Tuesday, May 19, 1998Men on the Verge
Divorced dads emerge as a political force
By Kate Zernike, Globe Staff
The Boston Globe
Third of three parts
NEWTON - It begins, as always, with testimonials.
David, a doctor in bow tie and tweed, stands before the other divorced fathers gathered in a hospital meeting room and begins to talk about the last time he saw his daughter.
He describes the final pattern of arguments and attempts at reconciliation with his wife, how she took out a restraining order against him, then allowed him back in their bedroom. He tells how the final fight ended with her heaving his medical books at him, yet how when the police came, it was he who was led out in handcuffs, he who spent the night in jail.
A permanent restraining order, he says, has kept him from even contacting his young daughter for eight months.
''This is a disgrace. It's shameful. I think the only word for it is that it's evil,'' David says, his calm demeanor beginning to tremble. ''People who have been mistreated like this have nothing to be ashamed of. For this to be a crime, for me to call my beautiful daughter and tell her I love her, that's a disgrace. I tell you something: My head is hot.''
Hotheaded and on the fringes for years, divorced fathers' groups are now becoming a political force.
In a host of state legislatures, they have gotten laws passed fining custodial parents - mostly mothers - who do not allow fathers to see their children. Other new laws make it harder for mothers to move across state lines with their children. They give fathers an equal chance of winning custody, and even prohibit mothers from insulting fathers in front of their children.
The fathers have organized, scanning newspaper stories to recruit other aggrieved dads, sending out newsletters, lobbying legislators, even hiring interns from local colleges. And they are also benefiting from a changing political climate that now elevates fatherhood - not just motherhood - to apple pie status.
The National Fatherhood Initiative, a nonprofit group, has garnered $100 million in free advertising over the past 20 months to run a public service campaign on fatherhood, similar to previous drives encouraging people to pursue teaching careers or to mentor young girls. Their message: ''It takes a man to be a dad.'' Unlike the more conservative ''Family Values'' push, the message of being a good father spans the political spectrum.
''If your image of the importance of fathers includes more than an economic role - as mentors, coaches, disciplinarians, nurturers - it becomes harder to say, `The mother will get sole custody, and send a check,''' says Wade Horn, a former Bush administration official, and a founder of the National Fatherhood Initiative. ''Our culture is starting to believe a father's role is broader. So it becomes easier for the fathers' rights groups to make the arguments.''
More than 23,000 couples divorced in Massachusetts last year, about average for the past decade. About 65 percent of them had children, prompting sometimes contentious debates over custody.
Women request about 75 percent of all divorces, which serves as a baseline of anger for fathers' groups. But they also home in on four main issues: The bias they believe exists against them in awarding custody; the courts' failure to make sure parents who do get custody - mostly mothers - allow fathers to see their children according to schedule; what they say are often false allegations of domestic abuse by wives looking to gain leverage in the heat of a divorce battle; and prohibitive child support, especially in Massachusetts, which demands the nation's highest payments.
It is difficult to objectively weigh many of the fathers' concerns, because there are so few statistics about the issues they protest. No agency or court keeps statistics on fraudulent restraining orders, and even fraudulent is hard to define. Almost a third of all states keep no records on domestic abuse, so national comparisons are hard to make. And Massachusetts, which keeps family court records on paper only, gathers no statistics on who gets custody.
Still, interviews with judges, social workers, attorneys representing both men and women, and some studies of the courts lend some heft to the fathers' complaints.
A dramatic tool
The first fathers' groups bonded in the '70s around allegations of child abuse, which they said their former wives were fabricating to deny them custody. But with the focus of domestic violence shifting, the fathers now rally against what they say are false allegations of spousal abuse.
The Massachusetts Legislature passed Chapter 209A in 1992, establishing the nation's first computerized registry of domestic-violence offenders and authorizing restraining orders that bar offenders from having contact with the person who was granted the order. Women's shelters had reported 69,000 calls for help the previous year, prompting then-Governor William F. Weld to declare domestic violence a public emergency.
About 85 percent of those who took advantage of the new law have been women. They can get a restraining order at any of 97 courts in the Commonwealth, or get an emergency order by phoning a local police station, which can contact the judge on call at any hour. Getting an order was supposed to require a hearing, but with crowded courts, restraining orders have for the most part been routinely granted if a judge gets an affidavit from a woman saying she is in fear. If there is a hearing, the rules of evidence do not apply, meaning hearsay is allowed.
The number of restraining orders, known as 209A's, has declined slightly in recent years, though there are still around 53,000 issued annually, or about 145 a day. A state court study in 1994, the last year available, found that 70 percent of the men with 209A's issued against them had been arraigned, though not necessarily convicted, for crimes in the past. About half had been arraigned for violence against another person.
But many lawyers and some judges say they now believe women are often taking out restraining orders not out of fear, but to get leverage in divorce cases.
Before the advent of the 209A, women who wanted their husbands out of the house first had to file for divorce, then for a motion to vacate. That required a hearing, and lawyers fees to prepare for it. A restraining order forces the accused out of the house immediately, and sometimes into jail overnight or for the weekend, if the order is issued when court is not in session. Until a hearing, where the man might make a case to get back in the house, it can be 10 days, or even months.
Once a judge grants a restraining order against someone, that person's name is entered into a batterers' registry, where it stays even if a judge later vacates the order. Some judges have tried to expunge the names of those whose orders are vacated - or found to be issued without merit - but the state's Supreme Judicial Court ruled in July that only a change in legislation would allow that.
''It's a dramatic tool,'' says Haskell Kessler, a longtime Boston divorce attorney. ''Its purpose was to ensure protection from abuse, but you see more and more of them in middle- and upper-income communities where oftentimes it's more for the purposes of game-playing.''
These days, lawyers and judges say they only rarely see motions to vacate, making them suspect restraining orders have assumed that function. In many cases, they say, lawyers advise clients to take out an order.
''There are certain lawyers that you can be sure the minute the custody fight looks a bit acrimonious, there is going to be a 209A,'' says Gail Gelb, a Boston divorce attorney. ''If my client tells me `My spouse has hired this person,' my first reaction is `Pack your bags.'''
Judges who came to grant the orders almost reflexively in the early outcry against domestic violence now worry whether they are granting 209A's too easily. In a clogged court system, they say, it is hard to find time to decide who to believe, much less hold a full hearing.
''It's an awful problem, because while there's more domestic violence than we like to think there is, our sense is that the 209A's are not infrequently abused,'' says Middlesex Probate Judge Beverly Boorstein. ''This law is having the side effects that aren't intended. On the other hand, we're at risk of terrible things happening. Nobody wants to be the one who denies one of these orders when something terrible happens.''
Stories of violations for minor infractions are legion. In one case, a father was arrested for violating an order when he put a note in his son's suitcase telling the mother the boy had been sick over a weekend visit. In another, a father was arrested for sending his son a birthday card. Boorstein says every judge has seen at least one case where a woman takes out a restraining order, then returns to have it vacated so she and her husband can remarry.
''It has been a horror for the divorce bar,'' says Ann Baum, a Boston lawyer. ''In cases that could have been negotiated or settled on a calmer plane, it ups the ante, and makes everything that much more hostile.''
But restraining orders, fathers' groups say, have only made worse a more longstanding bias against them in divorce and custody proceedings. Influenced by feminism to adopt a more gender-neutral approach, most states adopted laws in the '70s to decide custody on the basis of the child's best interest, instead of the idea that children of ''tender years'' should automatically live with their mothers. But many say it has proven hard to legislate a change in attitude.
Only the state Department of Revenue keeps even a hint of official statistics on custody, and it accounts for only parents who pay child support through the agency. The numbers show that fathers have custody in four percent of cases in Massachusetts, compared to 15 percent across the country.
Joseph McNabb, the dean of Laboure College in Dorchester and a professor of health policy at Northeastern University, became a fathers' rights convert after doing his own study that yielded similar results. McNabb got custody of his three children, but only after he and his wife decided to work out an agreement outside the state court system. They both sensed a bias against fathers in the courts, an issue which would develop into his doctoral thesis at Northeastern.
In his study, McNabb hand-pulled 501 case files from the Worcester County Probate Court, which is demographically representative of the state. He found fathers winning custody in fewer than two percent of cases, usually only in those where the mother was dead or institutionalized. His numbers closely paralleled similar studies in Michigan and Wisconsin in the early '80s.
But he also found that few fathers sought custody or filed motions that might help them get it. In interviews, judges and social workers told him that fathers are often advised by lawyers not to ask for custody because they won't get it.
''The same way women feel there's a gender issue in employment, men will feel there's a gender issue in custody,'' says Gelb, the Boston divorce lawyer. ''You have to spend a lot of time working on the positive facts to show that these basic assumptions aren't true: That the mother is always the best parent, that the father is second banana.''
Heavy child support payments, fathers say, make it hard for many in the middle class to support a suitable home for their child's visits, much less a second family.
A study published last year by Lawyer's Weekly showed that based on the state child-support guidelines, a father earning $40,000 would pay about $1,000 a month, double the national average. In general, the study found, the Massachusetts guidelines dictate payments between 147 and 227 percent above the national average. And the guidelines have become more of a baseline, judges and lawyers say, with extras like piano lessons, soccer clinics, and vacations assessed on top.
Fathers pay taxes before they pay child support, and cannot deduct those payments. Custodial parents, on the other hand, do not have to pay taxes on the support money they receive. And while the state will garnish the paycheck of any father who does not pay child support, fathers complain there is no punishment for custodial mothers who do not abide by the court-set calendar of father-child visits.
''Taken by themselves, these things may look in part or mostly reasonable,'' says Ned Holstein, head of the advocacy group Fathers and Families. ''Altogether, they add up to marginalizing fathers.''
Divorced fathers don't lack for critics, especially among lawyers and advocates for domestic violence victims.
They greet the fathers' groups with wariness at best, noting that men who batter their wives are twice as likely to seek custody, according to a 1996 American Psychological Association report.
''There's this notion that men are suffering because the system is being way too fair to women,'' says Wendy Murphy, a former Middlesex County prosecutor who still represents domestic-violence victims. ''It isn't being too fair, it's being fairer, better than it used to be.
''The punishment for filing a false restraining order is substantial. You'd have to believe that women are not only vindictive but are willing to lie under oath for some advantage they may never get because they'll be punished for lying.''
Murphy says if there is a bias, it's not antimale, it's judges thinking women should take care of the children. ''But that's hardly the great coup men think it is,'' Murphy adds. ''It's classic paternalism.''
And even those who sympathize with some of their grievances say the divorced fathers' groups are their own worst public relations agents. Recall that in the original Angry White Male movie, ''Falling Down,'' it was partly a restraining order preventing him from seeing his little girl that launched the Michael Douglas character on his slash-and-burn rampage through downtown Los Angeles. Many divorced fathers' groups are about as subtle.
In Worcester, Terence Meehan took out full-page newspaper ads ranting against Judge Arlene Rotman after she granted custody of his son to the boy's mother. He picketed outside her courtroom for several weeks, demanded to debate her in public, then began picketing outside the furniture store owned by her husband's family. Now Meehan is running for the Legislature.
Pickets by other fathers' groups appear outside almost any courtroom where judges rule against their members, with signs blaring, ''Stop the Witch Hunt.'' The groups sometimes spirit members underground to avoid child-support payments or warrants for restraining-order violations. And in the most extreme cases, they do what Stephen Fagan did, and kidnap children from their former wives.
No divorce is without pain and anger, but the fathers' advocates nurture a particularly potent brand.
Behind the heavy brocade curtains of the meeting room at Newton-Wellesley Hospital one recent Monday night, about 50 members of Fathers and Families are strategizing and sharing their tales.
One man threatens to take his wife to court for contempt because she's denying him scheduled visits with his children.
''It doesn't work,'' another man snarls.
Another describes a failed attempt to win custody. ''Who was your judge?'' someone shouts. Hearing the answer, several men toss back their heads and moan collectively, ''Ooooohhh!''
One man gets up to leave, and on returning, says he tried to call his son from the pay phone, but the boy was distant; his mother, he said, didn't want them to talk.
In rep ties or bowling jackets, the men lean forward, listening. Someone's girlfriend has laid out a spread of Ritz crackers, Bertucci's pizza, and chocolate chip cookies. No one touches any of it.
Standing in front, Holstein is part Socrates, part Oprah, coaxing their tales with his questions. He asks for a show of hands from anyone who hasn't seen his child for three months, then six months, then a year.
''How about five years?'' demands one man.
Mark, a plumber, describes how his wife hit him while he was holding his daughter, then called the police.
''I thought all the battered women's groups would be outraged that any woman would ever falsely accuse a man of battering. But they all stood by my wife.
''I cried for about six months,'' he continues, his voice breaking. ''I felt bad that I had stopped crying. Coming here makes me cry again. That's good; I don't want to lose that.''
The fathers' groups' complaints are old, but their impact is new.
They have learned to shift tactics, from incendiary rhetoric to more modest proposals. In Massachusetts, they pushed now-required parenting classes which teach divorcing parents not to speak ill of the other in front of their children.
In Arkansas, fathers won approval of a so-called report card bill, mandating schools to send copies of notices and records to non-custodial parents. A similar bill failed in Massachusetts, but not before gaining high-profile support from the State Board of Education and the governor's office.
They have honed a more tender image, supplying bumper stickers that avow, ''Kids Need Fathers, Not Visitors.''
And they have forged strategic alliances. Twenty-three groups nationally recently came together under the agreeable name of The Children's Rights Council, recruiting to the board Abigail Van Buren, also known as Dear Abby, noted child psychiatrist Elisabeth Kubler-Ross, and Republican Senator and sometime actor Fred Thompson of Tennessee. A national group called Second Wives supports divorced fathers in their complaints, especially about child support payments. Several women attend monthly Fathers and Families meetings, testifying about misused restraining orders. And in Delaware, a second wife earned national publicity earlier this month when she trumped the state Department of Revenue by designing a spreadsheet that proved her husband was not a deadbeat dad.
But the groups have capitalized most on a new fatherhood push, with politicians and advocates nationwide publicizing the unique contributions of the male parent. Children who grow up without fathers, they say, are more likely to have problems with drugs and the law, drop out of college, or go on welfare. The Fatherhood Initiative is encouraging Congress to pass $2 billion in ''Fathers Count'' programs to help states do everything from set up parenting programs to provide fathers with job training. Amid all this, a series of new books talks about the importance of fathers.
''A message that we're all becoming more aware of and more sensitive to, is the role of fatherhood in a family,'' says Judge Sean M. Dunphy, head of the state Probate Court. ''Whether it be an intact family or a separated family.''
The groups' organization has been so effective that many say they are beginning to reverse custody trends.
''You may not always agree with them, but their message is taken,'' says Gene Dahman, a Boston divorce lawyer. ''They have had an impact on the Legislature and on how people think. They're seen as fathers who care about their children.''
Their message has especially resonated with conservative legislatures, the same ones that tightened laws for mothers on welfare and made it harder to get divorced.
New Jersey and Virginia passed laws recently guaranteeing a presumption of joint custody, a bill that was defeated in Massachusetts amid concerns that it is not always in a child's best interest. Texas, Tennessee, and Pennsylvania passed bills fining parents for not meeting visitation schedules. Louisiana recently became the first state to pass a law requiring custodial parents to prove that moving to another state would not harm a child. Other states place the burden on the noncustodial parent, to prove that a move would be harmful. But lawyers say they expect shifts like Louisiana's in other states.
''Generally speaking in a divorce there's her story and his story,'' says David Blankenhorn, author of ''Fatherless America: Confronting Our Most Urgent Social Problem.'' ''Her story, there are movies about it. It gets a more respectful hearing in our society today. His story is not well known. To the degree that we have any thoughts about him, it's that he cheated, he was no good. What we think about him is bad, but mostly we don't think about him. We can learn a lot in listening to these men. It can give us a sense of the ways in which fatherhood is getting weaker, and marriage is getting weaker, and maybe we ought to pay attention to it.''
This story ran on page A01 of the Boston Globe on 05/19/98.
© Copyright 1998 Globe Newspaper Company.