"The Fathers Rights Movement is A Civil Rights Movement"
A Speech Presented Before Representative Kelley and Larkin in May 2002
By Rinaldo Del Gallo, III, Berkshire Fatherhood Coalition Chairman
Once, when I was speaking to a journalist about the Fatherhood Coalition, I referred to ourselves as a "civil rights" organization." The journalist was indignant by this appellation to which we ascribed to ourselves. He went out of his way to repeatedly state that we are not a civil rights organization. Ordinarily, I would let such a matter go. This, however, is more than a mere semantical argument, or a mere shoving match regarding the proper use of a word. At stake is whether it can be said properly said that our organization is a society dedicated to preserving human rights. I maintain that that is the chief aim and object of our organization. It the thesis of these introductory notes.
We style ourselves a "fathers rights" organization. We do not refer to ourselves as a "fathers policy" organization. To be sure, we offer sound policy. Since we last met with Senator Nuciforo in early February, another study on joint custody was performed and published this past March. It was a "Meta-Analytic Study" performed by Robert Bauserman. The study was published by the American Psychological Association in the Journal of Family Psychology. This study is available at the American Psychological Association website. Dr. Bausermans work, was, so to speak, a study of studiesa "Meta-Analytic Review." He reviewed all the extant studies of joint custody that can be found. He even used studies that can be found only in the most forgotten recesses of libraries.
Dr. Bauserman concluded that the entire corpus of studies in existence, as a whole, demonstrate that children are better off in joint custody situations as compared to sole custody. The headline in the press release by the APA was "Living Situation Not as Influential as Time Spent with Parent." Summarizing the Bauserman study, the APA press release read:
"Children in joint custody arrangements had less behavioral and emotional problems, had higher self-esteem, better family relations and school performance than children in sole custody arrangements."
All these children were as well-adjusted as intact family children on the same measure, said Dr. Bauserman, "probably because joint custody provides the child with an opportunity to have ongoing contact with both parents." Dr. Bausserman concluded that that there was less conflict between the parents when there was joint custody of the children. Dr. Bausserman made the following conclusions, identical to the beliefs advanced by the Fatherhood Coalition.
"It is important to recognize that the results clearly do not support joint custody as preferable to, or even equal to, sole custody in all situations. For instance, when one parent is clearly abusive or neglectful, a sole-custody arrangement may be the best solution. Similarly, if one parent suffers from serious mental health or adjustment difficulties, a child may be hared by continued exposure to such an environment. "Also, some authors have proposed that in situations of parental conflict, joint custody may be detrimental because it will expose the child to intense, ongoing conflict."
It is important to listen to Dr. Baussermans next sentence carefully:
However, this last argument may be applicable mainly to extremes of parental conflict.
"Some research indicates that joint custody may actually work to reduce levels of parental conflict over time, meaning that whatever risk exposure [there is] to parental conflict [over time] will be reduced."
We at the Fatherhood Coalition feel that Family Court judges should not only examine whether there is conflict, as is there present wont, but also make an inquiry into how people are handling conflict. The party that refuses to make effort to reduce tension should be the party hat suffers the loss of the child. Not only is this equitable, but it creates an incentive for parents to foster a non-combative relationship. This benefits not only the parents, but also the child.
Dr. Bausserman made the following remarks to the family court system and to legislatures who are pondering family law policy:
"Results of custody and adjustment studies need to communicated more widely to judges, lawyers, social workers, counselors, and other professionals involved in divorce counseling and litigation . . . Such communication could lead to better-informed policy decision making in individual cases. . . . The available research is consistent with the hypothesis that joint custody may be beneficial to children, and fails to show any clear disadvantage relative to sole custody."
When we met last, with Senator Nuciforo, I made the policy case for shared parenting. I have just made additional policy arguments right now. But policy rationales sometimes can go too far. Fundamental rights are poorly resolved upon the latest findings of what may be considered in the public interest. We have gone from one extreme in the 19th Century, where the rights of a father was the sole consideration, to the other extreme wherein the happiness of a father, or his right to parent, is not even a consideration considered by the Probate and Family Court.
What then is a "civil rights" organization? The term "civil rights" "civil liberties" and "human rights" can be used interchangeably. The term "civil rights" certainly encompasses those rights protected by the United States Constitution.
But the concept of civil rights is much more expansive then that, when properly understood. It has been embodied in other great documents, even ancient ones, including the English Magna Carta of 1215. Perhaps the best definition of "civil rights" or "civil liberties" rights can be found in the "Dictionary of American History." It states:
"Civil rights and liberties refer to the various spheres of individual and group freedoms that are deemed to be so fundamental as not to tolerate governmental infringement."
Civil Rights can derive not only from positive lawthat is law embodied in constitutions or statutesbut natural law or natural rights. What then is a "natural right"? Once again, the Dictionary of American History provides the best definition. "Natural Rights are commonly described as rights that inhere anterior the creation of government and are not relinquished upon entrance into civil society."
They are rights that exist independent of society, before our entrance into civil life, and are predicated upon the principles inherent in the universe, or upon Gods law. When I speak of "natural rights" or "natural law," I mean the term as it was used by Thomas Paine or Thomas Jefferson, though the concept of natural rights dates back to as early as Plato. In our Declaration of Independence, Jefferson speaks of "The Laws of Nature and the Natures God." These are rights that are implicit in the human condition, and are discernable by Gods law or the understanding of nature and the humankind. Jefferson states in the Declaration of Independence that "all men are . . . endowed with their Creator with certain inalienable rights." These rights, Jefferson declares to the world, come from God, not man or mans positive law.
The state may rip the infant from the arms of his loving father, but when doing do, the state acts in repugnance to natural law. The state is as powerless to alienate the right to be a parent that inheres in all men as it is to violate the laws of gravity. Henry David Thoreau observes in "Civil Disobedience" that "Law never made men a whit more just." He warns against "an undue respect for law." A person sitting in a Probate Court may decide, but it is God that ultimately judges. By "inalienable," Jefferson means that while governments or individuals judges acting under the color of law may violate these rights, they cannot terminate their being. A government acting through a judge literally cannot alienate the right from the individual, they can only impede the exercise of that right in repugnance to natural human rights. Natural human rights transcend the state or the fiats of judges. That is why Thomas Paine writes in Common Sense, "The cause of America is a great measure the cause of all mankind." Indeed, the Fathers Rights movement has become international in scope. These rights are like the bears of wildthey know no international boundaries and no know respect for the penchants of governments or judges. Fathers have a human right to rear their children. Children have a human right to their fathers love and guidance. Anything else would offend nature.
God imbued fathers with the need to nurture their children, and the children with the need to be loved by their fathers.
Natural law and the respect for human rights, dictates that we not violate this fundamental order through the artifices of men. A judiciary eager to destroy natures natural order, and a childs natural need for her father, does no service to mankind. Thomas Paine describes natural human rights as "the simple voice of nature and of reason." If Jefferson saw natural human rights coming from the Almighty, Paine said that "I draw my idea of the form of government from a principle in nature." Nature and reason indicate that a child should not be separated from their father. Nor should a father be reduced to mere avuncular status, with custody ever other weekend.
What is the purpose of government? Writes Jefferson in the Declaration of Independence, "To secure these rights, Governments are instituted among men." In other words, the very purpose of government is to secure our natural rights as men. This is a very strong sentiment. It is worth repeating for proper reflection. "To secure these rights, Governments are instituted among men." Jefferson speaks of rights not given at the sufferance of men, but given to us by God. There are those in this audience, who being respectable ordinary men and womenmay think that I engage in a surfeit of patriotism.
To extol the virtue of natural rights and the rights of man, they may think, is to be a pyromaniac in field of straw men. No one, so they think, denounces them. Why say so much in their support? Is it not all wasted breath? Is not the whole of the Commonwealth a choir to which I am preaching?
How little you may be aware that the intelligentsia in our law schools, and our courts, are assaulting the idea of natural human rights on a scale that cannot be imagined. Notes the Oxford Companion to Philosophy, natural law relates to "moral standards which" are "long-dominant but now disfavored type of account of morality, political philosophy and law." This is important when we evaluate our present court system because we are told we have no rights as fathers, and some mock us when we say we do. We are often reminded of the intellectual folly of recognizing natural rights. These intellectual elite tells us that Jefferson was wrong, that natural rights are not knowable because different men may come to different conclusions. They tell us that that Thomas Paines pamphlet entitled "Common Sense," lacked the subject of its title. These intellectual elitists who deny us our natural rights as parents can be found in the Family and Probate Courts all across this Commonwealth, donning black robes. They embrace a sort of jurisprudential moral relativism, wherein what is right and wrong is only dictated by their fancies, and the rights of fathers are only a supposed fancy. Every day they try to take away what terrestrial men are not meant to denythe right to be a parent and love our children. The right to father is not a right that they recognize. What transpires in the Probate Courts is not simply bad policy; it is an effrontery to human dignity and the natural bond between a father and child that God impregnated in our souls. What the Probate Court judge does is nothing less than a sin, and I do not engage in type of moral relativism that it is not a sin, simply because the judges do not think it is. Indeed, our fight is a fight for our most fundamental rights, a right that the Probate Court judge, sitting their in supposed Solemnic wisdom, has no authority to alienate.
Thoreau writes in Civil Disobedience, "For eighteen hundred years . . . the New Testament has been written; yet where is the legislator who has wisdom and practical talent enough to avail himself of the light which it sheds on the science of legislation."
Two millennium after the coming of Christ, things appear little better. What does The Good Book say of our cause? In the Book of Malachi, God says, "So I will come near to you for judgment. I will be quick to testify . . . against those. . .who oppress the fatherless."
Is not that the work of the Fatherhood Coalition, to protect the children at the hands of small-minded tyrants in our Family and Probate Courts that call themselves "Judges"?
Are we not protecting the would-be fatherless, and those that actually are fatherless, after these tyrants have laid their hands on our children? Do we not protect the child from those tyrants who do not allow them to know their fathers in any meaningful, constant sense?
If the word "tyrant" seems to strong, what then is a tyrant? A tyrant is not just a potentate of a country. A tyrant is a person in a position of authority who exercises power oppressively and despotically. Cannot a slave owner who separates the child from his father be called a tyrant? Of course he can. If so, cannot the Probate Court judge who separates the child from his fit, loving father like the slave masters of yore be also called a tyrant? Surely they can. Both acted in accordance to mans law, but in defiance to Gods. All the laws of nature teach us that a child needs both parents. A child is as naturally severed from her father as she is from her left foot. All else is an abomination.
Sigmund Freud wrote "I cannot think of any need in childhood as strong as the need for a fathers protection." We are instinct with our father and our mother by nature and by Gods design. The Bible embraces this fact. The Ten Commandments instruct a child to honor her mother and her father. The book of Psalms exhorts us to "Defend the cause of the weak and the fatherless." Is not the child who is to be ripped from her father worthy of protection from such petty tyrants? Does not the refrain from the American Revolution for which Susan B. Anthony was so found of saying come to mind:
"RESISTANCE TO TYRANY IS OBEDIENCE TO GOD."
The equality of all people is the first and most important of all the Natural Laws. The Bible teaches us to be impartial. The Bible says, "Do not pervert justice. Do not show partiality." The American conception of justice is Liberty holding an evenly balanced scale of justice with her eyes blind-folded. Yet the Massachusetts Probate Court judgepulls up the blindfold and takes a peek at gender.
Based on a Massachusetts Lawyers 1988 study, 92% of the time the mother is awarded sole physical custody, 6% of the time shared parenting is awarded, and only the remaining 2% is when the father is granted sole physical custody. How can it be said that the judges are not biased and partial? These tyrants are seeing to it that we are fast becoming a fatherless society.
According to the 2001 New York Times Almanac, "The vast majority of single-parent families, 81.1%, were headed by women." Fully, 28% of all children do not live in two parent homes. Of that 28%, 24% live only with the mother, 4% only with the father. In addition to that 24% that live only with the mother, a substantial number live with a father, but the father is not the biological father, but is rather a step-parent. The biological father is alive, but not meaningfully present in the childs life.9/4/02 Judges are removing fathers from the American landscape.
In February of this year, Gail Garrett, an attorney that practices before the Berkshire Family and Probate Court, wrote in a letter to the Berkshire Eagle, "If fathers are not granted custody or reasonable visitation, it is because it is not in the best interest of their children. Custody should flow to the primary caretaker, and like it or not, that is usually the woman." This is how judges like to rationalize to themselves that they are not really being gender biased. They like to pretend they are applying a gender-neutral standard that just happens to have the women come out the victor every time. The letter to the editor, though well written, lacks analysis as much as it lacks compassion. The letter basically said that one should count up all the household choirs that relates to the rearing If the child, and give custody to the one who performs most of these tasks.
Of course, many fathers who are the primary caretakers lose custody. The courts do not acknowledge them as "primary caregivers," but rather, "unemployed." They then focus on the inability of the father to be a provider. The courts take men and women similarly situated and treat them very differently. But still, why is it that the child should go with the parent that performed the most household tasks? The letter offers no answer, because there is no satisfactory answer. It poses such an assertion as self-evident. Those that say the "primary caretaker" should have the child offer a proposition that is neither self-evident, nor is proven true by examination.
According to divorce magazine.com, "Fatherless homes account for 63% of youth suicides, 90% of homeless/runaway children, 85% of all children with behavioral problems, 71% of high school drop outs, 85% of youths in prison, and well over 50% of teen mothers." We have more daunting statistics but time does not permit. Indeed, it is not nice to fool with Mother Nature. An examination of human nature shows that children need both parents.
But today a well-trained parrot, asking "who changed the babies diapers, who cooked dinner," etcetera, etcetera, can perform the guardian ad litem task. The point that the letter to the editor misses, is that there should be a strong presumption in favor of shared parenting, because in the vast majority of cases, shared parenting is in the best interest of the child. We need to embody this value in legislation, because the court will not do it for us. The court will mindlessly count household choirs, as if that were the touchstone for dispensing with a fundamental right. We need to impose a value that is not encompassed by the current best interest of the child standard. We need to tell courts just what is in the best interest of the child, and deny them the discretion to say for themselves unless there is clear and convincing evidence to the contrary. We have given them that discretion, and they have made a mockery of justice.
Garrett then offers sycophantic words for the Probate Court that muster all the political courage of a campaign contribution to a New York Judge running for re-election, "I am very confident in our local Probate Court. All the orders and judgments that I have seen have been extremely fair and well reasoned. You can have confidence in the court."
It does not take a Medal of Honor winner to have the intrepidity to offer servile praise to the very judge that your practice in front of. She finally concludes, "If fathers want to help themselves, they need to be good parents and put their children first like most mothers naturally do. The men that do the things I describe deserve time with their children, commensurate with their time, love and dedication, and they will get it from our Court." Garretts comments instigate the question, "How many would agree that men do not "naturally" put their children first, as apparently women do?"
A man once described his father:
I watched a small man with thick calluses on both hands work fifteen hours a day. I saw him once literally bleed from the bottom of his feet, a man who came here uneducated, unable to speak the language, who taught me all I needed to know about faith and hard work by the simple eloquence of his example.
The person that spoke was Mario Cuomo, speaking of his father.
Under the standard proposed by Gail Garret, which is the standard practiced by the Probate court, should Mr. Cuomos father find himself in a divorce, his efforts to earn bread for his family would disqualify him to be an eligible parent, because he did not perform enough domestic choirs. This model of a father would have to resign himself to the status of every-other weekend visitor. This argument is not only wrongIt is fulsome and perverted. It spits in the face of God.
Our opponents line up argument after argument against us. They argue that joint custody is bad because there is a changing environment when the child needs stability. They argue that joint custody exposes the child to too much arguing amongst the parent. They argue that joint custody is not practicable because the mother should have the right to move, to remarry, or seek pay raises, or seek better career opportunities. As much as they create these rationales, the statistics and facts get in their way. All these arguments go against a central principle we all know to be truechildren need their fathers. Children need both parents in their life. All else is a hollow lie and an empty promise.
The fight for the right to your own childs time and affection is not unknown to the American experience. In the 19th century, women suffered from many of the same injustices men suffer today in divorce. In 1848, at a convention in Seneca Falls, New York, in what may be considered the beginning of the Womens Rights Movement, Elizabeth Cady Stanton set out a Declaration of Rights for Women. As in the original Declaration of Independence, she laid out her grievances. Among them was the following:
He has so framed the laws of divorce, as to what shall be the proper causes, and in case of separation, to whom the guardianship of the children shall be given, as to be wholly regardless of the happiness of women--the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.
Is this not our cause? Are not the roles simply reversed?
It now can be declared:
The Probate Courts have so framed the laws of divorce, as to what shall be the proper causes, and in case of separation, to whom the guardianship of the children shall be given, as to be wholly regardless of the happiness of the male gender--the law, in all cases, going upon a false supposition of the supremacy of the mother, and giving all power into her hands.
Stanton further complained:
"He has created a false public sentiment by giving to the world a different code of morals for men and women, by which moral delinquencies which exclude women from society, are not only tolerated, but deemed of little account in man."
Have we not seen this in our Probate Courts? When the woman is disagreeable and divisive, it is evidence that the relationship cannot work and that there should not be shared parenting, and custody should go to the mother. When the man is disagreeable and divisive it is a sign that he is violent and should not be awarded custody of the child. When a man will not clean a house it is a sign that he is not the primary caretaker. When a women will not clean a house, it is a sign that the husband is demanding and controlling. The same pattern of conduct is met with a blatant double standard based upon gender, with the ultimate conclusion that custody should go to the mother.
I repeat what I said in the beginning. The right to parent ones child is a fundamental right. We are civil rights organization because we defend that right. In the United Nations "Universal Declaration of Human Rights" it is declared that "men and women . . have the right to marry and to found a family, and are entitled to equal rights . . .at [the] dissolution [of the marriage]."
Literally, what the Massachusetts Probate Courts are doing amounts to a violation of the United Nations Declaration of Human Rights. Surely the right to the integrity of the parent/child relationship is not abrogated upon dissolution of the marriage.
Yet, when one reads the widely relied upon multi-volume treatise, "Massachusetts Practice," it is said that it is error to say one has the right to the company of ones childrenRather, this treatise corrects, there is only in Massachusetts "an interest" in the company and rearing of ones child. Indeed, in Massachusetts, children have become creatures of the state, wherein fathers only have "an interest." So much for Jeffersons promise of "inalienable rights."
Today, the Supreme Court has widely expanded upon just what is a fundamental right. Very first on that list, is the right to parent and rear ones children. That fundamental right has been repeated over and over by the United States Supreme Court. In fact, it ranks as the most important and widely recognized right recognized in the United States Constitution that is not specifically mentioned in the Bill of Rights.
Take, for instance, the 1982 case of Santowsky v. Kramar. There, the United States Supreme Court ruled that in parental termination proceedings, the parent/child relationship cannot be terminated based on a mere preponderance of evidence that terminating the parent child relationship is in the best interest of the child. Rather, it must be shown by clear and convincing evidence that terminating the parent/child relationship is in the best interest of the child. A naked best interest-of-the child standard will not pass constitutional muster.
The state cannot take away the child from the mother in a parental termination proceeding merely because there is over a 50% chance that doing so is in the childs best interest. Why then, should the naked best-interest-of-the-child standard pass constitutional muster, to allow the state to take the child from the father and give it almost exclusively to the mother? Is not the loss nearly as great?
In many instances, is not the loss as great? Surely, the right of the mother does not extinguish the right of the father. The Santowsky court ruled:
"The . . .freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment. The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents.
May I make a fundamental proposition?
The court cases are legion supporting the right to family life, and rejecting the ability of government and judges to determine what they think "is in the best interest of the child," in numerous circumstances.
In the 1923 case of Meyers v. Nebraska, the Supreme Court struck down a law that orbid children from learning certain foreign languages. This was NOT done because learning these foreign languages was in "the childs best interest," but because the right to parent ones child as they wish was fundamental.
In the 1925 case of Pierce v. Society of Sisters, the Supreme Court struck down a law demanding that children attend public schools. This was done not because going to a private parochial school was in "the childs best interest," but because the right to parent ones child was fundamental. The decision rested on the "liberty of parents and guardians to direct the upbringing and education of their children."
In the 1942 case of Skinner v. Oklahoma, the Supreme Court struck down an Oklahoma statute that demanded compulsory sterilization of persons convicted three times of felonies. This was struck down NOT because of "the childs best interest," but because "marriage and procreation are fundamental to the very existence and survival of the race." It was noted that the right to parent "touches a sensitive and important area of human rights."
In the 1978 case of Quillon v Walcott, the Supreme Court ruled: "If a state were to attempt to force the breakup of a natural family, over the objection of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the childrens best interest," the Due Process Clause would clearly be violated. Why then can the state allow the break up of the father/child relationship based on the sole reason that to do so was thought to be in the childrens best interest?
All of these cases involve the right of the parents versus third parties. In 2000, the United States Supreme Court ruled in Troxel v. Granville, that grandparent visitation cannot be imposed without a showing of great prejudice to the child. The court also ruled that the "best interest of the child" standard did not do enough to safeguard the fundamental parenting right. Noted the Troxel court:
"The liberty interest at issue in this casethe interest of parents in the care, custody, and control of their childrenis perhaps the oldest of the fundamental liberty interests recognized by this Court." Continued the Troxel court, "In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." For those of you interested in the subject of the fundamental right to parenting Troxel contains an excellent history.
Still, as between the mother and the father, the so-called "best interest of the child" standard, more aptly called the "what the judge thinks is best standard," lives on. Writing for the majority, Judge Sandra Day OConnor, the first women Justice of the Supreme Court blasted the "best interest of the child standard."
She wrote, quoting in part previous case law:
"Our constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare their children for additional obligations. . . . Historically, it has recognized that natural bonds of affection lead parents to act in the best interests of their children."
Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children. The problem here is not that the Washington Superior Court intervened [to give Grandparent visitation], but that when it did so, it gave no special weight at all to Granville's determination of her daughters' best interests."
Ah, but how the Massachusetts Probate Judge loves to inject himself or herself into the private realm of fatherhood, and give no weight to the wishes of the father. Listen carefully as Sandra Day OConnor critiques the best interest of the child standard, the one that the Fatherhood Coalition is opposing as the sole standard for granting sole custody:
By allowing "`any person' to petition for forced visitation of a child at `any time' with the only requirement being that the visitation serve the best interest of the child," the Washington visitation statute sweeps too broadly."
Listen to this, because this is very important. She continued, "It is not within the province of the state to make significant decisions concerning the custody of children merely because it could make a `better' decision."
Let us read that again: ", ""It is not within the province of the state to make significant decisions concerning the custody of children merely because it could make a `better' decision."
Why do we allow judges to make "better decisions" than fathers, determining on their own, that the father should not be significantly present in their own childs life? Is it not an irony, that a court must show a mother greater deference than the "best interest of the child" standard when making the small imposition of grandparent visitation, but is given carte blanche to deprive a father of custody of his child and leave him to every other weekend visitation. Think about the intellectual inconsistency.
Look at what was in contest in the Troxel casethe extent of grandparent visitation.
That court could not trample on the rights of the mother to limit grandparent visitation with the "best interest of the child standard" because it "swept to broadly." If a court does not have the right to make the relatively minor interference of imposing grandparent visitation based upon the "best interest of the child" standard alone, why does it have the right to impose the astronomical decision to make a full-fledged father a mere uncle or distant relative by reducing him to every-other-weekend status merely because a judge thinks that is what is best for the child? Is it because the judge can make a better decision than the father? Why, when a father seeks to be an equal parent, do we not give him the same respect given the mother in the Troxel case, who was merely being ordered to grant grandparent visitation? Why, do we not give the father who wants to be present in the childs life, the same presumption that his decision to be an equal parent is in the childs best interest?
But the law affords the mother the power to suffocate a right of the father that third parties will never have. Unlike third party interference with the right to parent, in order for the mother to take the child from the father, the mother need not show that father be unfit. Nor need she show that the child will be substantially or meaningfully prejudiced by the fathers presence, before the fathers fundamental rights as a parent are abrogated. Nor must the judge give any weight to the fathers wishes. While enormous safeguards are erected to protect the rights of parents to the society and upbringing of their children vis-à-vis the rest of the world, as between the mother and father, the fathers fundamental right may be defeated by the caprices of judges.
The Massachusetts Courts do not recognize the father as having any fundamental liberty interest worth protecting, save for the death of the mother. The flimsy "best interest of the child" so-called "standard," gives judges a license to kill the parent/child relationship, without a showing of meaningful harm to the child or unfitness of a parent. The problem with this so-called "standard" is that it is standardless. It leaves too much discretion for the judge, without doing anything to protect the fundamental right to parent ones child. The Berkshire Fatherhood Coalition believes that the right to parent ones child is a fundamental right and more is need to secure this right than a judges fancy as to what is in the best interest of the child.
I end where I beganon the proposition that the Fatherhood Coalition is a civil rights organization. I believe I have proven this thesis. I have not even entered other constitutional matters, as the right to jury trial in child support determinations, the right to a jury trial in incarceration proceedings for failure to pay child support, and the right to counsel in the non-parental termination, custody determination context where the fundamental right to the society of the child is still seriously imperiled.
The right of the father to the love, care, and companionship of his child is fundamental, natural human right. It is a right protected not only by the laws of nature revealed by divine revelation or human reasoning, but by international law, and the United States Constitution itself. We are indeed a "civil rights" organization.
The challenges that we face may seem insurmountable, but they are not. Men are accustomed to think as their neighbors think. The 21rst century citizen has become as accustomed to children being torn from their fathers, as the 19th century citizen became accustomed to children being torn from their mothers. In the first sentences of Common Sense, Paine states, "Perhaps the sentiments contained in the following pages are not yet sufficiently fashionable to procure them general favor; a long habit of thinking a thing wrong gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom."
To be sure, we will face formidable forces against us. The idea of the mother and father being equal upon divorce is foreign to the Massachusetts Probate Court Judge. Yet Thoreau teaches, "It is never too late to give up our prejudices."
Let us be bold. When Susan B. Anthony was fighting for similar divorce law reform so that children may know their mothers, Susan B. Anthony said:
"Cautious, careful people, always casting about to preserve their reputation and social standing, never can bring about reform. Those who really are in earnest must be willing to be anything or nothing in the worlds estimation."
We will be confronted by moneyed interest along our path to salvation. Lamented Thoreau with regard to ending slavery, "Practically speaking, the opponents to a reform in Massachusetts are not a hundred thousand politicians of the South, but a hundred thousand merchants and farmers here, who are more interested in commerce and agriculture than they are in humanity, and are not prepared to do justice to the slave. . ., cost what it may."
Like those that profited from slavery and war, there are multitudes that are bottom feeders. They do not produce any real wealth. They prey on the misery of fathers and children for their livelihood. These include trial lawyers and the Department of Revenue. They will vigorously fight shared parenting to the end, as the South fought to preserve the riches of slavery. Thoreau was right. "The rich man is always sold to the institution that makes him rich." It is no wonder Christ said "It is easier for a camel to go through the eye of a needle, than for a rich man to enter the kingdom of God!""
It is written in the book of Timothy, ""People who want to get rich, fall into temptation and a trap, and into many foolish and harmful desires that plunge men into ruin and destruction." People of character must shield our children from the unscrupulous ambition of these puppets of the state, who would betray the child for the glimmer of gold.
You may find our plans too ambitious. You may feel that the yoke of tyranny is too powerful, entrenched, and oppressive. You may see us as quixotically titling at windmills. Thoreau, one of the greatest of American patriots, said that "If you have built castles in the air, your work need not be lost; that is where they should be. Now put foundations under them." The petty tyrants of our Probate Courts have a weakness. America is pregnant with the promise of equality. What started off as trickle has erupted into a tidal wave of equal justice. Egalitarianism runs thick in our blood, and is epidemic amongst our people. It is a fever without a cure, causing us to detest artificial distinctions based upon gender.
Jefferson wrote in the Declaration of Independence, "All men are created equal." It was a promise for the generations, though latent in full development. Age has witnessed the blossoming of that promise. Divorce and child custody reform will inexorably come, as did universal suffrage and the end of slavery. States will boast that we were among the first, as Massachusetts does about being among the first to abolish slavery. But this time, the rate will be quicker.
As we speak, some castles in the air already have foundations beneath them. A number of states, including West Virginia and Idaho have already adopted shared parenting. Studies have shown that divorce rates are lower and children are better adjusted. Shared Parenting is not an untried dream. The overwhelming majority of the citizens of this Commonwealth favor shared parenting. Public sentiment is on our side.
Just two weeks ago at the ITAM lodge right here in Pittsfield, Democratic Gubernatorial Candidates Thomas Birmingham, Steve Grossman, Robert Reich and Warren Tolman all stated to the audience that they favored shared parenting.
Given the history of the American sentiment for equality, the questions is not "if," but "when." With regard to our fight for civil rights, the words of Susan B. Anthony ring true: "Failure is impossible."