Fatherlessness, in "the best interest of the child"
Does a child have the right to have its father in its life and to bond with him?
Hair-raising examples of child-support case law
From Marxism to Feminism: The planned destruction of the American family
Feminist Jurisprudence: Equal Rights Or Neo-Paternalism?
by Michael Weiss and Cathy Young
Cato Policy Analysis No. 256 June 19, 1996
Today, the politics of sex demand easy divorces, that families are no longer important for the continuation of civilization and in the upbringing of children and claim, contrary to all evidence, that the sexes are equal and are being treated equitably in the courts.
Without any doubt, children require not only mothers but also fathers in their lives. On average, the outcomes in children who are being raised fatherless are, with respect to social pathologies, about 2.5 times worse than they are in children who are being raised by two married biological parents one of each sex. Radical feminists (more accurately called redfems), be they judges or social activists of any other kind, rationalize that, although pathological outcomes in children raised without their fathers are on average worse than those in children raised in the care of both parents, that should not worry anyone because most of the children raised without fathers are on average quite alright. The logic in that may escape normal people, as it is like arguing that murder is alright because the vast majority of people will die without having been victims of murder, or that it is alright for people to drive while under the influence of controlled substances because most people who drive under the influence don't hurt or kill anyone.
Given that the sexes are said to be equal, it would stand to reason to expect that fathers are deemed to be as important as mothers are in children's lives and that our judiciaries would strive to make sure that after separation or divorce of the parents of a child the courts do all in their power to make sure that if children of divorce can only get half of the parenting time they had prior to divorce will receive at least equal shares comprising that half from both of their parents, half of the parenting time from each, even if the total amount of parenting time possible after separation or divorce is only half of what it is for children from married parents.
Unfortunately, that is not how the courts see it. In the vast majority of cases it is mothers who receive custody awards after separation and divorce, even more so in the coloured sector of the population. The following text illustrates the extent of the discrimination by the courts against fathers.
The State of Maryland, by its behavior, has shown a consistent predisposition to discriminate. Judges in Family Law cases routinely award custody of children to women in the majority of cases (61.3%) as opposed to men (10.15%) as demonstrated in a statistical study in Exhibit A. Not only is this discrimination by gender it is also by race. Where the male is African American, the courts award women in a greater majority of the cases (79.91%) as opposed to men (5.64%), virtually half that of whites. Judges typically excuse their decisions based on recommendations of the Court Investigators, Guardian Ad Litem and APP (Abused Persons Program) counselors. The word excused is used since judges clearly know the law and therefore have used the recommendations as a means to cover their predisposition to discriminate. After making numerous custody decisions, it is inconceivable that any judge looking back on the number of awards to women over that of men could not be concerned by the disproportionate number favoring one gender. Reed v. Reed is recognized as having clearly said that gender is not permissible as a deciding factor in any case and is settled law. Maryland case law of Griffin v. Crane stated it is impermissible to use gender as a basis of a custody decision.
The sad facts here are that while the higher courts recognize that discrimination based on gender or race is not acceptable, the lower courts continue to ignore the higher court’s rulings in defiance of the law since they are literally not accountable for their behavior being indemnified by the State of Maryland. The other problem here is that unless men start appealing custody decisions on a regular basis, and back up what they say with statistics, things will just go along as they are now. However, State Appeals courts are loathe to second guess lower court judges on custody decisions unless clear issues are made. Appeals are very costly and most men are not able to fight such a long legal battle without succumbing to bankruptcy. Until the higher court’s are ready to hold County Circuit and District Court judges accountable for their actions violating the civil rights of men and children, the discriminatory behavior will continue.
Anatomy of a Dysfunctional Legal System
When legal decisions are determined by politics
By Maryland Judicial Equality Committee
Although that example is from Maryland in the U.S.A, the extent of the discrimination identified is virtually identical in all US states and in all developed nations. Clearly, the courts do discriminate against fathers. It does not lessen the pain for children and their fathers that the courts rationalize that the discrimination against fathers is justified "in the best interest of the child".
A few days ago somebody asked about citations or case law relating to the right of a child to have, and to have access to, its father. Now, anybody familiar with Fathers for Life knows that the information made accessible here generally ignores case law and is concerned with the law only to the extent its outcomes reflect the force of the political winds that are blowing at any particular time. Nevertheless, I had some time ago reported on a speech by Canadian Senator Anne C. Cools that dealt with the subject of the right of a child to both of its parents and how that right became perverted.
The evolution of the application of the doctrine "in the best interest of the child"
Calgary Workshop on Family Conflict
Peter Lougheed Centre, 1998 09 26
From the report on that workshop:
Senator Anne C. Cools (Liberal), presented an analysis of the doctrine "In the best interest of the child." She had found that the first time the term had been mentioned in any legislation was in a 19th Century ruling, in a hearing by the Lord Chancellor in Britain -- the highest Court in the U.K., responsible for questions of judiciary equitability and ethics -- in which it became established that children have the right to both of their parents and that the King will be the protector of that right. She then recounted a trail of decisions during which that premise became modified repeatedly until it came to mean today that children are the property of, and an adjunct to, their mothers, with most of those changes having taken place during the last three decades. She concluded by asking how it was possible to come from the beginnings of a doctrine with such noble intentions to where we are now. [Update 2000 10 03: Make sure to look up relevant information provided by Stephen Galvin from NZ.]
It would have been nice to have the citations of the various cases that Senator Cools had mentioned in her speech. Unfortunately, the tape never materialized that the organizers of the family-conflict workshop had promised they would make available. It is therefore a good thing that Stephen Galvin provided the following information in response to my observation hat Senator Cools' office had not wanted to make her speech notes or a transcript of her speech available.
"The father is the person entitled by law to the custody of the child. If he abused that right to the detriment of the child, the court will protect that child. But there is no pretence that the child has been injured for want of nurture in any other respect. Then he, having a legal right to the custody of the child, and not having abused that right, is entitled to have it restored to him."
Lord Ellenborough, C J. Rex v De Manneville (1804) 5 East, 102 Eng Rep 1054 quoted in Joakimidis, J. Back to the Best Interests of the Child, Child Support Action Group Adelaide 1994 p.13.
Joakimidis goes on to recount the history of the 'tender years' doctrine which progressively eroded the presumption of the father being the natural caregiver for the child.
I had forwarded that information, too, and provided an additional comment along with it:
It seems to me that whatever rights children may have had once upon a time to one or the other or both of their parents became meaningless as soon as the legal rights of the entity known as the traditional nuclear family became normalized down to the level of the lowest common denominator a social aberration and a biological and evolutionary dead-end. Thereby the traditional nuclear family ceased to be the glue that held western civilization together, and western civilization inevitably began to self-destruct.
However, all of that covers only legal circumstances and some of their consequences. It is an entirely different matter to consider the evolutionary, anthropological, emotional and psychological ramifications of father absence in a child's life. That is out of the scope of this discussion, but if anyone wishes to have a look at those aspects, the main focus of the website of Fathers for Life is on the consequences of fatherlessness. One of many similar opinions on the problem posed by fatherlessness caused through judiciary activism condoned, committed and perpetrated by radical-feminist judges is this:
Activist Supreme Court Justices
By Eeva Sodhi
In the conclusion to her address to the CBA [Canadian Bar Association] Madam Chief Justice of Canada [Beverley
"All of us must use all our intelligence and our hearts to bring family law into the 21st century with pride, honour, and respect. Above all, we must be pro-active. It is our task to ensure that family law continues to meet the needs and expectations of our changing society. Our track record in recent decades, both in terms of substance and procedure, is impressive. But we cannot rest on our laurels."
What is the track record? It is an upward spiral of child poverty, overcrowded jails, unemployment, juvenile crime, truancy and teen-age pregnancies, all of which have been shown to be direct consequences of fatherlessness, which in turn is a direct consequence of Gordon v. Goertz and other similar abominations. Suicides by men in their prime who have been robbed of their children and bankrupted by excessive support payments and legal costs, including those of their ex-wives which they are ordered to pay, have become an epidemic. Considering that our family court practises promote, rather than discourage, father estrangement, there do not seem to be any laurels to rest on.
Dr. Aaron T. Beck, University of Pennsylvania, says in his "Risk Factors for Suicide in Psychiatric Outpatients":
"Previous studies of suicidal patients suggested that three cognitive factors were associated with high suicide intent: high hopelessness, low level of self-esteem, and impaired problem-solving ability. Other previous studies have supported the role of the first two variables as predictors of eventual suicide."
All the above factors can be seen to be directly linked to the bias in family courts. Once the control of his life has been taken away from an individual he no longer has the ability to solve his problems. That leads to high hopelessness and low level of self-esteem. Yet, study after study ends with the remark that it is not fully understood what is the cause for the ever-expanding epidemic of suicides by men who are in their prime.
Divorce and separation not only increase suicide risk for men but also for children. After surveying 752 families at random, Carmen Noevi Velez and Patricia Cohen divided the children into those who had never attempted suicide and those who had done so at least once. They found that the two groups differed little in age, family income, race, and religion. But those who attempted suicide were more likely to live in non-intact family settings than were the non-"attempters". [in their "Suicidal Behavior and Ideation in a Community Sample of Children: Maternal and Youth Reports," Journal of the American Academy of Child and Adolescent Psychiatry 273 : 349-356]
A site-specific search at the website of Fathers for Life for "fatherlessness" or for "father absence" will provide you with similar and related information.
By the way, it is not often mentioned that one of the consequences of fatherlessness and the accompanying deterioration of society is a rapidly escalating incidence rate of STDs in teenagers (now about ten times higher than it was in the 'fifties).
Trying to find case law
The effort I had made to find and forward that information was not enough for the man who had asked for it. He complained that:
[Note the tendency by myself and perhaps by others to confuse two issues; (1) a child's right of access to its parent, and (2) the etymology of the phrase "child's best interests". I am sure that, independently of all this about (2)"child's best interests", Cools found that (1) nowhere was a child's right of access to its parent enshrined. This mirrored my discovery of the same problem (1) for English children.
Certainly, the phrase "child's best interests" is being used to trample on a child's best interests, and those a parents, throughout the Western world. However, this is not quite the same problem as the lack of a statement anywhere of a child's basic human right. - xxx 29jan03]
Of course, Senator Cools had not once claimed in her speech that she had wanted to establish proof of documentation currently existing of a child's basic human rights, and the original request by the man who now complained about the lack of that information did not extend its scope quite that far, as he had asked for nothing more than a summary of Senator Cools' comments in Calgary.
All Senator Cools had wanted to do, and she had been quite clear on that in her speech, was to explain how the right of the child to both of its parents became established under the doctrine of "the best interest of the child" and then became perverted under the same doctrine to come to mean today that children are the property of, and an adjunct to, their mothers, with most of those changes having taken place during the last three decades. I responded to the complaint of the man by stating:
Is there truly a "lack of a statement anywhere of a child's basic human right"? I can't answer that, or can I? Can anyone? Maybe what is needed is to assess the state of a child's rights and to determine where and whether jurisprudence is lacking in addressing them.
There is at the very least in Canada a Bill of Human Rights and Freedoms that applies to all and does not specifically exclude children, although our Supreme Court Judges are doing their best to read enough into the law to declare children non-persons, non-living and non-human before they are born (which is any time up to when the navel cord is cut and the last toe or other last part of a baby leaves its mother's womb). Canadian children are legally neither human nor alive, unless a given mother decides otherwise. If she decides that her child needs to be aborted, the law will permit her to "get rid" of the child without any concerns for any rights of the unborn child. If someone decides for the mother that a child shall be aborted, then the unborn child has no legal right to live, as long as the mother goes along with the wish to kill her unborn child. However, if the mother should object to having her unborn child killed, then the child suddenly and miraculously acquires an inviolable right to life.
Could we then say that children have basic human rights in Canada? Not unless we recognize that those human rights don't come into existence unless a child's mother grants them and wishes for them.
Could we say that because humans have not been specifically excluded from having the right to have fathers and mothers that therefore children have the right to have both? The evidence is not clear on that. In fact, the evidence is quite clear that, rather than to guarantee each child the constitutional right to have a father, the law is moving into the opposite direction and establishes beyond any doubt the right of mothers to keep fathers away from children and, if necessary, to remove fathers from their children's lives and to keep them away indefinitely while [the mothers of children are] still being entitled to financial support of at times outrageous proportions from fathers.
Even though, incredibly, the law nowhere seems to take into account a child's right to its true father, it is ludicrous for anyone even to debate or question a child's right to a father because, at least according to the current state of reproductive customs and technology, not a single child has ever been born without a father at the very least being involved in the child's conception. However, we seem on the verge of changing that, through making cloning a mundane occurrence, but even the cloning we are familiar with and that is about upon us still requires technically and logically a father. Not until parthenogenesis has been perfected and not until it, too, becomes part of human existence will fathers become officially and totally unnecessary. Until then a child cannot come into existence without a father and should therefore have the right to a father, unless the child's mother decides to terminate a child's life, through which a child's right to its father is automatically extinguished. Of course, fathers have no legal right to prevent their child's death at the hands of the child mother.
Still, given that women are increasingly becoming less and less willing to be mothers, it is quite conceivable that technological development of artificial wombs will progress to the point where mothers are no more needed than fathers are to bring a child into the world. Will that extinguish all parents' rights to their children and all children's rights to both of their parents? It's possible. On the other hand, I would not wish any man to be the sperm donor who will be found guilty of paternity of a large number of children based solely on the results of DNA testing. Theoretically, a similarly dismal fate is conceivably in store for women who donated their eggs for whatever purposes. Just as a man loses all control over any paternal rights as soon as his sperm leaves his body, so a woman conceivably loses all control over her maternal rights as soon as she decides to have her eggs leave her body for whatever reason. When a child should be conceived in any other but the normal manner intended by biological design, it is very questionable that the child's ostensible rights to its natural parents can be accurately determined, let alone be enforced. It is already quite apparent that another niche opened up in the legal industry, offering new and lucrative opportunities to advance the financial interests of lawyers [in connection with paternity and maternity claims in in-vitro-fertilization cases].
The discussion cannot cover all possible circumstances under which a child may be conceived or brought to existence with full human rights, but at a time when the state of technological progress hadn't complicated things quite so much, it was undisputedly fathers who had a superior right to their children, although that right was possibly at least at times thought of as a responsibility that fathers had to be held to.
The laws were quite strict in that regard. Any child conceived by his wife and born into his marriage became a man's legal responsibility. Through that it was the marriage of its parents that bestowed upon a child born into a marriage the inalienable right to have a father. Children born out of wedlock had no such inalienable right and were considered to be illegitimate.
That principle of legal paternity being tied to marriage has in recent times become somewhat fuzzy. It got extended to give any man the responsibility to be any given child's father according to whether a given mother labels the man as the father of her child.
The principle of illegitimacy became expanded at the same time so that the principle of paternity at any cost was expanded regardless of marital status and true biological paternity, while mothers' right to expunge fathers from the lives of their children acquired virtually infinite dimensions. Obviously, none of the judicial activists bringing that about had "the best interest of the child" at heart. What they have at heart is the speedy construction of the fatherless, global, totalitarian, socialist state, thereby elevating Marx's and Engels' concept of "free love" (and every child being a wanted child equally owned and cared for by the state) to the current communist ideological apex of mothers' absolute maternal rights with the exclusion of any paternal rights except alleged fathers' obligation to make financial payments to the mothers for the duration of a life-sentence without receiving anything at all in return. There is no room for children's right to a father in that.
Mothers decide who can and who can not be a father to any of their children
Whether the man is the
natural father of the designated child or not, if the woman says so, he is the father of her child, and that legal fact will not be changed even if the true and real
natural father is identified, comes forward and wants to be a given child's father. Thereby we are back to the state of the social evolution of the caveman, where it is entirely up to a woman to decide whether a child should have a father or not in its life, and whether the child's father she designates is the
natural father of the child or not. Without mandatory DNA testing at birth, separation or divorce, only the mother of a child can be absolutely sure who the father of a child is, unless she was, as is not unusual, on a sexual rampage intent on becoming pregnant by having sexual intercourse with as many men as possible when in estrus.
The child then most definitely has a right to a father, regardless of which man that may be, and the man designated to be the father of a child cannot escape the responsibility assigned to him, even if wrongly, not even if the designated man has been expunged from the child's life and not even if another man or a succession of men move in and out of a child's and its mother's life. Therefore, even though a child's right to have a father of whatever dubious biological or social standing cannot be disputed, a child does not have the right to the presence of its father in its life, and the state in concert with mothers has the right and the power to impose a fatherless life on any and all children. Whether a father will be present in a child's life depends solely on the mother's, and not on judicial discretion. Even though the law pretends otherwise, no mother will be punished for withholding a father's presence from his child, not even if the mother violates an explicit court order granting the father of a child the right to be present in his child's life.
Whether the courts will ever restore some of paternal rights or any rights of children to have fathers in their lives is another matter and, if current trends continue, not very likely to happen. However, all of those comments were not sufficient to make the man happy, and he still complained.
Read the next part of the story.
Family Law Table of Contents
From Marxism to Feminism: The planned destruction of the American family
Statement of Bill Wood
FC-8 Hearing on Waste, Fraud, and Abuse July 17, 2003
TESTIMONY FOR THE [US] WAYS AND MEANS COMMITTEE
The planned destruction of the family was part of the communist agenda from its inception by Karl Marx and Frederic Engels. It became government policy in the USSR in about 1917. It was so successful in the USSR that it threatened to destroy society in the USSR. Curiously, while in the 1940s the USSR took steps to repair the damages its family-hostile policies had caused, American communists imported the Soviet agenda for the planned destruction of the family into the USA. It has been and continues to be promoted by left-leaning liberals in the West ever since.
When it was determined that this type of class warfare directed at the family was a complete failure, the Soviets worked quickly to restore the traditional nuclear family in the 1940s. Shortly after this, the NAWL (National Association of Women Lawyers) began their push for adopting these failed Soviet policies in America. Americas version of family law has adopted much of the early Soviet failed version of class warfare, while adopting new and more insidious Gramscian versions with gender, cultural, and social warfare components.
From Bill Wood's testimony to the
Ways and Means Committee
Father Absence and the Welfare of Children, By Sara McLanahan
Quoted from the conclusion of the discussion paper:
Growing up with a single parent harms children for three primary
reasons: A disrupted family usually has fewer financial resources to
devote to children's upbringing and education, less time and energy
to nurture and supervise children, and reduced access to community
resources that can supplement and support parents' efforts.
Fortunately, none of these factors are beyond the control of parents
and society. Thus, to the extent that parents and government can
address these risk factors, the effect of father absence on
children's wellbeing could be significantly softened....
Note by Fathers for Life: Although the discussion paper presents a
fairly good analysis of the consequences of father absence, the primary
solution seen by Sara McLanahan for addressing the consequences of
father absence is to bring about more and stronger child support
enforcement. That is in addition to ensuring more secure financial
circumstances (out of tax revenues) for single-mother families.
Not once does the discussion paper mention, let alone critique, the
deplorable drive to systematically destroy the traditional nuclear
family and to eliminate the presence of fathers in children's lives.
The White Rose
Thoughts are Free
Posted 2003 02 02
2003 02 03 (constructed index and added introduction)
2003 05 02 (added reference to Family Law Table of Contents
2003 08 01 (added reference to From Marxism to Feminism: The planned destruction of the American family)
2007 10 17 (added reference to Father Absence and
the Welfare of Children)