Kelly Rutherford’s courtroom loss is one very public example of this battle over custody.
Thanks to founder Warren Farrell, the Men's Rights Movement is having a heyday in the courts when it comes to parental custody battles—which this writer has had to discover the hard way.
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You must not cry. You must not be sarcastic. You must not show anger. Ideally wear clothes in pastel colors: heels not too high, not too dowdy. Hair: neat but feminine, not too severe. Make up: professional, subtle. Voice: articulate, gentle, firm, clear, confident, factual, betraying no emotion. Filing multiple emergency orders (ex parte, or RFO’s) will make you look like a lunatic—judges hate that. Wait for your court appearance to bring up grievances. It’s not an emergency that you ran out of money. It’s not an emergency that you changed your mind. It’s not an emergency that your ex is being an even bigger jerk than normal. It’s not a crime to be an asshole. It’s not illegal to be mean. Get an attorney who will try and settle, not someone who will litigate until the cows come home.
It’s been a year since my husband left my 8-month-old son and me, and I had to learn all this from the other single mothers in the court system. I’m prohibited from writing about our case and about him, but I’m not prohibited from writing about myself, and what I’ve learned.
I learned that no one will protect you: not the cops, not your neighbors, not your family, not the friends you thought you had. I learned that custody exchanges at police stations are not “safer”: the cops hate custody exchanges. They hate the drama. I learned to choose public places instead, well-lit areas full of normal, friendly people, ideally who know both of you. Coffee shops. Playgrounds at peak times. Preschool. Outside the gym. Wholefoods. Places where there might be mandated reporters and security cameras and people who will tell the truth.
I used court not to “steal” my child and alienate him from his father and flee to a country with free health care and family to help me when our divorce—coming so quickly and unexpectedly after the birth of our child when I had not yet even had a chance to recover—drained my paltry finances. I did not want the divorce, but I felt pressured into filing for a legal separation and custody plan when my husband demanded it out of the blue after a few troubling months. Nor did I initially litigate. I settled under pressure from a lazy, incompetent attorney and my husband. Signed a hurried, scrawled piece of paper that guaranteed nothing I needed in order to survive. I signed it all away with my heart beating madly in my chest in the corridor of a small, dark courtroom as the incompetent attorney kept leering at my breasts even as I could feel the milk prickling behind them which was a sure sign that my baby was crying somewhere and I wasn’t there for him. I signed my rights away without ever setting eyes on the judge to tell him my side of the story—not that I thought I needed to tell him. I thought it was obvious I was telling the truth. I had some vague idea that judges might check you out before reading the declarations, rely on the internet and other sources, not just the Xeroxed faded pictures and vicious declarations you laid before them.
I settled for a brutal, daily visitation schedule that gave me no time alone with my son on certain conditions that I had hoped might bring our family together and bring my husband back. It didn’t work. Whatever was wrong between us—a line I have to tread so carefully in this essay, for fear of retribution in the form of a new court case, an accusation of contempt—whatever was broken between us, did not get fixed by court.
It got exacerbated.
Since the 1970s, messy, emotionally grueling, expensive custody battles such as my own have become more commonplace, and it’s largely thanks to self-proclaimed “feminist” Warren Farrell.
Farrell was a charming, well-educated male idol who was, at one time, regarded as a favorite of Gloria Steinem’s, the only male to be elected three times to the board of the National Organization for Women (NOW). Farrell was a dream come true for feminists: a man who seemed to understand women’s perspectives and encourage other men to join the second-wave feminist movement. Farrell was a powerful and charismatic speaker, and his inventive games designed to reverse gender roles (such as the men’s beauty contest where men were invited to experience “the beauty contest of everyday life that no woman can escape”) made him an instant hit on the celebrity speaker circuit.
And then something happened: NOW made a statement that they opposed joint-custody situations, opposing the increasing trend in the 1970s away from awarding primary custody to the mother, and resulting in a massive increase in contested custody disputes. Farrell thought that the women’s movement had gone too far:
“NOW came out against the presumption of joint custody. I couldn’t believe the people I thought were pioneers in equality were saying that women should have the first option to have children or not to have children—that children should not have equal rights to their dad.”
The Men’s Rights Movement was born from this very contention: that equality between the sexes cannot happen while the woman is the preferred primary caretaker of very young children. Over the years, NOW has never wavered from their contention that shared custody is not necessarily the best thing for a child. As recently as 2005, they said:
“The assertion that ‘shared parenting is in the best interests of minor children’ is on its face untrue … The following facts continue to be true with respect to mandatory joint custody of the children: To arbitrarily reassign a child’s primary caregiver, or disrupt a child’s attachment to a primary caregiver creates an unstable, even traumatic situation for the children. Increased father involvement does not necessarily result in positive outcomes for children.”
The Men’s Rights Movement has seen increasing coverage in the press recently for many different reasons: its growing online membership, which comprises “celebrities” such as misogynistic white male killer Elliot Rodger and charismatic “deadbeat dad” rape apologist Paul Elam, Farrell’s protegée. The ties to rape culture, flagrant misogyny, and internet trolling on the MRM’s many subgroups and websites (4chan, A Voice For Men, e.g.) have been covered extensively in such publications as Buzzfeed, Vice, and Mother Jones. However the pervasive, and growing trend for men’s rights to override common sense in the courtroom—an arena which is traditionally seen, even by feminists such as Lindy West when she calls out the MRM and their poisonous influence, as “privileging” mothers —has strangely seen little mainstream coverage. Lost among the hysteria over unacceptable remarks about rape and women’s vaginas, is the same, basic premise: that the Men’s Rights Movement was, and still is, primarily concerned with the custody of children as yet another way—an extremely effective way—to control and legislate women.
While the MRM distract us by being loudly obnoxious, the media is besieged with stories indicating that in the courtroom they are making extensive headway. Like actress Kelly Rutherford’s loss of custody in a California courtroom, which allowed her German ex-husband to remove two American children under the age of 10 from their mother 6,000 miles away to Monaco. And the (increasingly common) 2013 order to a breastfeeding mother to stop nursing her 10- month-old specifically so the father could have overnight custody. And the decision of a Florida judge to circumcise 10-year-old Chase Hironimus because his father wanted his son to have the procedure done against Chase’s own—and Chase’s mother’s—wishes. These cases, and cases like them, make clear that the “mother’s privilege” Men’s Rights Activists cite seems a mythological beast rooted in skewed statistics and deep-rooted patriarchy.
On the surface, sure, it appears that statistically women are more likely to be awarded primary custody than men (83%). But this ignores that the majority of custody plans are settled outside of court, where both parties reach agreement without the need for a judge’s ruling. Only 4 percent of divorces actually go to trial, and of that 4 percent, only 1.5 percent actually complete litigation (statistics from divorcepeers.com).
Only 1.5 percent of all the pissed off, angry, furious couples out there actually end up failing to reach an agreement.
That’s a really important fact to consider. There is something unique about those 1.5 percent of fucked-up relationships. On the whole, it’s probably that one (or more) parties in those relationships, is absolutely, categorically, unreasonable.
Cathy Meyer effectively dispels the “gender bias” myth by looking at a Pew Research Center analysis of the National Survey of Family Growth which points out that very few men (22%) have continued, consistent contact (once a week or more) with their children after divorce—and 27 percent of men have no monthly contact at all. Prior to divorce, the average two-parent household in the United States consists of two working parents these days—and yet the bulk of the childcare is still taken by women, who average around 12.9 hours of primary childcare in comparison to their partner’s 6.5 hours.
What all this proves is that equality in the early years of child-rearing is rare—and for good reason. Biologically, children are hard-wired to need their mothers in the early years. The fact that mothers are more likely to get primary custody is a reflection of gender bias in society, but also comprehensive understanding that in the vast majority of cases, non-abusive, caring, loving mothers in heteronormative / heterosexual relationships are still better and more active caretakers of babies and young children than non-abusive, caring, loving fathers. There are so many varieties of family out there which work, and work better than any heteronormative marriage / relationship with a mom and a dad. There are polyamorous families, queer couples, older couples, adoptive parents, two fathers, two mothers, single mothers, single fathers. What I am talking about specifically in this article is this heteronormative couple—what happens when they decide custody in court through litigation.
In general, when a father seeks primary custody of a child, or equal custody of a very small infant still wholly dependent on a caring and competent mother, it’s a sign that something is very, very wrong. As Lundy Bancroft, child-custody and domestic-abuse expert, phrases it “there is a special and extraordinary cruelty in the abusive man who attempts to break or weaken the mother-child bond, whether by turning children against their mother, by harming the children physically, sexually, or psychologically, or by attempting to take custody of the children away from her.” Psychologists, adoptive parents, and scientists alike recognize the unique bond between biological mother and child from birth, and the trauma that arises for both mother and baby when this bond is disrupted.
I read Kelly Rutherford’s court paperwork, and my heart went out to her. She screwed up. She accused her ex of drug trafficking and gun-running, expecting the court to go out and find the proof she suspected, but lacked. She filed ex parte after ex parte. She did not put her husband’s name on her daughter’s birth certificate, even when ordered to do so by a judge. She tried to stop her children from seeing their father altogether. Her attorney called the State Department to report her husband’s suspicious, potentially illegal business activities—and did so publicly, in the hallway of a courthouse. The State Department revoked his visa. The courts decided that this wasn’t evidence Daniel Giersch was involved in potentially criminal activities, but that, as any comments section attached to news articles on the subjects will summarize, Kelly was a bitch. The media decided it fed into the narrative of crazy, emotional ex-wife (“She cried over Skype in front of the children”). She didn’t send them home to their father on time after spending all summer with them, practically handing him the opportunity to label her actions kidnapping. She didn’t avail herself of the opportunity to go visit them in Monaco “enough” times—and when she did, she dared to go to the Cannes Film Festival without them one day.
“Mother’s privilege” in the courtroom is a damaging myth that the Men’s Rights Movement has used to its advantage. Traditional gender roles certainly do play into courtroom politics—the higher earner (in the U.S., usually the male) has the ability to continually challenge custody rulings, while judges favor those in “stable” relationships over single parents—statistically men remarry at vastly higher rates than women. An unfit, but tenacious father has a definite advantage over a mother he has inflicted with emotional abuse, and his “rights” tend to override the best interests of the child. A 1996 blog by Trish Wilson outlines the tactics of the MRM in the courtroom—a movement which is gathering strength in part by its ability to attract support from grandparents, family members, new girlfriends and second wives—those who are keenest, perhaps, to believe the damaging, contentious stories and “wicked mother” stories that justify expensive and acrimonious divorces.
Women, typically more emotional than men (particularly women who are victims of domestic violence) are frequently characterized in court settings as unfit parents because of displays of emotion such as crying or outbursts. The more controlled, less emotional male may come across better in a courtroom setting. Think of the classic gaslighting, abusive relationship pattern: where the victim may spend months or years apologizing, hiding, blaming themselves or excusing the abusive partner’s behavior to the outside world. Once the victim has the strength to break free of that relationship, she may find she has unwittingly deleted the evidence she then needs in court to “prove” that abuse existed. Very few women trapped in relationships know that they must accrue detailed video evidence (voice recordings are not submittable in many states) and log all abusive behavior, while repeatedly reporting such behavior to authorities in order to create an accessible record which can be used in court. In the vast majority of cases, women who are genuinely seeking primary custody of their child(ren) through the courts because of domestic violence find themselves unprotected by the court system, a fact Lundy Bancroft uses to illustrate the insanity of the court system:
“Our society is currently giving mothers a powerful and crazy-making mixed message. First, it says to mothers, ‘If your children’s father is violent or abusive to you or to your children, you should leave him in order to keep your children from being exposed to his behavior.’ But then, if the mother does leave, the society many times appears to do an abrupt about-face, and say, ‘Now that you are spilt up from your abusive partner, you must expose your children to him. Only now you must send them alone with him, without you even being around anymore to keep an eye on whether they are okay.’”
Tellingly, Heather Hironimus had sought refuge for herself and her son in a domestic-violence shelter in order to try and fight the ruling, citing her ex-partner’s domestic abuse—a fact which was used against her in court. As a recent article in the Philly Voice points out:
“Many are shocked to discover that domestic-violence survivors can be punished with loss of contact and custody for keeping their children safe in the shelters specifically designed to offer refuge to families in crisis. How many find themselves in this unconscionable situation? It’s very difficult, nearly impossible, to determine how many abused American parents face an interference of custody charge after receiving the legitimate aid of a domestic violence shelter.”
An interesting article in the Seattle News uses the case of “Jim” to bolster the claims of the MRM. Jim, it’s claimed, was served with divorce papers and a Temporary Restraining Order by his wife, who earned more money than he did. The article makes a number of incorrect assumptions: One being that the burden of proof for domestic abuse is lower in family court than civil court, and the most major one resting on the assertion that because “Jim” was not physically violent, his temper and mental and verbal abuse was somehow acceptable. According to the MRM, the only qualification for domestic violence is actual physical harm. This would mean that women are only able to prevent abusive partners from seeing them or their child if they had been physically harmed, which then, conversely, would go against them in court and provide evidence to the judge that a woman was an unfit parent who allowed her child to be in a dangerous environment. It’s a Catch-22 situation which simply does not make sense, and does not take into account the extremely damaging and dangerous elements of mental abuse and other social problems: alcoholism, drug abuse, mental illness—which can make a parent unfit for custody.
Nowhere is this more evident than in the shocking ruling of Michigan judge Lisa Gorcyca, who held three children ages 9,10, and 15 in civil contempt because they did not want to see or spend time with their abusive father, citing the (very real and often extremely damaging) “Parental Alienation Syndrome” as the reason for her decision. Gorcyca ordered the three children into a group home—Children’s Village—with no access to their mother, with the only permitted visits being from their father and his attorney, in order to force the children into a relationship with their father they claim they do not want. The order states “the siblings are to be kept away from each other as much as possible.” The court transcript tells a horrifying tale, where at one point the 15-year-old told Gorcyca “I do not apologize for—for not talking to him because I have a reason for that, and that’s because he’s violent and he—I saw him hit my mom and I’m not gonna talk to him.” To which Gorcyca dismisses the children’s views with “You’re very defiant, you have no manners. … There is no reason why you do not have a relationship with your father. Your father has never been charged with anything. Your father’s never been convicted of anything. Your father doesn’t have a personal protection order against him. Your father is well-liked and loved by the community, his co-workers, his family (and) his colleagues. You, young man, have got it wrong. I think your father is a great man who has gone through hoops for you to have a relationship with you.”
Family court in the U.S. has the ostensible objective of maintaining the best interests of the children, but all too often children are treated as divisible assets and the invocation “He is the father: he has a right” is uttered as a mantra which excuses and justifies unreasonable judgments. The line between privilege and right is a blurred one when it comes to parenthood, because an abusive parent, whether intentionally so or not, does not have a right to inflict that abuse on anyone else—certainly not their own child.
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