New York Times

April 29, 2000

An Imbalance In the Battle Over Custody

By JOHN TIERNEY New York Times

After his experience in Queens Family Court, Mihai Muset has a slightly different perspective on the system of justice in his native Romania. During Communist rule in 1982, when he was 24 years old, he was arrested for carrying a protest banner in Bucharest.

"I was sentenced to two months in prison," he recalled, "but at least I got to appear in court and talk to the judge. That's more than I got in Family Court."

Mr. Muset's problems began a year ago. His wife, Petruta, filed for divorce and asked him to move out of their apartment in Forest Hills. Mr. Muset said that he did not want to move away from their two daughters, ages 5 and 7, until a joint custody agreement had been worked out.

"My wife had a job that paid for her divorce lawyer, but I couldn't afford to hire one," said Mr. Muset, who was then unemployed after completing law school a year earlier. "I was in debt. The only asset I had was the apartment. I wanted to sell it, use some of the money to hire a lawyer, give my wife her share, and use some to rent another apartment for all of us until the divorce was settled."

Mr. Muset showed the apartment to potential buyers on the weekend of April 24, 1999, he said. The next day, Monday, Mrs. Muset petitioned Queens Family Court for a restraining order against her husband, saying that he had threatened to kill her if she did not sign papers allowing him to sell the apartment.

At the hearing, to which Mr. Muset was not invited, Judge Marian R. Shelton asked Mrs. Muset one question about her petition: "Is everything therein true?" Mrs. Muset said it was. The judge banished Mr. Muset from the home and ordered him to stay away from his wife, his children and their school.

Mr. Muset denies making the threat, and says he did not even need his wife's signature for the sale because the apartment was in his name. He claims the accusation was a ploy to get control of the apartment and the children.

"I'm living the American dream in reverse," he said. "I came here to get a home and family, and then a court took it all away."

Mrs. Muset says that her husband did indeed threaten her life last year, and that he previously struck her during an argument in 1997, a charge that he also denies. "He is an abusive individual," she said. "He's a very controlling person. No woman in this country should have to live with a man like that."

It is impossible to know who is telling the truth. But as the case drags on -- Mr. Muset is scheduled to be in court next month contesting the banishment -- there is no question which side in the divorce battle benefits. The longer Mr. Muset is out of the home, and restricted to seeing his daughters at prescribed times, the less likely he is to be granted joint custody when the divorce is settled, because a judge would be leery of disrupting the children's lives.

Whether a restraining order is justified or not, it can be an excellent strategic move in a divorce battle, and getting one has become easier thanks to laws intended to curb domestic violence. No one disputes the need to protect women, but some wonder about the unintended consequences of the laws.

"It's good that society is taking domestic violence more seriously, but the pendulum has swung too far," said Cathy Young, who analyzed the use of restraining orders in her 1999 book, "Ceasefire: Why Women and Men Must Join Forces to Achieve True Equality" (Free Press).

She points to research showing that the orders have little if any effect on reducing violence, and to estimates from some lawyers that 50 percent of restraining orders are sought chiefly for strategic advantage in divorce cases.

"Women are just as capable as men of abusing power," Ms. Young said. "There's already an imbalance of power in child custody cases -- women get custody 90 percent of the time -- and now they can summarily throw men out of their homes and children's lives, often for vague offenses like 'verbal abuse.' It's as if we'd rather violate the rights of 10 innocent men than allow one woman to suffer the risk of harm."

How to redress the balance without putting women at risk? Groups defending the rights of "throwaway dads" have proposed that New York join the many states that make joint custody the presumptive norm, which might discourage some of the vicious winner-take-all wars that take place over custody. But there is no guarantee such a reform would work, and any perceived threat to women's rights is politically problematic. When it comes to political influence and news media appeal, throwaway dads have not come a long way.

Copyright 2000 The New York Times Company