
not by the legislature but by courts
and enforcement agencies. Yet even
legislative enactment is no guarantee
of impartiality, since legislators
may divert enforcement contracts to
their own firms.
The ethical conflicts
extend to the private sector, where
collection firms also help to decide
the levels of what they are to collect.
Not only does an obvious conflict
of interest impel them to make the
burdens as high as possible to increase
their take in absolute terms (and
to encourage divorce), but the firms
can set the levels high enough to
ensure the arrearages on which their
While working as
a paid consultant with the Department
of Health and Human Services (HHS)
during the 1980s, Robert Williams
helped to establish uniform state
guidelines in the federal Child Support
Guidelines Project. Predictably, Williams’s
guidelines sharply increased support
obligations in many states. Economist
Mark Rogers charges in Family Law
Quarterly that they resulted in "excessive
burdens" based on a "flawed
economic foundation." Williams
himself acknowledges that "there
is no consensus among economists on
the most valid theoretical model to
use in deriving estimates of child-rearing
expenditures." Donald Bieniewicz,
author of an alternative guideline
published by HHS, writes, "This
is a shocking vote of ‘no confidence’
in the...guideline by its author"—a
guideline used to incarcerate parents
profit from child support. "Most
states make a profit on their child
support program," according to
the House Ways and Means Committee,
which notes that "states are
free to spend this profit in any manner
the state sees fit." With substantial
sums at stake, officials have no incentive
to discourage divorce, regardless
of their party affiliation. Notwithstanding
rhetoric about strengthening the family,
neither Democratic nor Republican
lawmakers are likely to question any
policy that fills the public coffers.
The trampling of
due process in child support prosecutions
parallels that in domestic violence
cases, since a parent may legally
be presumed guilty until proven innocent,
and the parent will not necessarily
have a lawyer or a jury of his or
her peers. "The burden of proof
may be shifted to the defendant,"
according to the National Conference
of State Legislatures (NCSL), which
approves these methods. "Not
all child support contempt proceedings
classified as criminal are entitled
to a jury trial," adds NCSL,
and "even indigent obligors are
not necessarily entitled to a lawyer."
In the decades since
the inception of no-fault divorce,
family law has gradually become an
ethical cesspool. Attorneys such as
Hession charge that tapes and transcripts
of hearings are routinely altered
in family court. Hession’s forensic
evidence was published last year in
the Massachusetts News. When his client,
Zed McLarnon, complained about the
tampering and other irregularities,
he was assessed $3,500 for attorneys
he had not hired and jailed without
trial by the same judges whose tapes
were allegedly doctored. "This
is criminal misconduct," attorney
Eugene Wrona says of similar practices
in Pennsylvania, "and these people
belong in jail." In May 1999,
Insight magazine exposed a "slush
fund" for Los Angeles family
court judges into which attorneys
and court-appointed "monitors"
paid. These monitors are hired by
the court to watch parents accused
of spousal or child abuse while they
are with their children.
The corrupting power
of forced divorce now extends beyond
the judiciary, validating the pope’s
observation that its consequences
spread "like the plague."
In 2000, four leading Arkansas senators
were convicted on federal racketeering
charges connected with divorce. One
scheme involved hiring attorneys to
represent children during divorce,
a practice generally regarded as a
pretext to appoint cronies of the
judge. In the April 29, 1999, edition
of the Arkansas Democrat-Gazette,
John Brummett wrote that "no
child was served by that $3 million
scam to set up a program ostensibly
providing legal representatives to
children in custody cases, but actually
providing a gravy train to selected
legislators and pals who were rushing
around to set up corporations and
send big checks to each other."
The affair illustrates
one reason legislators protect judges
and their associates in the courts.
Divorce attorneys are prominent in
state legislatures. Tony Perkins,
who sponsored Louisiana’s celebrated
"covenant marriage" law,
reports that similar measures have
failed in some "seemingly sympathetic
legislatures" because of "opposition
from key committee chairmen who were
The potential of
child support to become what one Arkansas
player termed a "cash cow,"
providing officials with "steady
income for little work," has
been exploited elsewhere. The Washington
Post reported in July 2000 that a
top adviser to Prince George’s County,
Maryland, executive Wayne Curry received
contracts without competitive bidding
for child support enforcement within
days of leaving the county payroll.
In March 2002, Maryland announced
a criminal investigation of Maximus,
which runs Baltimore’s program. The
alleged misconduct included collecting
money from parents even after their
children had reached adulthood and
then refusing to refund it. The whistle-blower
expressed fear for her personal safety,
according to the Baltimore Sun.
Throughout the United
States and abroad, child support enforcement
has been plagued with corruption.
Kansas awarded a contract to Glenn
and Jan Jewett, who were involved
in bingo operations in Las Vegas and
spent time in federal prison for drug
trafficking, forgery, concealing stolen
property, and writing bad checks.
The DuPage County, Illinois, child
support system has been under investigation
for fraud. "A string of foul-ups
plaguing Ohio’s child support system,"
included "millions of dollars
worth of improperly intercepted income
tax refunds and child support payments,"
according to the Cleveland Plain-Dealer
and WHIO television in Dayton. In
Wisconsin, "Parents who owe nothing
have been billed thousands of dollars,"
according to the Milwaukee Journal
Sentinel, including a man billed for
children in their 40s, who "was
compelled to prove his innocence."
In October 1998 the
Los Angeles Times investigated fraud
and due process violations in the
L.A. child support enforcement system.
Deputy District Attorney Jackie Myers
had left office in 1996 because, he
said, "I felt we were being told
to do unethical, very unethical things."
In December 1999, Insight reported
on the case of a father left by the
district attorney’s office with $200
a month to care for a family of four.
One month, the district attorney "took
all but $1 of his $1,200 paycheck."
Following the Times
series, HHS was moved to investigate
criminal fraud in the city’s system,
but the General Accounting Office
found the investigation "consisted
of just two phone calls"—one
to "one of the DA office employees
who had engaged in misconduct."
HHS apparently "did not interview
any of more than a dozen people who
a confidential informant claimed had
firsthand knowledge of wrongdoing
within the child support program."
The divorce industry depends on the
widespread violation of what most
people still hold to be the most solemn
promise one makes in life. It is no
coincidence that public officials
whose livelihoods depend on encouraging
citizens to betray their private trust
will not hesitate to betray the trust
conferred on them by the public. Likewise,
a society where private citizens are
encouraged not to honor their commitments
is a society that will not hold public
leaders to their promises. Maggie
Gallagher’s observation that marriage
has become "the only contract
where the law now sides with the party
who wants to violate it" raises
the question of whether we are willing
to allow our government to be an active
party to deceit and faithless dealing.
Our present divorce
system is not only unjust but fundamentally
dishonest. For all the talk of a "divorce
culture," it is not clear that
most people today enter the marriage
contract with the intention of breaking
it. "If the marital vows were
changed to ‘...until I grow tired
of you,’ or ‘...for a period of five
years unless I decide otherwise,’
and the state were willing to sanction
such an agreement, then divorce would
not be such a significant event from
a moral point of view," attorney
Steven L. Varnis writes in Society.
"But there is no evidence that
the content of marital vows or marital
expectations at the time of marriage
has changed." Varnis may be only
half right, but even so, the point
is that the marriage contract has
become unenforceable and therefore
fraudulent. Until this changes, it
seems pointless and even irresponsible
to encourage young people to place
their trust and their lives in it.
One may argue that
government should not enforce the
marriage contract, or any contracts
for that matter (though the Constitution
holds otherwise). But I am not aware
of anyone who suggests the government
should be forcibly abrogating contracts,
let alone luring citizens into contracts
that it then tears up. If we truly
believe our present divorce policy
is appropriate, we should at least
have the honesty to tell young people
up front that marriage provides them
with no protection. Let us inform
them at the time of their marriage
that even if they remain faithful
to their vows, they can lose their
children, their home, their savings
and future earnings, and their freedom.
Not only will the government afford
them no protection; it will prosecute
them as criminals, though without
the due process of law afforded to
formally accused criminals. And let
us then see how many young people
are willing to start families.
It is one thing to
tolerate divorce, as perhaps we must
do in a free society. It is another
to use the power of the state to impose
it on unwilling parents and children.
When courts stop dispensing justice,
they must start dispensing injustice.
There is no middle ground.
teaches political science at Howard
University and is author of Not Peace
But a Sword: The Political Theology
of the English Revolution.