Constitutional Opinions: Dear Dad's Dollars
Rabkin, Jeremy
ol"Ju m~m l e ] B ~ i by yeremy Rabkin Dear Dad's Dollars The law only wants him to provide cash on demand. S core another milestone for the Clinton team! After three decades of feminist rant...
...So we say that fathers must pay for their children but we deny them any voice in whether they will have children...
...The Supreme Court has ruled that the mother cannot even be required to consult the father--even if he happens to be her husband--before deciding to go ahead with the abortion...
...There may be no easy way to avoid abuses, without lessening necessary protections...
...Of course, the Clinton White House may have had other motives...
...One can't help but conclude that preserving paternal connections is not exactly a high priority in the American iustice system...
...Divorces are often bitter struggles in which both sides resort to rancorous charges against the other...
...Divorced fathers then often lose touch with their children (50 percent fail to exercise visitation rights), lending weight to the claim of divorce lawyers that paternal custody claims are, in a great many cases, simply a bargaining tactic to reduce support obligations...
...The majority of Americans were evidently unmoved by this fact...
...It is not just a matter of obligations entered under divorce decrees...
...Some fathers have sought to challenge support obligations by presenting evidence that the mother had misrepresented her birth control practices or deliberately contrived to become pregnant against the father's wishes...
...In practice, many states still have difficulty establishing paternity obligations for even a bare majority of welfare recipients...
...The rigor with which the law now enforces such obligations remains remarkable, however...
...Suppose the father were an American in an American prison...
...There is nothing of this kind for fathers, even when they are the sole custodial parent prior to sentencing...
...Clearly, given the nature of the Communist system in Cuba, the father cannot exercise independent paternal rights...
...For outof-wedlock-births, paternal obligations only extend to financial payments...
...Amid conflicting and often unprovable claims, one can hardly blame family court judges for falling back on instinct and intuition, which often leads them to take the mother's side...
...Certainly,~nerican law-where it is decided by courts and not just by government assault teams--is not quite so solicitous of fatherhood...
...Patton speculates about cost concerns and punitive attitudes toward criminals and some real differences in propensities toward violence between male and female prisoners...
...But many men in this situation will feel strong incentives to pressure an unmarried gir]ffiend to have an abortion...
...In divorce cases, for example, courts will enforce financial obligations, but not visitation schedules...
...Though there is much to be said for this policy, it does raise concerns...
...That is the reason states have begun to experiment with programs for incarcerated mothers to keep young children with them or assure regular contact with them...
...the administration took its stand on the sacred rights of fatherhood--now deemed so sacred as to justify" a 5 a.m...
...It is not such a silly question...
...And the confusions in the law seem to reflect some powerful trends in American life...
...After three decades of feminist rant against "palsiarch...
...Responding to complaints, Democrats and Republicans have united to enforce financial support obligations of "deadbeat dads...
...Would we accord him custody rights...
...In particular, it risks reinforcing the general lesson of the welfare system that marriage is not a necessary or crucial prelude to childbearing-- since current policy puts fathers it does not suggest a country burning with zeal over fathers" rights...
...But it does not suggest a country burning with zeal over fathers' rights...
...Start with the awkward fact that the raid was part of a plan to ensure the forcible return of Elian to a totalitarian dictatorship...
...Laws authorizing such "ex #arte orders" (orders issued before the subject of the order has the chance to defend himself) 50 J~ e ~ o o o _9 The American Spectator were an innovation of the late 197o's, enacted in response to feminist protests over domestic violence...
...But in the law's eagerness to secure greater freedom to women--sexual freedom, marital and non-marital freedom-we do appear to have relegated fathers to the sidelines, recognizing them as providers more than parents...
...Most people seemed to accept the government's claim that the father's rights could not be challenged "simply because we disapprove of the Cuban government...
...the better known journals are still preoccupied with attacks on "patriarchy...
...But turn the question around...
...Over the past fifteen years, we have begun enforcing obligations of unmarried fathers with increasing strictness...
...The federal government now requires states to make every effort to establish paternity--and follow up by establishing paternal support obligations--before a woman can receive welfare payments...
...Meanwhile, the U.S...
...But his lack of involvement is not relevant to his financial obligations if the mother decides to keep the child...
...commando raid on a peaceful household...
...Overwhelmingly, the orders are issued against husbands, accused of wife beating or child abuse...
...The Supreme Court has held that the father has no right to challenge the mother's decision to give the child up for adoption if the father has not had some ongoing involvement with the child or the mother...
...n fact, the main emphasis in the past decade has been on paternal duties...
...Although too young to consent to sexual relations under the criminal law, the teenager was held to be old enough to have "consented" to paternity...
...And we do seem more respectful of Papa Fidel than of our own fathers, t~ The American Spectator _9 j ~ n e 2 o o o 51...
...Early this year, a federal district judge in Massachusetts, ruling in a suit by the Fatherhood Coalition, a local advocay group, acknowledged that even though domestic violence statutes are now in place in almost every state, there has only been one previous federal challenge (ended at the district court level) and a handful of state cases...
...Perhaps that's why Patron's article only found a forum in the obscure North Dakota Law Review...
...Still, custodial awards to fathers have been increasing steadily, and homes where single fathers care for children under age 18 are now the fastest growing family group in America...
...But it is remarkable that courts have not scrutinized these procedures...
...Supreme Court ruled in 1987 that paternity--with nearly two decades of subsequent support obligation-could be established based on the lowest standard of proof ("preponderance of the evidence"), though higher standards are required for such routine matters as reformation of contracts...
...But what about the overwhelming majority of Americans, who, according to polls, supported Janet Reno's terror raid...
...But the main concern, in any case, does not seem to be strengthening respect for family ties so much as easing burdens on the taxpayer...
...The father's obligations are terminated if the baby is given up for adoption...
...Would American correctional facilities do worse by children than the de-programming "clinic" Castro has planned for Elian...
...Even the exceptions are revealing...
...In fact, enforcement of paternal support obligations has done nothing to dinqinish the outof-wedlock birthrate, now at over 30 percent and still climbing...
...It is still an exaggeration to claim that the law' has reduced fathers to sperm donors and bread-winners...
...Hovering over everything is that only the mother has the right to decide whether to terminate a pregnancy...
...It's not exactIy common practice to use submachine guns to settle child custody disputes...
...Courts have ruled that agreements not to seek child support are unenforceable...
...As mothers tend to have a more direct or continuous parental role than fathers, particularly with young children, it's no surprise that they are more often awarded custody after a divorce...
...The readiness of judges to give short shrift to such challenges may be one reason why there has not been more litigation...
...Yet there is much evidence that children do better when they can maintain contact with a parent, even one who is in trouble with the law...
...Federal courts have had little to say about one of the most angry disputes in this area: the issuing of restraining orders against abusive spouses on the say-so of the potential victim, without a prior hearing...
...The law does not now allow the mother to shoo away such a creep with a promise not to seek child support...
...The law applies to those with an ongoing, long-term relationship with the mother and to those who had only the briefest sexual encounter...
...The father cannot escape his financial obligation by saying he would have preferred an abortion to a baby...
...Would we accord him any parental rights...
...Why do we make no provision for fathers to do likewise...
...Most states do not even provide children in such cases a right to participate in sentencing deliberations where they (or their court-appointed advocates) might plead for some form of constraint or punishment that did not entirely sever fatherchild relations...
...Does public backing reflect an outpouring of concern for family ties...
...Its advocates complain that, in the midst of divorce, fathers are not given a fair hearing in custody disputes, nor in disputes about child support payments, nor in disputes about visitation rights...
...More mainstream concerns have helped to fuel a "fathers' rights" movement over the past decade...
...On the other hand, if the father wants to have the child, he cannot insist that the mother go through with the pregnancy...
...Again and again, the law seems to place its main priority on financial provisions...
...Such claims have repeatedly been dismissed as irrelevant...
...While they can be challenged in subsequent proceedings, these orders pave the way for abuses of their own...
...On the other hand, it's undeniably just to hold fathers accountable for the support of their children...
...This White House might have felt less tender concern for paternal claims if they had not been backed up by the insistent demands of a Communist dictator...
...It is hard to sort out these claims...
...He points out that a number of states in the past decade have established programs that allow mothers with criminal convictions to serve their time in controlled facilities where they can have their young children with them...
...Like other courts, the federal court in Massachusetts dismissed the challenge on the grounds that due process should not be interpreted as a "rigid requirement...
...Reasonable people may disagree on whether such severity takes a sensible policy too far...
...Last year William Patton, director of the Center for Children's Rights at Whittier Law School, published a thoughtful article entitled "Family Reunification for Children of Single Custodial Fathers in Prison...
...If so, public opinion is au4izlly selective...
...on the hook, even when the mother has not bothered to marry the father...
...Husbands have found themselves in jail for such innocent actions as walking a child up to the front porch, when a restraining order prohibited them from approaching the wife's house...
...JEREMY RABKIN is a professor of government at Comell University...
...A state appeals court in Wisconsin even upheld the enforcement of child support obligations on a father so young that the act leading to conception constituted statutory r a p e - o f the father...
Vol. 33 • June 2000 • No. 5
