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,

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-wife’s 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 program.
Cases like this have mobilized fathers who say the punishment for violating a restraining order and the state’s court system in general is biased against men.
So they’re 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.
"We’d just like to see some normal common sense and not the propaganda of women’s 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 Stewart’s - the father now spending six months in a jailhouse after letting his child in the door of his ex-wife’s residence, Flaherty says.

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 coalition’s founders, says the courts should default to joint custody of the children.
"To take away somebody’s 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 group’s 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. They’re 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.
"They’re handed out like candy," Flaherty says. "I think everybody should be allowed to get a restraining order, but only if they’re getting battered. All the safety is based upon depriving men."
But women’s advocacy groups say that if restraining orders are becoming easier for women to get, it’s about time.
"There’s 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 we’re not seeing anywhere near the [actual] number," says Mitch Rothenberg, director of Common Purpose, an intervention program in Boston.
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 doesn’t 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, there’s 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 can’t 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.


A fathers’ rights group in Massachusetts plans to sue the state’s courts for sex discrimination.

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