The Criminalization of
By Stephen Baskerville
E-published here with permission by the author
The Criminalization of Fatherhood will
appear in the July-August issue of the Newsletter of the Women's Freedom Network, probably
without further editing.
Media Bypass magazine reprinted a
slightly changed version of The Criminalization of Fatherhood article in their
August 2000 issue.
Please credit both
publications in any reprints.
Fatherhood is now the rage: presidential initiatives, federal staff conferences,
congressional task forces and resolutions, federal grants, new nonprofit organizations,
and media reports now promote fatherhood.
Yet the nations discovery of fatherhood also has a darker side: law
enforcement initiatives targeting deadbeat dads, federal registers monitoring
millions of parents, databases and information gathering on American citizens accused of
nothing, new cadres of armed, plainclothes police, and endless crackdowns on
allegedly dissolute parents. Campaigning for president, Al Gore calls for incarcerating
What we are seeing today in fact is nothing less than the criminalization of
fatherhood: criminal penalties imposed on citizens who have committed no act but are
made outlaws through the actions of others. This phenomenon proceeds largely from
involuntary divorce and is effected by family courts.
Family courts are the arm of the state that routinely reaches farthest into the private
lives of individuals and families. The family court is the most powerful
branch of the judiciary, writes Robert W. Page, Presiding Judge of the New Jersey
Family Court. By their own assessment, the power of family court judges is
almost unlimited. One father was told by a New Jersey judicial
investigator: The provisions of the US Constitution do not apply in domestic
A father brought before these courts in the absence of any civil or criminal
wrongdoing will immediately have his movements, finances, personal habits,
conversations, purchases, and contact with his children all subject to inquiry and control
by the court. He must submit to questioning about his private life that author Jed
Abraham has termed an interrogation. He must surrender personal papers,
diaries, correspondence, and financial records. His home can be entered at any time. His
visits with his children can be monitored by court officials and restricted to a
supervised visitation center, for which he must pay an hourly fee and where he
and his children will be observed and overheard throughout their time together.
Anything he says to his spouse or children, as well as to family counselors and personal
therapists, can be used against him in court, and his children can be used to inform on
him. Fathers are questioned about how they feel about their children,
what they do with them, where they take them, how they kiss them, how they feed and bathe
them, what they buy for them, and what they discuss with them. He will be forced, on
pain of incarceration, to pay for lawyers and psychotherapists he has not hired. His
name will be entered on a federal registry, his wages will be garnisheed, and the federal
government will have access to all his financial records. If he refuses to cooperate
he can be summarily incarcerated or ordered into a psychiatric examination.
Henceforth that parent has no say in where the children reside, attend school or
daycare, worship, or visit the doctor and dentist. He has no right to see their
school or medical records nor any control over what medications or drugs are administered
to them. He can be enjoined from taking his children to a physician when ill.
He can be told what religious services he may (or must) attend, what he may do with them,
and what subjects he may discuss with them in private. And he can be forced to pay
two-thirds or more of his income as child support.
If for any reason the father falls more than $5,000 behind he becomes a felon. If
he moves to another state while he is in arrears, perhaps to find work, he becomes a
felon. It is possible he can even become an instant felon from the time his children
are taken. If his ordered
child support is high enough, and if it is backdated far
enough, he will be an instant felon and subject to immediate arrest.
A presumption of guilt pervades
child support enforcement where the burden of
proof may be shifted to the defendant according to one ruling. In clear
violation of the Constitution it has been held that not all
child support contempt
proceedings classified as criminal are entitled to a jury trial, and even
indigent obligors are not necessarily entitled to a lawyer.
Setting child support is a political process conducted by interest groups involved in
collection but from which parents who pay the support are excluded. Such legislating
by courts and enforcement agencies raises serious questions about the separation of powers
and the constitutionality of the process. Where officials in all branches and at all
levels of government develop a financial interest in hunting delinquents, it
is predictable that they will create delinquents to hunt. Obviously the more onerous
the child support levels, and the more defaults and arrearages created, the more demand
for coercive enforcement and for the personnel and powers required.
Private collection firms also set the levels of what they collect. Not only does
an obvious conflict-of-interest arise in terms of the amount to be collected, but the
firms can create precisely the delinquents and deadbeats they are
hired to pursue and on which their business depends.
In Los Angeles, former Deputy District Attorney Jackie Myers told the Los Angeles
Times, she left office in 1996 because we were being told to do unethical, very
unethical things. Myers is not alone. I got a call from a homeless
shelter and was told that I had put a man and . . . his four children out on the street
because I had put an enforcement order . . . for 50% of his income, ex-Deputy
District Attorney Elisa Baker recalled. "That was the first time I was in touch
with the ramifications of what I was doing."
Men are now forced to support children who are acknowledged not to be theirs
biologically. Stepfathers are ordered to pay support for stepchildren. Grandparents
and second wives are pursued by
child support prosecutors. Minor boys statutorily and
forcibly raped by adult women must pay
child support to the criminals who raped them.
A presumption of guilt also pervades allegations of domestic violence made during
custody proceedings, where a fathers contact with his children is criminalized
through restraining orders that are routinely issued with no evidence of wrongdoing
whatever orders that cannot protect anyone because they criminalize not violence
(which of course is already criminal) but a fathers contact with his own children.
Family law is now criminalizing rights as basic as free speech. In many
jurisdictions it is now a crime to publicly criticize family court judges, and fathers
have been jailed for doing so. In a paper funded by the Justice Department, the
National Council of Juvenile and Family Court Judges, an association of ostensibly
impartial judges who sit on actual cases, attacks fathers groups for their political
opinions and activities.
No figures are available on how many fathers are incarcerated for family
crimes. Informal estimates put as much as one-third of the nations jail
population consisting of fathers on contempt-of-court charges. Some jurisdictions
now propose creating forced labor camps specifically for fathers to relieve overcrowded
jails. Not since the fall of the Weimar republic has a democracy treated millions of
its own citizens in this fashion.
Stephen Baskerville teaches political science at Howard University.
Department of Political Science
Washington, DC 20059
A single, seemingly powerless person who dares to cry out the word of truth and to
stand behind it with all his person and all his life, ready to pay a high price, has,
surprisingly, greater power, though formally disfranchised, than do thousands of anonymous
Fix Is In
Man Can Count On Justice In Family Court, Argues An Angry Professor
Stephen Baskerville, at dadmag.com
Index to more
of Stephen Baskerville's articles