Posted on 01/21/2006 11:07:58 PM PST by NYer
Columbus, Jan. 20, 2006 (CNA) - An Ohio mother of four has launched a constitutional appeal against an Ohio civil divorce and custody decision, arguing her religious beliefs and free speech were used against her in the proceedings.
Marie “Bai” Macfarlane’s husband abandoned her and their four children in 2003 and began no-fault divorce proceedings. Macfarlane is a stay-at-home mother and devout Catholic who homeschooled her children until 2004.
Her potentially precedent-setting appeal was submitted by Ave Maria School of Law professor Stephen Safranek. The Constitutional Law professor argues: “The civil courts do not have sole authority to end her marriage or to control the upbringing of her children. These religious and moral beliefs may be considered alien or quaint in our culture. Yet, the holding fast to such beliefs should not result in discrimination against a mother.”
Macfarlane said she and her husband had agreed to marry for life. “Even if disputes arose, I expected that we would resolve them as Catholics, from the Church’s moral position,” she said.
However, the civil divorce court refused to allow a third party arbitrator, the ecclesiastic authority of the Catholic Church, to determine separation procedures, financial settlements and custody of the children, despite legal precedents set in cases of Jewish or Islamic marriages.
Further, the appeal argues the Guardian for the children in the case was hostile to Macfarlane’s religious views and did not act properly in defending the interests of the children.
The Guardian removed them from their mother’s care although the court psychologist report states the children, “do want more time with their mom” and the older boys “were adamant supporters of homeschooling.”
The court gave the father, who works full time, permanent custody and their stay-at-home mom visitation.
“I was forced to stop homeschooling my three older children. My youngest child is in daycare although I am willing to stay home and care for my children,” said MacFarlane. “I have no right to make any decision regarding their upbringing. Finally, although we as a family poured our lives and savings into a non-profit foundation, my husband runs it and I have been ordered to get another job.”
Macfarlane founded www.marysadvocates.org for people concerned about no-fault divorce. To learn about Safranek’s public interest law firm, visit www.truemarriage.net.
How can this be? No other contract can be unilaterally "dissolved" if ONE party "ain't happy." And certainly no Catholic can enter into a so-alled "marriage" with the pre-existing intention that the relationship is dissolvable. Such a "marriage" would be null in the eyes of the Church.
Plus, I always thought that a no-fault divorce can only be obtained if both parties want it, and there are no children. If one party doesn't want to divorce, it's a contested divorce, isn't it? (Sincere question. I'm no lawyer, just an interested party trying to figure this out.)
I have read a few interviews Mrs. McFarlane has given and I feel so sorry for her. I have been a full time wife and mother and I homeschooled our son, I can't imagine how I would feel if my husband did what hers did and I lost my child as well. I can't help but wonder what is Mr. McFarlane doing now? Does he still run CatholiCity? Has he given any interviews to tell his side?
It means that a person is legally entitled to obtain a divorce without having to show fault by the other person. Used to be you had to show that the other person did something wrong, like adultery, before you could just walk out on your marriage without having consequences imposed upon you by the court. No more.
If she can actually prove discrimination of the court based on religion then she has a first amendment case.
Essentially "no fault" was just an evidentiary issue to establish the marriage is broken. (just raise your right hand and say the marriage is over and nothing can fix it. "irretrevably broken")
Custody is a seperate issue. This "press release" is confusing the divorce and the custody issue.
But this isn't true everywhere in the USA, is it? Aren't there states where you can't get a no-fault divorce unless both parties want it, and the marriage is childless?
It depends on state law, but the courts continue to hold marriage as an institution. Otherwise people would divorce under the laws of the date of marriage formation.
In addition child support could never be modified or altered without the consent of the married/divorced.
No fault is just that, ONE person decides the marriage is over and just swears that under oath, WITHOUT OTHER EVIDENCE, and the judge MUST (as a matter of law) grant the divorce.
How property and children are divided is a seperate issue.
Having children is irrelevent. No fault is a UNILATERAL petition. No consent required.
One of the claims was that no fault would prevent dirty laundry from being aired in the courts. Now it is even worse. (see the 1990's with rampant false abuse charges for legal advatage in custody matters.)
He actually tried to use the Koran as a defense saying that he was commanded by God to beat the living crap out of his wife.
L
Evidently, then, such a marriage is a sham. But is it possible, if both parties want it, to get a civil marriage that actually IS a binding contract?
Ping!
Here's an update on that divorce case...
(Thanks, cgk).
I don't know of any states that have this rule. No fault is generally granted when one party requests it. Contested divorce is only allowed in States that still have that system. I don't know of any.
"No other contract can be unilaterally "dissolved" if ONE party "ain't happy.""
LOL! It depends. Enforcing a contract requires that money be spent on atty. services. The value of the contract must be weighed against the projected loss of enforcing it. In general, if the action is against a company with substantial assets, enforcing a contract with that company will cost more than it's worth. The large company will just play games in court to purposely expend the smaller company's funds. The same game can be played in divorce court over separation details.
"no Catholic can enter into a so-alled "marriage" with the pre-existing intention that the relationship is dissolvable. Such a "marriage" would be null in the eyes of the Church."
One of the parties can always get a civil divorce and then unilaterally apply for the annulment from the Church. The American Church will then grant the annulment, regardless of the other party's contest. The other party can appeal to Rome, but by the time an answer is given, the other party is in a new civil marriage and the kids are grown.
That's a slam dunk conviction. The stick obviously had a diameter at least twice the size of a thumb.
Sometimes a person preaches something very different than his actions.
http://www.michnews.com/artman/publish/printer_10701.shtml
From the site:
"The case of MacFarlane v. MacFarlane has special significance to Catholics throughout America. Bud MacFarlane is the executive director of the Mary Foundation, and the author of three apocalyptic novels. He is well known in certain Catholic circles.
In July 2003 he left his wife and four boys and shortly thereafter filed for a civil divorce. Despite breaking up the family by requiring his children to spend half their time in his house and half with his wife, and even though he is seeking to declare that he has no obligations to the woman who bore, raised, and educated these children, Bud has taken the position that he is in full communion with the Catholic Church and is living the life of a Catholic.
Having rejected repeated attempts by his wife for reconciliation, Bud left the home and allegedly drained $23,000 from the family’s savings account -- thereby forcing his wife to beg him and/or her family to support herself and the four children. Moreover, since he was the working spouse, Bai was left completely dependent on Bud for continued support. As is to be expected, the money was doled out in humiliating dribs and drabs until a support order was put in place by a court.
This case is all the more tragic because Bud sued to force his wife to stop home-schooling their four children. When he succeeded, Bai MacFarlane refused to comply with the court order. All the children were then given, by the court, over to Bud’s custody, three were put into the local Catholic schools, the fourth -- a child who was a mere two years old -- was placed in day care."
Thanks for the info and link. The story is personally 'familiar'. My ex-husband pulled a similar trick, using our (pending adoption) daughter as a bargaining chip to negotiate divorce and custody. He successfully negotiated the 'material' assets he desired, leaving me free to finalize the adoption as a single parent (something I had not planned on) and 3 months time in which to move out of our home and start my life all over again. My sympathies are with Mrs. MacFarlane, though I doubt the courts will mete out proper justice.
I suspect that stories like yours are more common than rare. How can a man, or a woman, for that matter, live with themselves when they use a child as a pawn to get what they want. It always seems to be what I want, what I need, not what is best for the family or children.
It seems that the government licenses were just a tax and record keeping function and that the contractual understanding was the religious vows.
The courts can settle contractual disputes, if they are within their purview.
I wonder, does the first amendment imply that marriage vows are outside the purview of government ?
It really depends on the individual state law.
The real attack on marriage is quietly happening the the Model Domestic Relations Laws produced by the ABA.(or more acuratly a division of them)
These model laws are used by the state legislatures in making the divorce laws. THERE IS NO OTHER SERIOUS MODEL LAW IN ANY LAW LIBRARY. NONE.
Entry into marriage is unchanged, it is the exit that has been altered.
LOL!
It is about power. For example, imagine being a black man and a white woman in the Jim Crow South having to apply for a marriage license. By the 1920s, southern courthouses and law enforcement were riddled with KKK members. The licensing requirement was an effective tool to prevent interracial marriages.
I wonder, does the first amendment imply that marriage vows are outside the purview of government?
Doubtful. Speech can be limited by the government. For example, verbally threatening to kill someone isn't going to get that First Amendment protection. I also doubt that the U.S. Supremes would find First Amendment protection for marriage vows in instances of polygamy, bigamy, incest, pedophilia, etc.
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