Dads to Sue for Discrimination
Activists Say Mass. Courts Are Biased in Divorces
A Massachusetts coalition says men are discriminated against because custody of the
children in a divorce traditionally goes to the mother.
By Amy Sinatra, ABCNEWS.com
Aug. 24, 1999
He says his 5-year-old son had to use the bathroom, and he just got out of the car to
let him in the door of his ex-wifes apartment building.
She - and a Massachusetts court - say he violated a restraining order, and has two
choices: serve six months in jail, or admit he is a batterer and enter an intervention
Cases like this have mobilized fathers who say the punishment for violating a restraining
order and the states court system in general is biased against men.
So theyre planning to file a multi-complaint lawsuit against Massachusetts trial
judges, accusing the system of sex discrimination both in handling restraining orders and
awarding child custody.
"Wed just like to see some normal common sense and not the propaganda of
womens groups," says John Flaherty, co-chairman of the Fatherhood Coalition,
which he says has a mailing list of 2,000.
The suit involves six cases like Harry Stewarts - the father now spending six months
in a jailhouse after letting his child in the door of his ex-wifes residence,
Custody by Default
The coalition says men are discriminated against because by "default,"
custody of the children in a divorce traditionally goes to the mother.
Mark Charalambous, one of the coalitions founders, says the courts should default to
joint custody of the children.
"To take away somebodys parenting rights, they have to prove they would be
harmful to the child," Charalambous says.
Cynthia Stone Creem is a Boston family lawyer who has dealt with the Fatherhood Coalition
both in her work as chair of the family law section of the Massachusetts Bar Association
and as a state senator. She disagrees with many of the groups positions.
"Many of their members are people who are irate with the court system," she
says. "They want us to believe that the court is biased. Theyre biased to the
parent who takes care of the child."
She says the courts are more likely to give custody to the parent who "spends more
time on the obligations of the family," which is often the mother.
'Handed Out Like Candy'
The group also argues that women are getting restraining orders as a "tactical"
procedure to ensure that the man will not get custody of the children, and that the orders
are distributed too freely.
"Theyre handed out like candy," Flaherty says. "I think everybody
should be allowed to get a restraining order, but only if theyre getting battered.
All the safety is based upon depriving men."
But womens advocacy groups say that if restraining orders are becoming easier for
women to get, its about time.
"Theres been a lot of work done to make it easier for a woman to get one,"
says Kersti Yllo, professor of sociology at Wheaton College in Massachusetts.
"My guess is that there are many women who are victims of assaults who are not
getting restraining orders, and that were not seeing anywhere near the [actual]
number," says Mitch Rothenberg, director of Common Purpose, an intervention program
While advocates for women admit that there may be some unnecessary restraining orders,
they say the vast majority are warranted.
"I think some people do abuse the system, but the answer is not to eliminate
restraining orders," Creem says. Instead, she says, the fathers need to present their
cases well to the judge.
Group Says Men Denied Orders
The coalition also says that restraining orders requested by men are often denied,
although it admits it doesnt have statistics to back up the claim.
The group is researching hundreds of restraining orders issued in Gardner District Court,
in central Massachusetts.
"Any time you move forward with the issues that are important for your safety,
theres always somebody who files a lawsuit," says Jennifer Robertson, director
of Awake, a Boston-based group for battered women and children. "The courts can make
mistakes. Do they in most cases? No."
The Fatherhood Coalition, however, also argues that the orders are often accidentally or
technically violated. They site the case of Harry Stewart as an example of how run-ins
sometimes cant be avoided.
"The law itself is simply bad law," Charalambous says. "It makes no
distinction between real violence and accidental violations.
Fighting for Legislative Changes, Too
The Fatherhood Coalition has pushed the state Legislature for change, but a bill died in
committee. Does the group has a better chance with litigation?
David Westfall, a professor of law at Harvard University, says the coalition most likely
will not win its case.
"I think the chance of getting any kind of judgment against the court system is
nil," Westfall says.
"These matters need to be examined on a case-by-case basis," he says.
S U M M A R Y
A fathers rights group in Massachusetts plans to sue the states courts for sex
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