Family Law | Letters | Chicago Reader
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To the editors:

Your article on Jeffery Leving's legal advocacy of "the rights of men" [February 23] requires a reply at least on the substantive issues raised. First, his practice, like those of many attorneys who specialize in representing men in domestic relations cases, seems to be rooted in the notion that (as Leving's partner, Ms. Johnston, says) "kids need their father" even if he is a "schmuck" (or a drug abuser, or a wife abuser, or a child abuser). This is a fundamentally middle-class idea, which in practice is valid only if the father in question has some sort of assets. If he is abusive and has no assets, the children are definitely better off without him.

But "men's rights" law practices tend to flourish because in most families, it is the husband who has access to the most money. Often, the wife has no income of her own, at least at the beginning of the proceedings. While the law provides that the judge can order the party with the most resources to pay the other party's legal fees, such an order is rarely entered until the end of the case (which may be two or more years down the line). Most attorneys simply cannot afford to wait that long for their fees. As a result, many women cannot obtain legal representation in the private sector, while their husbands can retain even highly paid counsel.

Leving seems incensed that the legal system now takes child support more seriously than it used to. But, in the first place, this development is scarcely the result of any overwhelming pro-woman or pro-mother sentiment on the part of our legislators. Child support enforcement is a pro-taxpayer move, since many of the children whose fathers will not support them end up on the welfare rolls. Assuming Mr. Leving pays his taxes, he should welcome child support enforcement as much as any of the rest of us. And secondly, while "visitation abuse" is now a misdemeanor, there is no corresponding criminal penalty for sustained and wilful failure to pay child support. The contempt penalties he objects to are still civil in nature, and carry no legal stigma.

Most family lawyers share Mr. Leving's discomfort with both the concept and the reality of "visitation." I regularly get, in almost exactly equal proportions, two sets of questions from the women I represent in divorces: (1) "How can I keep that S.O.B. from ever seeing the kids again?" and (2) "What can I do to make him visit the kids?" The first question grows out of a marital situation which may have involved physical and/or emotional abuse of the wife and possibly the children by the husband, and in which (I hear this over and over and cannot believe it is always fabricated) "he never spent any time with the children while we were living together, so why is he making all this fuss now?" The second situation is even more heartbreaking. Many divorced men simply cut off all contact with their children. They may do it to avoid paying child support, or to avoid having anything to do with the ex-wife, or because they never cared that much about the family in the first place. But children, especially those who are school-age and over, take this very hard. One eleven-year-old boy in one of my cases used to talk about his "ex-father." I have to tell the mothers in these cases that visitation, while it is supposedly for the benefit of the child, cannot be enforced on behalf of the child. Only the noncustodial parent can enforce visitation rights. If he chooses not to, that's the end of the story (and, presumably, of the parent-child relationship).

Leving's indignation about false charges of sexual child abuse ignores two fundamental facts. One is that fathers make these charges just about as often as mothers, usually alleging that the mother's new boy friend or husband, or one of her male relatives, is the perpetrator. There seems no reason to believe one gender is more likely to fabricate these accusations than the other.

But there is the even more difficult situation in which the mother genuinely suspects that the father has committed such abuse (usually on visitation) but cannot prove it to the satisfaction of a court. This is not a matter of having an inept lawyer or even a biased judge. Experienced prosecutors have repeatedly pointed out the difficulty of sustaining sexual child abuse charges in situations where the abuse left no permanent physical evidence and the child is too young to be a competent or credible witness. I have known women to lose custody of their children altogether by making such good-faith accusations; the judge construed the unproven accusation as a deliberately falsified one which rendered the mother unfit for custody. As a result, I have had to advise women in this position that they--and the children--may be better off if no such accusation is made, than if it is made and not sustained. The child, after all, is better off "just" being sexually abused on occasional visitations than actually living with the abuser, if those are the only two choices.

Mr. Leving's partner, Ms. Johnston, sees their work as a way of conferring "equal responsibility for parenting their children" on fathers. But as a practical matter, what such advocacy gains for fathers is not responsibility, it is power--the power to set standards for parenting which mothers then have the responsibility of meeting if they are not to lose custody. The vast majority of the fathers who demand custody are not interested in becoming the child's primary caretaker (the shorthand definition is "the person who cleans up after the child barfs")--they merely want to choose some other woman to do the job.

Leving drastically oversimplifies the Illinois Domestic Violence Act and its effects on respondents. A basic Order of Protection normally does not freeze bank accounts or evict the respondent from "his" home (which, normally, of course, is home to both parties). All it does is forbid the respondent, under penalty of immediate arrest, to injure, threaten, harass, or interfere with the safety or liberty of the petitioner and other protected persons (usually the children and sometimes other members of the petitioner's family). Remedies such as exclusive possession of a residence or of personal property such as a car, are a lot harder to get. The judge will normally require a more serious level of abuse and threat, and a showing that the victim and the children really have no place else to go, while the respondent has other alternatives.

It would be hitting below the belt to comment on what your article tells us about Mr. Leving's personal life (though it is hard to resist speculating that the poverty of his childhood must have resulted from his father's failure to pay child support). He has, of course, the right to choose his clientele like any other attorney, for reasons of economic practicality or personal conviction. But he has no right to expect us to feel sorry for his clients, while their wives by and large are on welfare or in minimum-wage jobs, and get their legal representation (if any) through public, private, or volunteer legal aid.

Marian Henriquez Neudel

S. Kimbark

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