Motormanmark.com

Jump to Comments

 

I am thinking of my beautiful son and daughter this morning, the two I no longer see. 

 

I spent eight years fighting the courts that granted my former 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–the resulting legal relationship is 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 took 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.  Or else, I may seem emotional because my reaction is not typical, since, in this New York City where I am living men still gladly give their life’s focus to their careers, and 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 has been a continual source of pain for me.  The briefness of the time we spend together is a reminder of the injustice, and in its context I believe my children have seen me as victim.  I don’t think they ever had a good sense that the order was 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 switched from one home to the other seamlessly, more pleased to switch to our home because they saw it less–it was more of a novelty.  Even though visitation allowed them to see little of their new younger siblings, a boy and a girl of my marriage to the stepmother they “visited” with for as long as they could remember, they were uncritical and content to remain subjects of their condition.  And of course they did—they were busy growing up.

 

In court I argued for a very simple week-on, week-off arrangement under which every Friday after school they’d be picked up by the other parent to go to the other home, an option the court would not consider, because the mother—the “custodial” parent–opposed it.

 

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 said they wanted it, they had known I wanted it and that their mother did not want it.  It was 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.

 

During the most recent trial, a two-year Family Court custody trial, 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 never ruled against me–though she made it clear on the record she would–but left the case without disposition.  It wasn’t that she was negligent with her paperwork–she was simply 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.

 

Not that she ever feared I have a case.  She was just keeping me out of the courts.  Regardless of the US Constitution, the appeal would 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 the September before last, exhausted of legal options, I came to face an alternative I had avoided since first being relegated to visitor by the courts six years before: to stop visiting my kids. 

 

At 11 and 13, they were older.  They were old enough to advocate for their own interests.  My thought was that if I was unwilling to be a visitor rather than father, my children might compel themselves to face-off with their mother. 

 

And they might not.

 

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 agreed 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.

 

That 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.

 

I have heard little from them since, once meeting my daughter accidentally on the street, and once, my son dialed me by accidentally pressing the wrong button on his cellphone.   Though I have encouraged them to contact me any time, I don’t contact them myself, for fear they come to view such limited contact as our proper relationship.  It is important to me they understand I have been removed. 

 

It is a dear loss to me that I feel all the time.  I have denied myself the pleasure of enjoying the contact I could have with the children I have given so much to, because I am certain it would not be best for them to have sporadic contact with a father who is unessential, who can be borne out by, at the most, a mere 2-days’ penance.  I do not want me or the family they share with me to be a novelty in their lives.  I will not do it.  And so I cannot reach out to them, as I will not have this framed as though it is an injustice to me.  They have to see it as an injustice to them.

 

It has been two years, and they are living happily and comfortably in a wealthy suburb in a 3-income household (their mother’s, stepfather’s, and my $850-a-month child support.)  They know all my thoughts, and exactly why I have decided not to visit or contact.  They know more than anything that I love them and miss them dearly.  I was never able to raise them the way I’d wanted, but that time is over.  They are at a time in their lives when children do not do a lot of thinking about their parents.  I don’t think they need me in their lives, the effect of the visitation order over the years having been to make me unessential.

 

It is an interesting brain twister: you remove a man from a child’s life, one day of a month.  The next month, two days.  And so on.  At which point is he no longer essential? At which point is he no longer a father? 

 

Still, by refusing visitation altogether, somehow I feel like I’ve preserved my fatherhood.

 

A very common response I’ve gotten from strangers online is that I am being emotionally “selfish,” poutingly taking my ball and going home after losing in Family Court.  There is a certain ego inherent in this.  Fatherhood is something that ceases to exist once you let someone else define it for you.

 

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. 

 

Mark Crane     Motormanmark.com