How To End Father-Absence When Divorce is Necessary
June 13, 2005
by David R. Usher
Judges, lawyers, psychologists, feminists, and men’s rights activists have been at loggerheads for as long as we can remember over what to do about children of divorce. Liberals want to pander to it and fund more divorce. Most conservatives say all the right words, but usually end up doing what the liberals want for lack of any real “marriage movement” leadership.
Both parties have propelled legislation designed to expedite the divorce process, as if it could somehow make “no-fault” divorce a painless, socially-productive institution. Expedited procedures include a filing method in which a parent “claims custody” at the time of filing, and then the other spouse is presumed to be the “noncustodial parent”. The subsequent child support order is also expedited via tables presuming an amount, and processes discourage tailoring the support order to the real needs of the parents involved. This has had the effect of increasing the numbers of children of divorce, and ensuring that the vast majority of them lose their fathers in divorce.
The custody problem and the tremendous problem of father-absence exists because we have been asking the wrong question all along: How do we split the children in half?
Such Solomonic acrobatics have propelled many pro-child activists and states to adopt policies attempting to instill various forms of joint custody as an option to the court. For a variety of reasons, these are perceived not to work, or may in practice be facile on a limited basis. So courts often settle for a primary custody order, sometimes glazed with the words “joint legal custody” or “joint physical custody” to make everyone feel better. This is the dysfunctional model that leaves the majority of children fatherless by fiat.
I have spent fifteen years studying the courts, political systems, and the various interest groups involved in the gender war, which is longest-running war in American history. I have done most of my work pro-se successfully, and played a substantial role in passage of many statutory reforms to divorce law in Missouri.
The purpose of this article is to set forth the concept for a new custody model called “Time-Shift Shared Parenting” (TSSP),which addresses the major, chronic problems of divorce: such as litigiousness, dissatisfaction, and unnecessary abridgement of parental and children’s fundamental constitutional rights.
TSSP involves concepts based on a large body of credible reports and studies too extensive to cite in the context of this article. Readers studied in these issues should already know the citations without me stating them. Therefore, I am leaving the citations and their discussion for future articles and papers by myself and others.
We know we can never make divorce a functional equivalent to marriage when children are involved. But we certainly have a moral, ethical, and legal duty to ensure that we never again intentionally reject good fathers or deny children half the love, guidance, discipline, and experience available to them.
Our failure to develop and adopt policies which prevent automated father-absence when divorce takes place is why father-absence continues to be the greatest problem we face.
Readers are reminded that father-absence is the single primary predictor of a tremendously expensive array of intractable social problems including teen pregnancy, teen truancy, teen violence and crime, teen drug abuse, serious child psychological problems, poor school performance, poor integration into adulthood, paternal suicide, personal bankruptcy, and child support noncompliance. These truths are now well known as established in many credible works published over the past decade.
The Problem
First, I will briefly itemize the primary factors why joint custody has not become the norm:
- It is unusual for parents to cooperate in divorce. Judges historically refuse to order joint custody when parents do not explicitly cooperate with each other. A divorce usually means there is disagreement in the marriage to begin with, and he fundamental structure of contemporary divorce process substantially exacerbates disagreement by its very design. When divorces become combative, judges tend to maintain status-quo of the present arrangement, and apply force against the parent objecting to the divorce. In combative divorces, the contesting spouse is objecting to a wrong created by the process itself, assuaged by the court, so the objection is perceived as a criticism of the court. This has the effect of placing the objecting spouse in an oppositional position with the judge, who reacts by compounding the wrong instead of correcting it This is well known to unethical divorce attorneys, who often instruct custodial petitioners how to use passive-aggressive methods to foster self-aggrandizing disagreement which inures to their benefit.
- Child custody is strongly associated with maximum child-support and alimony income. Perverse pecuniary desires commonly underlay custody disagreement. One parent (usually the mother) wants money and the home. The father is horrified when he finds out that he is the next “planned parentectomy”. The father is deeply insulted at the idea that he must pay dearly for the luxury of being thrown out of family, home, and society itself. Only the most irresponsible father would rather pay child support than be a father, which is why so many fathers fight these custody battles.
- Custody battles arising from the deeply-flawed design of the existing policy framework are frankly inhumane. They are similar to dog fights. We know what most parents will do when you take away their children. The present “winner take all” structure of the divorce process ensures a dog fight (unless parents are remarkably mature and cooperative, or the losing parent is irresponsible and does not care about his or her children). Many families are left financially devastated after spending all their resources on custody battles, and many unethical family law attorneys have the incomes to prove it. This is one reason why a majority of personal bankruptcies are preceded by a divorce.
- False child abuse or domestic violence allegations made by the petitioner have become standard strategic tactics in divorce, particularly where child custody is involved. False child abuse allegations were more popular in the 1980’s, until judges realized most of them are false. During the 1990’s, feminists discovered it was more fruitful to use false spouse abuse allegations, because they don’t involve programming a child to do the bidding of the divorcing spouse. Using manufactured data and fear, feminists invented the “Violence Against Women” Act, which provided federal funding to assure feminist conquests in the vast majority of divorces. Like the ACLU, feminists running women’s abuse centers frantically work only one side of the issue without care for the realities of the situation. Judges do not have time to hear 95% of the cases that come before them. About 95% of clients do not have the $30,000 or more in cash needed to try a custody case, the $25,000 needed to disprove false allegations of spousal abuse. Any allegation of abuse against the father is enough to decide the custody issue, and make it quite difficult for fathers to even get parenting time, regardless of the absurdity of the allegations. In effect, family law courts leave 99 children fatherless to protect the one child who was actually abused in 100 cases.
- It is rare for parents to live in the same or adjacent school district, which is basically necessary for a 50/50 or similar joint custody arrangement to function from an educational perspective. Judges know that it is unlikely that parents will live close enough to each other for a period of years that a true 50-50 joint custody order could work from a spacial perspective. Historically, joint custody orders are made in approximately 15% of divorce cases and do not make a significant impact in the problem of father-absence. When joint custody is ordered. In the other 85% of cases, children lose a parent in divorce. No one can say that one of the parents is so flawed in 85% of divorces that their relationship with the children should be essentially terminated.
The Answer
TSSP ends nearly all the problems listed above. It creates a presumed custody order affirming the parental rights of both parents and creates a landscape not fertile for predatory chessboard litigation. It meets the needs of children as closely as is possible in divorce, and removes perverse incentives so evident in existing policy, while allowing for proper handling of situations involving real child abuse or neglect.
TSSP involves relatively straightforward concepts, as follows:
- When a divorce decree is issued, a primary custodian is named, with the traditional Siegenthaler ( or other reasonable parenting time plan) given to the other parent, with as many decision-making authorities granted to the other parent as possible.
- An automatic custody reversal is built into the original order, naming a date certain on which the custody order will be reversed to the other parent. The date is calculated by finding the half-way point in time between the date of the hearing and the date of emancipation of the children. For most children, the custody reversal will take place in their early teen years.
- Where children are close siblings, with age differential of four years difference or less, the dates of emancipation will be averaged such that the custody reversal for both children takes place simultaneously.
- Divorcing couples may agree to more than one custody reversal, such as every four years, so long as it is by a consent decree, and equal custody time is ordered for both parents. In cases where parents cannot agree, or a case is litigated or heard, the default order will be for one custody reversal.
- TSSP must be a mandatory policy and characterized in statute as a constitutionally-protected parental right, with only three exceptions: 1) Where a parent is found to be an unfit parent; 2) where a parent voluntarily (and without duress) requests to be a non-custodial parent. In this case, a sole custody order with maximum child support and alimony should be ordered; and 3) where both parties file for divorce with a consent decree disposing of all matters contained in the initial filing for dissolution.
- Congress must require states to enact TSSP legislation, or face stiff penalties in funding for social services and child support collections entitlements. This is a wise and deeply profound shift in federal policy. The vast majority of child psychological and educational problems, child abuse, and child support collections problems exist because we have actually preferred aborting fathers and collecting child support. States that wish to continue irresponsible creation of father-absence must be held accountable for their actions and bear the costs for their actions.
Legislation Needed To Effect This Tested Model
According to Daniel Lee, President of Child’s Best Interest in Tennessee, the concept of time-shifting was introduced and debated in Tennessee shared parenting bills as early as 2003, and is pending in one today. These legislative proposals rotate primary decision-making once prior to the child reaching majority, or in long-term multi-year blocks (such as 4).
Even before being passed into law, this rotating arrangement was ordered in a number of cases, which were all upheld on appeal. No problems surfaced from these rulings, and yet a later appellate opinion put a stop to it. This indicates the concept must be put into statutory law.
Daniel further states "Parents equally sharing raising their child comes from constitutional law. The strict-scrutiny test must be applied under the U.S. and state Constitutions before fundamental parental rights can be diminished or removed. Divorce is not an exception to this long-held tenet. This test prevents parents from being arbitrarily placed into widely-disparate classes as permanent custodial and non-custodial parents, precognized by sex, and without a showing that a parent is unfit or an immediate threat to the child.
At law, courts should never have allowed the present custodial arrangements. They are plainly unconstitutional. An overwhelming body of studies and anectodal reports prove the current system is very damaging to children and parents. TSSP ends this serious anti-family due-process error commonly practiced in all state family law courts.
Related Pro-Marriage Improvements of Law
The success of TSSP requires refocusing of certain federal and state laws. There are two major areas of federal and state policy which drive predatory divorce. The high-level view of the changes needed is as follows:
- Traditional child support models such as the Williams (income shares) model must be abandoned. The numerical bases of these models are known to be seriously flawed, as proven by Dr. Sanford Braver in “Divorced Dads – Shattering the Myths”. They are based on sole custody models and do not take into account the living expenses of the non-custodial parent or the taxes they pay that the mother does not. Alimony must be removed from these tables. New tables must be created, with the amount of support based on actual periodic income of the obligor, expressed as a percentage of actual income, and reconciled annually against federal income tax earnings. There is no rational basis for holding divorced parents to an arbitrarily high and inflexible standard of support for children in comparison to their married counterparts. There are strong economic arguments for this shift in policy. Divorce forms a very large controlled sub-economy in which parents are not free to make wise decisions to change jobs, weather downturns when market sectors collapse, or improve their job skills when similar employment no longer exists. We just call them deadbeats. My previous MND article “Divorce and Child Support Are Eviscerating Military Recruitment”, also available on Eagle Forum and the American Conservative Union BattleLine Online, points out that child support policy is unquestionably interfering with national defense and security. A very large number of men are no longer free to be patriotic. They have been drafted into forced economic servitude to a nanny state. We must never again treat divorced men differently than married men. They should pay a percentage of their incomes, not contrived fixed-sums of money ordered by welfare-state judges.
- Child abuse policy must be reformed to require at least minimal adherence to standards of “best evidence” and proof when child abuse or domestic violence is alleged. The purpose of the court is to prove abuse took place, not to merely validate the possibility that it could have happened. Congress must revisit the Carter-Mondale act of 1974, and replace it with a program designed to treat child abuse as being a simple law enforcement matter, not the exercise in entitled Freudian tea-leaf reading that it presently is.
- Federal Domestic Violence code must be rewritten entirely. The Violence Against Women Act, which is abused to fund a variety of other radical feminist enterprises including abortion and lesbian rights, must be abandoned and replaced with a gender-neutral Family Violence Act. This new act must require actual proof of abuse before penalizing an individual.
- Revisions to child abuse and domestic violence laws must include serious penalties for making false allegations of abuse. We did not let Jennifer Wilbanks get away with pretending rape and abuse at the substantial financial expense of government. We must now stop letting millions of individuals abuse the exact same system in divorce. Domestic Violence advocates conveniently pretend that penalties would make it too risky to report actual abuse. We know from much experience that false abuse allegations are relatively simple to spot, because there is no physical evidence whatsoever to support the allegations, and the evidence at hand indicates the allegations themselves are fundamentally not credible. Women’s abuse centers must be forced take their jobs seriously, pressing the real cases of abuse, and be penalized when they run amok spewing out baseless abuse allegations as the preferred predatory strategic weapon in feminist-driven divorce proceedings.
- State laws granting judges nearly unlimited decretal discretion must be ended. We do not allow any other kind of court unrestrained subjective largesse. Bar Associations have long argued that judges need extremely wide latitude so they can tailor each case adequately. History demonstrates that the abject lack of policy standards has resulted in a corrupt family courts system spewing out troubled fatherless children and unsupportable child support orders in approximately 75-85% of divorces, for no valid reason whatsoever. Divorce courts have become the swamp of no return for millions of Americans and innocent children. Divorce courts must be required to render their decisions against a clear, objective yardstick just like all other courts do. TSSP is a fundamental part of the yardstick.
What TSSP will accomplish
TSSP will deliver many badly-needed social benefits for children, and a variety of very substantial social and economic benefits for taxpayers and the general public.
TSSP will result in the following benefits:
- It will substantially reduce the tremendous problem of father-absence.
- We will see higher child support compliance rates. When families do not spend all their money protecting parental rights, there will be more money to pay child support with. States that enforce visitation orders discovered that child support compliance rates increased substantially. TSSP goes one step further – ensuring that visitation takes place, and parents do not give up being parents after divorce.
- Divorce-related violence and suicide will be reduced, perhaps substantially.
- We will see far fewer problems that children of divorce have. This, in turn, will reduce entitlement funding needs for the entire diaspora of federal and state social and crime enforcement programs, thus reducing deficits and pressure to raise taxes to balance the budget.
- We will see reductions in personal bankruptcy.
- We will see improved school performance, attendance, and cooperation by children. therapism, and use of Ritalin in schools will be reduced.
Other suggested policy transformations will enhance the above benefits.
Political Analysis: An Historic Conservative Pro-Family Political Opportunity
The benefits I have itemized comprise a very substantial body of items that all politicians should be falling all over each other to latch on to. Pro-family politics wins elections. This is because most voters know what is going on out there, and most voters are sick and tired of hearing the words “responsible fatherhood” being bandied about by politicians trying to figure out yet another sneaky way to fund the nanny welfare/child-support state.
The plethora of omnipresent problems caused by record levels of father-absence has cost the American taxpayer more than the national debt since 1963. This nanny-state has been increasingly treated as a reviled necessary evil that is never directly discussed in conventional politics.
Economic conservatives must pay particular attention to the fact that it is entirely possible to fight the ongoing war on terror on a balanced budget if we simply ensure that most children of divorce can have two parents actively involved in childrearing. TSSP, along with other developing Marriage Movement concepts, will make this entirely feasible.
Voters want politicians who will actually do things that will make their lives better, not wimps who pussyfoot around the issues. Republicans have been avoiding social issues like the plague because they watched Newt Gingrich get tarred and feathered for pushing orphanages and making a number of rather strident and well-intentioned, but sadly misdirected statements about his social policy ideas.
Read my lips: Newt had the right idea, but the wrong ideas. It put Republicans in control of Congress, but backfired when the details were found to be mistaken politically incorrect. The issue is as tractionable as ever. Just make sure you have the right goals before turning it into a party platform.
Therefore: I predict that the large majority of voters will respond very positively to those who adopt pro-family legislative and policy goals along the lines I am recommending.
The 2008 Elections
What could divorce and welfare have to do with the 2008 elections? It could easily become the tipping point.
The conventional Republican approach is this: politicians, the ACF, and other government agencies don false marriage-movement masks by pretending the “Responsible Fatherhood” slogan is just another word for “child support”. Democrats are more than happy to ring this bell too. The rest of America knows that money is just a bunch of green stuff, and that “Responsible Fatherhood” is a social function and a necessary social creation invented a couple of millennia ago, aborted in the latter half of the last century by government.
This is classic symbolism-over-substance. Both Republicans and Democrats are guilty of it. Their failure to deal with the issue is the one thing that could actually power a Hillary Clinton presidential campaign. Folks are not going to put up with endless crime, violence, starving kids, and wailing single mothers crying all over the major media outlets all day, while the war on terror is perceived to be leaving the poor behind..
The fact is this: Republicans are tragically weak on social policy, because they don’t have one (other than same-sex marriage). They simply do whatever the Democrats want to do. This is suicidal in the long term because it does not fix anything. It lets the myriad of problems falling out of epidemic father-absence grow and fester. Democrats can raucously blame all the problems on Republicans in 2008.
Mark my words: this is exactly what Hillary Clinton and the rest of the Democratic party will do. If Republicans fail to let most Americans have what they want and need in the next three years, they might find themselves overrun by these hyper-emotional social issues.
If it weren’t for gay marriage in 2004, Democrats might well have won the last election. Republicans will be at increasing risk in the next few years, unless they step out with their own social policies that give the majority of American men and women what they want and need.
Political analysts should pay particular attention to the fact that about half the voting population is divorced or living in fatherless families. Many of those who are not divorced have a relative disemboweled by the system. These people have been there and lived it, and they don’t like it This is a tremendous voting block, not necessarily aligned by gender or age. Those who cater to this block of voters will win races. Those who ignore it, will lose.
Most divorced women I have interviewed would gladly give up their child support to get the government to stop disemboweling their new husband. Point: the most important aspect in divorce is not child support. Child support has the effect of destroying the economics of remarriage – and most women know this.
A strong political focus on making divorce less warlike and keeping family economics intact, with a primary focus on preserving parenthood, and an eye towards making remarriage (absent constant governmental manipulation) a reality for both men and women, will win many elections in the future.
The concept is this (for all the economic conservatives who are still finding their sealegs in social issues: We should view divorce like we view employment figures. Divorce should be handled as “frictional non-marriage”, with government supports provided during the interim, leaving marriage the most attractive economic model. When we do this, everything else will take care of itself. When viewed in this light, we immediately see that Moynihan was right when he pointed out that permanent welfare entitlements cause permanent non-marriage. Today, child support and alimony are the contemporary funding vehicle causing high divorce rates, high non-marriage and “live-in” rates, and low remarriage rates.
Those who ply antifamily politics in elections often do not do well. John Ashcroft tried to retain his Senate seat in 2000 to a dead man, by finally sending the Violence Against Women Act to the Senate floor. He thought this would get him the women’s vote (I know this is so because I spoke with his top aide). What it did was to alienate his conservative voter base. His constituency was not happy, and there were protests at his office over it). He lost the election.
I have witnessed many other local and state campaigns where the incumbent tried to play the “child support” card, either by launching a screeching child-support enforcement campaign or some sort of awful legislation sought by the National Organization of Women.
There have been many surprise upsets in these races because most voters simply are not that stupid. Here is why: Most women just want a decent marriage (or a decent second marriage). Few women vote “child support” as the litmus test. Most men hate the system that regularly replaces them with an extorted check. Moral: the votes aren’t there to support nanny state politics any more.
Pro-family politics are extremely salient in this day of boring cookie-cutter liberal vs. conservative politics-as-usual campaigns. Watch one and you have seen them all. Nobody stands out in the pack, and races are often won by a hair because of it.
Political Stumbling Blocks
- I anticipate great resistance by the Courts, Bar associations, Social Service agencies, and psychologists who make their living working divorce wars. We can expect this. I have done battle with the Bar before and won. Here is what will happen. They will spew reams of fear-laden anecdotal stories in support of keeping divorce a free-for-all. But their documentation won’t contain any credible citations of authorities to back their position up. This is because there aren’t any studies to support their style of doing business. They will try to fence the issue, and tell others it’s a matter of law and that policy-makers have no business making policy. But there will be many individual family law attorneys and judges who are sick of the system and will support it. Clue: go around the Bar, and talk to individual attorneys. If we stick to our goals and guns, we will win.
- Social Service Agencies will oppose this because they fear they will lose their jobs. This is partially true. State social service agencies have perhaps doubled the number of workers in the past decade, while divorce rates have remained static. The fact is this: we will not need bloated social service agencies when we have two parents actively invested in raising most children.
- I have an additional Marriage Movement policy plan, designed to transform courts and social service agencies to basically expect marital responsibility from spouses, and to encourage and help spouses to work through the normal problems and processes of marriage. This is a quantum shift from the present ideology, which tends to break up families to get more entitlement funding. These policies, in addition to TSSP, will keep social service agencies busy, for all the right reasons. This is a very large issue, which I will cover in a future article.
David R. Usher is a Legislative Analyst for the American Coalition for Fathers and Children, Missouri Coalition.
