If you have been a defendant in any of our family courts since the "welfare reform" of the 1990's, you most likely left there with an eerie feeling that the decision was made long before you walked into the courtroom. That should be of no surprise to anyone because the fact is; the decision was made long before your case was even filed.
How and why does this keep happening with such great predictability? That is because our family law operation is that way by design.
Our states' family law statutes are not designed to dispense justice or operate in "the best interest of the child." Nor are they the true governance over the daily operations of our courts. Rather, the states family law statutes are designed to ensure the operations of their family courts leverage the maximum return from a vast array of federal grant sources. Most of the programs providing the grant money to family law were major parts of our failed welfare reform effort of the 1990's.
The legislatures of most of our states have abnegated their authority over the operational guidelines of their courts to committees under their Supreme Courts. These committees produce and manage the states' courts guidelines, rules and procedures that govern the day-to-day operation of the state's family courts and that of the court personnel and, in effect, attorneys practicing within them.
These guidelines, rules, and procedures your own attorney will claim they must work within have nothing to do with actual laws. Remember the separation of powers? That's right. It is against the law for our courts to legislate. So the guidelines, rules and procedures that govern our courts operation aren't laws. But don't fool yourself; they do have the full effect and force of law.
To be certain nothing can stop this feeding frenzy off the federal teat, the states have excluded the operation of the courts from their respective Sunshine laws. So you can't find out in advance what they are planning to do in the next revision. Therefore, you have no say in the matter except after the fact. This for all practical matters is no say at all.
This then raises the question: What was your attorney doing when he or she said you have a "winnable" case and why isn't he or she filing civil rights violations claims when you get slaughtered? Upon interviewing several dozen family law attorneys throughout the country, my group True Equality Network came to the astounding conclusion that they do not actually practice law at all. Family law attorneys are merely "processors" within a system of very constrictive procedural guidelines.
So your defeat will be due to the practice of law without governing laws.
Then what are these elusive guidelines, rules, and procedures constructed to do? That's simple. They are designed to make certain that rulings are made that generate the highest return from an assortment of federal "incentive programs."
It is important to note that the states actually have no legal requirement to do what is required of most, if not all, of the federal incentive programs. Those requirements are only applicable if the state wants to apply for the federal moneys a given program provides.
When the basic concept of "
if you violate someone's civil rights so I make money, I'll give you some of the money" is applied in the private sector we call it, payola, bribery, or maybe even racketeering, depending on the specifics of what was done and how it was done of course. However, when government violates your civil rights under the color of law it is called an incentive program.
Once the states get the money they can apply it to a host of state level programs, such as retirement funds for court workers and judges and performance incentives for court workers such as child support case administrators.
This has proven to make seeking a fair ruling or other actions within the family courts, like reasonable child support orders, much like asking the county employees involved to take a voluntary pay cut. This also keeps the attorneys inline, since they too know they would be asking the judges to take a pay cut and that won't help them win their next case.
The failure of "welfare reform" is found in its core principle of basing the federal incentives primarily on the money the state's collect in child support, not primarily on the percentage of cases they collect successfully.
Since the adoption of the laws collectively known as welfare reform --
Personal Responsibility and Work Opportunity Reconciliation Act (PRAWORA) and its ugly step siblings,
Temporary Assistance for Needy Families (TANF) and the
Child Support Performance and Incentive Act (CSPIA) -- the states have adopted a mindset of taking as much money as possible from their citizens who are almost always parents of minor children to get even more from Uncle Sam.
Since the welfare reform laws were enacted we have seen some horrifying results. Not the least of which is how child support arrearages have grown from being less than ten billion dollars nationally when welfare reform was first being debated in the US Congress in the 1990's to approaching one hundred billion dollars today.
But worse yet, the
Department of Health and Human Services' Office of Child Support Enforcement (OCSE) shows that currently the average income of an obligator with high child support arrearages is less than ten thousand dollars a year. So the fact is that the average "dead beat" parent meets the financial qualifications to apply for public assistance themselves. While less than 4% of all arrearages in the United States are owed by obligators earning more than twenty thousand dollars a year.
At first glance one might think the states are run by total financial idiots; they aren't at all though. They realized early on that the federal incentives pay them for both child support moneys collected and for the enforcement effort on moneys they need to collect (arrearages). The states also know that as you go down through the income classes you will reach a point where the federal incentives for arrearage enforcement exceed the incentives they would get for collecting these cases.
Since 2000 many states have made large cuts to their child support enforcement systems, some as high as 36%. Why? Because they more than meet the federal collection requirements under CSPIA via the collection of the cases of higher wage earners through automatic wage attachments.
Spending money for efforts to collect lower income cases costs more money then they can recover from incentives. So why should they bother? As with so many of our domestic policies, CSPIA serves those that need service the least, or not at all and abandons those with the greatest real need.
So here is where the states' court committees on rules and procedures come in. Among the battery of "laws" they create, child support guidelines are their big cash cow. Also, beyond its own funding, domestic violence claims are proven to open the door to even more child support and many other funding sources unrelated to domestic violence.
Not only are the states paid for collecting or not collecting child support, those performance figures also play a major role in how much TANF grant money they receive. As an aside; read through TANF sometime, you may be shocked to learn that a large portion of those law's dialog are covering when and where the states can spend their welfare incentives on highway projects.
However, it isn't called highway funding in this case. That spending is classified within a category called "improving access to facilities," which is a perfectly legal and legitimate application of TANF incentives. This spending is then applied toward the state's percentage of welfare incentives spent on "assistance related programs."
The important point here is that if the state needs more highway funding, all they need to do is raise the state's level of child support and they can spend their resulting welfare incentive increases on highway projects and remain in perfect compliance with the relevant programs funding requirements.
In view of the fact that the states child support and welfare incentives are largely based on the child support money on their books, they need to figure out how to get the most money per case out of people. A quick overview of the construct of child support guidelines shows us that in every state child support awards are predominately based on three considerations:
- Income of both parents - and the difference between them
- Child care costs of both parents - and the difference between them
- The amount of time each parent has the child - or the difference between them
The parents' income is not something the state can control (or legally change), neither are the care costs the parents have, they are pretty much what they are. So the only thing the state can control and manipulate is the time the parents have with the child. We call this "custody and visitation."
If you poke around the web you can find online child support calculators for every state. If you get bored one day, play around with some example cases for yourself. What you will find is that the time the parents have with the child has the single greatest impact on a child support obligation of the three main considerations.
In many income classes the difference between 50/50 parenting time and 70/30 results in twice the child support awarded to the custodial parent and can double again if the time with the children becomes around 85/15 or less for the non-custodial parent in some states. I assure you that this is no accident.
The abuses by the states of CSPIA funding are well documented. One example is the report prepared for the US Congress by True Equality Network, which you can
download from their web site.
If at this point you have any doubts that family law is based on dollars and not on justice, equal protection under the law, or the best interest of the child. Ask North Dakota's Governor, John Hoeven.
Among the usual and customary items on the ballet in 2006, North Dakota had ballet item for "Presumptive Equal Parenting." Governor Hoeven himself spoke out against this ballet initiative. Not for the welfare or well-being of his state's children.
Rather than defending the wellbeing of his state's children, Governor Hoeven's stated reason for opposing this initiative was due to the hundreds of millions of dollars in federal grant money such a law would cost his state. That, by the way is a significant portion of the states expected annual revenue and revenue that is considered greatly in the state's budget requests.
The Governor did this even though he was informed numerous times that scientific studies clearly show children in equal parenting arrangements after a family breakup excel at almost the same levels as those in intact, healthy families with both their biological parents present.
He was also made aware that the large majority of teens in juvenile detention, who become pregnant, smoke, run away, do drugs, and other social problems are in primary custody arrangements.
Governor Hoeven was also aware that in their biennial report, "Custodial Mothers and Fathers and Their Child Support" (
1999,
2001, and
2003) the US Census Bureau reports that of parents with equal parenting arrangements are far more likely to pay their child support, in full and on time without any enforcement actions then any other parenting arrangement. Where parents who have limited, disrupted, or no visitation with their children are likely not to pay a cent.
Governor Hoeven's decision was not based on the best interest of the child or family values; it was all about the money.
All of the family law actions in your county court yield federal incentive moneys for your state, including domestic violence orders. There is no faster way to reduce the other parent's visitation than a claim of domestic violence, plus everyone involved gets paid even more. This includes your own attorney is now handling the domestic violence case in addition to your divorce issues.
Moreover, it should be no surprise that no one will stand up against a false allegation of domestic violence, except its victim. Even when everyone knows for a fact the putative victim's claim is completely fabricated or they openly admits to the court that it is a false claim the orders are often issued anyway. It is no wonder divorce attorneys are eager to tell their clients in divorce cases to file claims of domestic violence and include the children in the claim.
Let's take look at some actual cases. We begin with the story of Rob Z., which is his real name. Although Rob is a Certified Master Social Worker, he found himself unemployed for over seven years. This was because Rob was the stay-at-home-dad for his son. When the his wife decided it was time for a change she filed a claim of domestic violence against Rob to help the process along.
Despite several witnesses, including neighbors and their own child testifying that the mother was violent partner of the marriage a restraining order was placed against Rob anyway. The order also granted temporary sole custody of their son to the mother and ordered Rob to pay child support.
Rob was removed from his home and was forbidden to have any contact with his son. However, after several months Rob's wife changed her mind. She wanted a completely clean beginning, free of any prior obligations. So she called Rob and told him to come and pick his son. Rob agreed.
While en route Rob's wife called him and asked how long it would be until he arrived. He gave her his estimated time and continued to go pick up his son. Upon arrival Rob found his son in the street with his belongings packed in plastic trash bags. As Rob loaded the belongings into the car, a Sheriff's Deputy arrived.
Unknown to Rob, his wife have called in a violation of the restraining order after asking him how long it would be until he arrived at his former home. Rob was arrested for the restraining order violation and the boy was placed in temporary foster care. Once freed from jail, Rob was able to get his son from state custody.
Being that he was unemployed for so long Rob was having a hard time finding full time work. He had the credentials, but no current experience. Rob and his son ended up living in a tent in a North Carolina State Park for the summer. During this time Rob tried to get the child support order dropped. The courts not only refused to drop the support order, but decided to enforce the no contact with his son provision of the existing domestic violence restraining order they also refused to drop and Rob was arrested again.
Rob says, "That sure kept me from asking again."
Events like the above went on for the balance of the two years the domestic violence restraining order remained in effect. Rob moved on trying to support himself and his son, while paying a child support order to a parent who refused to have any contact with their own child. Once the restraining order expired the courts finally dropped the child support order against Rob and granted him sole custody of his child.
Cases like this effect everyone. Take another real case, Arlene is her real name. Her son was in the process of splitting up with his wife. She took his leaving out on his entire family by naming them in her domestic violence complaint that ended any visitation for the children with their father and all of his family, including Arlene, their grandmother. The order gets renewed each year without question.
You should also be aware that just because your name appears on the court case as the plaintiff, that doesn't mean you won't suddenly find yourself the defacto defendant. Let's take the case of Dave B, again his real name. His case is among those that illustrates how willing the family courts are to grant domestic violence restraining orders, regardless of what the actual facts of the case are.
Dave's wife suffers from a serious mental illness. Although when she is on her medication all who know her will profess that she is a delight to be with and was highly regarded by friends and neighbors. However, she chooses to go off her medication regularly.
During these periods without her medication she would act-out very violently towards her husband and child. Following several involuntary committals to in patient mental health hospitals she again decided to stop taking her medications. In this, the last of such events for the family, she beat Dave and their son with a baseball bat. Most of Dave's injuries were the result of him shielding their son from the blows directed at the child.
Dave was told to file criminal charges. Since repeated efforts to keep his wife on medication had failed, he had to think solely of protecting his son. So he did file complaints of criminal spousal abuse and child abuse on behalf of their son.
The day before the hearing Dave's wife filed a civil complaint of domestic violence on behalf of herself and their son against Dave in family court. He was arrested entering the courthouse for the hearing for the criminal charges. Having missed the hearing the criminal charges against his wife were dropped.
Later that day Dave was in court again, this time as the defendant in a civil domestic violence case. Without going into great detail, the restraining order, sole custody of the son, and a temporary child support order were granted to the mother. However, review of the court documents showed that all of this was allegedly granted three weeks before Dave's wife filed her complaint.
An investigation revealed that the court was so predisposed to granting domestic violence restraining orders, with custody and child support that they would preprint the court orders, leaving only the personal information of parties of the case to be added. In this case, someone neglected to dispose of the old forms and Dave's information was added to a form over three weeks old.
The issues in Dave's case are as yet unresolved.
One very well publicized case is Ben V's (story on
www.5thEstate.com). Ben was doing his custody exchanges in the lobby of his Pennsylvania city's main police station to make sure nothing went wrong. After one drop off Ben's ex-wife filed a domestic violence complaint against him. She claimed she was attacked in the lobby of the police station.
Even though the police department's own video surveillance system clearly shows that nothing happened, while police officers were present at the reception desk where they met, the restraining order that included his son was issued against Ben anyway. Ben's case regarding this blatant false claim being supported by the family court is still ongoing.
But not all cases end in disaster, like Bill R's case; once again that is his real name. Bill wanted the military to be his career. Early on he married, the couple had a son and all looked wonderful. That is until his wife developed a serious substance abuse problem. An intervention hosted by family and friends resulted in Bill's wife leaving one night without any notice to Bill or anyone he knew and not returning.
Given Bill's entry level pay scale he was having a hard time financially. So Bill tried to go about what we all know every reasonable single parent does and filed for child support. After two years without receiving a cent he went to the court house for help enforcing the child support order.
To his absolute shock he was told right to his face that, "We don't enforce against women." Bill chuckled and replied, "So much for equal protection under the law." The case worker scolded him and then informed him that if he didn't watch his mouth she would call children's services on him and make sure they take his son so he would have no reason to return to her office and give her anymore lip service. Bill never received so much as one cent in child support.
Despite the bad experience Bill had with the family court and having to give up his dream of military service to earn more money, he made the choice to do what was in the best interest of everyone concerned, especially his son.
Bill worked tirelessly to inspire his son to love and respect his mother. Although nearly a decade passed before Bill wife got help for her substance abuse issues, she did reestablish contact her son and today they enjoy a happy and healthy relationship. No matter what goes wrong in a family law case, that should be how it ends.
Bill's case proves it doesn't take government interference in your life to do what is in the best interest of a child. Maybe it does prove the absent of government interference in your life helps it happen. But unfortunately, case like those covered above are more the rule than the exception today.
To date, not one person involved in the above cases who wronged the citizens they swore to serve has been so much as reprimanded for their actions, nor have any of the false claims made to our courts been prosecuted. Charges have been filed against Ben V's ex-wife and her attorney, the first such case I have heard of. But the hearing is still pending and an unending stream of motions to dismiss flood the court.
So if you find yourself in the defendant's shoes in a family law court, don't kid yourself. Look around at the people working there. Every one of them stands to make money, somehow, someway, when you lose. Notice that I didn't say
if you lose either. The moral of the story is; When you are wronged by the family courts, don't look for redress because it doesn't exist in the family court today. Chances are, you will just be asking for even more abuse.
So, expect your civil rights will be violated in so many ways you may begin to believe the Constitution of the United States of America is just another myth children are told, along with Santa Claus, the Tooth Fairy, and the Easter Bunny.
Until federal child support incentive programs pay the states the same amount per successfully collected case no matter what the dollar value is this is the way it is going to be. Middle class families will be destroyed while the poor will continue to be underserved. Nothing about this sounds like a public assistance program, does it?
Currently, despite the established facts that children do better with equal access to both of their parents and the most effective, and cost effective method of child support enforcement is enforcing custody and visitation, federal incentive programs under our failed welfare reform are paying your state to limit the time children spend with one of their parents.
Moreover, if you file for redress in the federal courts you are likely to be told, as so many before you have been told, that custody is exclusively a state matter and your case will be summarily dismissed.
So, defendant, now you know the truth. You lost before your case was ever filed. This is by design. And it
is all about the money.
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Terri Lynn Tersak is on extended maternity and family leave from work and her positions at
True Equality Network and
RADAR.
