Sunday, November 25, 2007

"Take Away Their Children"!

In a column that just left me with my mouth agape for its utter preposterousness, Kevin McCullough argues that plaintiffs in no-fault divorce children should automatically be deemed unfit to gain custody. Not surprisingly, it begins with a completely gratuitous attack on "radical homosexual activists," even though the column has nothing to do with gay marriage.

His inherently incurious column contains many of the age-old flaws of logic used to justify theoconservative "think about the children!" policy. First amongst these is the statistic that children in stepfamilies or with divorced parents are at way, way higher risk for abuse. This may well be true, but it is hardly the justification he thinks for an end to no-fault divorce. Certainly it ignores the old chicken or the egg issue: are the children at higher risk because of the divorce, or was the divorce because the children were at higher risk?

He goes on to argue that plaintiffs in "no fault" cases don't truly care about the welfare of their children:

Overcome by the guilt they know in their hearts as to how immoral their "no-fault" claim is that in order to compensate for a failed marriage - they publicly verbalize their propaganda to being all that much better of a parental unit. Yet in reality this argument is disingenuous given the fact that they are saying before the court that they are willing to destabilize the life of their children for literally "no reason."

Of course, this argument is ignorant to its core, and demonstrates why you shouldn't write about the law without some actual understanding of the law. First of all, plaintiffs in no-fault divorce cases are often just a matter of which party is first to file- divorce is not infrequently a mutual decision rather than the one-sided decision often portrayed.

Second, it ignores how easily "fault-based" divorce can be obtained, even when the divorce is mutual. As a reader of Andrew Sullivan (namely me) pointed out, Fred Thompson's divorce on "cruel and inhuman treatment" grounds was almost certainly a no-fault divorce in everything but name- just without the requirements for a legal separation. So McCullough's "take away the plaintiff's children" requirement would have the effect of expediting some divorces, who would no longer care as much about the stigma associated with a fault-based divorce. Indeed, it would effectively reduce the percentage of divorces required to go through a trial separation before a judge will grant a divorce.

Conversely, he fails to understand that sometimes the evidentiary requirements for a "fault-based" divorce are quite difficult to meet without the other party's cooperation (especially in the case of adultery). As a result, "no-fault" divorce is sometimes the best option, even though it may really be a "fault-based" case.

Moreover, McCullough would replace what is currently an issue decided on a case-by-case basis with a one-size-fits-all rule. As such, the "best interests of the child" standard judges apply would be replaced by a rule of "whoever wants out most loses the children." Thus McCullough would pre-define the "best interests of the child" as "the defendant." He ignores the fact that when the motive of the plaintiff in the divorce actually is vindictive and uncaring, the judge often figures this out and gives a big custody award to the defendant.

McCullough also makes this claim about the reason no-fault divorce exists: "Sinful humans grew tired of having to live up to the vows they took before God, and the responsibilities they committed to before man. " Of course, he ignores that not everyone in the US is a Christian and that we don't live in a theocracy where priests get to decide the results in a divorce case. He also ignores that marriage is first and foremost a voluntary contract between two people. If those two people no longer wish to be bound by the contract, why should an unrelated third party (aka the Flying Spaghetti Monster) have an enforceable right in the contract?

Finally, he misunderstands what "no-fault divorce" actually is. He claims that it makes marriage particularly easy to escape, as if you can file for "no-fault divorce" and be out of your marriage the next day. In most jurisdictions of which I'm aware, this is simply not the case- you must go through a trial separation and all sorts of legal hurdles before you can get your divorce. The process of "no-fault divorce" is in fact the least hassle-free way of getting a divorce available, taking the longest amount of time because of the separation requirement.