September 5, 2013 by Robert Franklin, Esq.
This article looks reasonably fair at first blush, particularly considering it appears in the Washington Post, not known for being overly friendly toward fathers and their need for greater time with their children or fairer treatment by family courts (Washington Post, 8/28/13). It’s part hit-piece against anyone who would have the temerity to oppose the Violence Against Women Act and part decent representation of significant family law issues.
Nominally, the article is about the race for governor in Virginia that’s between Democrat Terry McAuliffe and Republican State Attorney General, Ken Cuccinelli. More specifically, it’s about Cuccinelli and his relationship to fathers’ rights groups. That makes it possible for Post writer Ben Pershing to either get it right or wrong on what fathers’ rights organizations really stand for, and, to an reasonable degree, he does the former. Pershing does a decent job of saying, without editorializing, what fathers’ rights organizations stand for. He then refers to what our opponents say about our various points of view, again, without taking sides.
Unfortunately, Pershing’s take on VAWA devolves into a he said/she said performance rather than a substantive analysis of the law or its effects. VAWA’s problems are legion, including radical anti-male sexism, financial support for groups and programs that use the Duluth Model to “address” domestic violence perpetrators, the erosion of due process of law in the issuance of no-contact orders and the assessment by Department of Justice analysts that there’s no evidence it’s reduced the incidence of DV. Pershing looks into none of that, preferring to depict Cuccinelli, and by extension anyone who opposes VAWA, as in some way beyond the pale of rational public discourse.
But beyond that, the article brings fathers’ rights issues to the forefront of debate in a major electoral campaign. Although Cuccinelli isn’t rushing to embrace fathers’ rights groups outright, he’s aware of the issues and that awareness brings them into mainstream discourse as the governor’s race enters the home stretch.
Cuccinelli does not have a position on the fathers’ rights movement and does not think divorce and custody laws discriminate against men, campaign spokeswoman Anna Nix said.
“Study after study clearly demonstrates that children are better off with two parents and that children who do not live with both parents are next best off with regular, healthy contact with both parents,” Nix said. “Like millions of Virginians, Ken’s commitment to these values and principles are steadfast.”
When was the last time you heard that in a major statewide electoral campaign? That’s right, never. Nix not only gets her facts right, she’s not afraid to speak the truth. There’s no hiding or obfuscating. She’s not intimidated, and, by extension, neither is her boss.
Another issue you rarely see articulated in an electoral campaign is that of no-fault divorce between spouses with children.
“If you are sued for divorce in Virginia, there’s virtually nothing you can do to stop it,” Cuccinelli said in 2008 to the Family Foundation, a socially conservative Richmond-based advocacy group. “This law has everything to do with the breakdown of the family. The state says marriage is so unimportant that if you just separate for a few months, you can basically nullify the marriage. What we’re trying to do is essentially repeal no-fault divorce when there are children involved.”
I’ve mentioned the concept before, although not with much frequency, but I do favor making divorce more difficult when there are children involved. The problem is, I don’t know how.
No-fault divorce conceives of single-parent childrearing as “just another lifestyle choice,” when it’s anything but. If two spouses without children want to divorce, I say let them. But if they have children, it should be entirely different. Married with — and married without — children are two totally different things and shouldn’t be treated as the same by family courts, but they are.
No-fault divorce first started to become law when psychology was in the grips of the idea that a child just needed a firm bond with one parent to become an emotionally healthy adult. That’s turned out to be false. In fact, as Nix said, kids need “regular, healthy contact with both parents” post-divorce, and preferably to be raised in an intact home with both their biological parents. As I’ve said many times before, family law needs to advance to the level of the social science on parents, family structure and children.
The fact is that children bond with both parents at an amazingly early age. Within the first weeks of life, a child can distinguish between its mother and its father. That bond is all-important to the child and can be shaken by prolonged absence.
No-fault divorce also assumes that, when a court orders visitation by the non-custodial parent, it’ll happen. But all too often, it doesn’t, and the same courts that made the orders refuse to enforce them. That, plus the fact that non-custodial parents typically get to see their kids only about four days a month renders them little more than babysitters or, in Dr. Susan Stewart’s words, “Disneyland Dads.” That means children gradually lose their fathers, courtesy of family courts.
If we’d fix the way child custody is handled, we wouldn’t need to curtail the rights of husbands and wives in divorce matters. Yes, an intact biological family is best for kids, but equal parenting is the best we can do once parents divorce. And my guess is that there’s not much political will for telling married parents they can’t divorce. We used to limit divorce by requiring a showing of fault, but that just resulted in the comedy of married couples agreeing to divorce and then manufacturing the evidence required for it.
The point is that it’s difficult, as a practical matter, to construct laws that would restrict parents divorcing and at the same time not force parents, who truly need to be apart, to remain together. I applaud the idea of keeping married parents together for the sake of the children, but don’t know how to accomplish that legally, particularly in a culture that’s grown used to easy divorce.
Whatever the case, it’s good to see an article about fathers’ rights, children’s well-being, divorce and child custody, and related topics that’s remarkably even-handed, with the sad exception of its VAWA coverage. More importantly, it’s good to see that our issues have gained enough traction to be of significance in a major electoral campaign.
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