BACKGROUND:

On September 20, 1995, Dr. Robert Fay represented the National Coalition of Free Men (NCFM) before the 2nd Circuit Court (a federal court that covers part of New York, Connecticut and Vermont). The court held public hearings on sex and race discrimination.

Dr. Fay is a Pediatrician and a long time men's rights/fathers' rights activist. In 1985 he successfully sued in federal court for the right to review his children's school records at will (cited below). Dr. Fay's case was one of the few times a federal court has decided a matrimonial matter.

Dr. Fay is the author of the "Disenfranchised Father", (American Journal of Family Law, Spring 1995), which demonstrates the unintended but devastating destruction that non-custodial parents endure. Dr. Fay also wrote, "Joint Custody In Infants and Todlers" (Family Law Handbook, Wiley & Sons, NY, 1995), a practicum for parents who are separated and have children under three.
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On September 20, 1995, I was privileged to represent NCFM at a forum in Albany, NY, called by the 2nd Circuit Court, which wanted public input in its own investigation of the possibility that gender bias might exist in the federal court system. To this circuit's credit, the flyer I received assertively mentioned bias against men as well as women as worthy of investigation, acknowledgment and eradication if it were found to exist.

I was only too happy to accept an invitation to discuss and demonstrate bias against men in "court," but needed to stand back and reflect a bit when I considered this phenomenon in the federal courts. I had written and spoken about (and experienced) pervasive and overwhelming bias in New York state courts, but felt a bit like a student who, having prepared for a quiz on, say, Shakespeare's tragedies, was informed with little notice that he must now be prepared to discuss his "comedies" instead.

Such reflection, and the help of friends and colleagues led to a full plate of examples.

NCFM supplied a copy of Gender and Injustice: A Study of Gender Bias Against Men in The U.S. Criminal Justice System by Jon Ryan and Ian Wilson (Pub. by NCFM, July 1991), which provided massive documentation on gender differences in sentencing for criminal acts (women are given lighter sentences for committing the same crimes as men). The data, encompassing studies from many states and the federal prison system, were extremely persuasive (incontrovertible, really), and beautifully organized and presented. It educated me and made my job much easier. It was to comprise the first one half of my 30 minutes allotted time.

As for other issues, Fred Hayward reminded me once again of the sexist and unfair federal law obligating men (only) to register for (and face the risk of) conscription for military service to their country.

As for my "reflection", it wasn't long before I shook out the cobwebs in my brain and recalled my federal court case, some ten years ago. It involved my right to obtain school records. In my case (Fay vs. So. Colonie Board of Education, 802 F.2d 21 (2nd Cir. 1986), the court not only reaffirmed my right under the Federal Education, Rights and Privacy Act to obtain report cards and attendance records, but also mandated that anything that the school mailed to my ex-wife also had to be mailed to me (including any school announcements). To accomplish this end the school arranged to enter my children onto their computer twice. That way mail was assured to be sent to each parent.

What the court refused to do in my case was to consider the issue of "my" constitutional right to parent my children, and my children's constitutional right to be parented by me. What the court did was invoke "the matrimonial exclusion". This point will become important later, because so many fathers feel that their constitutional rights have been violated in family court, and yet no one has been able to find a constitutional remedy. The federal courts won't hear of it.

In any event, I have given you some background information about myself and my experience with the federal courts. On September 20, my plan and outline was to present 15 minutes on criminal sentencing bias, and 15 minutes on bias against fathers (and their children of either gender).

I wanted to discuss parents' rights [under the US Supreme Court's decision in Stanley v. Illinois, 405 US 645, 651 (1972)] to know, to love, and to associate with their children regardless of their marital status.

I was ushered into a large room, with a panel of three, and a local attorney who served as organizer/moderator (it was she who had granted me thirty minutes of time and who now apologized for the one hour delay I had experienced). There was an audience of 5 women and a male law student. The panel consisted of a Magistrate from the federal court house in New York City, an NYU law professor, and a New York City matrimonial lawyer. The latter person, and I, were the only males consistently present.

The judge, Ms. Grubin, did all of the talking, was clearly hassled, behind schedule, and was due for some secret testimony in another room in just a few minutes. She was not in the mood for any detailed testimony from me.

She clearly wanted to narrow my focus, and wanted specific evidence of federal court bias. I advised her that the research published by the National Coalition of Free Men that I had given the panel contained much evidence of federal bias against men in crime sentencing, but she wanted more, and she wanted it quickly. Quite frankly, I felt railroaded and protested that I had some data and that I had prepared a 30 minute presentation. She was terse and polemic. I noted discomfort on the faces of the others on the panel. And, I began to fly by the seat of my pants.

First, I mentioned provisions in many prisons for inmate mothers (only) to live with and care for their babies, and none for men which guarantee even one minute of "visitation" with their babies -- let alone custodial or overnight parental care. I pointed out that sociologists, criminologists, and psychiatrists all note that it is urgent and critical that we maintain and/or establish love connections for prisoners for obvious humanitarian and crime prevention reasons. I did NOT know, but (God forgive me!) I implied strongly that I DID know, that federal prisons were among those that had such provisions for women.

I invoked Franz vs. United States [(Vol 707, Federal Reporter 2nd Series, page 582 (1983)], where a US Court of Appeals ruled that there was constitutional protection for the relationship between a child and a non-custodial parent. The now famous judge, Robert Bork, wrote a dissenting opinion. This case had a strong criminal and matrimonial "connection". The father and child were shorn from one another (permanently and with no warning) because the custodial mother's new husband, a mafia member, had entered the witness protection program.

The judge knew that case, and, somewhere at this point, seemed to realize that I had something relevant to say. Nevertheless, interruptions continued. She left the room and my presentation was terminated. I received profuse apologies and was assured that I would be able to testify later if they had time.

Later, I was given the opportunity to continue. I perceived a sea change in attitude. I rattled off lots of "crime and sentencing" statistics. I was able to point out that federal laws and courts today pursue disappearing non-custodial parents, but offer no resources or assistance to non-custodial parents when "custodial" parents disappear. Clearly, financial child support is now deemed worthy of breaching the federal court's "matrimonial exclusion" (the reasoning by which federal courts refused to hear arguments brought by ex-spouses). By contrast, emotional child support (contact and love) is unworthy (women also get custody of children roughly 90% of the time).

At one point, after I included federal prosecutors as practices of bias against men, the magistrate pointed out that they were from the justice department and not from the courts (and, therefore, not part of the court system). She reminded me of the existence of separation of powers (executive, judicial, legislative).

Here I became a bit testy and got away with it. My face told her in no uncertain terms that I had passed and still remembered my eighth grade social studies lessons. I told her that any and every layperson invited would define federal prosecutors as a de facto part of the "courts", and that I felt she was evading my point.

At another point she tacitly acknowledged the "emergency need" I posited for massive court reform, but stated that it really was a state law problem, rather than a federal one. I here brought up the federal courts' role in the civil rights' struggle for blacks, which involved massive federal nullification and overhaul of state laws.

I think my presentation went well and provoked some reflection. I later sent some of my own "father discrimination" material to panel members.

Later, a father colleague and friend --an educated, articulate, devastated and decent man and father-- testified before the panel. He illustrated and dramatized his particular financial and legal plight. Comments from the panel (per his discussion with me) made it clear that our presentations complemented one another and that the panel seemed to have "listened" to us both.

I appreciate the opportunity to have represented NCFM before this panel. I anxiously await the 2nd Circuit's conclusions regarding their bias investigation.

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EDITOR'S NOTE: In the 1980's individual states began holding hearings on sex discrimination in state courts. The process is not yet complete and is still going on, although most states have completed the process. Men's groups were not included in the process and it became clear that the states were only going to examine bias against women. In some localities men's groups were deliberately excluded. In Wisconsin, the Madison Men's Center sued. Only in Texas (National Coalition of Free Men) and Iowa (Equal Rights For Fathers) were men's groups accepted to give testimony. Even there, the reports that were produced were weighted against men. In 1990 men's groups were excluded from testifying at the hearings held by the federal government under Senator, Joseph Biden (D - Deleware) concerning the creation of the Violence Against Women's Act. This act was subsequently included into law under the Clinton crime bill. Also in 1993 men's groups were deliberately excluded from participating in the Second National Conference On Gender Bias In The Courts. The conference was a vehicle for summarizing all of the findings by state gender bias task forces.

Every step of the way, women's activist groups have been notified and encouraged, not only to give testimony, but to also assume official positions in the running of fact finding bodies and in the writing of their findings.

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