I testified at a Massachusetts State House hearing on S.834 An Act relative to Child-Centered Family Law. This changes the language that courts will use but there are no restrictions on what judges can do and litigants will still fight over a potential for 0/100, 100/0 or any other time split in between; see the “Renaming Custody” section in this chapter for how this has worked in the other states that have tried it. The parent who wins a custody lawsuit would become the “primary parent” rather than the “custodial parent.” (See my own testimony on the likely effects.)
One intriguing idea that I learned at the hearing was that in some cases men might be better off not showing up to court when a case is being decided under the family law and domestic violence system. U.S. Census data from March 2014 show that, when there is enough income for a child to yield a cashflow, men in Massachusetts lose custody lawsuits roughly 97 percent of the time. Typically the man is therefore spending $100,000 to $1 million in legal fees in order to have a shot at being one of the 3 percent. But is the guy actually digging his own grave by showing up?
[In theory the law, unlike in some European and Islamic jurisdictions, is gender-neutral. And, as discussed below, the citizens who came to the hearing included a woman who lost custody of her children due to her higher-income, harder-working status. In practice, however, attorneys say that men cannot prevail on a domestic violence complaint against a woman.]
“I was advised by my lawyer not to show up to defend against a restraining order,” said one father, “because if the man doesn’t show up he can be restrained for only 7 days but if he does show up the order can last for a year.” One take-away from the hearing was that when when the children were potentially profitable, motivated female plaintiffs would eagerly seek, and typically win, restraining orders to keep children from seeing their fathers.
[“The Domestic Violence Parallel Track” explains why this is typically a powerful tool for plaintiffs nationwide, but in Massachusetts a restraining order has a specific cash value. Given a $250,000-per-year defendant, for example, obtaining ordinary “winner parent” status and 2/3 time with the child yields $40,000 per year in tax-free cash via the child support guidelines plus, typically, an order that the defendant pay 100% of the child’s actual expenses (e.g., day care, uninsured medical/dental). If a plaintiff can get the defendant entirely excluded from the child’s life, judges are explicitly encouraged to award additional child support (due to the fact that father is not providing free babysitting 1/3 time). Having 100% “custody” may simply mean dumping the child into commercial care, such as day care or with nannies, and the loser parent will pay for those on top of the enhanced child support.]
This father’s understanding from his attorney was that if a judge doesn’t see a man’s threatening posture alongside the vulnerable plaintiff victim, the judge cannot legally evaluate whether or not a restraining order/custody plaintiff’s case is strong enough to merit a one-year order.
In fact it is likely the case that this layperson was wrong and/or misunderstood his lawyer. I later talked to a Massachusetts litigator and he said that in fact eventually a restraining order could be made permanent (“remember that judges don’t want the woman to keep coming back to court”), but I am wondering if the basic idea could be extended to all of family law. Suppose that the man doesn’t file an Answer to the woman’s Complaint (the document that starts the divorce lawsuit). He will lose a default judgment. In theory she gets whatever she has asked for. She wants the house, the kids, and the cash, for example. But she starts out with more than a 90-percent chance of winning these things anyway. The typical rationale for a defendant in a civil lawsuit, of which a Massachusetts divorce is a subcategory, is that by hiring an attorney he can limit some of the loss. But witnesses who testified at the hearing had been ordered to pay their plaintiffs’ legal fees in addition to their own. Every attempt at defense resulted in larger losses due to the legal fees (up to $2.7 million in one case). Whenever it seemed as though they were making a little progress in defending the divorce lawsuit, their plaintiffs made an end-run around that multi-year procedure with a 15-minute restraining order hearing. As one successful entrepreneur noted, a couple of years after his wife sued him, “every time you score a point against her by proving that she is wrong or lying that’s like giving her $1000 in cash. The right way to deal with this is just to let her punch you over and over, never hitting back, until she finally gets tired of punching. The best defense is no defense.”
What about admitting defeat on Day 1 of a Massachusetts divorce lawsuit? It would seem that there must be some limits on what a plaintiff can achieve via a default judgment against a man who chooses not to show up (as happened 18 percent of the time in our statistical study of Middlesex County Probate Court). A plaintiff cannot expect to prevail with “I have no documents to prove this, but my defendant earns $10 million per year so I want $1.5 million per year in tax-free child support.” She will be limited by what the judge is likely to believe and, perhaps, by any paycheck stubs that she can find (or what the man’s employer produces in response to a subpoena). Without the man there to offer a competing story, the woman’s accusations may be less credible. If the mother says “He is having sex with the daughter” and the father says “No, I’m not” it is natural for a listener to assume that the truth lies somewhere in the middle If the father isn’t there at all the judge might wonder “Wouldn’t it be a little too convenient for this woman seeking 100% of a guy’s money if he were actually having sex with the daughter?” Judges have also seem virtually every plaintiff lie regarding household expenses. They’ve seen women get cash back or a gift card with every grocery purchase. They’ve seen women claim $90,000+ per year in current expenses for which there is no evidence from credit card and checking account statements. So a judge might by himself or herself scale back a plaintiff’s demands just as effectively as a high-priced defense lawyer.
Let’s consider a middle-class couple with 90 percent of their home mortgaged and some savings for the children’s college. Based on our study of Middlesex County, our interviews with attorneys in Massachusetts, and witness testimony at the State House, assuming that both sides lawyer up, the mother is going to get the house and the kids and perhaps above-guidelines child support (in a state that already has the world’s most lucrative guidelines) if she spins a good tale and the father doesn’t seem like the world’s nicest guy and just pleased as punch to have been been sued. The father will be ordered to babysit the kids every other weekend. The lawyers will get the home equity and all of the savings, including the children’s college fund, before telling the parties to settle (see “Divorce Litigation”).
What if the father doesn’t show up? In that case maybe the judge simply won’t have enough evidence to support an above-guidelines child support order. Can the woman show that she is destitute when there is still home equity and a savings account? The woman’s lawyer comes to court asserting that child support should be based on last year’s income times two. Why? The man could work extra hours to support his plaintiff. But how can the judge find that to be true if the target didn’t show up to be questioned? Can the man be ordered to pay his plaintiff’s legal fees (limited to filling out a Complaint form and showing up to court once or twice)? Under what theory did he run up her bill by failing to cooperate? Can the man be ordered to work beyond normal retirement age (67) and continue to pay alimony despite the recent statutory discouragement of this time-honored practice? How can the judge find that he is exceptionally healthy and work-ready if he has never shown up to court?
What about losing custody? Statistically that’s a foregone conclusion in Massachusetts for a father, but losing custody after a default judgment might actually be better. The mother, having secured a total legal victory, won’t have an incentive to rat the father out to DCF as a child molester. The mother’s lawyer will have told her that custody and child support are theoretically modifiable at any time that someone can show a substantial and material change of circumstances (not the “best interests of the child” standard as in other states). So she might not want to block the children’s access to their father for fear that he will go to the courthouse with a post-divorce custody and child support modification case. She would then face at least some risk of impairment of her control over the children and the cashflow that comes with the kids.
Nearly all of the people who testified at the hearing regarding their personal experiences with the Massachusetts family courts would have been better off had they not defended the lawsuit. The legislators hearing the testimony might have assumed that these were unusual and/or horror stories, but our interviews and statistical studies show that their experiences were fairly typical. (Note that, at least for one of the legislators, divorce litigation is never a horror story. Cynthia Creem, a $500+/hour divorce litigator (she’d be getting paid closer to $200/hour in a state without a winner-take-all system), was sitting right next to the chairman. Thus were citizens able to watch, in real time, people with a financial stake in the law making the law.)
Legal-minded readers: Can you think of a good reason for a middle-class man with no unusual financial circumstances to put hundreds of thousands of dollars into defending one of these actions? There is probably a flaw in the above reasoning but I can’t figure out what it is.
[Of course, this advice would not be good in a state that offers fathers a realistic chance at obtaining 50/50 parenting time schedule, e.g., Alaska, Arizona, Delaware, Maine, Pennsylvania ]
Related:
- Boston.com article on the hearing: “‘I’m out of money, and I’m out of hope’” (opens with the one woman who testified about losing her children; she was a yuppie identified by the court as the family “breadwinner” while her husband, a firefighter whose full-time job consisted of just two 24-hour shifts per week, was anointed the “primary parent” (the “breadwinner” was ordered to keep supporting this guy, and presumably any young hotties he hooks up with, until the kids turn 23))
Phil,
Your writing about the divorce and child support systems makes me wonder if there is a way for thoughtful couples contemplating marriage–who hope for the best in the marriage but are also realistic about the bad things that can happen–to contract out of some of the worst aspects of the current system. An agreement that doesn’t greatly change the overall distribution of funds but that reduces the incentives to spend huge amounts on lawyers, to make false accusations about their partners, to deprive their partners of a role in raising their child purely for financial reasons, etc., seems like it would benefit everyone (except the divorce lawyers). Have you ever seen an agreement of this sort that couples could use a model?
Neil: As noted in http://www.realworlddivorce.com/Tips “Prenuptial agreements cannot control custody or a child support, two of the most profitable, and therefore most heavily litigated, claims in most U.S. jurisdictions. However, prenuptial agreements in many states can control property division and alimony, both of which lead to an enormous amount of litigation.”
The trend is away from marriage per se being the profitable claim in litigation to children being the profit source. Therefore there isn’t much, within any given state, that individuals can do to reduce the incentives for one partner to sue the other or to reduce the incentives to spend every available dime on legal fees. A fancy contract in a winner-take-all state such as Massachusetts or New York would have about 1% as much effect as a move to Delaware, Maine, Pennsylvania, Arizona, etc., or some other 50/50 jurisdiction. The true solution would be a move to a civil law jurisdiction in Europe (maybe not Greece…).
Neil,
No fault divorce was a needed reform that in many cases took out a lot of the fight out of divorce court.
But turned children into profit centers as Phil would put it. It also turned children into trophies and shibboleths. I win by taking his children away from him. And also, if I lose my children, the court is saying I am a bad person.
If you want to remove children from the fight, support shared parenting laws that make the default a rebuttable position of joint shared 50/50 physical custody away from the current default of creating a primary custodian parent and a non-custodial parent who must constantly beg the court, and defend in court his parenting time.
Make the default be 50/50 which will allow the majority of divorces to negotiate on their own, flexible schedules and still allow parents to prove to a court why their children’s other parent is not qualified.
Consider signing this Whitehouse petition asking President Obama to support such laws: https://petitions.whitehouse.gov/petition/establish-shared-parenting-laws-all-states-country-and-support-family-court-reform
What is the reasoning behind being forced to pay for a child’s expenses AND child support. What is the child support for if not paying expenses?
Is it really a kind of back-door alimony since the real alimony was signed away prenuptially?
Phil, above you state, among worst-case divorce outcomes,
> The father will be ordered to babysit the kids every other weekend.
Really? Can a “non-custodial” parent forcibly be subjected to MANDATED visitation/ babysitting periods(?) If so, what’d happen if s/he won’t comply?
@Philg, your no-show analysis assumes the judge will not issue a subpoena and that the plaintiffs lawyer will not request one. How often is this the case? What about if the judge issuing a summon against the defender to show up? Wouldn’t the defendant be arrested and put in jail for no-show after repeated no-shows?
ianf: See http://www.realworlddivorce.com/History for a discussion of Lenore Weitzman’s book and its influence during the (relatively) early days of no-fault divorce. Due to the “no slavery” amendments of the U.S. Constitution it is tough to get courts to order a man to take care of children every other weekend (after the man had lost a custody lawsuit, for example, and no longer felt connected to or responsible for the children). Weitzman quotes “feminists [who] … suggest that courts apply some form of negative sanctions to fathers who consistently fail to visit their children.” This idea has been implemented in many states, including Massachusetts, in the form of child support guidelines that punish loser parents financially if they don’t cheerfully take on the full role of secondary parent (pay the winner parent’s bills AND enable the winner parent to enjoy grown-up weekends with the new lover).
Steve: What’s the reasoning for turning child support into alimony? As noted in http://www.realworlddivorce.com/International , in some parts of Europe there is none and they won’t do it. Child support is capped at roughly what a middle-class or upper-middle-class family might actually spend on a child. As noted in http://www.realworlddivorce.com/Rationale , however, American public opinion seems to support the idea of alimony disguised as child support. People want to give more cash to a woman who conceived a child as a result of a marriage than they do to the woman who got pregnant from a “one-night relationship”. In fact, federal law prohibits making out-of-wedlock children less profitable than children of a marriage. So pretty much every winner parent gets alimony through ownership of children in the U.S., assuming the loser parent was chosen appropriately.
[On the other hand, much is random. As you see from our book, a one-night sexual encounter in Wisconsin can result in a spectacular after-tax spending power. But having sex across a one-mile bridge into Minnesota, a similar state politically, demographically, and geographically, is worth a maximum of about $400,000.]
George: If the guy can be found and served easily, he could presumably be subpoenaed for documents or to show up for a deposition. And I guess if there were a trial scheduled he could be subpoenaed to show up at a witness. But if he doesn’t answer the Complaint then there is no reason for discovery and it seems unlikely that there would be a trial. What is the woman’s reason to ask for a court order to compel the guy to produce documents or show up to be deposed if he isn’t defending the lawsuit? The judge is supposed to assume that the facts she presents are true (but as noted above might not because family court judges are so accustomed to lying plaintiffs).
I’m not sure that this is a totally viable strategy, though it would be a much better one than what the people who showed up to the hearing did choose. The true optimum might be “show up but don’t an attorney and say almost nothing except when absolutely forced to rebut an important lie from the other side.” E.g., if a plaintiff says that the defendant earns $500k/year, is having sex with the child, has $10 million in assets, etc., show up with a one-page affidavit saying “Attached is my paystub showing $100k/year income. I have the assets listed on the attached financial statement.” (i.e., don’t bother to rebut the “sex with the child” accusation because (a) it is a standard tactic by plaintiffs in many jurisdictions that judges tend to ignore, and (b) the judge can always ask if curious). Litigators that we interviewed said themselves that they don’t deliver much value in most custody cases. They can move the needle if it is complex business valuation case where a plaintiff is saying “This defendant’s (unprofitable) company is worth $100 million and I want $50 million in cash right now.”
Phil,
I question your statistic that “U.S. Census data from March 2014 show that, when there is enough income for a child to yield a cashflow, men in Massachusetts lose custody lawsuits roughly 97 percent of the time.”
Can you be more specific on how you came up with that 97%? Shouldn’t the real test be in *contested* custody lawsuits?
The sad fact is that many fathers do not want primary or even joint custody, which really throws off the statistics.
There are empirical (if somewhat dated) studies that show very different statistics from yours:
http://amptoons.com/blog/wp-content/uploads/Massachusetts_Gender_Bias_Study.htm
“The statewide sample of attorneys who responded to the family law survey had collectively represented fathers seeking custody in over 2,100 cases in the last 5 years. n54 They reported that the fathers obtained primary physical custody in 29% of the cases, and joint physical custody in an additional 65% of the cases. Thus, when fathers actively sought physical custody, mothers obtained primary physical custody in only 7% of cases. The attorneys reported that the fathers had been primary caretakers in 29% of the cases in which they had sought custody.
The preliminary findings of the Middlesex Divorce Research Group relitigation study show a similarly high rate of paternal success, but fewer awards of joint physical custody. In their sample of 700 cases in Middlesex County between 1978 and 1984, fathers had sought custody in 57 cases (8.14% of the sample). In two-thirds of the cases in which fathers sought custody, they received primary physical custody (42% in which fathers were awarded sole legal and sole physical custody, plus [*832] 25% in which fathers were awarded joint legal and primary physical custody). Joint physical and joint legal custody was awarded in 3.5% of cases. In 11% of the cases, mothers received primary physical and joint legal custody; in 12%, mothers were awarded sole legal and physical custody; other custodial arrangements were ordered in the remaining cases. Thus, when fathers sought custody, mothers received primary physical custody in fewer than one-quarter of the cases in the Middlesex study. Information about which parent had been the primary caretaker was not available for the Middlesex cases.
These trends were apparent in an earlier study of a sample of 500 Middlesex County cases filed between 1978 and 1981. Fathers had sought sole custody in about 8% of the cases. They received sole custody in 41% of those cases, and joint custody in 38%. In 5% of the cases, custody went to someone other than a parent. In instances in which fathers sought sole custody, mothers received sole custody in only 15% of the cases (Phear et al., 1983).
EasyE: Fathers want to be secondary parents, babysitting the children every other weekend and paying 30-50 percent of their income to the mother? If that is true, why do women have to sue men and get a court order to establish that situation? In http://www.realworlddivorce.com/MiddlesexMay2011 you’ll see that only 17% of divorcing couples came to the courthouse with a joint petition. If I have to sue my neighbor to get something from him, and the litigation lasts long enough to consume $200,000 to $500,000 in fees, then it seems safe to assume that it is something he does in fact want.
You could also try an experiment. Take a healthy child to a shopping mall. See how many of the other adults there are willing to take on the “Massachusetts secondary parent” role to that child. The secondary parent will pay you about 25% of his or her pre-tax income (35% after tax?) and, every two weeks, take care of that child from Friday after school until Monday morning, enabling you to have up to a 4-day weekend escape because you’ll have no child to care for and you’ll have extra cash.
Why did so many guys win “joint physical custody” in that study you cite? Because “joint physical custody” and “shared parenting” in Massachusetts can be defined as anything other than 100% time with one parent. So a father who takes care of children every other weekend very likely has “joint legal and physical custody.” Lawyers we interviewed call this “feel-good” custody intended to make the father feel like he has some sort of role to play other than handing over cash. The authors of the Swedish study on child well-being that I cited in my testimony (Malin Bergstrom first author) didn’t fall for this. They defined shared as 50/50.
Also remember that a study of what happens after a trial in Massachusetts isn’t representative. Out of the 243 cases in May 2011 studied in http://www.realworlddivorce.com/MiddlesexMay2011 , only 3 went to trial. Children are generally disposed of at a 15-minute “temporary order” hearing a couple of years prior. Or they might be given up when the defendant’s lawyer tells him that he has no chance in front of the particular judge to which the case was assigned. That’s why we use Census data on who is actually collecting the money every month.
The US court system seems to discourage strongly any male with half a brain (i.e. with an income potential) from having a child. But it leaves the welfare material unaffected and allows it to continue reproducing as usual, largely immune to the swarm of divorce lawyers.
My guess is that in a few decades we will see significant aging and/or complete collapse of the middle and upper income classes. Hopefully there will be a reform before it’s too late..
presidentpicker: It is not accurate to assume that Massachusetts is representative of other states. It is true that a lot of big states, e.g., NY and California, encourage warfare between parents by making children highly profitable and making primary/secondary awards of parenting time. But if you go through http://www.realworlddivorce.com/ you’ll see that there are also plenty of states that are backing away from this idea.
My question is how do laws like these even get passed in the first place? You mentioned “American public opinion seems to support the idea…”. Is that really the case? I find it difficult to believe that average and reasonable Americans would ever support these laws in the first place.
Is this a case of lawyers and lobbyists using their connections, in combination with some legal sleight of hand in state and federal legislatures, that pushed these through without public awareness or knowledge?
How can groups of feminists have so much power and influence that they can push through the development of these legislation? I am surprised that there wasn’t some equally determined male chauvinist/misogynist groups that would push this back…
Bob: http://www.realworlddivorce.com/History explains some of the history. A Harvard professor of “government” (political science at most other schools) pointed out that in states run by Democrats most of the voters are women. He said “of course eventually women vote themselves a court system in which only women can win.” In response to a question about why they would do this despite academic studies showing the harm to children, he said “Nobody cares about children except maybe their own. Children don’t contribute to political campaigns and they don’t vote.”
The pushback that we found was from professional women. It upsets some of them that a woman who has sex with a drunken physician earns more than they do. Also female immigrants from traditional cultures.
Not participating in legal proceedings is how, by institutional design, a large share of men are legally established as fathers.Here’s some data and analysis on paternity establishment:
http://purplemotes.net/2012/10/07/paternity-establishment-undue-influence-misrepresentation-misservice/
Like family law in general, this isn’t good law in action.