January 11, 1996
Committee Chair, Senator Stephen M. Saland (R).
Testimony given by Charles Fink in support of joint custody legislation in New York State. Presently 42 states have passed some form of joint custody legislation. 14 of them have strong "presumptive" joint custody laws (meaning that judges must award joint custody unless sole custody can be proved to be the better alternative).
NOTE: The appendixes cited in the text below are not included in this document. If you wish to obtain a copy of the complete document send $6 (USA currency only) to National Coalition of Free Men, PO Box 129, Manhasset, NY 11030. Men's Resources Hot Line is managed by the Long Island, NY, chapter of the National Coalition of Free Men.
The text of this document runs the equivalent of five type written pages.
Let me introduce myself. My name is Charles Fink. I'm a member of the National Coalition of Free Men, a member of the Nassau County Family Law Task Force, and Director of the Men's Resources Hotline. I'm here today to speak as an advocate for revising domestic relations law statutes, to change the way in which divorce and custody issues are dealt with in New York State. There are two bills being considered this year. One, Senator Saland's bill, relies on case law, whereas the other, the Presumptive Shared Parenting Bill, provides an important alternative. Case law is antiquated and must be replaced by statutes which guarantee a child two parents. This is why I support the passage of the Presumptive Shared Parenting Bill (S-2321; A3659).
The legal ideas of a previous day no longer cover the situation in which every fourth child in America finds himself, namely, a child of divorce. Nothing is more moving than the suffering of a child, and, yet, in succumbing to the wishes of women, the courts have overlooked the predicament which the granting of a divorce will bring to the children involved. Is it really "in the best interests of a child" to see their father for only a few hours every other weekend?
My testimony will be in two parts. The first part will discuss the current system of child custody, which, like Senator Saland's bill, is dependent on case law. The second part will show how the Shared Parenting Bill will attempt to resolve many of the problems in the current system.
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The Current System of Child Custody Today's Decisions:
Let us examine the current system. A typical married couple becomes "estranged." They either file for divorce in Supreme Court or they file for custody of the children in Family Court. The judge in either case almost always gives temporary custody to the mother. The father is almost always assumed to be an expendable parent by the courts and won't even be granted visitation rights unless he petitions the court for them. These so called "visitation rights" aren't actually rights at all because the mother can violate these visits at her will without any repercussion by the courts. So, in effect, fatherhood is against the law in New York State. Fatherhood is actually a "subset" of motherhood. A mother decides whether the children can even see their dad or not and the courts support them 100%. If the mother wants to refuse the father any access at all --- the courts will make a mock attempt to enforce visitation, but will not reverse custody, fine the mother or imprison her for contempt of court.
On the issue of custody, most of the time that a father winds up with custody, it's because the mother has completely abandoned the children. It is extremely rare for a father to actually "win" custody of his children in court when the mother wants custody. In fact, I have dealt with hundreds of divorce situations in my years as a counselor and I have never met a man who has won custody that way.
Judges & political correctness:
Now is a good time to discuss what the current law is regarding child custody. Child custody law is found in the NY State Law Statutes under the section entitled "Domestic Relations Law" (DRL). Section 240 of the DRL deals with child custody (see Appendix A) and clearly states,
"In a case of determining child custody, the courts shall not consider either parent to have prima facia rights to the custody of the children."If this is the law, then why do judges nearly always break this law and give sole custody to the mother? The answer is that judges want to do what is politically correct even if it means going against the written law.
If you're a Supreme Court judge and you give custody to one father who gets convicted of child abuse, the newspapers will have a field day with you and you'll forever be known as the judge who advocates the abuse of children, and you can kiss your career good-bye. So, to protect their careers, they give custody to mothers and give the reason that they believe it is in "the best interests of the children." This protects them politically, which is really all they are concerned with anyway. They don't have to say why they didn't give custody to the father. And they don't have to explain why it is in the "best interests" of the child to let the mother have custody. It may not be best for the children, but politically speaking, it is certainly "in the best interests" of the judge's career to give custody to the mother.
The law - Section 520.16:
Now let's talk about more law -- in McKinney's Rules of the Court for NY State, section 520.16 (see Appendix B) clearly states that when petitioning for divorce, both parties shall submit a stipulation of settlement providing for distribution of assets and custody and care of children. In our experience, attorneys almost never submit these forms and judges have never demanded them. This is another clear violation of the law. Why do they do this? Again, it's because judges would rather enforce their own personal agendas than enforce the law.
Mother's sole custody:
Now I'll discuss what often happens when the mother gets sole custody of children. Women are genetically predisposed toward what psychologists refer to as "gatekeeping." This means they feel compelled to protect their "nest." When human females are under extreme duress due to a divorce situation, they may revert back to a "gatekeeping" type of overprotection and prevent the father access to the children.
It is not uncommon for women to fabricate accusations of abuse in order to assure themselves custody of the children. One aspect of false accusation that has been widely written about and documented is false accusation of sexual abuse. It has been estimated that 70% of sex abuse allegations in divorce-linked cases are false (see for example: Prescod, Suzanne, editor, "Sex Abuse Hoax Cases Linked to Divorce", Marriage and Divorce Today. Vol.11, No. 1, Nov. 1989).
In my practice as a hotline counselor anecdotal stories abound about attorneys and women's groups who encourage the mother to recall (fabricate) incidences of abuse by the father because that could guarantee her custody. Or, who convince mothers to deny visitation to the father because, "the kids may want to live with him and he'll get custody."
These tactics benefit the lawyers financially as it creates an acrimonious, litigious situation which may drag on ad infinitum. An incompetent attorney can drag a divorce out for months. A competent one can do it for years.
According to one longitudinal study,
"Angry custodial mothers would sometimes sabotage father's efforts to visit their children."This and other studies documenting mother interference with the father's visitation are specifically cited in Appendix D.
The father gets frustrated going over to pick up his children and having the door slammed in his face, so he continuously goes back to court with his attorney and files a writ of habeus corpus or a motion for contempt of court. After much expense, the court at best reprimands the mother and dismisses the action. This continues until the father is out of money and either gives up or becomes so frustrated that he takes the law into his own hands and uses his visitation order to enforce the law himself. The father is then arrested and charged with "custodial interference." This is the most common criminal charge in custody issues today. I was convicted of it myself for taking my child to the library after school to do a book report. I was arrested in front of my daughter in the library and sent to jail. It was my fault --- I forgot that fatherhood is against the law in New York State. Either way, whether the father gives up or fights back, the children will grow up without a dad.
Statistics:
Statistics show that 85% of prisoners grew up without a father. 82% of pregnant teens and 78% of high school dropouts grew up without fathers. Less than 1% of any of these categories come from single-father-headed households.
According to the National Center for Health Statistics (Appendix D), a child living with his/her divorced mother compared to a child living with both parents is 375% more likely to need professional help for emotional or behavioral problems and is almost twice as likely to repeat a grade of school, to suffer from chronic asthma, frequent headaches, bedwetting, develop a stammer or speech defect, suffer from anxiety or depression, or be diagnosed as hyperactive. However, these afflictions were surprisingly uncommon in the 15% of single parent households headed by men.
A survey of Child Protective Service (CPS) agencies by the Children's Rights Council, found that biological mothers physically abuse their children at twice the rate of biological fathers. Most additional abuse was done by the mother's new boyfriend. Incidence of abuse by single-father headed households was almost non-existent. The domestic violence issue has been mis-represented to the public. Are the current hearings addressing the realities of child abuse in determining family law?
The Bureau of the Census, Washington, D.C. found that:
The report also found that 37.9% of fathers receive no visitation at all ! The U.S. General Accounting Office found that 28% of fathers who do not pay child support are either living with their children or are deceased ! They are really "deadbeat" dads. 66% of other fathers who do not pay child support were found to be unable to pay, due to unemployment, disablement or imprisonment.
On the other hand, the U.S. Department of Health and Human Services report of October 1991 found that non-custodial fathers who totally default on support is 27%, while non-custodial mothers who totally default on support in 47% !
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Presumptive Shared Parenting Bills (S-2321; A-3659)
Benefits for children:
Now let's discuss how the presumptive shared parenting bill would resolve many of the issues discussed above. It would amend the Domestic Relations Law under section 1 - "legislative findings." The old law states the court may award custody to either parent. The new law would state that the court shall award custody to both parents and that if either parent requests sole custody, the burden of proof shall be upon the parent requesting sole custody. This will prevent judges from disobeying the law. It will also protect the judge from negative publicity because he can't give custody to the mother unless she can prove the father unfit. Thus, the "heat" is taken off the court. In effect, the judge can't be blamed for not doing what is politically correct because he would be violating the law.
It is my finding that if you let fathers be fathers, they will respond accordingly. Of course, there will always be parents, whether they are fathers or mothers, who will always be disagreeable, dishonest or contemptible. These people should be dealt with by the system accordingly. However, I feel most disagreements can be avoided if one parent is not given "sole custody" of the children.
Mandatory joint custody would prevent most custody fights. And to be absolutely frank, I don't believe that the government should have any say in family matters. Especially, a government that cannot agree on its own budget issues and mediate its own affairs.
Honey versus vinegar:
I also firmly believe that the least important feature a father can give his child is money. And on the subject of child support, I don't believe that a father should be forced to pay if he is being refused visitation. Personally, I paid child support for 5 years while my estranged spouse sporadically denied my visitation. In the summer of 1992, I attempted to pick up my children for summer visitation and was refused. After years of motions to the courts, psychological forensics and over $100,000 in legal fees which left me bankrupt and homeless, I decided to enact my own punishment. I have refused to pay child support for 3 years. I have been thrown in jail, where my life was threatened by hardened criminals. After all of this, if you think taking my driver's or professional licenses will coerce me to pay support without access to my children, you are sadly mistaken. I had a father. He taught me that anything worth having was worth fighting for. He taught me right from wrong. It is wrong to deny a child a father. The only way to get me to pay support will be to let me see my children.
I am aware that Senator Saland has a bill to enforce child support payments; specifically, the garnishing of paychecks prior to allowing payments voluntarily. When will our lawmakers understand that you cannot legislate morality, you can only encourage it.
As I mentioned earlier, I am Director of the Men's Resources Hotline. I encourage men who have been denied visitation to withhold support. I have developed over a dozen ways to help such wronged men avoid paying child support. I have also joined forces with other men's groups in a new effort to enable fathers to file pro se appeals and other motions ("Pro se" is a legal term for self-representation). This will allow fathers who cannot afford to appeal their cases to possibly have rights to their children someday. The bad news is that the appeals courts are already backed up over a year and this effort may back up the courts for many more years. Unfortunately, during this delay the children involved will have to grow up without a father.
This can all be avoided with the passage of the Presumptive Shared Parenting Bill. The bill will benefit children, fathers and mothers. Combined with mandatory mediation and parenting classes, we can bring parents together over their children instead of allowing lawyers to force parents apart.
When the only tool you have is a hammer, all problems look like nails. Perhaps we should search our tool box and choose a tool which better serves our needs. A Presumptive Shared Parenting law would be the tool to change the antiquated system of depending on case law in custody situations. A dependence on case law literally means that we are intent on making the same mistakes in the future that have been made in the past.
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