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The Dad-Vocates

By Alexandra Brown | Mar. 2, 2008

News

Law Office Management

Mar. 2, 2008

The Dad-Vocates

Are family courts biased against men? Sole practitioner David Stone thinks so, and he and others say they have the clients to prove it.


     
Being a divorced dad doesn't necessarily make David C. Stone an effective advocate for fathers. But it certainly doesn't hurt. "I understand what they're going through," says the 57-year-old sole practitioner, whose family law practice caters almost exclusively to men. "I've been married three times; I've given away houses. I also had visitation rights with a son who had moved to Arizona. I realize how difficult and painful divorce can be. The only reason I pursue this line of work is that children need two actively engaged parents."
      Stone is a trim, athletic-looking man with a neatly cropped beard. He employs two paralegals and a secretary in an 800-square-foot suite within sight of the superior court in downtown Orange. He also maintains a website (www.help4dad.com) and advertises on ESPN radio. Stone's ads tout his experience, effectiveness, and ethical standards; one includes the reminder to all dads listening that "Your kids deserve to have you in their lives."
      Currently, Stone has close to 100 active cases. And in all but two of them his clients are dads. (One exception is a twice-married woman he met while representing her first husband; the other is a woman she referred.)
      Such work puts Stone on the front lines of what both supporters and critics call the fathers' rights movement (FRM)-a movement with roots that go all the way back to the 1970s. However, it would be something of a stretch to think of it as a highly organized crusade. As Glenn Sacks, a proponent and frequent radio commentator, observes, for fathers' rights there's "no dominant unifying organization like the NAACP in the civil rights context. It's more a loose confederation."
      It's also a cause that has drawn an eclectic group of activists to its ranks. Take Sacks: A nonlawyer, he is perhaps the closest thing that the FRM has to a public tribune. Yet he's never been divorced, and is in fact happily married with two teenage sons. Other prominent figures include Anne Mitchell, a Stanford Law School graduate who was abandoned by her mother at age three, raised by her father until age eleven, then moved in with another family; Krystal R. Clemens, who 16 years ago started DadsLaw, Inc., a family law practice in Orange County that runs a nationwide network of affiliate lawyers; and Craig Candelore, an Army Reserve colonel and the founding attorney of the Men's Legal Center of San Diego.
      Despite their varied backgrounds, all share a strong belief that on such emotionally charged issues as child custody and visitation, the family-court system is stacked against men. "When it comes to custody, there's an old adage," observes Mitchell, who no longer practices family law but still operates the website www.dadsrights.org: " 'Mom gets the kids. Dad gets to pay.' " Stone echoes the sentiment. "The average man," he says, "basically feels as though he has no chance in a custody battle."
      Stone's legal career has been anything but predictable. Until the mid-'90s, he ran a successful machine shop, fashioning spare parts for the auto industry. But a difficult workers-compensation claim filed against him, coupled with an opportunity to sell the shop at a nice profit, convinced him of the virtues of a midlife career change. "After 30 years, I needed to do something different," he explains. "My father told me, 'If you can't fight them [meaning the lawyers], join them.' So I went to law school."
      After graduating from Western State University College of Law in Fullerton in 1999, Stone hired on at a now-defunct boutique firm in Anaheim-Smith, Smith & Harter-where, freshly credentialed, he continued working as a junior associate. "One of the things the office did was family law," he recalls. "They asked if I'd like to help, and after I started-even though we represented mostly women-I became very interested in the perceived bias that the courts had against fathers."
      In July 2000 Stone accepted a position with Clemens at DadsLaw, one of the oldest fathers' rights firms in the nation. Stone remembers his stint there as both hectic and high-pressured. "I started as a staff attorney and was immediately assigned 15 to 20 cases," he says. "By the time I finally left DadsLaw to open my own office in June 2006, I had two attorneys and four paralegals under me and over 100 assigned cases." The vast majority dealt with custody and visitation.
      One of his more memorable clients at DadsLaw was Nathaniel S., who in 1997 had a son with his live-in girlfriend in Tustin. They never married but seemed to enjoy a conventional relationship-until it unraveled in 2003. The next year, says Stone, the boy's mother, without consulting Nathaniel, took the child to live in Jacksonville, Florida.
      Stone says Nathaniel didn't go straight to court because he believed he'd get to see his son the following summer under an informal agreement with the child's mother. Nathaniel also didn't believe he'd get much help from the legal system. But when, according to Stone, it became clear that the child's mother had no intention of sending the child to visit, Nathaniel called DadsLaw.
      Stone acted quickly, securing a presumptive finding of paternity and an order requiring that Nathaniel's son be sent back to Orange County to spend the summer with his father. Nathaniel also was ordered to pay child support (currently $930 per month). Although Nathaniel has continued to make the payments, Stone says, the visitation order was ignored and Nathaniel lost contact with his son, now ten.
      Increasingly desperate, Nathaniel tracked down Stone last spring at his solo practice. The pair then returned to court for what promised to be a battle royal. "It took two months and over $2,000 in costs," Stone says, "but we finally managed to serve the mother in Florida with a new order to show cause."
      The order sought monetary sanctions against the child's mother and, ultimately, an order awarding Nathaniel primary physical custody of his son. Stone says he was also prepared to put on a reverse "move-away" case, referring to a long line of appellate decisions delineating the rights of custodial parents to relocate with their children. (For example, In re Marriage of Burgess, 13 Cal. 4th 25 (1996); In re Marriage of LaMusga, 32 Cal. 4th 1072 (2004).) And he was ready to invoke a claim of parental alienation syndrome (PAS), a doctrine asserting that children may become alienated from one parent as a result of the hostile actions or words of the other parent. (The notion that PAS can be considered a full-blown psychological disorder, on par with, say, post-traumatic stress disorder, however, remains highly controversial.) "Nathaniel grew up without his father," Stone says, "and he wanted to break that cycle" with his own son. On January 7 the judge in the case ordered the boy to stay with his father this summer and go back to his mother in the fall, after which there would then be another review.
      Stone also likes to talk about another case he's working on that involves a dying man, now living in Virginia, who wants to have his kids with him this summer. The children's mother agreed to send them for only a week, preferring after that to ship them off to Hawaii for a vacation with her parents. The visitation issue is pending, but the client's precarious health adds urgency to the resolution.
      These are heart-wrenching tales, to be sure, and they suggest that there truly are different standards for fathers and mothers in the courtroom. But do they prove that the system is fundamentally unfair?
      "The fathers' rights movement is both dishonest and dangerous," charges Helen Grieco, executive director of the California chapter of the National Organization for Women (NOW). She views the rise of fathers' rights organizations in the 1980s-and the accompanying increase in custody disputes as bargaining tools-as a direct response to "the demand of the women's movement for greater child support, which ended up costing fathers more money." Under California law (Cal. Fam. Code § 4055), Grieco points out, child-support payments are determined by a formula tying support both to the income of the parents and, most important, to the percentage of time children spend in the physical custody of each parent. Generally, the more time a child spends with a mother having primary physical custody, the more support a father must pay.
      "There are definitely financial reasons why some men seek child custody," says USC Law School professor Scott Altman, who studied divorce-negotiation tactics by polling the members of the family law section of the California Bar. Altman found that over a one-year period more than 60 percent of divorce attorneys reported receiving threats of custody litigation from their opponents to extract more favorable child-support arrangements. Altman further found that attorneys who represented women exclusively or predominantly received such threats three times as often as their counterparts. (Lurking in the Shadow, 68 USC L. Rev. 493 (1995).)
      As Grieco acknowledges, women are awarded primary physical custody more than 80 percent of the time, according to the U.S. Census Bureau. Yet she and other feminists charge that courts actually favor fathers in high-conflict custody battles-which often involve allegations of child or spousal abuse. "When I came to [California] NOW a decade ago," Grieco says, "I was overwhelmed by letters and calls from women about such cases." To address the concern, the state chapter of NOW set up a task force and sent out a 21-page questionnaire to concerned mothers who had been through the family-court process. Eighty-six percent of those who responded to both the questionnaire and a separate telephone survey reported domestic abuse by fathers. In 76 percent of those cases, according to Grieco, courts nonetheless awarded unsupervised visitation or some degree of unsupervised physical custody to fathers.
      Grieco also cites a 1989 study by the Massachusetts Supreme Court, which found that, despite perceptions to the contrary, "Fathers who actively seek custody obtain either primary or joint physical custody over 70% of the time." This, in NOW's view, suggests that the system isn't working the way it should and that women are paying the price.
      However, not everyone draws the same conclusions from the research. Consider the take of Warren Farrell, a Marin County social scientist who in the early 1970s served on the board of the New York City chapter of NOW before breaking with the organization.
      "In the very early '70s," Farrell recalls, "NOW leaders like Gloria Steinem used to say that the world needs less mothering and more fathering." But according to Farrell, NOW abandoned that stance in large part for political reasons-to cater to its constituency's view that women should retain custody of their children following divorce if they want to. The shift, he charges, marked NOW's transition from an organization dedicated to gender equality to one devoted narrowly to the interests of women. Farrell's views are detailed in his 2001 book, Father and Child Reunion: How to Bring the Dads We Need to the Children We Love (Putnam), a text often cited by fathers' rights activists.
      Farrell also takes strong exception to the idea that fathers in Massachusetts or anywhere else get sole or shared physical custody 70 percent of the time. That statistic has been thoroughly debunked, he says. To underscore the point, he cites the work of Cynthia A. McNeely, a former Florida State University College of Law professor who, in a 1998 law review article, concluded that the statistic was flawed because it was based on phone interviews rather than hard data culled from court files. In fact, according to McNeely, the Massachusetts research found that fathers, as a group, received joint or primary physical custody less than 7 percent of the time and that fathers actively seeking physical custody received primary residency in less than 33 percent of cases. (Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family Court, 25 Fla. St. U. L. Rev. 891 (1998).)
      Meanwhile, in many states it is difficult to figure out exactly what is going on, because custody data often are not collected in a comprehensive fashion. In California, the Center for Families, Children and the Courts (CFCC), which operates under the aegis of the Administrative Office of the Courts (AOC), gathers statewide custody data from mediated cases, but it only periodically releases "snapshot studies" of trends in these cases. For example, a 1994 report based on 1991 snapshot data indicated that 59 percent of children in the families reviewed maintained sole residence with their mothers while 16 percent lived solely with fathers. A follow-up study released in 2000 disclosed that by 1996 primary residences with mothers had slipped to 53 percent while those with fathers had climbed to 30 percent.
      The statistics are useful but not definitive, cautions CFCC Assistant Director Charlene E. Depner. Although by law all custody disputes are required to go through mediation, not all custody cases are disputed. Some private researchers have concluded that four out of five cases involving custody issues are resolved by the parties without mediation or trial. That's within range of the AOC's official statistics, which Depner reports count 450,000 new family-court filings in fiscal year 200506, but only about 90,000 mediated cases the same year.
      Without definitive data, charges of judicial bias are likely to persist. "Judges are basically good people," says Farrell. "And just about every judge believes that children do better with both parents in their lives." But in contested custody battles, Farrell believes, judges naturally favor residential stability, which usually means keeping the children in their mother's home. "Just conduct a random sampling of divorce lawyers," Farrell says. "Most will tell fathers, 'If your ex-wife is not a major endangerer, drug addict, or prostitute, and she's fighting custody, you face an uphill battle.' "
      Not surprisingly, the view from the bench is quite different: "The idea that judicial officers are biased is a convenient rallying cry for people with an agenda, both women's groups and men's groups," says Judge Robert A. Schnider, who recently completed a three-year term supervising the family law courts in Los Angeles County. "I've dealt with all of them. But no one has been able to demonstrate with any consistency or by scientific evidence that such bias exists. And that's because it doesn't."
      Judge Schnider concedes that gender neutrality wasn't always the rule. In the 19th century, he notes, children were considered the property of their fathers, who generally received custody in the rare event of divorce. Then, in the 1930s, courts shifted to the "tender years doctrine," which favored mothers-at least in cases involving younger children-on the theory that they made better parents. But since the 1970s, Schnider says, the pendulum has swung back to the middle. "The only guideline we have now in custody cases," he says, "is that orders should be made in the best interests of the child."
      Schnider denies that he's at all fazed by the occasional watchdog group that shows up in his courtroom to monitor his handling of cases. But he allows that he is troubled by the political clout some of these organizations wield. "It is disturbing to have the Legislature moved one way or the other by interest groups," he says. "It would be better if the Legislature set the general standards and then relied on us to make the decisions, with the court of appeal to correct any errors made. [Legislators] really can rely on us a lot more than they do, and they should, because the judicial officers are dedicated people who really work hard."
      Perhaps. But such assurances are hardly comforting to practitioners such as Stone. "In criminal law," says Stone, "both sides philosophically agree that if a defendant is innocent, he should walk. But in this field, we don't agree that if the parties are basically equal, custody should be more or less equal. Fathers contend it should be 50 percent, but mothers still demand-and usually get-80 percent custody." Where, he asks, is the justice in that?
     
      Bill Blum is an administrative law judge and freelance writer in Los Angeles.
     
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Alexandra Brown

Daily Journal Staff Writer

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