Friday, October 3, 2008

No Restraint on Restraining Orders

The following is based on the laws in the USA but can and does happen in Canada.


The increased use of restraining orders in alleged domestic violence cases is being advocated in states across America. In Maryland, one proposal would allow court commissioners rather than judges to issue protective orders.

The Washington Post calls it an "unlikely subject for controversy" and validates this assessment by ignoring voices of opposition. Indeed, no national debate has ever taken place on restraining orders. Yet it is time the public understands the danger they pose to constitutional rights.

The Post claims that the potential for abuse is "minimal." In fact, the potential for abuse is already being realized. A judge quoted in the New Jersey Law Journal in 1995 calls the restraining order law "probably the most abused piece of legislation that comes to my mind."

Parents issued with restraining orders based on uncorroborated allegations are summarily evicted from their homes and jailed for contacting their children and spouses. "Stories of violations for minor infractions are legion," the Boston Globe reported in 1998. "In one case, a father was arrested for violating an order when he put a note in his son’s suitcase telling the mother the boy had been sick over a weekend visit. In another, a father was arrested for sending his son a birthday card."

"The restraining order law is one of the most unconstitutional acts ever passed," says Massachusetts attorney Gregory Hession, who has filed a federal suit on constitutional grounds. "A court can issue an order that boots you out of your house, never lets you see your children again, and takes your money, all without you even knowing that a hearing took place."

As if to validate Hession’s charge, New Jersey municipal judge Richard Russell actually urged his colleagues to violate basic constitutional protections: "Your job is not to become concerned about the constitutional rights of the man that you’re violating as you grant a restraining order," he told a judges’ training seminar in 1994. "Throw him out on the street, give him the clothes on his back and tell him, see ya around. . . . We don’t have to worry about the rights."

The real purpose of restraining orders is not so much to prevent violence as to eliminate one parent during divorce proceedings. This is now common knowledge in legal circles.

Elaine Epstein, former president of the Massachusetts Women’s Bar Association, writes that "allegations of abuse are now used for tactical advantage" in divorce courts and that restraining orders are doled out "like candy." "Everyone knows that restraining orders and orders to vacate are granted to virtually all who apply," and "the facts have become irrelevant," she reports. "In virtually all cases, no notice, meaningful hearing, or impartial weighing of evidence is to be had." Yet a government analysis found that fewer than half of all restraining orders involved even an allegation of physical violence.

Restraining orders are an indispensable tool to keep the regime of unilateral (or "no-fault") divorce in business, because they prevent involuntarily divorced parents from running into their children in public places. Anyone can attend a child’s first communion or little league game, after all – anyone but their forcibly divorced father, who will be arrested if he shows up.

How restraining orders can prevent violence is unclear. Violent assault is already criminally punishable. A father whose wife obtained a protective order against him was, according to the St. Petersburg Times, "enjoined and restrained from committing any domestic violence upon her." But is he not thus enjoined and restrained to begin with, along with the rest of us? The conclusion seems inescapable that the purpose is not to protect anyone from violent fathers but to protect the power of divorce practitioners from peaceful ones.

In fact, restraining orders very likely create violence, since forcing a parent to stay away from his or her children can provoke precisely the violence it ostensibly intends to prevent. "Few lives, if any, have been saved, but much harm, and possibly loss of lives, has come from the issuance of restraining orders," Dudley District Court Justice Milton Raphaelson wrote last year in the Western Massachusetts Law Tribune (only upon his retirement).

A report just released by the Heritage Foundation confirms that the safest arrangement for mothers and children is a married, intact family. "Marriage dramatically reduces the risk that mothers will suffer from domestic abuse," concludes the report.

By providing a tool to tear families apart, restraining orders are creating the very problem their promoters claim to be solving.

Dr. Baskerville teaches political science at Howard University.

New UK Study Outlines Importance of Fathers ~ but who cares?

This story is from today's Irish Times. Does it not sound similar to those from other democracies, including ours here in Canada. The study in question <----(click here for A UK newspaper report on it) surfaced earlier this week and sounds very promising in how it reveals fathers are so very important. If only judges read these kinds of reports. A pity they don't.

Society's dismal message for fathers

Fri, Oct 03, 2008

OPINION:When it comes to fathers' rights no argument or piece of research will sway the prevailing ideology, writes JOHN WATERS

IN A SHOP in a western town this week, I ran into one of the minority of men who are not worried about the banking system, having more fundamental things on their minds.

The conversation began in a familiar way. The man shuffled up to me in the lampshade department and asked me if I was that guy he saw on television talking about fatherhood. When I confirmed that I was, he went on to relate a story identical in virtually all respects to stories I have been hearing from men for a dozen years.

The man - I will call him Joseph K in order to avoid running foul of the laws which exist to protect the family law system from answerability - was an unmarried father, whose son is now almost three. He has spent over £5,000 going to court several times and even managed to get an order for two hours "access" to his son per week.

After a few months of reasonably successful contact, however, the child's mother decided that she wasn't going to obey the order any more, and there seemed to be nothing anyone could do about this. He went to the Garda but was told it was a civil matter. He is waiting to go back to court but his lawyers are dragging their heels. He had not spent any time with his son for almost a year.

For a few moments I found myself irritated, both by the intrusion and the man's apparent belief that, as a result of telling me about his situation, something might be caused to happen for the better.

Perhaps I could write an article about his experiences and somebody in authority would take notice?

I told him I had been writing and talking about this issue for 12 years; that nothing had happened in that time and that I was not hopeful of anything happening in the future. In truth, I said, I was bored with the issue: bored with myself talking about the issue; disgusted with myself that I didn't write and talk about the issue more; tired of being abused and sneered at by malevolent actors for allegedly always talking about the issue, when in truth I did not talk about the issue nearly enough.

Joseph K looked at me sadly. What, he asked, about justice? Surely, he said, the Minister for Justice could not be aware of the facts, or something would already have been done to correct this flagrant abuse of human rights?

It was my turn to look sad. I told him that the Minister for Justice was perfectly aware of the facts, but, like the four other justice ministers of the past dozen years, would do nothing for Joseph K.

It took me some minutes to see through to his pain. He told me that, a few days previously, he had met his son in the street in the company of a man he did not know.

He had approached them and sought to speak to his son and had been assaulted by the other man. He believed that his son was desperately in need of his father's presence in his life, but he felt helpless and impotent.

Feeling a belated surge of empathy, I apologised for my brusqueness. Nevertheless, I emphasised, the situation was pretty much as outlined. Nobody in this society cared about either Joseph K or his son. After 12 years thinking and agitating on this issue, all I could do was advise him to look after himself, to do what he could to maintain a relationship with his son and keep a record of what occurred. The best he could hope for was that, in 20 years or so, he would be able to give his son an account of his efforts, and out of that to have a chance of healing for them both. This is the dismal message I am reduced to imparting in a society which talks non-stop about equality and rights. I gave him my number for when the darkness gets too much.

The next day I picked up a newspaper and read a report about the findings of a UK study indicating that hands-on fathering is essential to the total development of a child.

A longitudinal study, conducted at Newcastle University over the past 50 years, and involving over 17,000 children, has established that children who have full relationships with their fathers grew up happier, smarter and more successful than children whose fathers are not centrally involved in their lives.

There have been times, even in the dark days of the 1990s, when I would have been greatly cheered to read such a report. Now I know it doesn't matter. It is not as if there is anything in this study that we do not already know. Anyone who had a good father knows in his or her heart that this is true, and anyone who didn't have a good father knows it even better. But our society, operating not to the impulse of the human heart but to the dictates of ideological prescription, is deaf both to truth and the cries of the wronged.

© 2008 The Irish Times

The work of Fathers 4 Justice and the Pain of Fathers ~ Activism in the UK

Equal and Shared Parenting ~ The Movie