October 6th, 2008
A Father Says NO to Visitation
Unhinging Visitation
I am thinking of my beautiful son and daughter this morning, the two I no longer see.
For the past eight years I have been fighting the courts that granted my ex-wife a custody order, and in doing so took me from my kids.
Until custody is decided by a court, each parent has what is called “natural custody,” a term most judges and lawyers don’t like to hear since it isn’t the result of any legal decision. After the court makes its own custody decree–what often is a judge’s fairly to completely subjective reorganization of the family–it’s all very cut and dried: anyone not in that court order has no legal right to parent that child. (And all the judges and lawyers can breathe freely.)
In a New York State divorce court, if you leave the marital residence first, a legally savvy and vengeful spouse can cut you out of your kids’ lives (egged-on by the prospects of a generous monthly support payment for the next 20 or so years,) by claiming simply that the two of you don’t get along. In that case, the court must rule against shared custody. It doesn’t matter if your spouse drove you out of the home with threats of physical violence or even if the court ordered you out because it wanted to spare the children acrimony–even if it’s not you who is producing the acrimony. As long as she’s still living in the original marital residence and is not a drug addict or something the court will give her sole custody of the kids.
I opted for the feminine pronoun because, as a former Court Clerk for New York State Family Court I have observed (just as transpired in my own case) that in cases where the residence of the kids is disputed, judges give a “temporary” order of custody to the mother that has the effect of creating a legal residence for the kids away from Dad. If not based on gender, this bias is based on something just as disconnected from legal rationality–I’d suppose something best expressed as the softer nature of the female flesh.
This system-wide barrier to shared custody is the law in about half the states in this country, the other half each having legal precedent or even a joint custody amendment to their state constitution that says one spouse must prove there is something wrong with the other for the courts to refuse to split parenting time. It isn’t exactly a coin toss whether or not your kids get to keep both parents–the states that respect a child’s right to shared custody are almost always less densely-populated, where the influence of feminist lobbies like the National Organization for Women are too thinly organized to sway policy significantly.
With an order allowing overnight “visits” every other weekend, and one off-week dinner, I may seem overly emotional, I know, when I say they’ve taken me from my kids, but don’t go with that. That impression only feels like common sense, thanks to the stereotypes: the abusive man, the child support-shirker; the ex-husband who is eager to accept conflict as a passionate substitute for the lost love; and, of course, as a sure-fire last resort, the morose, clinging father whose devotion to his children is nothing less than mawkish. –I should add in, too, the fact that in this New York City where I am living men still gladly give their life’s focus to their careers, and–I can say on my experience drafting Family Court petitions–most men welcome being removed from their kids lives, being freed to chase their financial dreams all the more.
Among the mores of the current society, the thought is taboo and an insult to many normal and happily functioning people, but still, it’s true: visitation is only a peek at parenting. I cannot steer my children in any meaningful way; I can just remind them of the role I am supposed to be playing–let their heads get some snapshots of a person they admire. I can’t make sure they get their homework done; I can’t get to know their friends; I have to be constantly–and awkwardly–catching up on the details of their changing lives.
I will allow myself the selfish indulgence to say visitation is a continual source of pain for me. The briefness of the time we have together is a reminder of the injustice, and in its context I believe my children see me as victim. I don’t think they have a good sense yet that the order is rather against their own interests. They were so young when the first visitation order was put into effect that it is all they can remember. They switch from one home to the other seamlessly, more pleased to switch to our home because they see it less–it is more of a novelty. They know they get to see little of their new younger siblings, a baby boy and a 2-year-old girl of my second marriage to the stepmother they have lived with for as long as they can remember, but still, they are uncritical, and they seem content to remain subjects of their condition.
In court I have been arguing for a very simple week-on, week-off arrangement under which every Friday after school they are picked up by the other parent to go to the other home, an option the court will not consider.
The only wild card in custody cases that can overturn legal precedent is the wishes of the children themselves–and they must be older kids for even that to carry much weight. The kids say they want it, they know I want it, and they know their mother does not want it. It is easy for their mother to urge them not to “get in the middle,” and hard for me to let them know that’s where they have always been without shaping their opinions.
Now, the most recent trial, a two-year Family Court custody trial, has been over for a year and a half. The judge conferenced with the kids, but, uncoached by me, though they did not oppose my proposal, they did not advocate strongly for it, which would have been the only hope for a significant change–and even at that, a very slim hope. The judge still has not ruled against me, though she made it clear on the record she will. It isn’t that she has been negligent with her paperwork–she is keeping the courts free of my threatened appeal, an attack on the court’s refusal to hear the Constitutional issue of whether a child’s right to a father and a father’s right to parent are unalienable.
She’s not afraid I have a case. She is just keeping me out of the courts. The appeal will be hopeless. Unless a judge has flagrantly disregarded vital legal stricture, poorly-funded appeals in non-criminal matters, however virtuous, do not ripple the surface of the state legal tide.
So, when the new school year approached last September, exhausted of legal options, I came to face an alternative I had avoided since first being relegated to visitor by the courts six years ago: to stop visiting my kids. At 11 and 13, these two are older now. They are old enough to advocate for their own interests. If I am unwilling to be a visitor rather than father, my children may be forced to face-off with their mother. And they may not be.
I told my kids at the end of our two-week summer visitation that there was no more I could do. I would not pick them up again until their mother agrees to share custody. I told them they and I would not be visitors in one another’s lives. I told them that I had exhausted any legal options and that only they might hope to correct the problem. I explained everything as thoroughly as I could to them, and they had little to say in return but that they believed they could sway their mother–as if it would not be a problem. After they left, I realized my son had packed his schoolbag with some of his most special possessions.
There are no good alternatives, only bad and worse. I believe the bad option is my refusing to cooperate any more with the worse, a legal mutilation of our relationship.
This was a very long time coming, and I’d been actively controlling the situation by putting it off. The children were always too young to deal with their mother themselves; had I never cooperated with the court orders, the kids would have simply forgotten me, so I had to accept visitation through their more formative and vulnerable years so they would have a choice in the matter some day. We did the best we could during that time, me working a midnight shift and shamelessly abusing the sick leave policy on my job to spend as many full days as possible with these two who have always been at the center of my life.
For the past year, I have heard from only my daughter, only once, and my son, who dialed me by accidentally pressing the wrong button on his cellphone. I have stuck to a strict policy of never contacting them myself, for fear they could find a way to adjust to such minimal contact with me. I do not really know whether they need me in their lives. I believe they do, but the fact of the matter is the effect of the visitation order over these six years or so may be that I am unessential.
The legal repercussion of not visiting is that the order will be compromised. Familiar with the pose of judges, I would expect my actions to be termed, “coercion,” as I am trying to get my kids to argue for a change in the order by withholding my visits. I could answer with the fact that coercion is active–not passive–by definition, or that, when the court relegated me to visitor, they, in effect, declared my fatherly role unessential, something not crucial enough to be much of a loss to the kids. Or I could try to answer with the more substantive point that fatherhood survives more fundamentally if it is honestly and openly fully suppressed than if it contorts itself to visitation.
I will not, though. If they force me back into one of their vile courtrooms, I will have nothing to say.
I do not get the feeling either of my children have reacted to this change in their lives much beyond adapting to it. And once they do react, I can not see how they will be able to overcome what will certainly be a firm resistance from their mother, a woman who answers her own compelling feelings of vulnerability by being manipulative and abusive. Still, in time, they must. And, I think they will.
As I do every day, I am thinking of my kids, the two I no longer see, making sure there’s nothing I missed, some detail I may have overlooked.