One impressive Nov. 2 vote has been overlooked by the media. By 85
percent to 15 percent, a
ballot initiative in Massachusetts approved
equal legal and physical custody of children whose parents are
divorced.
That ballot initiative is nonbinding, but it certainly is indicative
of the will of the people and the growing recognition that children are
best off under the care of both parents. The initiative came out of the
grass roots following a massive signature-gathering effort during the
summer.
The
proposition appeared on the ballot as follows: "Shall
the State Representative from this district be instructed to vote in
favor of legislation requiring that in all separation and divorce
proceedings involving minor children, the courts shall uphold the
fundamental rights of both parents to the shared physical and legal
custody of their children and the children's right to maximize their
time with each parent, so far as is practical, unless one parent is
found unfit or the parents agree otherwise, subject to the requirements
of existing child support and abuse prevention laws?"
This initiative was sponsored by a fathers' rights group whose
members believe fathers are systematically discriminated against by
family courts, which nearly always award physical custody to the mother
even when the father has committed no fault. Family courts typically
deny faultless fathers their equal parental rights even when state law
appears to require equal custody.
California Family Law, for example, states (Sec. 3010(a)): "The
mother ... and the father ... are equally entitled to the custody of the
child." The only specific examples the statute gives for denying custody
to a parent are child abuse, false accusations of child abuse, abuse of
someone else with whom the person has a domestic relationship, substance
abuse, and conviction of certain felonies.
Laws about custody rights vary from state to state, and only about a
dozen states specify a legal presumption in favor of equal custody.
Iowa's new law says that if a court denies a request for joint physical
custody, the judge must explain why it's not in the best interest of the
child.
Whether or not a state law mandates equal rights to both parents,
family courts appear instead to rely on a concept called "the best
interest of the child." Because that notion is wholly subjective, an
indefinable rule with no standards or accountability, in practice it
rests on the personal whim or bias of the family court.
Family court judges find unwelcome the task of rendering a judicial
decision detached from the law and from any due-process finding of
fault, so they call on court-appointed psychologists to provide opinions
of which parent should have custody. But the issue before the court is
not psychological (except in rare cases of mental illness), and the
psychologist's credentials no more qualify him to determine what is "the
best interest of the child" than the judge - or the father or mother.
The social ills caused by the lack of a paternal role model and
discipline dispenser in the home have been voluminously reported. We've
been led to believe that the plight of fatherless children is caused by
husbands walking out on their wives, fathers abandoning their children
and deadbeat dads.
That might be a primary cause in the matriarchal welfare system, but
no evidence supports a claim that large numbers of non-welfare fathers
are voluntarily abandoning their children. Thousands, perhaps millions,
of middle-class children are growing up fatherless because family courts
have deprived them of fathers.
One of the best-kept secrets in American society today is that
two-thirds of divorces are sought by wives, not husbands. The feminist
movement has taught wives they can seek "liberation" by walking out on
the marriage contract and marital duties and still reap the benefits of
marriage - their children and his money.
Some 80 percent of divorces are involuntary, that is over the
objections of one spouse. Very few of these divorces involve grounds
such as desertion, adultery or abuse.
We urgently need a comprehensive study of how many family court
decisions deprive fathers of their parental rights and deprive children
of their fathers, when that awesome punishment is not based on any
finding of fault. Information is difficult to gather because most of
what family courts do is unavailable to public scrutiny.
How many children are separated by judicial fiat from involuntarily
divorced fathers who have done nothing wrong? How many children are
separated from their fathers because of questionable child abuse
accusations without any evidentiary hearing or due process of law?
Fathers are starting to fight back. During 2004, federal class-action
suits were filed against 46 states on behalf of an estimated 25 million
non-custodial parents, primarily fathers, claiming violation of their
right to equal custody of their children.
The gay-rights lobby has a national strategy based on federal "equal
protection" to get their day in court to demand marriage licenses.
What we really need are laws ensuring that children of broken homes
have equal access to their fathers and mothers.
Mrs. Schlafly is the author of the new book The Supremacists: The
Tyranny of Judges and How to Stop It (Spence Publishing Co).
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The
proposition appeared on the ballot as follows: "Shall
the State Representative from this district be instructed to vote in
favor of legislation requiring that in all separation and divorce
proceedings involving minor children, the courts shall uphold the
fundamental rights of both parents to the shared physical and legal
custody of their children and the children's right to maximize their
time with each parent, so far as is practical, unless one parent is
found unfit or the parents agree otherwise, subject to the requirements
of existing child support and abuse prevention laws?" 
