Having run out of books on CD I was reduced to listening to NPR new this morning. The top story regarded the grand jury’s decision not to indict a police officer in Ferguson, Missouri for shooting Michael Brown (Wikipedia) and how black versus white Americans perceive this result.
I remember watching the O.J. Simpson verdict on television at Hearst Corporation back in 1995. One member of our group was black. He laughed when the “not guilty” decision was announced and seemed cheered at the idea that Simpson had apparently beaten the system. The whites were astonished that the evidence had not persuaded the jury of Simpson’s guilt.
In interviewing people for our book on divorce, custody, and child support laws in the 51 jurisdictions nationwide we’ve also found a black/white divide. Jill Carter, a legislator in Maryland, told us how her (mostly black) constituents in Baltimore experience the system:
What if one doesn’t want to wait three or four months [for a temporary order awarding the house, kids, and cashflow to a divorce plaintiff]? As in other states, Maryland operates a parallel domestic violence prevention system that will grant de facto divorces instantly. Delegate Carter explains “There is an organization called the House of Ruth. They represent the woman for free and get her an automatic ex parte order barring the man from the house, the kids, and her place of work. He can come back five days later to challenge the order.” Then the House of Ruth lawyer and his lawyer argue about whether it was a legitimate order to have granted? “No,” says Carter. “A lot of my constituents can’t afford lawyers and this is a civil proceeding, not a criminal one. So he is not entitled to a public defender. Thus she is represented by an attorney and he is not.” Then what? “The Court asks ‘Would you like to sign this consent form?’ and the man is usually intimidated by the situation and doesn’t want to appear argumentative in front of the judge. He’s smart enough to know that if he were to display any anger at having been accused of abuse that would only make things worse. So he agrees to stay away from the home, the kids, her job for a year. Meanwhile the House of Ruth is also working on a divorce lawsuit for her. When that comes to trial in about a year they can say ‘He hasn’t been around the kids for a year. He’s been out of the children’s lives.’ A factor that the judge is supposed to consider is what a child is accustomed to. So the court reduces the father to a support payor. If he has visitation it will be limited and supervised.” What about the idea that judges are wise and fair and that they have enough discretion to do what is best for a child? “These fathers are not getting due process,” responded Carter. “The rules of evidence are often ignored. I have seen judges in district court let the House of Ruth lawyers testify.”
Unlike in some other states, a Maryland plaintiff cannot wait until a child is 17 years 11 months old and file for 18 years of retroactive child support. Generally child support liability starts when a lawsuit is filed. As in other states, a plaintiff can use a state agency to have a taxpayer-funded attorney get a child support order for her but the defendant cannot get a taxpayer-funded attorney either to defend the child support lawsuit or to ask for parenting time. “A woman can pop up and find the father after seven years,” says Delegate Carter. “The father never knew about the child and says ‘That’s great news. When do I get to see the child?’ DHR responds ‘We don’t need you for that.’ In the eyes of the state fathers have no value except to pay.”
The Maryland Child Support Enforcement Administration publishes a web page regarding their paternity litigation services:
Paternity Establishment is Important!
Your child deserves all of the advantages in life that two parents can give. There are some special reasons to establish paternity.
Benefits For Your Child: Your child may be eligible for some benefits because you have established paternity. These benefits may include Social Security, veteran’s benefits, health insurance, life insurance and inheritance. Establishing paternity ensures you can provide for your child even when the unexpected occurs.
Family Medical History: Knowing the family’s full history of diseases, illnesses and birth defects will help your doctor if your child becomes sick. It’s important to know the father’s medical history for this reason.
Child Support: Your child needs and deserves both emotional and financial support from both parents. You may think that you can get by on your own and live without any help from your child’s father. But you may change your mind some day. A court can’t order child support without legal proof of paternity. It’s easier to get that proof today than to wait.
Confirming Delegate Carter’s perspective, “your child can spend time with Dad” is not one of the benefits described by the state agency.
The lower income men represented by Delegate Carter seemed to fare the worst. “A lot of men fall into arrearages and have to live in the shadows,” she told us. “They can’t drive, can’t work without their entire paycheck being garnished, and are sometimes imprisoned. Even if a man is well-intentioned, unless he wins the lottery he can’t get out of it.”
In most states where we interviewed legislators they described a system in which high-end divorce litigators representing white litigants in cases where at least one party had money (and the other one wanted it!) were the drafters of the rules (statutes) under which divorce lawsuits would be conducted. The resulting laws tended to maximize the amount of judicial discretion and therefore the scope for attorney argument to try to persuade judges. The drafted-by-working-litigator laws also tend to maximize the amount of cash that could be obtained via alimony or child support (5-1000X what could be obtained from a similar income defendant in Scandinavia, for example), a result that falls particularly hard on low-income men.
Attorneys told us that black men are reluctant to hire them for a legal defense to a divorce, custody, or child support lawsuit. “They don’t believe that they’re going to get Justice with a capital J,” said one lawyer, “unlike white guys who will spend $500,000 or more before learning the same lesson. A black defendant’s first impulse is to run away before the family court can get hold of him. Black guys are more street-smart than white guys. They don’t believe what they were taught by a social studies teacher back in high school.”
Circling back to the Ferguson issue, I do think that it is important to remember that poor black Americans live under a system of laws that were developed by rich (mostly white) Americans and the politicians and attorneys who represent those rich people. So it isn’t surprising that there will be conflict over whether those laws are fair. As long as we retain our current system of drafting legislation I don’t see a way around this. Perhaps one improvement would be to prevent lobbying by lawyers and also to prevent practicing attorneys serving as legislators from drafting legislation that would affect their personal practice (in Maryland, for example, the head of the committee drafting family law is herself a high-end divorce litigator representing rich white people in Montgomery County). Judges and states agencies whose funding grows in response to new laws and procedures would be similarly prevented from lobbying. Then at least there aren’t people who benefit financially from sweeping up poor black citizens into the judicial system deciding the terms under which poor black citizens are swept up.