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The
Fathers' Crusade |
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By
SUSAN DOMINUS
The New York Times |
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Published:
May 8, 2005
"After tomorrow, I'll
have done everything there
is to do," Jason Hatch
said one night in February,
staring wistfully into a near-finished
glass of beer at a bar in
Shrewsbury, England. Just
a few hours earlier, he and
some friends were enjoying
a raucous, boisterous evening,
all but driving out the other
diners at a decorous French
restaurant. Now, after several
drinks at the bar, the lateness
of the hour and the increasing
proximity of Hatch's plans
for the next day seemed to
be catching up with him, and
his mood took a turn toward
the tense. By the following
afternoon, Hatch, a 33-year-old
former house painter and contractor,
intended to scale a government
office building near the prime
minister's residence at 10
Downing Street. His friends,
many of them co-conspirators,
had gone home, the revelry
had died down and he was clearly
trying to regain some focus.
Was he getting nervous? ''The
police say Jason doesn't have
fear like other people,''
he said, speaking of himself
in the third person, perhaps
hoping they were right.
Michael
Edwards for The New
York Times
Michael
Newdow: For this California
doctor, 50-50 are the
only custody numbers
that add up.
Are
fathers' rights sufficiently
protected in custody cases?
Michael
Edwards for The New
York Times
Robert
Chase: He has made peace
with his every-other-weekend
custody of his two teenage
sons, but says he mourns
opportunities lost.
If, earlier
in the evening, others at
the restaurant looked over
to Hatch's table (and given
the noise emanating from it,
they surely did), they would
have seen that Hatch wore
a T-shirt emblazoned with
the purple logo of Fathers
4 Justice, a political group
that is well known in Britain
for staging high-profile stunts
to raise awareness about the
custody rights of divorced
and separated fathers. (In
one memorable incident, a
member pelted Prime Minister
Tony Blair with a condom filled
with purple flour.) Some might
even have recognized Hatch
and made a note to mention
their brush with semi-celebrity
to their friends: this was
the man who scaled Buckingham
Palace last year dressed as
Batman, unfurling a banner
in support of fathers' rights
and spending more than five
hours perched on a ledge near
the palace balcony as security
officers tried to talk him
down. The event, which made
news around the world, saturated
the British media for nearly
two days.
Hatch was
arrested, but he was promptly
released and never charged
with a crime. ''I even got
me ladder back,'' he likes
to mention. Nonetheless, the
police keep a close eye on
him, even outside his own
country. Several months after
his Buckingham Palace stunt,
Hatch, hoping to broaden his
group's support in the United
States, flew to New York,
where a team of police tailed
him and his colleagues for
the duration of the five-day
visit. (The cops finally announced
themselves, befriended Hatch
and his fellow would-be protesters
and ended up escorting them
to various downtown nightclubs,
passing them off as royalty
-- anything, apparently, to
keep them from putting on
capes and scaling the Brooklyn
Bridge.)
At the bar
in Shrewsbury, as Hatch fretted
about the details of his next
major stunt -- could he get
a lighter ladder by tomorrow?
-- he seemed overtaken by
melancholy. He hadn't been
sleeping, he said; his head
ached. Three and a half years
ago, Hatch's second wife left
him, taking their two children
with her. When he finally
caught up with them, a family
court granted him visitation
rights. He later claimed in
court that his wife regularly
ignored the ruling, refusing
to let him see the kids, but,
he told me, the court did
little to satisfy him. ''It
really takes it out of me,''
he said. It had been so long
since he'd seen his kids --
Charlie, who's 5, and Olivia,
who is a year younger -- that
their mother now claims they
didn't want to see him, he
said. They had started calling
their grandfather Dad. (His
wife has declined to speak
to the press, other than to
say that Hatch's activism
has disturbed the children.)
Hatch first
contacted Fathers 4 Justice
a year and a half ago, after
reading about their protests
in the newspaper. The group's
founder, Matt O'Connor, a
38-year-old divorced dad with
a gift for public relations,
visited Hatch at his home
in Cheltenham to gauge his
commitment -- and, as it turned
out, to scope out some possible
locations for protests. Two
weeks later, Hatch found himself
with three other fathers,
standing atop a 250-foot-high
suspension bridge in Bristol,
dressed like a superhero,
hanging a Fathers 4 Justice
banner. For the 28 hours that
Hatch and his colleagues remained
on the bridge, the police
rerouted commuters, as reporters
and curious pedestrians gathered
below. After years of ineffectual
legal struggle, Hatch could
finally see results: traffic
had literally stopped on account
of his cause. He went on to
scale a series of other targets,
including several court buildings,
York Minster Cathedral and,
finally, Buckingham Palace.
The grandiose, symbolic gesture
had become more satisfying
than the niggling, humiliating
legal maneuverings that never
seemed to pan out.
Hatch's sense
of despair about his estrangement
from Charlie and Olivia has
apparently swept away any
concern he might have had
about the most basic requirement
of parenthood: his continuing
good health. When he scaled
the ladder at Buckingham Palace,
the guards cocked their rifles,
a sound captured chillingly
on a videotape of the event.
''I'm not afraid to die, but
I don't want to,'' Hatch,
who now has a 14-month-old
daughter with his current
girlfriend, Gemma Polson,
told me. ''I feel sorry for
Amelia, obviously -- Amelia
being me little daughter.
If anything happens, she's
going to lose out, but I still
have to do it. I still have
to go out there and get the
law changed, and when the
law's changed, you won't see
me again.''
Jillian
Edelstein for The New
York Times
Jason
Hatch: His stunts at
Buckingham Palace and
York Minster Cathedral
have made him a public
face of fathers' rights
in Britain.
Are fathers' rights sufficiently
protected in custody cases?
Now a full-time
salaried havoc-wreaker for
Fathers 4 Justice (the group
raises money through membership
fees), Hatch has a martyr's
self-righteousness but also
an adman's instinct to feed
the media beast ever bigger
morsels of a story. ''If I
got shot, but survived,''
he said just before heading
to bed for the night, ''that
would be brilliant.''
Although
some of the issues raised
by Fathers 4 Justice concern
quirks of the British custody
system, most of them overlap
with demands of divorced-fathers'
groups in other countries:
stronger enforcement of visitation
rights, more shared-custody
arrangements, a better public
and legal acknowledgment of
a father's importance in his
child's life. In the United
States, the influence and
visibility of those groups
have waxed and waned since
the mid-70's, but they appear
to be agitating now as never
before. In the past year,
class-action suits have been
filed in more than 40 states,
claiming that a father's constitutional
right to be a parent guarantees
him nothing less than 50 percent
of the time with his children.
And on the legislative front,
last spring Iowa passed some
of the strongest legislation
to date in favor of joint
physical custody -- the division
of the child's time between
the two parents as close to
equal as possible. The policy,
which resembles some legislation
that Maine passed in 2001,
encourages judges to grant
joint physical custody if
one parent requests it, unless
the judge can give specifics
to justify why that arrangement
is not in the best interest
of the child.
There are
dozens of fathers' rights
groups in the States, including
the American Coalition for
Fathers and Children, Dads
Against Discrimination and
the Alliance for Noncustodial
Parents Rights. They may not
have the name recognition
that Fathers 4 Justice has
on its own turf, but they
work quietly behind the scenes,
pushing for custody laws like
the ones Iowa and Maine have
passed, lobbying Congress
and generally doing what they
can to improve not just the
rights but also the image
of divorced fathers. In this
last task, oddly enough, these
groups have benefited from
federal initiatives designed
to motivate divorced or never-wed
fathers who care all too little
about their kids, as publicly
financed ad campaigns remind
the public how indispensible
fathers are. (''Fathers Matter,''
shouted ads on New York City
buses last year.)
Fathers'
groups also benefit from a
more general recognition that
fathers, at least in some
socioeconomic circles, are
now much more involved in
their children's lives. Some
of that involvement is born
of necessity, given how many
mothers work, but necessity
also seems to have effected
a cultural shift, ushering
in the era of the newly devoted
dad. The traditional custody
arrangement, with Mom as sole
custodian and Dad demoted
to weekend visitor, may have
been painful, but practical,
in a family with a 50's-style
division of labor; but to
the father who knows every
Wiggle by name, the pediatrician's
number by heart and how to
make a bump-free ponytail,
such an arrangement could
be perceived as an outrage,
regardless of what might be
more convenient or who is
the primary caretaker.
On the other
hand, divorced dads still
face some serious image problems,
a function of well-known statistics
that are hard to spin. In
the United States, in the
period following divorce,
one study has found, close
to half of all children lose
contact with their fathers,
with that figure rising to
more than two-thirds after
10 years. Although child-support
payments have crept up in
recent years, in 2001 only
52 percent of divorced mothers
received their full child-support
payments; among women who
had children out of wedlock,
the number was around 32 percent.
Fathers' rights groups have
a tall order explaining those
statistics, convincing judges
-- and the country at large
-- that if fathers skip town,
or refuse payment, it's a
function of how unfairly family
courts treat them rather than
the very reason that the courts
treat fathers the way they
do. Kim Gandy, president of
the National Organization
for Women, told me that fathers'
rights groups are ''focused
only on the rights of fathers,
and not on the rights of children,
and particularly, not on the
obligations of fathers that
should go with those rights.''
Some fathers'
rights advocates in the United
States fear that the Fathers
4 Justice approach to image
overhaul will slow the movement's
bid for respectability, but
others are ready to try some
kind of major action. To date,
none of the fathers' groups
in the States have managed
to spark a sympathetic national
dialogue in the way Fathers
4 Justice has done in England
-- striving to recast divorced
dads, en masse, as needy and
lovable rather than as distant
and neglectful. Without that
sea change, fathers' groups
here in America acknowledge,
there's only so far they can
go in changing the way judges
rule, no matter what the laws
can be made to say.
Are fathers' rights sufficiently
protected in custody cases?
n
January, Ned Holstein, president
of Fathers and Families, a
Massachusetts organization
committed to improving fathers'
access to their children,
decided to devote one of the
group's bimonthly meetings
to a debate about the merits
of Fathers 4 Justice-style
tactics. To date, Holstein's
organization has pursued its
goals through traditional
nonprofit pathways: hiring
a lobbyist, an intern, a program
coordinator, all financed
by member-donated dollars.
The group reached a milestone
last fall, when it managed
to put a nonbinding question
about shared custody on the
ballot for the November elections;
86 percent of those who voted
on the issue supported a presumption
of joint physical and legal
custody. Despite the results
his approach has yielded so
far, Holstein told me before
the Fathers and Families meeting,
he was curious to see how
his constituency would respond
to the idea of following Fathers
4 Justice's lead, opting for
what he calls ''the flamboyant
route.''
Holstein,
now 61, resolved his own divorce
amicably about 10 years ago,
arranging for shared physical
custody of his kids. But the
court consistently treated
him, he says, like a crank,
and he started to collect
stories from fathers who fared
far worse. Before long he
had a cause. A doctor who
frequently testifies in trials,
Holstein has an easy way with
statistics and studies and
evidently enjoys his public
role. As he drove me to the
group's meeting at a private
school in Braintree, Mass.,
he made an eloquent case for
increasing fathers' access
to their kids. He has no problem
with the existing ''best interests
of the child'' guideline that
judges follow in reaching
custody decisions, he explained.
He simply contends that, as
a matter of practice, judges
underestimate how important
a father's active involvement
is to the best interest of
the child -- and weekend visits
twice a month don't constitute
active involvement, in his
view. ''At that point,'' Holstein
said, ''visitations become
painful, because they remind
parent and child of what they
don't have, which is intimacy.''
Holstein
arrived at the school to find
40 or 50 men and a handful
of women (mostly girlfriends
and second wives) already
there -- a fairly typical
turnout, he said. After a
short, rousing speech to start,
Holstein turned the subject
of the meeting to Fathers
4 Justice. Matt O'Connor,
the British group's founder,
had declared purple the color
of the international father's
movement, and Holstein said
he was hoping the men in the
audience would consider wearing
a purple ribbon. ''I hope
you will join me, and won't
decide it's too . . . whatever,''
he said with a nervous laugh.
''Now I need someone to go
around with the scissors,
so we can cut up and pass
around some ribbons.''
This apparently
sounded suspiciously like
sewing; there was an awkward
silence. Finally, a woman
in the third row raised her
hand, but Holstein balked.
''We can't let a woman do
this!'' he said.
''She wants
it done right!'' someone chimed
in, getting a big laugh. Soon
enough, a middle-aged man
in a mock turtleneck and khakis
rose to the challenge, and
the ribbons started circulating.
Choosing
purple was one of Fathers
4 Justice's more savvy branding
decisions. The color works
for the group for the same
reason Holstein worried his
fathers might feel too ''whatever''
wearing it -- it's sort of
a silly color, a kid's color
and definitely not macho.
Given the particular American
constructs of masculinity,
it's not clear how other elements
of the Fathers 4 Justice aesthetic
would play in the States:
could a man running around
in public in tights and a
cape, mocking the law and
defying security, ever be
an emissary on behalf of American
fatherhood? For some time
now, O'Connor has considered
starting a march of fathers
in drag (''It's a drag being
a dad,'' the signs would read),
which suggests the size of
the gap between his sensibility
and that of the average American.
Humor has
clearly been a key to the
success of the British campaign,
distancing Fathers 4 Justice
from overtly misogynist groups
like the Blackshirts in Australia,
masked men in paramilitary
uniforms who stalk the homes
of women they feel have taken
unfair advantage of the custody
system. O'Connor realized
early on that men marching
in the street and shouting
look like a public menace
rather than like nurturing
caretakers deserving of more
time with their children.
In England, the group has
managed to offset that threat
with goofy playfulness while
holding on to enough dignity
to maintain respectability.
That balance might be even
harder to strike in the States.
Are fathers' rights sufficiently
protected in custody cases?
In the auditorium,
Holstein's fathers sat for
half an hour and watched video
footage of Fathers 4 Justice,
much of it set to a stirring
soundtrack of U2 songs. ''Would
everyone who's willing to
be arrested please get on
the bus?'' Matt O'Connor called
out during one protest. There
were scenes of a father and
his daughter playing with
their pet sheep, which the
father had dyed purple; scenes
of dozens of men dressed as
Father Christmas staging a
sit-in at the children's-affairs
office of a government building;
and scenes from two of the
group's largest protests:
the Men in Black march (which
featured about a thousand
fathers, as well as supportive
mothers and grandmothers,
dressed in sunglasses and
black suits, to symbolize
their grief), and the Rising,
a march through London that
drew more than 2,000 protesters.
Afterward,
Robert Chase, a 39-year-old
clean-cut Dartmouth graduate
who met with Jason Hatch and
his colleague when they came
to New York, led the group
in brainstorming protest ideas
of their own. Men started
offering suggestions: they
could protest from one of
Boston's duck boats; they
could march to the harbor
for a Boston Tea Party, only
throwing their divorce decrees,
not tea, into the water; they
could dress up like Barney;
they could dress up in burkas!
The group seemed receptive
to costumes, but there wasn't
much enthusiasm for storming
court buildings.
''I'm not
in the mood to get arrested,''
one man called out. ''I got
arrested enough during my
divorce.'' This got a laugh.
''I like
the idea of a parade, but
it needs to be funny,'' another
man said.
''Humor!''
Holstein exclaimed. ''Humor
works better than anger!''
or
most of American legal history,
the laws required judges to
consider sex the most significant
factor when making custody
decisions, although which
sex had the advantage changed
over time. Until the mid-1800's,
under common law, a father's
right to custody in the event
of a divorce was so strong
that it practically functioned
as a property right. Toward
the end of that century, this
principle was reversed by
the ''tender years'' doctrine
-- the presumption that young
children need to be with their
mothers -- which lasted in
a handful of jurisdictions
into the early 80's. For the
most part, however, by the
late 70's, the ''tender years''
doctrine had given way to
the less prejudiced, but also
less clear, directive that
judges base their decisions
on the so-called best interest
of the child. Today many fathers'
rights advocates -- particularly
those who filed the 40-some
class-action lawsuits demanding
a 50-50 split of custody --
would like to usher in a new
paradigm: one that values
parental rights as highly
as the child's best interest.
Michael Newdow
is one of the fathers who
have been trying to make that
case. He is best known as
the California emergency-room
doctor who represented himself
last year in a case before
the Supreme Court, arguing
that the words ''under God''
in the Pledge of Allegiance
violated the establishment
clause of the United States
Constitution. Newdow, an atheist,
brought the suit on the grounds
that the pledge forced the
government's spiritual views
onto his daughter, impeding
her freedom of religious choice.
The Supreme Court ruled that
Newdow, given the particulars
of his case and his custody
issues, didn't have the standing
to bring the suit. For five
years leading up to his appearance
before the Supreme Court,
Newdow had two driving passions
in his life: fighting for
more custody of his daughter
and fighting to eliminate
''under God'' from the pledge.
When the court dismissed his
case, the two passions collided
and combusted, the destruction
of one cause taking the other
down with it.
Though
he still practices
emergency-room medicine,
Newdow finds time
to tour the country,
speaking at conferences
and law schools about
the separation of
church and state.
Last winter, I met
up with him at the
University of Michigan
Law School just after
he finished giving
a talk to some students.
He was carrying a
guitar and looked
a little flustered,
two details that turned
out to be related:
during his talks,
he likes to sing a
song he wrote about
the establishment
clause, only this
time he flubbed the
lyrics.
Are fathers' rights
sufficiently protected
in custody cases?
Fast-talking
and faster-thinking,
Newdow, 51, is a tall,
thin man who manages
to look crisply dressed
in even informal clothing.
Conversationally,
he toggles between
two modes, aggrieved
and outraged, and
he has an expressive
face that seems well
designed to reflect
those emotions. That
evening, sitting in
the lobby of the Michigan
Union, he talked for
close to two hours
about his troubles
-- the custody battles
he endured with his
daughter's mother
(whom he never married);
the impassioned exchanges
that alienated the
family-court judge;
the injustices he
feels he suffered
at the hands of foolish
mediators; the court
appearances over all
manner of arcane disputes,
including whether
he could take his
daughter out hunting
for frogs one night
(no) and whether he
could take her to
hear him argue before
the Supreme Court
(again, no). Although
the courts deprived
him of final decision-making
power over his daughter,
who is now 10, he
does spend about 30
percent of the time
with her, a relatively
generous arrangement.
Nonetheless, Newdow,
who has spent half
a million dollars
on legal fees, the
lion's share of those
incurred by his child's
mother, claims that
the family-court system
has ruined his life.
He's a second-class
parent, he said; he
can't do the things
he'd like to do with
his daughter. The
system allows his
daughter's mother
to stifle his freedom
to care for his child
the way he'd like.
''It's as bad as slavery,''
he said.
As
a spokesman on behalf
of fathers' rights
-- or rather, as he
makes a point of stressing,
all parents' and children's
rights -- Newdow is
a brilliant, confident
speaker, but sometimes
he lacks a light touch.
Hyperrational, occasionally
tone-deaf, he'll admit
that he knows enough
to know that his logic
often offends people,
sane as it seems to
him. Early on in our
conversation, when
he started to digress
about the imbalance
in reproductive rights
-- women can choose
to end a pregnancy
but men can't -- he
cut himself off. ''That's
another issue, and
it alienates people,
and I don't want to
alienate you,'' he
said. ''Although I
will eventually.''
It wasn't a threat,
or a joke, or a regret
-- it was just, to
him, by now, a probability.
he
following day, Newdow
delivered a second
talk at Michigan,
this time on the subject
of family law, to
50 or 60 students
who filled a classroom.
(Newdow himself attended
Michigan Law School
before becoming a
doctor.) While the
students listened,
tossing back free
pizza that a student
group had provided,
Newdow began discussing
Troxel v. Granville,
a 2000 Supreme Court
ruling that has been
warmly embraced by
fathers' rights advocates.
In that decision,
the court held that
a grandparent's visitation
rights could not be
granted without a
parent's consent,
even if a grandparent's
visits were in the
best interest of the
child. In Troxel,
Newdow noted, the
court stated that
parental rights are
''perhaps the oldest
of fundamental liberty
interests recognized
by this court.'' If
to be a parent is
a fundamental constitutional
right, he asked, how
can the government
violate that right
without a showing
a compelling state
interest?
A
hand went up. ''Isn't
the best interest
of the child a compelling
state interest?''
This
is one of Newdow's
favorite questions.
''How do you prove
what's best for the
child?'' he asked.
''Somebody tell me
what's best for the
child. Let's take
lunch. McDonald's
or make tuna fish
at home -- what's
best? O.K., lunch
at home, you don't
risk a car accident,
maybe the food's healthier.
McDonald's, on the
other hand, maybe
it's more fun, maybe
the kid sees something
new, gets the confidence
to go down the slide
for the first time.
When you're talking
about two fit parents,
who's to say what's
best?''
But
what also worried
Newdow, he continued,
was not the problem
of how to determine
what's ''best'' for
the child, but rather
the assumption that
you can deprive someone
of his or her fundamental
parental right simply
in order to make a
child's life more
pleasant. Of course,
he conceded, society
has an obligation
to protect those,
like children, who
cannot protect themselves.
But there is a world
of difference between
protecting someone
from harm and improving
his life more generally.
''We've gone from
protection to suddenly
'make their lives
better,''' he said.
''And that's a violation
of equal protection
-- because you're
taking one person's
life and ruining it
to make another person's
better. If you can
show real harm to
the child, the kind
of harm that the state
would protect any
child in an intact
family from -- abuse,
neglect -- sure, of
course, protect it.
But when it's just
what someone thinks
might be better for
the child, you have
to weigh that compared
to the harm suffered
by the parent.''
Are fathers' rights
sufficiently protected
in custody cases?
In
short, forget for
a moment about tending
to a child's optimal
well-being: what about
what's fair? If a
child's parents are
still married, courts
don't worry about
whether it's in the
best interest of the
child to go frogging
late at night -- so
why should they have
the power to weigh
that issue the instant
two parents separate?
Split the custody
50-50, Newdow proposes,
and let each parent
make independent decisions
during his or her
time with that child.
A
young woman with long
dark hair raised her
hand. ''So you want
to just split the
kid 50-50, like Solomon?''
she asked. All around
her, students looked
either amused or incensed
by the argument Newdow
was making.
''Why
is 70-30 so much better?''
he countered. ''And
if 50-50 is so terrible,
why do courts have
no problem with parents
who mutually agree
to 50-50 arrangements?''
A
quiet girl in the
front row had a trickier
question. ''What about
when one parent wants
to do something that
permanently prohibits
the other parent's
freedom to exercise
their own constitutional
right to parent the
way they see fit?''
she asked, searching
for an example. ''Say,
getting her daughter's
ear pierced. You can
do that on your own
time, but it's permanent.''
For
that kind of thing,
Newdow conceded, you
go to court. Here
his logic seemed to
be leading him to
strange places: a
father could take
his teenage son to
a strip club, but
over an ear-piercing,
he'd have to go to
court?
The
young woman's question
illustrated the particular
thorniness of parental
rights. By exercising
his or her own right,
a parent may end up
negating the other's.
An accuser's right
to hire an attorney
doesn't complicate
the right of the accused
to legal defense;
my right to free speech
doesn't inhibit your
right to the same.
But if two parents
are at odds, parental
rights become a kind
of zero-sum game of
constitutional freedom.
David
Meyer, a University
of Illinois law professor
who specializes in
the intersection of
family and constitutional
laws, agrees with
Newdow that the courts
have recognized a
fundamental parental
right. The problem,
Meyer says, is that
so-called strict scrutiny
-- the process by
which the court determines
whether there's a
state interest so
compelling that it
should override a
fundamental right
-- is complicated
when multiple people
in a single family
are asserting their
fundamental constitutional
rights. In Troxel,
he notes, ''the court
was forced into a
mushy kind of balancing
test, balancing the
interests of the children
and the parents and
all kinds of facts.''
In his opinion in
Troxel, Justice Clarence
Thomas raised the
question of why strict
scrutiny wasn't being
applied. ''None of
the other justices
answered him,'' Meyer
told me. ''But implicitly
the answer is: it
just doesn't work
here.''
Although
Newdow rarely loses
his temper, his complicated
rationales for simple
solutions can exasperate
those who engage him
in any conversation
about the subject
of custody. Joining
Newdow at an informal
law-school dinner
the night before he
spoke, Christina Whitman,
a former professor
of Newdow's, lost
little time on congratulations
before challenging
him. ''Your [constitutional]
right guarantees you
equality in making
your case before the
judge,'' she pointed
out, ''but it doesn't
guarantee you equal
custody. You have
the right to an answer,
not an answer you'd
like.'' Only if the
court's decision was
arbitrary, she pointed
out, would it be a
violation of his constitutional
right.
Newdow
replied that the judges'
rulings are, in fact,
arbitrary, often depending
on the expert opinion
of psychologists to
whom he grants zero
scientific credibility.
He cited textbook
cases of judges making
absurd decisions based
on their own value
judgments about what
kind of parent would
be the better custodian.
Are fathers' rights
sufficiently protected
in custody cases?
''But
just because unfair
decisions happen doesn't
mean 50-50 is the
answer,'' she said.
''That's a child's
approach to equality.''
The
two went round and
round until Whitman
took a breather to
ask how old Newdow's
daughter was. ''Ten,''
he told her. Whitman
laughed. ''Just wait
two years,'' she said,
clearly speaking from
experience. ''You
won't want her anymore.''
Standing on the plaza
outside Boston City
Hall, an observer
had to take a close
look, amid the sea
of Red Sox caps, to
see the signs of romance
on Valentine's Day.
A teenager walked
across the plaza with
a handful of red and
white carnations;
a minute or two later,
a man in a business
suit passed by briskly,
a Mylar balloon trailing
behind him. As another
man in a suit helped
a young mother get
her stroller down
the plaza stairs,
a deep chanting from
the street below made
its way to the plaza
-- the echoing, slightly
eerie sound of shouted
slogans magnified
by a bullhorn: ''It's
Valentine's Day, and
we can't see our kids!''
And then: ''What do
we want? Justice!
When do we want it?
Now!''
Robert
Chase, the Dartmouth
grad from the Fathers
and Family meeting,
didn't have much luck
persuading those fathers
to take to the streets,
but he had managed
to round up 30 or
so protesters, a few
from New Hampshire,
his home state, to
march under the banner
''Fathers 4 Justice
US.'' (Similar protests
were organized in
11 other cities across
the country that day.)
An entrepreneur who
runs his own consulting
business, Chase has
custody of his two
sons every other weekend.
Several years ago,
he lost the right
to a third weekend
per month when a judge
determined that it
was logistically onerous
for the kids, which
is what their mother
argued in court. It
was the last in a
series of outcomes
over the years that
disappointed him.
Chase, who speaks
in considered, wholesome-sounding
phrases, says that
he has made peace
with the arrangement
now, especially since
his children are teenagers
with lives of their
own. But he mourns
the opportunities
lost.
''We
can't reclaim the
together-time we lost
while they were growing
up,'' he told me.
''When you're spending
only two or four days
a month with your
kids, you can't really
teach them values,
the difference between
right and wrong. All
you can do is love
them, provide a positive
example and hope they're
getting what they
need when they're
outside your influence.''
In
the years after the
breakup of his marriage,
Chase initially sought
the help of various
fathers' groups, but
he told me he felt
that most of them
''didn't do anything
but sit around and
complain.'' Like Jason
Hatch, he got interested
in Fathers 4 Justice
after reading about
the group in the news.
A father for the first
time at 22, Chase,
now 39, said it suddenly
occurred to him that
his older son, now
17, could be a father
himself in five or
six years. He decided
he should take whatever
action was possible
to make sure his sons
and any future grandsons
wouldn't encounter
the same custody system
he faced, should they
ever suffer an unhappy
divorce.
Outside
City Hall, Chase and
his team, mostly men
but including a few
women, started shuffling
their way down Congress
Street, some of them
blowing whistles and
horns. One man wore
a devil's mask, with
horns atop his head,
and a judge's robe;
another man in a judge's
robe looked even scarier,
with a mask of blue
eyeballs, no nose,
missing teeth, a misshapen
skull and several
well-placed boils.
Other men, including
Chase, were dressed
in sunglasses and
white decontamination
suits that had purple
hand prints (a Fathers
4 Justice symbol)
smeared on them. Something
about the mix of white
and the flowing robes
lent the men a vaguely
Klannish aesthetic.
As they whistled and
bellowed their way
down the street, they
seemed to have lost
sight of Ned Holstein's
exhortation to try
humor, not anger.
A mother with her
child approaching
them on the street
crossed over to the
other side.
After
a half-hour or so
of chanting and marching,
the group arrived
at the main family-court
building in Boston.
At the plaza of the
courthouse, one protester
started beating a
drum. A compact man
with a neatly trimmed
beard, a green tie
and a houndstooth
cap left the courthouse
and passed the protesters.
''It could happen
to you!'' the protesters
chanted.
Are fathers' rights
sufficiently protected
in custody cases?
''It
did happen to me,''
the man said. ''She
went nuclear on me.''
In the fathers' rights
community, the real
weapons of mass destruction
are false allegations
of abuse. Fathers'
rights advocates claim
it's all too easy
for women to use that
strategy; feminists
counter that too many
family-court judges
dismiss women's valid
concerns about domestic
violence. ''Two years
and three-quarters
of a million dollars
later,'' the man continued,
''I got full custody
of my kids, and was
fully exonerated.
But I've been living
this for two years.''
Now the man, who declined
to give his name,
watched as some of
the protesters performed
some street theater:
a monster in a judge's
robe tearing up a
kid's photo, one of
the fathers punching
him to the ground,
a man in a decontamination
suit with a broom
pushing at the heap
of a human on the
street. ''I don't
know about this,''
he said, gesturing
at the protesters'
garish pantomime.
''But the system does
need fixing.''
While
they were marching,
members of Chase's
group passed out fliers
promoting
fathers-4-justice.org
and detailing all
the harms that children
without fathers are
more likely to suffer
-- drug problems,
depression, less education.
Unlike Michael Newdow,
Chase pays little
attention to legal
rights, arguing exclusively
that the interests
of the father are
aligned with those
of the child, given
all the social-science
research that suggests
that fatherless children
fare poorly.
But
some scholars argue
that this reasoning
mistakenly assumes
that children's welfare
works roughly on a
sliding scale -- that
if children with no
fathers at all suffer
various emotional
and social setbacks,
then children who
see their fathers
only, say, every other
week might suffer
roughly half those
setbacks. Margaret
Brinig, a professor
of family law at the
University of Iowa,
has examined a longitudinal
study of a national
sample of more than
20,000 junior-high
and high-school children,
close to 3,000 of
whom had divorced
parents and lived
with their mothers.
Studying that select
sample, she found
that there was only
one sort of custody
arrangement that noticeably
harmed children: having
the child visit the
father for sleepover
visits only several
times a year. Children
in such arrangements,
Brinig found, were
significantly more
likely to suffer from
depression and fear
of dying young. But
whether a child had
a sleepover with his
father a few times
a month or a few times
a week didn't seem
to influence that
child's well-being
in any measurable
way. (Kids who had
sleepovers with their
fathers several times
a month were less
likely to abuse drugs
and alcohol than kids
who didn't, but Brinig
posits that result
as an exception to
her overall conclusion.)
Fathers'
advocates like Ned
Holstein argue that
Brinig's study might
have found more positive
results if more of
the fathers in it
had 50-50 custody,
creating more intimate
relationships, rather
than measuring the
difference between,
say, one night a month
and two nights a month.
''It's like prescribing
one aspirin for cancer
or two aspirin,''
he said. But Brinig
remains wary of a
presumption of joint
physical custody.
''There's quite a
bit of evidence to
suggest that joint
physical custody is
definitely not good
for kids when there's
a high-conflict situation
between the parents,''
she told me. The more
shared the custody,
the argument goes,
the more the parents
have to interact and
the more the children
are exposed to nasty
exchanges and power
plays. Fathers' rights
advocates, by contrast,
contend that it's
the current winner-take-all
system that creates
conflict by forcing
fearful parents into
vitriolic attacks.
Since
the early 90's, scores
of studies on the
subject of joint custody
have been fired back
and forth between
the competing camps
-- studies suggesting
that joint physical
or even joint legal
custody, which gives
each parent some decision-making
power, fuels conflict;
studies claiming that
sons fare worse with
a mother's sole custody;
studies suggesting
that children crave
stability; studies
suggesting that joint
physical custody improves
child-support payments;
and so on. Some of
the studies, accurate
though they may be,
can lead to difficult,
even distasteful conclusions.
Should policy really
be based on studies
that basically conclude
it doesn't matter
how often a father
sees his kid, so long
as it's more than
a few times a year?
On the other hand,
it's almost impossible
to measure how a presumption
of joint physical
custody affects the
motivations of parents
on both sides, how
that extra bargaining
chip might be abused.
In one particularly
influential study,
researchers at Harvard
and Stanford found
that even in cases
in which joint physical
custody was granted,
the arrangement often
devolved into a primary-custodian
situation, with the
mother taking more
responsibility --
but perhaps receiving
less child support
under the equal arrangement.
Robert
Mnookin, director
of the Harvard Negotiation
Research Project and
a professor at Harvard
Law School, is the
rare expert who concedes
that each side has
legitimate concerns.
A presumption of joint
physical custody would
have ''some nice symbolic
attributes,'' he told
me; but he worries
about how it would
play out in practice.
He notes that the
parents whose custody
negotiations end up
going all the way
to court tend to be
the parents who fight
the most. In those
cases, he argues,
forcing judges to
implement joint physical
custody is a bad idea
for the kids, since
it only perpetuates
their exposure to
the conflict. He contends,
however, that if divorced
parents know that
a judge is disinclined
to award joint physical
custody in circumstances
with a high degree
of conflict, it creates
an incentive for a
parent who wants sole
custody to create
conflict. Mnookin
says he doesn't favor
the presumption of
joint physical custody,
although he concedes
that without one,
the system gives mothers
an advantage. ''In
times of cultural
transition like this,''
he said, ''the law
struggles.''
Are fathers' rights
sufficiently protected
in custody cases?
As Chase's group was
marching through Boston,
men all over the city
paused to nod grimly
and unload stories
of how they felt they'd
been abused by the
custody system, or
of how a friend had
been. They weren't
offering broad theories
about constitutional
rights or citing chapter
and verse from social-science
studies. Their complaints
were mostly about
the logistics of the
system, its (to them)
arbitrary rule over
their finances, its
judgments about their
life choices, the
punishments it doles
out, its power to
splinter into useless
small pieces whatever
relationship they'd
struggled to build
with their children
-- all complaints
that probably would
have been echoed by
as many women, had
it been women marching
down the street protesting
about mothers' rights
to custody.
One
man in a blue oxford
shirt ran down from
his third-story office
to get some contact
information from Chase's
group -- his brother-in-law,
he said, was about
to be arrested because
he could no longer
keep up with the child-support
payments the court
demanded. Another
man said he had lost
custody because he
was home with the
kids. ''And a man
who's home with the
kids isn't a homemaker;
he's just unemployed,''
he said. Another passer-by
had lost custody of
his kids, he said,
because he wasn't
the primary caretaker;
the child-support
payments were killing
him, he said (in Massachusetts,
they can run up to
30 percent or more
of gross income) and
even still, he didn't
have nearly as much
time with his kids
as he would have liked.
The court held his
wife in contempt for
blocking his visitation,
''but she didn't care,''
he said. ''It's a
slap on the wrist.''
A man with a Scandinavian
accent, wearing a
black zip-down sweater,
said that he was supposed
to see his kids every
third weekend but
that his wife moved
out of state and uses
every legal loophole
she can to stop him
from seeing them.
Boston
that morning felt
like a city of walking
wounded -- men who
stopped on their way
to or from their workplaces
to compare notes with
one another about
their losses; men
who seemed eager to
get someone to pay
attention to what
they saw as the tragic
absurdities of their
lives. Their stories
came out fragmented,
no doubt one-sided,
but moving nonetheless.
They were short chapters
in much longer novels
that could be written,
that have all but
been written, in fact,
by those who have
best captured modern-day
male alienation --
Andre Dubus, Robert
Stone, Richard Ford,
David Gates -- with
their stories of imperfect
men and frustrated
women and misunderstandings
and low expectations
all around. The city
blocks that Chase's
protesters walked
must have contained
thousands of divided
families, and every
one of the fathers
in those families
has hundreds of stories,
every one of which
he would happily tell
to a family court,
if only the judge
had the time to really
listen.
he
morning Jason Hatch
was scheduled to scale
the building on Downing
Street, Matt O'Connor,
the Fathers 4 Justice
founder, was sitting
nervously at the coffee
shop of the Thistle
Hotel in London, a
few blocks from Downing,
waiting for a phone
call. Leaders of social
movements may have
once hailed from the
ranks of unions, sweatshops
and churches, but
it seems inevitable
that in today's culture,
O'Connor, one of England's
most successful activists,
had a career as a
brand designer for
hip restaurants. Sitting
with his girlfriend
at the time, Giselle,
a yoga instructor,
O'Connor left his
cell phone out on
the table, waiting
for it to sound its
customary ring: the
theme song from ''Mission:
Impossible.'' In the
days before, whenever
he spoke to me about
Hatch's plan, he would
take the battery out
of his phone to thwart
the government agents
he was convinced could
otherwise listen in.
The police, he suspected,
had been given advance
warning of a few recent
Fathers 4 Justice
stunts they had managed
to disrupt. As he
waited for the phone
call, he rehearsed
for me some of his
sound bites: ''Our
government is turning
a nation of fathers
into a nation of McDads''
was one; ''We have
a government of dysfunctional
misfits who are trying
to create a generation
of dysfunctional kids''
was another.
O'Connor
wasn't sure he'd have
the chance to use
his one-liners. Fathers
4 Justice had had
a string of bad luck
lately, and the security
at Downing Street
was thick. He was
in the process of
describing to me how
Hatch had cased the
building when his
phone rang. It was
a colleague on the
scene at Downing Street
calling from his cellphone.
''He's up!'' he yelled.
O'Connor, in his camel's-hair
coat and snakeskin
boots, and his girlfriend,
chic in oversize sunglasses
and a broad hat, ran
out the door of the
coffee shop and hailed
a cab. Heading for
the site a few blocks
away, catching their
breath in the taxi,
they could hear the
sirens of police cars
heading in the same
direction.
Are fathers' rights
sufficiently protected
in custody cases?
When
we arrived at Downing
Street, the area surrounding
the building had been
cordoned off. High
up enough that he
looked quite small,
Hatch, dressed as
Batman, was standing
on a ledge, along
with two other men,
both Fathers 4 Justice
members, one dressed
like Robin, the other
dressed like Captain
America. The three
men had driven a truck
up to the side of
building and onto
the pavement, mounted
a ladder and, without
a hitch, climbed up.
They had made their
way across the balcony
to the corner of the
Foreign and Commonwealth
Office building, where
they stood on what
looked like a fairly
narrow perch. They
hung a large banner,
reading ''Access Denied.''
The police apparently
didn't notice anything
until the men were
already up and a crowd
of onlookers had started
cheering.
A
cluster of boys in
their school blazers
waved wildly up to
the men. Hatch put
on his mask and twirled
his cape. Six or seven
teenage girls, also
waving wildly, started
screaming, Beatles-fan
style, and blowing
Hatch kisses. He blew
a few back. Some more
tourists and locals
joined the crowd,
and several large
men in sunglasses
and street clothes
seemed to be keeping
a particularly keen
eye on the crowd.
''How are you, darling?''
Giselle said into
O'Connor's cell phone,
looking up nervously
at Hatch, who had
his own phone pressed
to his ear.
Reporters
lined up to get their
sound bites from O'Connor.
The press turnout
was solid but perhaps
a bit perfunctory.
The media in England
had already addressed
the security angle
in previous coverage,
and after Buckingham
Palace, every possible
angle on paternity
in Britain had been
thoroughly worked.
''Right, we don't
need to hear their
message again, do
we?'' I overheard
a BBC reporter say
into his cell phone
to his producer. The
press had also already
exhausted its love
affair with Hatch
as Hero Dad. It had
become public knowledge
that Hatch had been
convicted of threatening
his second wife and
that he had another
child, with his first
wife. After he scaled
Buckingham Palace,
his girlfriend told
the press that she
had dumped him because
he was devoting too
much time to Fathers
4 Justice and not
enough to their baby.
(The two have since
reconciled -- ''I
was very post-partum''
at the time, she told
me -- but that story
hasn't received as
much play.)
As
the afternoon wore
on, the already gray
day turned a little
grayer, and a cold,
wet wind picked up.
The reporters down
below, in scarves
and boots, complained
about their chilled
feet. Several hundred
feet up, on the ledge,
it could only have
been colder and windier,
with superhero tights
providing little protection.
The three men had
brought a knapsack
filled with chocolates
and Red Bull, but
eventually the cold
and the fatigue got
to Captain America,
who came down around
5 p.m. An hour or
two later, Robin capitulated,
too. By then, the
crowd of bystanders
had pretty much dissipated,
but Hatch stayed put,
his cape wrapped around
him for warmth. Long
after everyone else
had gone home to dinner
and kids and, finally,
bed, he was still
on the ledge, an outraged
father, determined,
cold and alone.
Read
about reactions to
this article from
caring dads who want
more time with their
children and are being
financial crused by
an unfair system.
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