Strengthening Marriage Through Divorce and Custody Reform

*Stephen Baskerville holds a Ph.D. from the London School of Economics and teaches political science at Howard University in Washington, D.C.

As the battle over same-sex marriage heats up, we may wish to consider other ways to defend and strengthen marriage as an institution. Any comprehensive strategy for restoring marriage must address its nemesis: divorce. Of all the threats to marriage and the family today, divorce is clearly the most direct. Yet it is also the least understood and most neglected.

Confronting divorce can strengthen the campaign for marriage by restoring a more constructive and proactive balance to issues where traditional marriage advocates are made to appear “intolerant.” Michael McManus writes that “divorce is a far more grievous blow to marriage than today’s challenge by gays.”[1] The present failure of family advocates to address divorce is becoming conspicuous and threatens to undermine their moral authority elsewhere. “People who won’t censure divorce carry no special weight as defenders of marriage,” writes columnist Froma Harrop.[2]

This failure stems in part from the view that divorce is a private matter in the lives of individuals, not something of political significance or connected with public policy. The divorce epidemic is usually depicted as a cultural spin-off of the 1960’s sexual revolution, where loosening moral standards led to the breakdown of the family and unleashed a plethora of social ills connected with fatherless children. Consequently, the remedy is seen as marriage therapy, and the role of public policy is limited to funding the therapy. The most prominent response today, the Bush administration’s $1.5 billion plan to promote marriage through counseling, ignores divorce and the laws which facilitate it.

In fact, the divorce revolution has always been driven by politics. Without addressing the political dynamic, measures to bring divorce under control — and by extension, efforts to strengthen marriage generally — are likely to have limited efficacy.

“No-fault” divorce laws were introduced in the United States and other industrialized countries during the 1970s and are being expanded today into other regions of the world. The campaign was based on misleading information from the start. Laws advertised as allowing couples to divorce without legal grounds by mutual consent actually created involuntary or unilateral divorce, permitting one spouse to dissolve a marriage for any reason or no reason without incurring any liability for the consequences. “In all other areas of contract law, those who break a contract are expected to compensate their partner or partners,” writes Robert Whelan, “but under a system of ‘no- fault’ divorce, this essential element of contract law is abrogated. Divorce comes to be regarded as one of those things that just happens.”[3]

In fact, the legal implications go further, since the courts do not remain neutral, but invariably side with the violator of the agreement to punish the faithful spouse. Attorney Steven Varnis points out that “the law generally supports the spouse seeking the divorce, even if that spouse was the wrongdoer, by granting divorces with little regard for a spouse who may not desire it.”[4]

Most people clearly did not realize what had happened. “I never knew what no-fault divorce really meant,” says a woman quoted by Judy Perejko. “Never, in my wildest dreams, did I imagine that one person could force another person into a divorce.”[5] Indeed, only now are even well-informed people fully comprehending the implications. Not until 1996 did Maggie Gallagher publish a book whose title accurately describes what happened: The Abolition of Marriage. Yet those who did understand availed themselves of the opportunity. Not only do some estimates now predict that two-thirds of marriages will end in divorce,[6] some 80% of the approximately 1.5 million annual divorces are unilateral and over the objection of one spouse.[7]

Yet even today, it is likely that we still are not seeing the full picture and that the consequences of abolishing one of the most universal institutions of human civilization reach far beyond what even most educated people imagine.

Three decades of unrestrained divorce have created extensive interests, including many public officials, with a stake in encouraging it. Critics like Parejko point to a lucrative “divorce industry,” the legal and psychotherapeutic interests who thrive on divorce. But even more than an industry, divorce has become a regime—a vast bureaucratic empire spanning all three branches of federal, state, and local government. Comprising some 35% of civil litigation,[8] divorce and custody are the cash cow of the judiciary and bring earnings to a host of executive and legislative officials as well, plus semi-public hangers-on. Divorce is now both big business and big government, often with no clear delineation between the two.

While its ideological origins may lie in the sexual revolution, the institutional foundations of the divorce apparatus were laid in the welfare state. Government-enforced divorce extended the principles of welfare to create single-parent homes among the affluent as welfare did among the poor. The major governmental institutions of divorce were all created as part of welfare: juvenile/family courts, child support enforcement, child protection services.

Like welfare, the creation of single-parent homes through divorce is closely tied to the feminist revolution. Barbara Whitehead has described how, throughout the twentieth century, “divorce became an increasingly important measure of women’s political freedom, as well as an expression of feminine initiative and independence.”[9]

The effect has been to weaken the family through its most vulnerable point: the father. The ideologically palatable way to present this in public policy debates was likewise borrowed from welfare experience and attributed the problem to fathers abandoning their children. “Husbands abandon wives and children with no looking back,” writes one scholar. “Today, the principal cause of fatherlessness is paternal choice … the rising rate of paternal abandonment.”[10]

No evidence is provided by these scholars that this is true. In the largest federally funded study on the subject, Sanford Braver has shown that at least two-thirds of divorces are initiated by women, whether measured by official filings or surveys of couples. Few of these divorces involve grounds such as desertion, adultery, or violence; the reasons usually given are “growing apart” or “not feeling loved or appreciated.”[11] Another study found similar results, adding that “who gets the children is by far the most important component in deciding who files for divorce.”[12]

These are scholarly estimates; others put the proportion much higher. Shere Hite reports that “ninety-one percent of women who have divorced say they made the decision to divorce, not their husbands.” David Chambers, a divorce attorney, insists that “the wife is the moving party in divorce actions seven times out of eight.”[13]

This single fact changes the political dynamic fundamentally. Clearly more is at work here than couples deciding to part ways. Under no-fault laws, divorce became a means not simply of ending a marriage, but of seizing monopoly control over property and above all children, who become political instruments conferring leverage backed by penal sanctions. Further, by extending the reach of the state over the children and the involuntarily divorced parent, unilateral divorce has turned children into weapons of not only parental but governmental power. Family breakup is less a spontaneous social phenomenon than a conscious and planned power grab. Contrary to what governments tell us, fathers are not abandoning their children: The government’s divorce machinery is separating children from their fathers.

The nexus of government’s divorce machinery lies in the judiciary: the little-understood political underworld of family law. Unlike other tribunals, family law courts usually exclude the public, leave no record of their proceedings, and keep no statistics on their decisions, so information is scant.

There is even a sense in which they are not really courts, but closer to administrative agencies; one judge describes them as a “social service delivery system.” Uniquely, their mandate is not even to administer justice as such, but to determine “the best interest of the child.” Because this requires no wrongdoing by litigants, family courts would appear to be the only courts that can summon and order law-abiding citizens who are simply minding their own business.

Family courts handle matters such as divorce, custody, child support, child protection, domestic violence, truancy, and juvenile crime. Their workload therefore is determined almost entirely by the existence of broken homes. Recalling Charles Dickens’ observation that “the one great principle of the law is to make business for itself,” it may not be overly cynical to suggest that family court personnel have a vested interest in encouraging divorce. While family courts, like all courts, complain of being “overburdened,” it is clearly in their interest to be overburdened, since judicial powers and salaries, like any other, are determined by demand. “Judges and staff work on matters that are emotionally and physically draining due to the quantity and quality of the disputes presented,” Judge Robert Page explains. “They should be given every consideration for salary and the other ‘perks’ or other emoluments of their high office.” Judge Page suggests his colleagues’ aim should be to increase their volume of work by ensuring that divorce settlements are attractive for divorcing parents: “With improved services more persons will come before the court seeking their availability.... As the court does a better job, more persons will be attracted to it as a method of dispute resolution.... The better the family court system functions, the higher...the volume of the persons served.”[14]

Family court judges are usually appointed and promoted by commissions dominated by lawyers and other professionals.[15] They are political positions, in other words, answerable to the bar associations who control their appointments or finance their election campaigns and who also have an interest in maximizing the volume of litigation.[16] Judges, therefore, sit atop a large political machinery in which they wield substantial powers of patronage.

Among the clients of court patronage, along with attorneys, are experts who help determine custody and “the best interest of the child.” To understand this, it is necessary to remember that under no-fault divorce a parent’s role in ending a marriage has no bearing on custody, even when it is clear who ended it; neither does the other parent’s willingness to hold the marriage together. A parent who abrogates or violates a marital contract he or she freely entered incurs no suggestion thereby of being less fit or deserving of monopoly custody. Neither is there any recognition of the centuries-old principle that a non-divorcing, legally unimpeachable parent has a simple right to be left alone with his or her children. Instead we witness the peculiar spectacle of a judge taking it upon himself to determine “the best interest of the child” on whom he is forcibly inflicting a divorce and whose family he is using the power of his public office to dissolve.

This apparently unexceptionable phrase is in fact highly problematic. Not only is it vague; it provides no explanation for how it is in the interest of children to separate them from one of their parents six days out of seven, and perhaps altogether, at the simple request of the other. The best interest standard “is powerless to pre-empt divorce in the first place, which would be in the child’s best interest in the majority of cases.”[17]

Yet there is a more telling case against the “best interest.” It transfers from parents to government officials the power to determine what is best for other people’s children, over the objections of parents who have done nothing to forfeit the right to decide for themselves what is best for their children. “Such a criterion is dangerous, because it renders the claims of all parents to their natural children tenuous,” writes Robyn Blumner, of the Florida American Civil Liberties Union. “Children could be given over to any set of new parents who offer a more advantaged upbringing.” With respect to adoptions, the Illinois Supreme Court has held:

If the best interests of the child are to be the determining factor, persons seeking babies to adopt might profitably frequent grocery stores and snatch babies when the parent is looking the other way. Then, if custody proceedings can be delayed long enough, they can assert that they have a nicer home, a superior education, a better job, or whatever, and the best interests of the child are with the baby snatchers.[18]

“The law, thankfully, is otherwise,” the court concludes. Not in the case of divorce. The court has succinctly described precisely the custody principles of divorce court.

Many accept this practice on the assumption that judges must decide what is best for children when parents “cannot agree.” But allowing one parent to surrender both parents’ decision-making rights over the children to government officials because of “disagreement” — without any infraction by the other (who may disagree only with the loss of his or her children) — invites collusion between the divorcing parent and state officials. Judges and civil servants are not necessarily disinterested parties, as Judge Page has acknowledged. “I don’t love your children,” he tells an interviewer. “I don’t even know them. It is a legal fiction that the law’s best interest is your children.”[19]

The best interest standard also provides a lucrative formula for legal practitioners. “It provides what might be called hair-trigger litigability,” writes Walter Olson, author of The Litigation Explosion. “Everything comes to be relevant and nothing, as the lawyers say, dispositive. Does your ex swear? Smoke? Gamble?... Roam the beach gathering driftwood?... Perhaps none of these peccadillos significantly endangers a child, but all can have some effect and you never know what will tip the balance. So it can’t hurt to bring them all up.”[20]

The best interest also justifies patronage in appointing expert consultants armed with an array of quasi-scientific child development theories. “As...the presentation of cases involves greater use of social sciences,” writes Judge Page, “family courts utilize experts in many fields...to advise on issues requiring specialized knowledge.”[21] Principles of justice and constitutional protections are excised from proceedings in favor of social science theory, sometimes colored by political ideology. “Family lawyers... maintain that justice has no place in their courts where their decisions are driven instead by questions of ‘need,’” writes Melanie Phillips. “Family court judges thus preside with equanimity over injustice, having turned themselves into a division of the therapy and social work industries.”[22] These experts too may not be wholly objective, since the more children that are brought before the courts by divorcing parents expecting favorable verdicts from the experts, the more employment is created for the experts.

Psychotherapists maintain a ubiquitous presence in family court proceedings. Braver, himself a psychologist, calls such expert advice “little more than guesswork.” “There is absolutely no credible evidence that these [methods] are valid predictors of which spouse will make the best primary parent,” he writes. “In fact, there is no evidence that there is a scientifically valid way for a custody evaluator to choose the best primary parent.” Some argue the “best primary parent” is the parent who remains loyal to the marriage agreement and the family. Braver attributes the one-sidedness of evaluators’ recommendations to “gender bias,” but pecuniary interest may be a sounder explanation. He quotes a custody evaluator to the effect that “almost all” his business would be lost without custody battles driven by pursuit of the “best interest.”[23] “What a bonanza those courts are for my ilk,” writes Harvard child psychiatrist Robert Coles. “We are the ones who get the patients.”[24] These experts rarely testify in open court, so they are not subject to cross-examination, and they may be covered by judicial immunity, so they are not accountable for their testimony.

Journalistic investigations have uncovered practices consistent with Braver’s experience. David Brown of the Ottawa Citizen has described “how the psychology field generates business for itself” in family court by launching investigations of parents who are under no suspicion of unfitness or wrongdoing. “Assessors are not required by law to have any specialized training, pass any exams, or follow any particular rules,” reports Donna Laframboise of Canada’s National Post. “No one evaluates them independently to ensure that they are competent and unbiased, or keeps track of how well families whose lives have been rearranged according to their dictates have fared afterward.” The New York Daily News likewise found that “there are no standards... for how much time the experts should spend with family members, how their meetings should be conducted, or what tests should be applied.”[25]

While a variety of pecuniary interests are involved, the main financial fuel of the divorce machinery is child support. This too grew out of the welfare apparatus.

Most people view child support as a measure requiring a relatively small number of men to take responsibility for offspring they have sired and then abandoned. No-fault divorce transformed it into a regime whereby “a father is forced to finance the filching of his own children.”[26] Coerced child support has thus weakened marriage by making it, almost literally, a man’s ball-and-chain. “By allowing a faithless wife to keep her children and a sizable portion of her former spouse’s income,” writes Bryce Christensen, “current child-support laws have combined with no-fault jurisprudence to convert wedlock into snare for many guiltless men.”[27]

This system of forcing parents to subsidize divorces they oppose is itself subsidized by federal taxpayers. Child support enforcement was originally federalized less to provide for abandoned children than to recover welfare costs, since no constitutional provision mandates federal involvement. Yet shortly after its creation in 1975, the machinery was dramatically expanded, with no explanation, to all child support cases, including the vast majority not on welfare. Today welfare cases, consisting mostly of unmarried parents, account for just 17% of all child-support cases, and the proportion is shrinking. The remaining 83% are non-welfare cases consisting largely of involuntarily divorced middle-class fathers with pockets to mine. These non-welfare cases currently account for 92% of the monies collected.[28] Promoted to help poor children whose mostly young and unmarried fathers had allegedly abandoned them, the program became a means to plunder previously married middle-aged and middle-class fathers whose children were taken from them through no fault or agreement of their own.

Advertised as a program to reduce government spending, child support enforcement has incurred a steadily mounting deficit. Taxpayers lost $2.7 billion in 2002.[29] Though it provided little help for impoverished children, this funding created a financial windfall for middle-class divorcing mothers. A program advertised as helping the children of broken homes has become an engine for creating more of them. Christensen describes “the linkage between aggressive child-support policies and the erosion of wedlock”: “Politicians who have framed such [child support] policies...have — however unintentionally — actually reduced the likelihood that a growing number of children will enjoy the tremendous economic, social, and psychological benefits which the realization of that ideal [a two-parent family] can bring.”[30]

The social devastation wrought by divorce and the horrors of the divorce litigation itself have recently produced a crescendo of voices calling for reform. Yet by ignoring the politics, most remedies have proven ineffective, and some risk becoming part of the problem. Most responses have involved some combination of psychotherapy mixed with law enforcement.

Some jurisdictions now require divorcing couples to adopt “mediation” as an alternative to litigation. This sounds benign, but it is unlikely to reduce divorce, since mediation aims less to prevent divorce than to facilitate it. “Conciliation, understood as attempted reconciliation of spouses, appears to be less and less a feature of divorce proceedings,” writes Helen Alvare, who notes that it is “being replaced today by the use of mediation not to save a marriage, but to make the terms of its dissolution more amicable.”[31] Mediator Judy Parejko is harsher. “Mediation was pitched to the public as a service that would reduce the costs of litigation,” she writes. “But such well-intentioned messages served to cover up that no-fault was inherently forced divorce.” Indeed, given that “the ranks of mediators are filled with lawyers, mental health professionals, and social workers,” mediation can be imposed on parents who never agreed to divorce in order to satisfy patronage clients of the judge. Parejko reports that her court-affiliated mediation was terminated by a judge, and she was locked out of her office for trying to repair marriages. She writes of her colleagues: “They were in the business of mediation, charging a hefty fee for their settlement work, and without a steady flow of customers, their business would dry up.”[32] Some suggest that mediation further undermines due process of law, since it “takes place without rules of evidence, without recording, and without any judicial oversight,” often to the disadvantage of the non-divorcing parent. “Parties may be required to attend mediation before going to court.”[33] The emphasized words do not likely mean the court will deny a divorce to the belligerent, divorcing parent until that parent mediates; more likely, they mean the court will hold the children of the resisting, non-divorcing parent until that parent capitulates.

Some jurisdictions now require waiting periods and parent education for divorcing couples, ostensibly to impress upon them the harm done to the children. A Colorado proposal that parents with minor children wait one year is opposed by the Colorado Bar Association, the Colorado Domestic Violence Coalition, and the Colorado chapter of the Academy of Matrimonial Lawyers.[34]

Parent “education” classes are sweeping the nation, which some view as evidence of serious determination by governments to control divorce. From 1994 to 1998, “the number of US counties with this kind of curriculum tripled from 541 to 1516.”[35]

Yet on close inspection, the message of this curriculum is usually not that divorce is harmful, but that failing to cooperate with divorce is harmful. “This basically says: Divorce isn’t the death of a family,” according to attorney Andrew Shepard. “It’s the reorganization of a family.”[36] The effect can therefore be to shift blame onto the parent who opposes the reorganization. “The fact that one parent didn’t want the divorce—or that one of them had broken the promises they’d made when they were married—these were issues I was supposed to ignore,” writes Parejko.[37] Conducted by divorce practitioners, these programs add recipients to the patronage and further transfer control of children to government officials. The Canadian Bar Association (CBA) “urges the federal government to require parents to take mandatory parental education before they are permitted to pursue court proceedings involving their children.” As with mediation, it appears that the government is requiring the classes before it will permit the divorce; a closer look at the careful wording reveals precisely the opposite. Officials can still seize children at the initiation of divorce proceedings, and parents who want them returned must first submit to “education” by government instructors. “We want to pull away from the idea that parents have rights in relation to their children,” says Jennifer Cooper, chairwoman of the CBA’s family law section, which represents 2,200 divorce lawyers.[38]

A similar measure in Virginia is likewise described awkwardly in the Washington Post, which reports that parent re-education is “mandatory for anyone, married or not, who goes to court over custody, visitation, or child support.” Again, the fine print reveals how the measure, far from checking divorce, can be used to intimidate parents who resist it. “Even lawyers are rooting for the classes.”[39]

The principle that citizens can be coercively “educated” into accepting government action they regard as morally wrong (while the government holds their children) has an Orwellian quality. Parejko reports that such education “stayed away from presenting any of the dismal facts about how divorce increased certain risks for children.... No one ever addressed the simple fact that—in most cases—having both parents stay living together was what most every child would want.”[40] No one pretends that parents who disagree with divorce in principle and refuse to attend such classes or object to the curriculum are thereby denied a divorce and left in peace with their children while the divorcing parent departs alone. Instead, resisting parents become open to charges of being “uncooperative,” “angry,” or “in denial,” whereupon they may be ordered into more education, such as anger management classes, until they acquiesce. They will also likely be refused access to their children until their education is complete. “Divorce is a great destroyer that is eating the heart out of society as well as savaging children’s lives,” writes Patricia Morgan. “Its depredations will not be reversed given ever so many mediators or conciliators.”[41]

Another avenue for reform is investigations of the courts, which bring government practices into public view. Yet no official inquiries appear to have been conducted in the United States, and the few held in other countries, dominated largely by legal practitioners, have asked limited questions. Some proffered solutions may serve to increase divorce.

Investigations do highlight the incontestable fact that family courts generate by far the highest volume of complaints against the judiciary. Yet most investigations have ascribed shortcomings to operations that are “inefficient.” Formulated thus, such a finding can be interpreted to mean that the courts are “overburdened” or “understaffed” and that the solution may be found in increased funding. An investigation by the Australian Law Reform Commission found that “procedures are so riddled with inefficiencies, and its cases so poorly handled, that people are being denied justice.” Though harsh, the wording is consistent with divorce practitioners’ own view that justice will come with more funding, more courts, and higher salaries. The Commission’s report recommends, “more judges are needed in the Family Court.”[42] In Britain, a report to the Lord Chancellor written largely by divorce professionals details how children are separated from innocent parents on an enormous scale and for extended periods as a result of divorce court proceedings. It then recommends a large increase in the budget and powers of the divorce court apparatus. The head of the social workers’ union describes that apparatus as “a complete shambles,” but likewise proposes to increase the size of the shambles with “more resources.”[43]

The question not being asked here is why it should be assumed that more funding, more judges, and more courts will produce any result other than more divorces and more fatherless children.

These dynamics help illuminate the failure of therapeutic measures adopted to address the family crisis by both Democratic and Republican administrations over the last decade.

The first major policy response was the fatherhood programs of the Clinton administration. President Bill Clinton ordered a “Presidential Fatherhood Initiative” called “Strengthening the Role of Fathers in Families,” and Vice President Al Gore chaired a Federal Staff Conference on Fatherhood, which issued a report entitled Nurturing Fatherhood. Though marked by extensive use of therapeutic language about enhancing “relationships” and “encouraging good fathering,” in practice these programs were devoted almost entirely to expanding federal child support enforcement. A campaign launched by the Department of Health and Human Services (HHS) in 1999, “challenging fathers to remain connected to their children even if they do not live with them,” made clear that the relationships HHS most hoped to enhance were between fathers and federal officials:

Activities funded...include Fatherhood Development Workshops on effective practices for working with young unemployed and underemployed fathers; the development of a manual for workers to use in helping low-income fathers learn to interact more effectively with the child support enforcement system; and a peer learning college for child support enforcement experts to identify systemic barriers these young fathers face in becoming responsible fathers.[44]

Under the Bush administration, fatherhood programs were relabeled as marriage promotions. Yet the substance was a strikingly similar amalgam of therapy and law enforcement, with emphasis on the latter. In January 2003, HHS announced $2.2 million in grants to faith-based groups to “promote fatherhood and healthy marriage.” Yet only 25% of the funds were earmarked for marriage; the rest deputized private groups to collect child support. In May, HHS announced more grants “to support healthy marriage and parental relationships with the goals of improving the well-being of children.” Here again, supporting relationships seems to mean collecting child support. Michigan’s enforcement agency received $1 million.[45]

While perhaps valuable in calling attention to marriage dissolution, these programs do not address the underlying dynamic driving involuntary divorce. By placing divorce practitioners on the federal payroll and further expanding child support programs that subsidize divorce, these measures could arguably exacerbate the problem. Ironically, the Bush proposals seem to realize former First Lady Hillary Clinton’s vision that “it takes a village” to raise a child, the village in this case directed by federal officials. “The policy is designed to mobilize the entire community — including clerical, political, medical, business, and judicial leaders — to support children by strengthening marriage,” says Michigan’s child support agency.[46]

More substantial reforms gaining support include changes in divorce and custody law. Two proposals under consideration in many state and national legislatures involve modification of no-fault laws and a presumption of joint custody following divorce. Both contain promise, though they also have limitations.

Rolling back no-fault divorce faces political opposition from those who object that forcing people to remain married violates their civil liberties. No prominent voice seems to be advocating control over anyone’s personal associations. (G.K. Chesterton once pointed out that even a complete prohibition on divorce was never in practice more than a prohibition on remarriage.)[47] “The alternative to liberal or ‘no-fault’ divorce is not no divorce,” writes Robert Whelan, “but divorce which is granted only...after due legal process to establish fault.”[48]

The obvious counter-argument, that failed marriages often entail imperfections on both sides, does not necessarily justify abandoning all standards of justice. “There is fault on both sides in every human relationship,” Fred Hanson acknowledged when the new laws were being drafted. “The faults, however, are far from equal. No secular society can be operated on the theory that all faults are equal.” Hanson was the dissenting member of the National Conference of Commissioners of Uniform State Laws, which designed state no-fault laws. “To do justice between parties without regard to fault is an impossibility,” he warned. “I wonder what’s to become of the maxim that no man shall profit by his own wrong—or woman either, for that matter.”[49] Today we have the answer to that question.

Concerning custody law, some fathers’ groups advocate a presumption of joint custody or “shared parenting” on divorce. Some family advocates see this as making divorce less painful, rather than preventing it. This criticism is not entirely fair. Considerable evidence indicates that children thrive better when they have continued contact with both parents following divorce. More to the point, by removing children as weapons or spoils, joint custody laws have been shown to reduce the incidence of divorce in the first place.[50]

One obstacle to reforming divorce and custody laws is the volume of legislation that would be required, which, judging from past experience, could simply be ignored by the judiciary or bring unintended consequences. Family law is reserved to states in the US, and many across the political spectrum oppose federal involvement in families. Changes would, therefore, have to be effected state by state with possibly uneven results.

An alternative approach that may achieve the desired effect of strengthening family integrity and the marriage contract while avoiding government regulation of family life is simply to enforce the already-existing right of parents and their children not to be separated without cause. An extensive body of state and federal case law, reflecting centuries of Common Law tradition, already recognizes the right to parent one’s children free from government interference.[51] Yet this body of law is simply ignored in divorce. Enforcing it could offer a more effective and less invasive method of preserving family bonds than extensive “social engineering” through changes in marriage and custody laws or government-sponsored family therapy.

As a rule governing when children may be removed from their parents, this would entail replacing the “best interest of the child” standard with a more precise policy explicitly and categorically stipulating what constitutional case law already provides: that no child should be forcibly separated from a parent without legally recognized grounds of wrongdoing or without agreement by that parent to a divorce or separation. Thus “custody” would not so much be actively awarded as simply passively left to remain with the parent of whichever gender who remains true to the marriage. Given the role of child custody in determining who files for divorce, this would provide a powerful disincentive with virtually no government interference in private life.

This option seems consistent with most lay people’s understanding of basic justice and the proper scope of government power. “There’s really not much we can do about people—male or female—who will selfishly turn their spouse and children’s lives upside down by ripping apart a family without even offering a coherent reason,” observes Tim O’Brien. Yet we could reduce the consequences, “by simply amending our no-fault divorce law to give the (rebuttable) presumption of custody of any minor children to the defendant [who does not divorce], regardless of gender.” O’Brien elaborates on what must seem unexceptionable to the uninitiated:

It is reasonable to presume that “the best interests of the child” will be better served by remaining with the parent who does not abandon commitments for frivolous reasons and wants to maintain the family. The spouse/parent who still wishes to leave may, of course, do so—with his or her clothes and any other personal belongings. The more dedicated, responsible party should keep the children, home, property and claim on future child support.

This policy would both reduce divorce and render redundant most of the government’s family machinery. “The immediate effect...would undoubtedly be a plummeting divorce rate, reducing the necessity for child support,” O’Brien adds. “The only parents who would incur such obligations are those who have voluntarily taken them on in exchange for being released from the marriage contract.”[52]

Theoretically, additional legislation is not necessary to protect these rights; enforcement of existing constitutional rights should be sufficient to protect the rights of citizens to their children, their property, and their freedom. It would carry few financial costs and could reduce the need for expensive and invasive federal programs that thrive on family destruction by addressing its symptoms rather than its cause. Even the federal judiciary, whose increasing involvement in child support and domestic violence cases contributes to what some see as “activism,” might regain its place as constitutional defender were it required to confront the constitutional implications of removing children from legally unimpeachable parents.

Yet recognizing that the willingness of the federal judiciary to review practices of family courts is unlikely, the legislative and executive branches at both the state and federal levels could also play a leadership role.

Several years ago, Congress considered legislation to do something like this. The Parental Rights and Responsibilities Act declared that parents’ rights to direct the upbringing of their children are fundamental rights which the government can curtail only under conditions of “compelling interest.” It specifically stipulated that “No federal, state, or local government, or any official of such a government acting under color of law, shall interfere with or usurp the right of a parent to direct the upbringing of the child of the parent.”[53] The measure was defeated due to intensive special interest lobbying. Yet the bill’s most significant weakness may have been that it exempted parents who lose their children through involuntary divorce. In other words, the proposed law stipulated that the government could not interfere with or separate children from a parent unless the other parent requested it by filing for divorce, in which case the government could intervene with no further explanation. Indeed, by specifically exempting divorce, the proposed law could even have been interpreted as endorsing government-enforced separation of children from parents. A substantial constituency that could have been mobilized to support this bill was thus specifically excluded from its protections. Similar legislation, this time including divorced parents, could rally the coalition that failed to emerge in the 1990s.

Finally, given the judicial proclivity to interpret statutory language differently from legislative intent, further measures might be considered. Officials that knowingly remove children from their parents without cause are violating well-established constitutional rights. Congress and state legislatures or federal and state inspectors general could demonstrate their commitment to preserving family and marital bonds by investigating federal, state, and local agencies with a view to identifying and curtailing violations of civil rights of American parents now being carried out under color of law.

Endnotes

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