A Father's Lament

10/06/2017 05:49 pm ET Updated Oct 11, 2017

A clamor is rising in America over the issue of “Men’s Rights.” Some scoff, considering it offensively outré to suggest that men might be the victims of structural sexism or reverse discrimination. A dawning consensus, however, acknowledges systematic injustices -- particularly against fathers, and particularly in the legal realm. Documentaries like “The Red Pill,” and a recent Supreme Court verdict (which struck down some aspects of maternal legal priority) add to a groundswell of recognition that this generation must right wrongs on both sides of the gender equation. At the very least, the blatantly unequal treatment of fathers under the law gives the modern rallying cry to “dismantle the patriarchy” a rather ironic twist— it is fatherhood, not male dominion, which is being systematically dismantled.

In divorce and custody arbitration, something rotten is buried within the legal code—reflexive favoritism toward mothers and insufficient attention to due process is disproportionately harming men, and this harm has devastating consequences for children and families. This problem is especially magnified amongst the working poor, where relatively “minor” financial iniquities (in the minds of courts) can have outsized effects.

I freely admit, I was one of the scoffers. I thought rumors of unequal legal treatment were overblown. Until it happened to me.

Here’s my story:

A couple of years ago, my wife of fourteen years went down to the courthouse and filed for divorce—nothing noteworthy in this I’m afraid, except that it initiated a legal process that utterly wrecked me and my family. I was evicted from my home, isolated from my children, and compelled to bankroll an extraordinary legal vendetta against my natural role as a father--all without the slightest legal pretext. After two and a half years, I’ve come to recognize the dismaying truth that the legal deck is overwhelmingly stacked against me, and that only with a full commitment of every ounce of resolve and resourcefulness can I hope to reclaim my role as father. The desperation caused by this stunning iniquity is unhealthy for me and my children, to be sure, but the problem is even broader than that: fatherhood, especially what I call “working fatherhood,” is under assault, and our culture is willfully oblivious to it.

I knew nothing of the impending divorce-- it hardly bears repeating that men can be astonishingly obtuse. I only note it here to establish the considerable disadvantage faced by the “surprised” spouse in divorce filings. Our marriage was on the ropes (as many so often are), and I had readily admitted my full share of faults, and was working to turn a new leaf. The complicated calculus of divorce, however, was being altered by a background influence of court-incentives that my then-wife was anything but blind to--I was too busy working on our “recovery” homework to notice her legal preparations. It was comic in a way; she secretly filed for divorce in the midst of the marriage counselor’s “radical honesty” module, meaning the fatal blow was perfectly timed. She’d done her homework, as is often the case. After the fact, I discovered she’d transferred over $40,000 in advance so that she’d have plenty of “padding” when the fireworks began. She’d pulled all the bank statements, started her own accounts, paid off her new car, made sure all the credit debt was in my name, retained an attorney—you know, the basics. Smart. I credit the strategic acumen. My only contention is that the legal system hands the “prepared one” an additional, overwhelming advantage after a divorce is filed.

Courts are quite accommodating. No questions asked, they granted her Ex Parte Temporary Orders that sent a process server to our door who notified me I had fifteen minutes to evacuate the home or the “police would take me away.” He recommended I get a lawyer. Stunned, I waved away his advice in utter disbelief—I thought it was a joke. In a foggy daze, I lived in my car because I didn’t think to bring any cash and was worried about spending money from our joint account. I didn’t know what to do--I was a devastated wreck…words cannot convey. I say this not for sympathy, but to emphasize that the person thrown from their home is at an extraordinary emotional, physical, and financial disadvantage in the first round of a very serious legal matter that has enormous long-term implications for every member of a disintegrating family.

To this day I have no idea what my children felt when Papa didn’t come home that night. Did they think I had abandoned them? Were they scared? I couldn’t speak with them or give them a hug goodbye.

I can only imagine it is that much worse for families with fewer resources. All around the country, fathers are summarily ejected without notice or cause and forced to engage in a rear-guard legal action without any of the advantages of preparation or adequate defense. According to Liz Mandarano at the Huffington Post, “…men are drastically more likely to be the spouse who has an order enforced against them” which means they are dramatically more likely to be at a strategic disadvantage in a divorce. I spoke yesterday to a young black father, David, who is experiencing a very similar set of forces arrayed against him. The only difference is that for him, the relative disadvantages mean he can’t see his eldest son. Ever. Men like to believe they are tough--I’m old fashioned enough to consider it a manly virtue to accept adversity with minimal complaint. General fortitude, however pretentious it may be, is no justification for unequal treatment under the law.

I was desperate to see my children, but the Temporary Orders explicitly gave my ex-spouse residential custody and allowed her to grant me “reasonable visitation.” Yes…“visitation.” In a prison, it denotes a basic incapacity—complete with overtones of marginalization, exclusion, and shame. My ex-spouse felt it unreasonable that I should “visit” our children any more than once every couple of weeks. Faced with sudden homelessness and childlessness, I tried as best I could—finding a new place to live, setting up new bank and utility accounts, begging for my personal belongings, all while hoping for reconsideration and working futilely toward some kind of reconciliation. I was still too shocked to fully believe what was happening. Again, though, try to imagine this burden imposed on society’s less fortunate, good men like David, where adequate housing and basic provisions are proportionally harder to access.

A month in, the other shoe dropped: a worksheet at the end of the Temporary Orders, calculated by the court using input only from my estranged wife, notified me that I was required to send her a child support payment each month for $1,720. This is not a small number, and represents over a third of my income—an immense burden for someone attempting to regain their bearings after a bolt from the blue. This type of financial load regressively affects poorer parents (overwhelmingly fathers) all the more. According to the U.S. Census Bureau, 86.2% of parents receiving child support are mothers, and though women are 33.5% of higher earners, they represent only 3.8% of alimony payers. Title III of the Consumer Credit Protection Act allows up to 60 percent of earnings to be garnished for child support, even if custody is split equally. The New York Times noted that, “Poor fathers are often asked to pay significantly more, as a percentage of their income, than middle- class fathers…[and] when it comes to poor fathers, state and federal laws penalize and isolate men, usually without helping mothers or children.” David explained to me how, after working minimum wage 50 hours a week, he was left with $130 a month to live on.

And herein lies the core of the problem: in nearly all jurisdictions, Temporary Orders decrees are granted without due process. This invariably places a tremendous punitive weight on Respondents/Defendants who are then obliged to defend their rights from an impossibly disadvantageous position. Believe me, it is not easy to sweep the broken pieces of your life back together when you haven’t the benefit of a home or resources and are suffering the anguish of having your children removed from your life. In fairness, this “Temporary Orders” advantage would have theoretically gone to me if I had been savvy enough to preemptively file for divorce. But most men, it appears, don’t think that way—women file 69% of all divorces. Even if men did file in rough parity, it seems inconceivable that courts would actually kick mothers out of their homes with minutes notice, squeeze their children from their lives, and force them to pay their estranged ex-husbands thousands of dollars a month while trying to reclaim their status as “Mom.”

I eventually reluctantly retained an attorney as it became increasingly clear this was a “To be a Father, or Not to be a Father” showdown. This was not an easy thing to do: my ex-spouse had locked up all the attorneys in our town, “interviewing” all of them before filing for divorce so that each would have a conflict of interest if I came seeking their counsel. This is a well-articulated trick, promoted by Internet sites like womansdivorce.com, which are dedicated to ensuring women exploit every strategic legal advantage. Again, I can hardly fault anyone for making the best of the rules, but it’s disappointing that the rules are so easily exploited.

After retaining counsel from out of town, and after almost a year trying, I was able to request that the court alter its Temporary Orders. The court ordered a “temporary” modified parenting plan that now gives me 35% of parenting time. Expending considerable resources, I had managed to claw my way back to one-third of parenting time—a depressing sort of win that still leaves my children largely without a father figure.

Attorneys and men’s groups I’ve talked with claim my situation is “above average.” I cannot help but wonder: are fathers really expected to passively accept that they are one-third of a parent? What loving father would willingly concede away a major portion of their children’s lives? I have no choice but to tenaciously fight for equity despite the structural disadvantages. Many working men aren’t so lucky: they simply cannot withstand the overwhelming odds and run out of time, money, or heart before they can attain justice. Children suffer, fathers suffer, and frankly, mothers suffer as well—it’s a legally sanctioned social tragedy.

Despair

I weathered the initial storm. After the first frightening period of watching my children fade from my life, I have managed (through extraordinary efforts facilitated by a flexible schedule) to realign myself in their lives. I no longer lie awake at night wondering if they will ever really know who their father was. Again, though, imagine that instead of a fairly comfortable academic career I was instead a lonely father who has to be on a paving crew every morning at 5 am for a 12-hour shift at minimum wage. Between being forced to find new lodgings, enduring the inestimable loss of the company of his kids, and suffering under substantially reduced means, many men simply give up. One can hardly blame them.

Men take their own lives at an astonishingly high rate: according to the Centers for Disease Control, 77.9% of suicides are committed by men, and divorced men are twice as likely as non-divorced men to kill themselves. In women, poignantly enough, no statistical difference exists between divorced and married suicide rates. Although roughly as many men die by their own hand (over 32,000) as women die of breast cancer (39,000) each year, society appears blind to the epidemic—how many marches, bumper stickers, and lapel pins have you seen calling attention to male suicide? The reasons for this are being explored, but as a study published in the Journal of Epidemiology and Community Health noted, “…societal institutions tend to ignore or minimise male problems as evident in suicide statistics.” The study went on to note, “…it may well be that one of the fundamental reasons for the observed association between divorce and suicide in men is the impact of post divorce (court sanctioned) ‘arrangements’.” As I can personally attest, the indescribable heartache caused by the trauma of divorce, coupled with the inequity of custody law is enough to make anyone despair. If you’re poor, it’s that much worse--it’s easy to imagine that the addition of more prosaic burdens like making rent is enough to push many men over the edge.

In my case, despite the change in parenting time, the support payments went unchanged (“pending final orders” was the explanation). My flexible schedule allowed me to be the primary caregiver to my kids, especially after school, yet the court insisted that I contribute to daycare expenses incurred because my ex-spouse was unwilling to allow me to watch the children after school. Though the mother could not be present during her parenting time, and I was willing to step in, the court found that there was no “cause” to adjust my crushing support payments. How many thousands of working men have to work even harder to stay solvent and current on their child support payments so they can pay for the privilege of not seeing their own children?

I’m a reasonably well-educated and reasonably well-off father of three adoring children. I can well imagine, however, the desperate plight of fathers with fewer resources who are driven away from their homes and families because the system reflexively rewards the first-to-file for divorce-- an advantage that disproportionately privileges women. I also happen to be lucky enough to be struggling within the jurisdiction of a comparatively benign legal code—Kansas is better than most states to weather this kind of legal tornado. Despite these relative advantages, it has taken every ounce of emotional, financial, and logistical reserves I can muster to achieve any semblance of parental equity under the current configuration of the law. Forty-three states received a “C” or below rating from the National Parents Organization for legal parental equity. In state after state, there are tens of thousands of fathers who are marginalized or completely eliminated from their children’s lives under hostile legal codes and crushing financial burdens. In David’s case, he is fighting an impossible battle to gain custody of his daughter against a deadbeat mom who would rather play softball than be a parent—and yet he is forced to pay her child support.

Thankfully, I’m an optimist, and confident justice will prevail in my case and that I will remain a central figure in my children’s lives. If I do, it will be despite, rather than because of, the current legal structure. I doubt if David will be so lucky. Moreover, my case is far from over--the extraordinary time it has taken to explain and defend my position is one of the more warped aspects of this ordeal, highlighting yet another awful injustice buried at the foot of custody law: the time it takes to achieve judgment is itself an injustice.

Justice Delayed is Justice Denied

Judges, understandably enough, don’t like to make alterations to Temporary Orders before a final trial, and this points to another ugly element in the vicious cycle: an expeditious trial is not in the interests of the party that is sitting on advantageous “temporary” orders. My ex-spouse’s attorneys have delayed a final trial for well over two years on technicalities that postpone my opportunity to present compelling evidence for equal parenting. Despite two separate court-ordered child custody investigations that strongly support my equal role as a parent, the status quo established by Temporary Orders is that “mom” be given Primary Residential Custody, that she raise the kids 65% of the time, and that I subsidize this state of affairs to the point of bankruptcy. This is extremely advantageous legal high ground that the petitioning side has no intention of giving up without a fight—they have sought and received five separate delays of final trial.

If that weren’t enough, the lengthy delay has generated an additional set of perverse incentives: over the last two years I have been the target of two “anonymous” child abuse accusations (both found to be without substance), an attempt to exclude me from the military installation where my kids go to school (also defeated), a ludicrous “Protection From Stalking” order (denied for lack of grounds), accusations of stealing my kids’ lunch money (rebuffed), and an ever-growing litany of Motions to the Court for every bump, blister and bruise my rambunctious children get while under my care. I’ve experienced the distinctly unpleasant mini-trauma of having the police called on me for me seeing my children off at the bus stop, and sitting handcuffed in the back of a police cruiser until the false report was realized. I’m a kind and decent man, and defending myself against these “extra” abuses places an immense emotional strain that is difficult to convey—my body says it best: I’ve gone gray and have become a hollowed shell of my former self.

Systematic abuses are nothing new. In fact, they are often aimed at the father who wishes to remain relevant in his children’s’ lives, under already enormously adverse conditions. Yet each new spurious allegation receives the tacit initial approval of the entire legal matrix. And it’s not just me: between 2 and 3 million protective orders a year are issued, and studies show they are overwhelmingly frivolous or tactically abusive. If it’s tough for me, it’s tougher for the man on the street. As David says, “false accusers are the abusers…”

Emotional strain aside, the delay in trial also generates an ever-mounting financial challenge. My ex-wife now makes over $100,000 a year, while I make roughly half that managing my own business and teaching. The Temporary Order, though, still requires me to pay nearly $2,000 a month (equivalent to a mortgage payment on a quarter-million dollar home) directly into her bank account. I will have paid over $51,000 by the time we get to final trial, assuming no more “delays.” This sum, which is probably not going to backpacks and notebooks, let alone a college savings account, is almost certainly being funneled toward legal fees. She has retained a large law firm and now has FOUR lawyers working to delay justice while I do my best with an attorney who “only” charges $175 an hour. Moreover, as an attentive dad I spend nearly $2,000 a month on top of the child support payment in order to provide my kids with the groceries, clothes, and sundries that come with modern parenting. It’s a double bind: as a “Non-Residential” parent I am considered by the court as an absentee provider, but in an adversarial environment I dare not economize on anything relating to childcare--her attorneys have already indicated they believe I house the children in “substandard” conditions in my barely affordable two-bedroom apartment. As the “out” parent in this deplorable legal environment, I face an uphill battle that only gets steeper as time goes on, since I am actually bankrolling my own legal attack. This situation is that much worse if you are the working poor with limited means and limited time. David was in tears of desperation about how to get his lights turned back on while his wages are garnished to pay child support to a mother who is never around. I just can’t imagine the strain he is under—I worry for him.

Like beans-and-bullets in a protracted military campaign, the finances of a custody dispute often determine the outcome more than the merits of the case. Despite being confident of the justice of my cause and the virtues of my fatherhood, these delays in justice exacerbate a financial imbalance that benefits the side generating more billable hours. In an indication of things to come, the other side has already requested award of legal fees—they might just have the manpower to pull off such a claim…

Reflections

Thank goodness for tragedies I suppose. This crisis in my life has highlighted just how important my children are to me, and has drawn us together in unexpected ways. It has also highlighted something awful in today’s legal setting: families are being obliterated by a set of perhaps well-intentioned, but ultimately counterproductive incentives flowing from the courthouse. People respond to incentives, whether or not those incentives are intended by the “system.” It is well-known folk wisdom, for instance, that men get the “short end” of the stick in divorce and custody suits. Women, logically concluding that they get the longer end, not surprisingly are considerably more inclined to file for divorce than men. Granted, this is not the sole reason people (again, mostly women) choose to enter the harrowing gauntlet of a divorce. But ceteris paribus, court incentives should be negligible or non-existent factors in the complicated decision to end a marriage and break up a family. Instead, existing legal incentives practically beg for the logical “fire first” strategy, a prisoner’s dilemma structural setup with nasty implications. It’s impossible to estimate how many families suffer as a result of this inappropriate legal incentive.

The structural discrepancy in legal treatment of the non-filing parent (most usually fathers) is in desperate need of review and rectification. While there is room for legitimate dialogue about the role of the state in the institution of marriage, it would seem logical that to the extent the state has a role to play, it ought to generally err on the side of preventing broken homes and children raised by single parents. As it stands now, in nearly every state in the union, it is the reverse. The “first-fire” advantage given to the plaintiff, coupled with default Temporary Orders giving them residential custody creates a death spiral of desperation and pain that often leads to the severing of the bond between fathers and their children. In my case, even in the best of outcomes, the more than two years spent under deeply unfair Temporary Orders will never be returned to me—the golden years of my children’s lives have been distinctly tarnished by a destructive legal code. And I’m lucky: for countless working fathers, those two years would have been enough to exclude him completely—ironically probably earning him a “deadbeat dad” epithet to boot (pray for David…).

A Way Forward

State legislatures could make two simple administrative changes that would have enormous implications for children and families across the nation. First, at the very least they ought to adopt an “equal parenting” statute to govern courts in establishing Temporary Orders. Alaska and Arizona have already done so, and the Governor of Missouri just signed House Bill 1550 that does the same. We are working on one in Kansas. Second, legislatures should adopt a “Back-your-Claim” clause for divorcing parents. If one spouse wishes to unilaterally seek a divorce, they need to bear the most immediate repercussions of that decision. If the divorcing spouse knew that after signing the order s/he couldn’t go home that night, had to find a hotel to stay in, had to schedule “visitations” with their kids, and had to pay the non-divorcing parent a third of their income in support payments, the perverse incentives would practically evaporate. Indeed, it would probably go some significant way toward preventing divorce, a not-altogether deplorable idea. At the very least, it would ensure (in Solomon-like simplicity) that the active party bears the burden of the change in status quo, and that all parties would be motivated to seek an amicable settlement or expeditious reckoning in court. As it stands currently, the incentives are structured in reverse—with all the predictable results.

I hope to see equity and justice prevail in my case. I pray that my kids will get their father fully (well, “halfly”) in their lives and reap the emotional, physical, and psychological advantages that come with having me back. For the children of many men, I’m afraid, this is a luxury they simply cannot expect, and that their fathers simply cannot afford. According to the US Census Bureau, only 17% of children in broken homes have the advantages of equal parenting. Working parents, especially fathers with limited means, are forced out of their homes and away from their children by a systemic inequality that treats them as lesser parents. The disturbingly common legal default is that the mother is primary, the father a distant second. Men--particularly poor men--bear this structural injustice disproportionately, while the system imposes enormous emotional and financial burdens that cut deeply into the lives of countless separating families. The time has come for society to recognize the problem and work to fix it.

Phoenix Magazine
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