June 3, 2016
By: Ned Holstein, MD, MS Founder and Chair of the Board, National Parents Organization
Here is a story that confirms the old adage that the more things change, the more they remain the same. (“Plus ça change, plus c’est la meme chose.”)
A May 21, 2016 front page article in The Boston Globe headlined “Hillary Clinton Stands Up for Man in Child Custody Case” describes a 1978 custody case tried by Hillary Clinton in tiny Rison, Arkansas. Between the lines of the story, the reporter unintentionally reveals the political and monetary corruption of the family courts that persists to this day.
Before the pro-Hillary attack dogs go for the jugular, let me point out that this is not an indictment of Ms. Clinton. She only did what any young lawyer would have done in her situation. (Whoops –now the attacks will come from the anti-Hillary crowd.) Rather, this is a story about how the supposed best interest of the child in the 1978 family courts was submerged under waves of family court corruption, just like today.
Sanford Beshear and Susan Bensberg had been married to each other twice and had a daughter named Bethany when they again sought a divorce in 1978. Before Clinton was involved, a judge in rural Cleveland County, Arkansas, granted joint custody to the two parents, even though the mother now lived 70 miles away in Little Rock.
The Globe article fails to note how strikingly unusual this was for the time. This decision was counter to the prevailing teachings of the day, which held that sole custody was in the best interest of children because they allegedly needed one home, one set of rules and one caretaker. Not a single state in 1978 even had a custody statute that made provisions for joint custody. They were still operating under the “tender years” doctrine, which explicitly called for sole custody to go to the mother.
So how did a joint custody order happen? Was this a case of a prematurely enlightened family court judge doing the right thing?
There is a far more likely explanation. The article tells us that the father, Beshear, “was the only lawyer in the town and an important figure in southeastern Arkansas.” In fact, sufficiently important that he was the cochairman of Bill Clinton’s ultimately successful campaign for governor of Arkansas. We also learn in the article that there really was no fatal flaw in the mother.
Judges are elected in Arkansas. Obviously, the judge, who would eventually have to stand for re-election, chose to go totally counter to the practices of the day to do a favor for a politically important father by giving him joint custody. This is not the decision that a 1978 judge who was interested only in the best interest of the child, as it was then understood, would have made. Politics came first, just as considerations other than best interest of the child continue to come first today. For instance, the money and power of the bar associations continue to dominate the family courts and legislatures today, standing in the way of shared parenting in state after state despite the now-overwhelming evidence that it serves the best interest of children in most cases, and despite overwhelming popular support.
But Beshear was not satisfied with his extraordinary joint custody result and wanted more. Six months later, with 30 year old Clinton now as his lawyer, he sought sole custody of Bethany before Judge Royce Weisenberger.
Why did Beshear choose Clinton as his attorney? Is it because she was a proven winner? This seems unlikely. Although she was known as well educated and smart, and was a new associate attorney at the prestigious Rose Law Firm in Little Rock, she “had little expertise” in family law, according to the Globe. Is it because, as Beshear now claims, she was a woman, which might be helpful in a custody dispute? That is a convenient thing to say in today’s climate. But having a female lawyer was a novel thing in 1978, of highly uncertain benefit. Much more likely is that Bill Clinton had just won the Democratic primary for governor and was certain to be elected governor in November. Beshear chose Clinton because an elected judge would not want to antagonize both the powerful Beshear in his home county, and also the new governor.
And why did Clinton take this case, given that family law is not prestigious and would not have been the road to prominence for a young ambitious lawyer? Just as obviously, it gave her two big benefits: big fees, and the chance to win the lasting political loyalty of Beshear, who in fact continues to this day to support both Clintons politically and financially.
Hillary did nothing wrong; she just did what any ambitious young lawyer would reasonably do. Of course, political and financial motivations continue to drive events in family courts and legislatures to this day. For instance, in many states, shared parenting legislation is blocked by legislators who make most of their living practicing family law and fear the loss of fees that might occur if shared parenting replaced custody battles as the new norm. Or see the many examples.
Now come some even more fascinating twists. The Globe article emphasizes certain constitutional arguments that Hillary made on behalf of her client’s quest for sole custody. In her brief, she wrote, “Case law which permits discrimination against men because of their sex in the award of a child’s custody is neither socially nor psychologically supportable and violates the Equal Protection and Due Process Clauses of the Arkansas and United States Constitution.” (Coming next week: additional writings on family law early in her career.)
This passage is fascinating. It creates the Globe’s favored story line -- that Clinton, now known as an advocate for women, was standing up against discrimination against men too. And our view today, of course, is that she was absolutely right in theory – except that Beshear had already been treated fairly when he got joint custody six months earlier. The parent whose parental rights were now endangered was not him, but the mother. And also, wasn’t this supposed to be about the best interest of the child, not about parental rights?
In my view, this argument demonstrates Clinton’s inexperience in family law at the time. Such constitutional arguments, while totally cogent and compelling, were not successful in Arkansas in 1978, and have not been successful in custody cases anywhere else in the United States to this day. A Little Rock attorney who has practiced family law for 44 years was quoted in the Globe as saying, “It’s a great argument. But usually you don’t think in family law of using constitutional arguments to advance your case.” Amazing! An experienced family law attorney coming right out and saying what we all know -- that the constitution has no place in the family law courtroom!
It is now crystal clear that shared parenting is the only solution that satisfies both the constitutional demand to preserve the parenting rights of both parents, and the demand to serve the best interest of the child. But no court anywhere in the US has yet decided a custody case based on the constitutional argument about parental rights. Hillary was barking up the wrong tree.
Which leads to another revelation to be found between the lines of the Globe article. Hillary apparently realized she needed more ammunition. Very delicately, the article hints at her strategy, which would not be popular with advocates for women. Hillary wrote that the mother “conducted herself…without regard to appropriate moral and ethical values and behavior.” Beshear tells us that “Bensberg [the mother] was in a relationship while the couple was separated” -- which would not have been popular with a male judge in 1978 Arkansas. We read that “Many of Clinton’s questions focused on Bensberg’s role as a mother.” And that “The judge chided Beshear for his ’vindictive pursuit’ of his ex-wife’s past.”
Of course, blaming this on Beshear would have been the elected judge’s way of avoiding criticism of the governor-elect’s wife, who was the one who would have actually carried out the “vindictive pursuit.” Clearly, Hillary’s main tactic was not to argue the constitution, but, as in most custody disputes, to trash the other parent. Nothing personal, and no special criticism of Hillary – just business as usual.
The reasons given by Judge Weisenberger for his sole custody decision in favor of Beshear are thin at best. According to the Globe, the judge “had positive words for both parents…observing that ‘obviously each parent loves’ the child.” But “Beshear, though, ‘sacrificed the most’ by shortening his working hours, while the child’s mother had decided to ‘continue her education even though married now to a man able to support her.’” Clearly, Hillary, while supporting her family more comfortably than Bill’s salary as governor would provide, argued that it was wrong for the mother to continue her education if supported by a man. Oh my, quite politically incorrect. And clearly, such flimsy arguments cannot account for the extraordinary decision to take all custody away from a mother who had no clear unfitness. This leaves us with the conclusion that it was all about the political power of the father and his lawyer, who was about to become Arkansas’ First Lady.
Finally, we learn what we know already – that sole custody decisions maim the child’s relationship with the other parent for life. The grown daughter continues to live with her father in Utah, while the mother lives in Arkansas. The mother declined to be interviewed for the Globe article, claiming that she will vote for Hillary in November, but did not want to dredge up painful memories. Perhaps true, but also likely that she does not want to offend a powerful woman who may be the next President of the United States.
So we see all the family court tropes at work in 1978 Arkansas that we know so well from the family courts today. That it is so often about money and power, not the best interest of the child. That what is known – or thought to be known -- about the best interest of children will be ignored if countered by money and power. That the reigning social attitudes of the day -- for instance, that a mother should not have taken time away from mothering to pursue an education (1978), or that a father who controls the checkbook is automatically “abusive” (2016) -- will be invoked to justify decisions that are actually about money, power and connections. That the constitution is ignored in family court. That even years later, sole custody decisions destroy parent-child relationships and leave one parent afraid to tell the truth publicly, either out of fear of the money and power, or of further adverse decisions by the court if the child is still a minor, or out of fear of rupturing the few remaining threads of connection to their adult child. And that mainstream media will overlook what really happened, either out of ignorance, or out of a desire to please the same powerful interests that rule the family courts.
(Coming next week: additional writings on family law by Hillary Rodham Clinton early in her career.)