Some Progress for California Fathers, but Still a Long Way to Go

By Jeffery M. Leving and Glenn Sacks

The 1990s were a bad time to be a father in California.

The OJ Simpson case helped usher in draconian domestic violence policies which have victimized many innocent men. State—mandated mandatory/presumptory arrest policies exhort police to make arrests on domestic violence calls, and "primary aggressor" policies pressure officers to view men as the instigators of domestic violence incidents. As a result, many men have been arrested on flimsy evidence, or when they were acting to defend themselves against attacks by their female partners.

Nearly 250,000 domestic violence restraining orders are currently active in California. A recent article in the Family Law News, the official publication of the State Bar of California Family Law Section, explains that the bar is concerned that "protective orders are increasingly being used in family law cases to help one side jockey for an advantage in child custody.” The authors note that protective orders are "almost routinely issued by the court in family law proceedings even when there is relatively meager evidence and usually without notice to the restrained person…it is troubling that they appear to be sought more and more frequently for retaliation and litigation purposes.”

Such orders are generally done ex parte, without the accused’s knowledge and with no opportunity afforded for him to defend himself. When an order is issued, the man is booted out of his own home and can even be jailed if he tries to contact his own children. His first chance to defend himself against the charges is usually two weeks later, at the hearing to make the order permanent. Yet these hearings generally last no more than 15 minutes. The due process they afford the men can be gauged by the State of California’s advice for men contesting restraining orders:

"Do not take more than three minutes to say what you disagree with. You can bring witnesses or documents that support your case, but the judge may not have enough time to talk to the witnesses.”

Restraining orders turn ordinary men into criminals by forbidding many routine behaviors. Men are being arrested for violating their orders by such acts as: returning their children’s phone calls; going to their children’s school or athletic events; sending their kids birthday cards; or accidentally running into them at the park or the mall.

Research shows that these orders often do not even involve an allegation of violence. Usually all that’s needed is a claim that the person to be restrained "acted in a way that scared me” or was "verbally abusive”—what’s known as "shout at your spouse, lose your house.” Yet under a 1999 California law these farcical orders can be used to deny these so—called "batterers” joint custody of their children.

In 1998 then—Los Angeles District Attorney Gil Garcetti declared a "get tough” campaign against so—called "deadbeat dads," sending out thousands of summonses for paternity cases. The men were given only 30 days to respond.

Many of the summonses targeted the wrong men, and many never reached the intended parties. Eighty percent of Garcetti’s paternity judgments were made by default, locking the men into 18 years of child support. Many took DNA tests proving that they were not the fathers of the children they now had to take second jobs to support. Others were assigned huge support arrearages by mistake. Many became unable to support their own children. Some of their marriages broke up, and some of the men landed in jail.

Garcetti created so much chaos and heartache that even diehard feminist attorney Gloria Allred protested. Allred, who has perhaps done more than anybody to promote the phrase and concept of "deadbeat dads,” called Garcetti’s office "an organization without a heart, without any compassion, and without a sense of priorities…[it’s] a system run amok.’’

Allred represented an impoverished, wheelchair—bound woman named Mary Smith, who Garcetti’s office erroneously billed for $24,000 in child support. In a panic Smith called Allred, who agreed to handle the case pro bono. Allred made repeated calls to Garcetti’s office to resolve the case but did not receive any response. She noted, "Talk about trying to get blood out of a stone.”

The Los Angeles Times described the men targeted by Garcetti as "overwhelmingly blue—collar workers who ride the bus or drive aging cars, showing up for court in jeans and a work shirt.” According to the Times:

"The men almost always come to court alone because they cannot afford counsel. It can take months to get an appointment with the county—sponsored, free paralegal service.”

"When they arrive in court, many are already awash in child support debt. Their failures to answer summonses routinely lead to court orders—even if the summonses never reached them.

"From that point on they are in trouble, with bills for delinquent child support quickly reaching thousands of dollars. But sometimes the accuracy of those bills cannot be relied upon.

"’People get the bills and they’re almost always wrong,’ said one prosecutor. ‘It’s like a bank putting in a hypothetical balance instead of putting in your real balance’…

"So pervasive are the mistakes that even the courts have lost confidence in the government’s accounting…[the men targeted] square off against an office with dozens of prosecutors, who…are pressured by their bosses to speed cases through to secure more collections.”

Jackie Myers, a former Deputy District Attorney under Garcetti, said that she quit her job because "we were being told to do unethical, very unethical things.’’

Garcetti later acknowledged that many of the men had been mistakenly targeted but refused to relent, instead blaming the men for not responding within 30 days. "The law is the law,” he told CBS’s Bernard Goldberg. Incredibly, in 2002 Garcetti was appointed to the Los Angeles City Ethics Commission.

In 1992 the California legislature dramatically increased the financial burdens shouldered by fathers. Many child support orders doubled and tripled overnight, quickly placing California among the five states with the highest child support guidelines.

The legacy of this legislation is a permanent underclass of fathers buried alive under crushing debts. According to an Urban Institute study of California child support, the average arrears owed is $3,000 higher than the median annual earnings of employed child support debtors. Those in the poorest category have a child support debt amounting to their full net income for seven and a half years.

While politicians and women’s advocates love to raise the specter of the high—living playboy deadbeat dad, according to a report presented to the California Judicial Council in February, 80% of California child support debtors earn less than $15,000 per year. Nevertheless, in 2003 Senator Jackie Speier (D—San Mateo), one of the leading proponents of harsh measures against noncustodial fathers, declared:

"When I carry bills to strengthen child—support enforcement, and suddenly some MD who owes $100,000 in back child support pays attention because if he doesn’t pay he risks losing his medical license, frankly, that feels good."

California fathers who serve as reservists and National Guardsmen have been particularly victimized by the child support system. Child support orders are based on a reservists’ civilian pay. When a reservist is called up to active duty his child support obligation can jump overnight from 30 or 40% of take—home pay to 60 or 70% or more.

In theory, any time a child support obligor loses his job or suffers a pay cut he can go to court and get a downward modification. In reality, courts move slowly and usually resist granting downward modifications. Since reservists are sometimes mobilized with as little as one day’s notice, few are able to obtain modifications before they leave.

Falling behind on child support creates an arrearage which is accelerated by penalties and the 10% interest California charges on past—due support. An arrearage of only $5,000 can become a felony at which point the child support obligor can be incarcerated or economically crippled by a barrage of harsh civil penalties, including seizure of driver’s licenses and business licenses. Yet the federal Bradley Amendment prohibits judges from wiping out child support debts, even if the debts were incurred as a direct result of military service.

In the 1996 Burgess ruling the California Supreme Court ruled in favor of a custodial mother who sought to move her children 40 miles away from their father. The ruling had disastrous consequences for fathers and children because it was interpreted by California courts as a bright line rule mandating that courts permit moves of hundreds or thousands of miles. UnderBurgess, many children were needlessly moved far away from loving fathers.

Today, however, things have improved for fathers, due to some legislative victories, common sense, and the increased societal realization that kids need their dads.

For one, child support enforcement abuses have been tempered by a 2004 law and the Navarro decision, both of which make it easier for falsely—named fathers to vacate default judgments.

In Navarro the Second District Court of Appeal sternly rebuked the Los Angeles County Child Support Services Department for its practice of collecting child support based on false paternity judgments. Manuel Navarro had been trapped into a default judgment because he did not learn of the paternity proceedings against him before the time limits to contest the judgment had run out. In an opinion dripping with contempt, Justice Rubin wrote:

"By strict application of the law, appellant should be denied relief….Sometimes even more important policies than the finality of judgments are at stake, however…the County…should not enforce child—support judgments it knows to be unfounded. And in particular, it should not ask the courts to assist it in doing so…We will not sully our hands by participating in an unjust, and factually unfounded, result. We say no to the County, and we reverse." (italics added)

Last September Governor Schwarzenegger signed SB 1082, a bill which helps military parents by addressing the child support boondoggle many mobilized reservists face.

Burgess was declawed by the California Supreme Court’s 2004 LaMusgadecision, which stressed that children’s best interests and their relationship with the noncustodial parent must be given substantial weight in relocation cases. Two legislative attempts to abrogate LaMusga, including one by Senator Gloria Romero (D—Los Angeles) last month, have been beaten back by widespread protests.

Nevertheless, the family law system remains stacked against fathers. Most importantly, California law still does not do nearly enough to protect fathers’ relationships with their children.