From Kevin Sheahen, Pres. of Pittsburgh, PA Chapter of NCFC BEFORE THE PA
SUPREME COURT COMMITTEE ON RACIAL AND GENDER BIAS IN THE JUSTICE SYSTEM
Greater Pittsburgh Chapter of National Congress for Fathers and Children
Kevin Sheahen, Pres. 37 Seneca Road Pittsburgh, PA 15241 (412) 854-4799
fax:(412) 835-1362 National Hot Line: 1-800-SEE-DADS E-mail: pghdads@aol.com
February 16, 2001 Lisette M. McCormick, Executive Director PA Supreme Court
Committee on Racial and Gender Bias in the Justice System Duquesne University
Law School Pittsburgh, PA 15282-0700
Dear Madam:
I would like to thank the Pennsylvania Supreme Court Committee on Racial and
Gender Bias in the Justice System for inviting me to testify at this hearing.
Public hearings give the judicial branch of our Commonwealth the opportunity to
hear the public testify about their perception of the effects of orders, rules
and statutory interpretation. Ideally this allows you to correct misconceptions.
I am the local chapter president of National Congress for Fathers and
Children (NCFC) in Pittsburgh; a board of directors member at the national level
of NCFC, and most importantly, a husband and the father of four children. As a
volunteer I help fathers get access to their children on a daily basis so the
children have real full time and responsible fathers. I personally assist
upwards to 400 fathers a year with their problems with Pennsylvania's system
which too often fails to enforce children's access to their non-custodial
parents. I have been active in the education of father's rights to the public
for the past seven years. NCFC's emphasis is and always has been to promote
responsible fatherhood by encouraging fathers to be actively involved, as well
as being financially responsible. However, dollars alone do not make daddies.
The purpose of my testimony is to bring to this committee's attention that
the Pennsylvania Justice System practices gender bias and discrimination in the
area of custody determination and custody enforcement.
The first question then, is where is the source of the bias against fathers
in domestic relations? Such bias is generally acknowledged by the public and is
often privately acknowledged by court officials. Is this bias created by the
statutes? If it is, then I should be presenting this testimony to the
Pennsylvania Legislature instead of Pennsylvania's Supreme Court Committee on
Racial and Gender Bias in the Justice System.
Therefore, let us take a moment and review the statutes regarding custody.
Pennsylvania's custody statutes are gender neutral and support parental
involvement by both parents. As stated in the Title 23,Chapter 5301: ". . .
it is public policy of this Commonwealth, when in the best interests of the
child, to assure a reasonable and continuing contact of the child with both
parents after a separation or dissolution of the marriage and the sharing of the
rights and responsibilities of child rearing by both parents . . .".
Similarly in Chapter 5303 (a) provides: Award of custody, partial custody or
visitation; General Rule:
In making an order for custody, partial custody or visitation to either
parent, the court shall consider, among other factors, which parent is more
likely to encourage, permit and allow frequent and continuing contact and
physical access between the non-custodial parent and the child.
Pennsylvania further has recently defined how much time the non-custodial
parent should bes pending with his or her children. Pennsylvania's support
guidelines can be found in Pennsylvania's Rules of Court, Rule 1910.16-4;
Explanatory Comment-1998.
". . . the Committee (Pennsylvania Supreme Court Domestic Relations
Committee) has designated 30% time as the routine arrangement (for non-custodial
parents with their children) . . .".
Therefore, on paper, Pennsylvania's statutes on custody issues are fairly
gender neutral and promote substantial parental involvement by non custodial
parents. However, that is where justice ends.
The "tender years doctrine" was removed from the statutes over
twenty years ago and replaced with the "best interests of the child"
standard. However, there is little practical distinction in the application of
the two standards by the Pennsylvania courts. The Courts have relatively low
expectations regarding the role of fathers in child rearing and the nearly
fanatical mythologies surrounding women's roles in child care. Pennsylvania
courts use psychological evaluations to determine and measure parental fitness
at great financial cost to the parties, usually the fathers.
The problem is that there are no valid or reliable scientific tests in the
psychological community to measure parental fitness. The results are subjective
and bias reports and recommendations regarding "best interests of the
child". These professionals, judges included, display a confirmatory bias
that skews their decisions and recommendations to fit a preconceived hypothesis.
In addition, the majority of parents are "base rate" parents and the
courts and their related professionals will attempt to find something abnormal
with normal parenting behavior. A base rate parent is a parent who has normal
parenting skills and does not have any convictions of child abuse or some of the
violent and deviant crimes listed in the statutes. Most parents, probably
98%,are base rate parents.
Every person in this room and in this Commonwealth knows that children are
improperly denied and limited access to their fathers in cases of divorce and
birth out of wedlock. Over 80% of the time primary custody of minor children is
awarded to mothers while fathers are limited to partial custody or nominal
visitation. Fathers are awarded primary custody less than 10% of the time. While
shared physical custody is rarely ordered by the courts of Pennsylvania, parents
consent to shared custody a little less than 10% of the time. Such agreements
are made in spite of the financial disadvantage to mothers that result, because
a few responsible parents want what is best for their children. 80%of cases are
decided in favor of one gender. Women recognize this judicial bias and
look to Pennsylvania judges to grant the mother primary custody and control of
the minor children. Undoubtedly, this explains why women file for divorce
about 70% of the time when minor children are involved and about half of the
time otherwise. Why is this bias and discrimination ignored and brushed
under the rug in the United States of America in the year 2001? This phenomenon
inspired what is probably the first paper in the American Journal of Law and
Economics ever to be named after a Nancy Sinatra song. In & quote These
Boots Are Made for Walking: Why Most Divorce Filers Are Women,& quote
Margaret F. Brinig and Douglas Allen found that the primary reason for filing
for divorce is to obtain primary custody oft he children.
67 to 75% of all divorces are initiated by the female partner: 74to 80% of
unilateral (non-mutual) divorces. (Percentages vary only slightly from the US to
Australia to Germany).
[Maggie Gallagher, The Abolition of Marriage: How We Destroy Lasting Love,
Washington, DC: Regnery, 1996, who cites Frank F. Furstenberg, Jr. and Andrew J.
Cherlin, Divided Families: What Happens to Children When Parents Part, Harvard
University Press, 1991, p. 22. Ilene Wolcott and Jody Hughes,& "Towards
Understanding the Reasons for Divorce,"
Melbourne: Australian Institute of Family Studies, Working Paper No. 20, June
1999, as quoted in The Australian, 5 July 1999. Beuhler, "e Whose
Decision Was It? & quote Journal of Marriage and the Family, Vol. 48, pp 587
- 595,1987. Braver & O'Connell, Divorced Dads, Tarcher Putnam, 1998, p.
34.Lynn Gigy & Joan Kelly, & quote; Reasons for Divorce: Perspectives of
Divorcing Men and Women, & quote Journal of Divorce and Remarriage, Vol.
18,1992. Braver, Whitley, Ng, & quote Who Divorced Whom? Methodological and
Theoretical Issues,"e; Journal of Divorce and Remarriage, Vol. 20, 1993.
]
"Some women file for divorce because they're exploited in really bad
marriages, " said Dr. Brinig, a professor of law at the University of Iowa.
"But it seems to be a relatively small number, probably less than 20
percent of the cases."
The solution to the mystery, the factor that determined most cases, turned
out to be the question of child custody. Women are much more willing to split up
because --unlike men -- they typically do not fear losing custody of the
children. Instead, a divorce often enables them to gain control over the
children.
The question of custody absolutely swamps all the other variables, Dr. Brinig
said. "Children are the most important asset in a marriage, and the partner
who expects to get sole custody is by far the most likely to file for
divorce."
The correlation with custody is so strong, Dr. Brinig said, that she has
changed her view about the best way to preserve marriages and protect children.
She previously advocated an end to quick no-fault divorces, but now believes
that the key is to rewrite custody laws.
The statistical disparity in custody awards in Pennsylvania constitutes prima
facia proof of discrimination. Institutionalized discrimination has an extremely
depressing effect on its victims. For example, when racial discrimination was
rampant African-American men were given harder words to spell and more difficult
tests to take before they were allowed to register to vote. White men were given
far simpler tests before they registered to vote. As a result, a higher
percentage of African-Americans were denied the opportunity to vote. Countless
African-Americans did not even bother to try to vote because of the difficulties
they encountered.
The same type of prima facia discrimination toward children's time with their
fathers is occurring today in Pennsylvania. In an untold number of cases,
perceptions of gender bias discourage fathers from seeking custody.
The fathers who do try to get more than every other weekend have only a 10%
chance of receiving more than the standard of every other weekend with their
children.
The family courts of Pennsylvania, both at the trial and appellate levels, do
not apply the statutes for the amount of parental contact between the
non-custodial parent and the child. Instead, Pennsylvania courts routinely award
only every other weekend, or 15% of available time between the non-custodial
parent asserting by implication and contrary to our statutes, that nominal
contact is in the best interests of children. The Common Pleas courts and the
Superior Court call such limited access "liberal visitation". The
Pennsylvania courts do not seem to understand the critically important
contribution fathers provide to children and their healthy psychological
development. Similarly, fathers are often criticized for the personal sacrifices
they make on behalf of their families. They often sacrifice their health working
overtime or at two jobs in order to keep up with the financial needs and demands
of the family. Ironically, their personal sacrifice on behalf of their children
during the marriage is often criticized and then used to restrict their time
with their children after their divorce. The applied "best interest"
standard also fails miserably by awarding 85% of all custody time with the
children to one parent. This custodial parent, which is overwhelmingly the
mother is now in a position following divorce where she must work full-time to
meet her own expenses plus perform 100% of the routine daily functions required
to care for the children full-time. Her only respite is the children going to
father's home two weekends per month. In the meantime, father is an idle
resource because the court custody schedule does not allow him to interact with
the children outside of the every other weekend schedule. Lost is father's
involvement in the routine school days, homework, and extracurricular activities
that are the significant activities in any child's life.
Pennsylvania's courts do not enforce Title 23, Chapter 5303, which relates to
cooperation and willingness to provide access of the children to the
non-custodial parent. To illustrate the extent to which courts routinely ignore
this statutory mandate, one father was awarded custody of his two girls only
after he filed twenty-two contempt of custody petitions against the mother for
refusing to obey the custody order.
The term "visitation" is used both by the public and by the courts
when defining the time a non-custodial parent is with his or her child. This
term "visitation" degrades the critically important contribution both
parents provide to their children's psychological welfare. Use of such an
emotionally charged term is a form of discrimination to the non-custodial
parent. It also is not what the statute definition of visitation implies.
Visitation, as defined by Pennsylvania's statute, is "the right to visit a
child. The term does not include the right to remove a child from the custodial
parent's control" The courts should be using the proper definitions, such
as partial custody or shared custody. In recognition of the powerful nature of
derogatory terms, especially when used to stereotype and demean classes of
individuals who are the victims of discrimination, many states have substituted
the term "parenting time" in order to impress on the courts that
children want, need, and deserve a meaningful relationship with both parents.
Shared custody in Pennsylvania is rarely ordered by the court. The Common
Pleas Court of Allegheny County has created a "Catch-22" for fathers
seeking shared custody. Allegheny County former Administrative Family Division
Judge stated and adopted policies which denies shared custody to fathers who
request it from the court because in the court's opinion, this means they cannot
cooperate with the mother. Ironically, fathers cannot have shared custody if
they do not request it. NCFC has labeled this the "Baer Bind", in
honor of the previous Allegheny County Family Division Administrative Judge, Max
Baer.
Pennsylvania courts bias against fathers is further evidenced in the
enforcement of custody. Fathers pay 90% of child support payments to mothers
while receive less than 10% of support order payments. Pennsylvania has a single
statutory provision for enforcing contempt of the courts orders for child
support and custody. However, Pennsylvania's practice in failing to enforce its
custody orders is reminiscent of the discriminatory doctrine criticized in Brown
vs. Board of Education. The Board of Education claimed black children had
separate but equal educational facilities. Pennsylvania has a special department
in Harrisburg to collect support. Allegheny County hired five new officers and
dedicated squad cars to arrest delinquent parents who fail to pay child support.
What comparable resources do non custodial parents have to enforce custody? Very
little financial assistance is available for custody enforcement. In fact,
enforcement funding is 1000 to 1 in favor of child support collection according
to Warren Farrell, Ph.D., in his recent book, Father and Child Reunion.
Do some mothers deny access to fathers? Of course some mothers do deny
access. Unfortunately, there are no enforcement practices comparable to the
enforcement zeal shown against fathers in support issues. The following
statistics demonstrate the ineffectiveness of custody enforcement by the family
courts.
Two years after divorce, 51% of children in sole mother custody homes only
see their father once or twice a year, or never. [Guidubaldi, 1989; Guidubaldi,
1988; Guidubaldi, Perry, & Nastasi,1987.]
42% of fathers fail to see their children at all after divorce [Frank F.
Furstenberg, Jr. and Christine Winguist Nord, "Parenting Apart",
Journal of Marriage and the Family, Vol.47, No. 4, Nov., 1985.].
90% of father disengagement is caused by obstruction of access by a custodial
parent anxious to break the father-child ties.
[Kruk,1992, cited by Prof. John Guidubaldi in his Minority Report and Policy
Recommendations of the US Commission on Child & Family Welfare, US Code
Citation: 42 USC 12301, 1996.
