Globalizing America's "Divorce Regime"

A “single `no’ vote” by the Idaho Legislature disrupted “the finely crafted choreography” behind a UN child support treaty, laments the New York Times. Unless this is reversed in a special legislative session, the paper tremulously informed its dwindling band of readers, the legal architecture of international child support enforcement could collapse.

This prospect is treated as an incipient catastrophe, rather than an outcome greatly to be desired. Threatened with the punitive withdrawal of federal funding, Idaho Governor Butch Otter called for a special legislative session on May 18 to “correct” the previous action. Ratifying the UN child support treaty, Otter predicts, should take “hours, not days.” Regrettably, Otter’s prediction will probably be validated. 

Shortly before the end of the regular legislative session, a group of nine Republican legislators voted to table a measure designated SB 1067. That bill would have reconfigured Idaho’s child support enforcement (CSE) practices to conform with the dictates of the 2007 UN Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (hereafter called the Hague Convention).

Rep. Nate.

Rep. Ronald M. Nate, who was among those who voted against releasing the bill from the House Judiciary Committee, objected that under the terms of the agreement, “Idaho could be stuck enforcing unfair and ill-gotten CSE orders made in foreign countries.” That much is incontestable: Article 28 of the Convention does specify that “There shall be no review by any competent authority … of the merits of a decision” handed down by judicial bodies overseas. This would be done for the benefit of bureaucracies, not the children whose interests they supposedly represent. 

The Hague Convention identifies parties to child support disputes as “creditors” – those to whom payments are due – and “debtors” – those from whom payments are to be extracted. Article 36 (1) of the instrument expands the term “creditor” to include a government entity “acting in place of an individual to whom maintenance is owed.” Section (2) of that provision decrees that “The right of a public body to act in place of an individual to whom maintenance is owed … shall be governed by the law to which the body is subject.”

Under those terms, CSE judgments made in foreign jurisdictions would indeed be enforceable within states that ratify the compact.  This led opponents of the bill to denounce its impact on “state sovereignty,” reflecting the widely held and morally unsupportable belief that it is entirely appropriate for government to intrude in private disputes as long as the entity doing so is geographically proximate. 

Such intrusion is unthinkable when carried out by officious, unaccountable bureaucrats with unfamiliar names and accents who live overseas – yet it is somehow appropriate when done by functionaries of that kind who share the same ZIP code, or at least live within the same national tax jurisdiction.

The Hague Convention is evil not because it would import foreign law, but rather because it exports and universalizes a hideous and tyrannical social engineering scheme.  America’s child support enforcement system follows the familiar formula: Find a policy that doesn’t work, subsidize it lavishly, connect it to a huge and expanding constellation of constituencies, and enforce it ruthlessly.

Presiding over this Hydra-like syndicate of extortion and state terror is the federal Office of Child Support Enforcement (OSCE), with state-level affiliates acting as its tentacles. To understand the scope of the Regime's war on non-custodial parents, this comparison is useful: In 2007, the Drug Enforcement Administration, the point of the spear in the "war on drugs," employed a total of 4,600 armed field agents; the OSCE at the time boasted more than 60,000 enforcement agents, all of whom are permitted to carry firearms under the "Deadbeat Parents Enforcement Act." 

In his horrifying study Taken Into Custody: The War Against Fatherhood, Dr. Stephen Baskerville examines what he calls the “Divorce Regime.”

"It is no exaggeration to say that the existence of family courts, and virtually every issue they adjudicate -- divorce, custody, child abuse, child-support enforcement, even adoption and juvenile crime -- depend on one overriding principle: remove the father,” writes Dr. Baskerville. When a family is broken up, each child "becomes a walking bundle of cash" -- not for the custodial parent, but for a huge and expanding population of tax-devouring officials who "adopt as their mission in life the practice of interfering with other people's children." 

"A parent [usually – but not always -- a father] whose children are taken away by a family court is only at the beginning of his troubles,” elaborates Dr. Baskerville. “The next step comes as he is summoned to court and ordered to pay as much as two-thirds or even more of his income as `child support' to whomever has been given custody. His wages will immediately be garnished and his name will be entered on a federal register of `delinquents.' This is even before he has had a chance to become one, though it is likely that the order will be backdated, so he will already be a delinquent as he steps out of the courtroom. If the ordered amount is high enough, and the backdating is far enough, he will be an instant felon and subject to immediate arrest."

Dr. Baskerville’s assessment is neither partisan nor particularly controversial.

“The problem begins with child support orders that, at the outset, can exceed parents’ ability to pay,” acknowledged the New York Times shortly before the paper condemned the Idaho Legislature for impeding efforts to globalize the CSE system. “When parents fall short, the authorities escalate collection efforts, withholding up to 65 percent of a paycheck, seizing bank deposits and tax refunds, suspending driver’s licenses and professional licenses, and then imposing jail time.”

Sarah Geraghty, an attorney with the Southern Center for Human Rights, explained to the Times that parents “who are truly destitute go to jail over and over again for child support debt simply because they’re poor…. We see many cases in which the person is released, they’re given three months to pay a large amount of money, and then if they can’t do that they’re tossed back in the county jail.”

In many jurisdictions, notes the Times, “support orders are based not on the parent’s actual income but `imputed income’ – what they would be expected to earn if they had a full-time, minimum wage or median wage job.” In one case that is probably not unique, a man spent more than a decade making court-imposed child support payments for the supposed benefit of  someone else’s biological daughter.

For thirteen years, Houston resident Willie Carson endured wage garnishments despite the fact that a DNA test proved he wasn’t the father of the child in question. 

Notwithstanding recent judicial recognition of that fact, Carson is still liable under what Texas calls the “law” for $21,000 in overdue payments and accumulated interest – not to the teenage girl, whom Carson has never met, but to the state agencies supposedly representing her interests.

That story presents the reality of the CSE system in microcosm. It exists to sustain itself; the children are useful as assets – and, where necessary, as hostages. After Idaho legislators refused to play their scripted role by ratifying Idaho’s involvement in the UN child support treaty, the Regime in Washington threatened to withhold $46 million in CSE program subsidies. According to some calculations, this would deprive “Idaho’s children” – or at least the bureaucracies who supposedly represent their interests -- of up to $200 million in child support transfers

Press coverage dutifully recites the claim that 155,000 Idaho families would suffer because of the intransigence of a handful of “extremists” at the statehouse – without sparing a moment to contemplate the unreasonable stubbornness of the extremist in the White House. After all, according to the official narrative, the Obama administration is willing to inflict suffering on children to punish the state for its political deviationism. This assumes that the children in question actually benefit from the system – which, as we’ve seen, isn’t the case – and that the system is morally supportable – which it manifestly is not.

The CSE system, as Janelle T. Calhoun documented  in the Mercer Law Review, is a “Juggernaut of Bureaucracy” that grew out of the welfare system. Prior to the enactment of the Aid for Families with Dependent Children program eighty years ago, there was little government involvement in child support matters, and no federal involvement whatsoever.

The AFDC program (now known as Temporary Assistance for Needy Families, or TANF) enshrined in federal policy the principle of parens patriae – the State as father. Through AFDC, “the government became a provider for America’s children,” commented litigator Daniel Robert Zmijewski, casually endorsing the proposition that children are a collective “asset” of the nation-state.

While this began with children in households receiving federal transfer payments, that claim was quickly expanded to encompass all children residing within the United States. As GK Chesterton observed, describing how this process unfolded in Great Britain a few decades earlier, the State appointed itself “not the guardian of some abnormal children, but the guardian of all normal children.”

There’s nothing new in that arrangement, nor is it a recent discovery that it cannot possibly work. In Book II of his Politics, Aristotle condemned the idea that children are in some sense “community” property: “Each citizen will have a thousand sons who will not be his sons individually, but anybody will be equally the son of anybody, and will therefore be neglected by all alike.”

In keeping with the iron law of social engineering – “Each intervention will create an indefinitely self-sustaining cycle of failures and `reforms’” – the welfare system created during the New Deal underwent several refinements, each of which resulted in more deeply entrenched poverty and a corresponding expansion of an intractable bureaucracy.

Like Stalin-era agricultural commissars blaming “Kulaks” or perversely consistent bad weather for their perennial harvest shortfalls, those presiding over Washington’s welfare bureaucracy indicted “deadbeat Dads” for the predictable failure of a system that encouraged and subsidized the destruction of family commitments. This led to creation of the federal CSE apparatus, which amplifies the misery of single parents and neglected children while acting as a major tributary feeding the vast river of misery that is the American prison system.

This brings up a transgressive question at least one “mainstream” legal commentator was willing to ask: Why do we allow the government to pretend that being a “deadbeat Dad” is an offense that falls within its jurisdiction?

Failure to pay child support “is not a crime,” writes defense attorney and CNN legal analyst Danny Cevallos. Although some states criminalize delinquency in child support payments, this is “rightly a civil matter. Skipping child support court should similarly not be a crime either.” The current approach is “bill collection, only with a collection agency bristling with lethal and other weapons, and acting under color of law.”

Writing in 1992, prior to the most recent enhancement of the federal CSE system and the attempt to globalize it via the Hague Convention, Janelle Calhoun reported that the default rate for child support payments “is nearly 50%” compared to “a default rate of only 3% for car loans….”

She offered that comparison without fully appreciating its significance: Lenders who underwrote automobile purchases enjoyed a 97% compliance rate without threatening borrowers with imprisonment or death as punishment for default. The penalty for failure to make car loan payments is repossession of the vehicle, coupled with a stain in one’s credit history.

Acting in the "best interests of the child."

For someone who is suited by character and disposition to be a parent, no conceivable punishment is worse than being deprived of the company of his or her child. 

For those who treat marriage in covenantal terms, preserving that union – where possible -- for the benefit of the children is a responsibility dictated by honor and enforced through the intangible but effective pressure of solemn commitments made in the presence of honorable people. The State – a fictive entity devised to justify violence and plunder -- cannot compel honorable behavior.

For most of our nation’s history, marriage was treated as a commercial contract. In my view, that derogates from the true meaning of the institution – but even that arrangement was preferable to the one that currently prevails.

“Thirty years ago, with no public discussion of consequences, no-fault divorce laws effectively ended marriage as a legal contract and precluded couples from entering binding agreements to raise children,” points out Dr. Baskerville. “Deception was involved from the start. Laws advertised as allowing divorce by mutual consent actually created unilateral divorce, permitting one spouse to dissolve a marriage without accepting any liability for the consequences.”

Rather than recognizing marriage as a private contract, and removing it entirely from the purview of government, the “no-fault” enactments “created a public-private complex of judges, lawyers, psychotherapists, mediators, counselors, social workers, child support agents, and others with a vested interest in perpetuating divorce,” Dr. Baskerville continues:

“Whatever pieties these practitioners voice about the plight of fatherless, poor, abused, and violent children, the fact remains that their livelihood depends on a steady supply of such children. The children of divorce fill government coffers, fuel political patronage, expand police powers, justify surveillance of citizens, and create a host of problems for officials to solve – to which [has been] added the problem of creating more healthy marriages.”

The “child support enforcement” system helps sustain this vast and ever-metastasizing population of privileged parasites – which is why demolition of that system is an urgent necessity.

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