Testimony in support of Senate Bill 135
and in opposition to Senate Bill 1994

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Testimony in support of Senate Bill 135 and in opposition to Senate Bill 1528

July 11, 1994
Senator David Roberti, Chair - Senate Judiciary Committee State Capitol
Sacramento, CA 95814

Dear Senator Roberti:

The National Organization for Men Against Sexism (NOMAS) is a non-profit organization incorporated in the State of Illinois, with a mission of community education to end sexism, heterosexism, and racism. Our membership ranges from men who counsel batterers to the principal scholars in the field of Men’s Studies. We are motivated not by a concern for men’s "rights" but by a desire for justice for all people. We are opposed to any legislation from the Male Lobby that seeks to maintain male privilege at the expense of women’s freedom, control over women at the expense of their safety, and "ownership rights" to children at the expense of their well-being.

In forming a policy regarding a custodial parent who wishes to relocate to a distant community, the Legislature of the State of California must carefully consider the topic of coercion. The first area of concern is the fact that perpetrators of domestic violence use custodial challenges as a means to maintain and extend their power and control over their former spouse or partner. The second area of concern is the extent to which the State of California is willing to use the custodial parent’s bond with her (or his) children to bind her to the locale of her former spouse or partner.

Domestic Violence

Domestic violence is an enormous problem in this country. "Within the last year, 7% of women (3.9 million) who are married or are living with someone as a couple were physically abused" and between 19% and 30% of women who visit emergency departments are there for symptoms related to ongoing abuse., The abuse actually increases after separation and divorce. In almost three-fourths of spouse-on-spouse assaults, the perpetrator and survivor were separated or divorced at the time of the incident, according to the U.S. Department of Justice. It is also important to note that about 70% of men who abuse their wives also abuse their children.

Thus, whenever there have been any incidents of male violence in the relationship, concern for the woman’s safety and the child’s well-being must take precedence over other concerns, and not be just "a factor" to consider. Because the State is unable to shield battered women from ongoing violence by their abusers, as seen most graphically in the case of Nicole Brown Simpson, the State must not chain battered women to the locale of their abusers through concern for the visitation rights of the abusers. We know that a restraining order will not stop a bullet but distance may be an effective barrier.

In addition to the most egregious, well documented cases of physical abuse we have to consider undocumented cases and the "37% (20.7 million) [of women who] are verbally or emotionally abused by their spouse or partner." Domination and control become primary tactics by many men in the custody and divorce arena because they are such a central part of men’s socialization process. The State must not reward this covert terrorism by setting too high an evidentiary standard in qualifying cases as domestic abuse.

Supporting the Custodial Family Unit

Next we turn to custody disputes in which there has been no history of abuse. There is no neutral option available. The State must either decide to coerce a custodial parent into remaining in the same local as the noncustodial parent, to protect the latter’s desired schedule of visitation, or to affirm that the custodial parent has a right to freedom, and that the visitation schedule desired by the noncustodial parent must be altered. There are three central arguments for the State of California supporting the custodial family unit.

We must first acknowledge that when the State denies a custodial parent’s permission to relocate, it is imposing a form of house arrest, with the boundaries of the "house" typically set at the county or state line. Although seldom acknowledged consciously, this is in actuality a form of imprisonment without just cause. One might argue that this is not really true imprisonment because the custodial parent has the freedom to leave if she is willing to abandon her children. The counter-argument is that it is cynical, anti-family, and unethical for the State to use a woman’s love for her children against her in this way.

Secondly, we must acknowledge that it is the noncustodial parent’s preferred visitation schedule, not the actuality of visitation itself, that is being affected when a custodial parent moves. Visitation for extended periods over the summer vacation, and perhaps alternating birthdays and holidays, provides a practicable alternative to evening and/or weekend visitation when the custodial parent has moved to a city more than a couple of hour’s drive away from the noncustodial parent. (In those 50% of cases where the noncustodial parent is paying full child support, a reduction in support to cover transportation costs may be appropriate.) "[T]he alternative of uninterrupted visits of a week or more in duration several times a year, where the father is in constant and exclusive contact with the children and has to plan and provide for them on a daily basis, may well serve the paternal relationship better than the typical weekly visit which involves little if any real paternal responsibility."

The third argument for the State of California supporting the custodial family unit is that children’s well- being after divorce strongly depends upon the quality of their relationship with their primary caretaker, as has been well documented over the years. It cannot be in the child’s best interests for the State to impose constraints that strain this relationship.

Refuting the Male Lobby

We must also examine the Male Lobby’s arguments for binding the custodial parent to the locale of the noncustodial parent. The first is the hypothesis that ongoing contact with the noncustodial parent is of benefit to the child and therefore it is in "the best interests of the child" to forbid the custodial parent from moving the child away from the noncustodial parent. Even if this hypothesis were true, there are three arguments against such a law; each sufficient to dismiss it.

First, as noted above, contact with the noncustodial parent may be maintained by trading weekly visits for extended visits involving a more substantial proportion of quality time. Second, when a custodial parent must forfeit custody in order to move, the children will lose weekly contact with her. But since this will again deprive them of contact with one of their parents, this is "not in their best interests," according to the presupposition. Thus, such a requirement is logically self-contradictory. Third, if it is to be logically consistent and free of bias, any law chaining a custodial parent to the locale of the noncustodial parent has to likewise chain a noncustodial parent to the locale of the custodial parent.

In any case, the hypothesis that ongoing contact with the noncustodial father is of benefit to the child is false, so basing a law on it is misguided. Early evidence that children living with their mothers seemed to do better if they had ongoing contact with their fathers has been contradicted by two larger studies based on more representative samples: A study done in 1987 by Furstenberg, Morgan, and Allison, found that children who had not seen their father in 5 years did significantly better than those who had spent 1 through 13 days with their father in the previous year. Another study by Zill found that the well-being of children following divorce is not related to father-child contact.

Another "best interests of the child" argument for binding the custodial parent to the locale of the noncustodial parent is that moving is stressful for children, particularly moving combined with divorce. . A careful analysis of the studies, reveals that the causal agent is low or decreased income for the child’s family, not divorce itself. For this reason the State should facilitate post-divorce relocations, which are often made to increase family income. In addition there are studies that indicate that children who have had behavioral problems in school during the parental discord and divorce phases are evaluated much more positively after a change of schools.,,

In summary, whenever there have been any incidents of male violence in the relationship, concern for the woman’s safety and the child’s well-being must take precedence over other concerns. For non-abuse situations, we must look at whomever has actually given the daily care, nurturing, and support to the children. If the primary caretaker has a job opportunity, a new marriage, an educational opportunity, or a nurturing community that will help her support the child, she should be facilitated in accepting it even if that means inconveniencing the other parent.

Sincerely,

Jack C. Straton, Ph.D.
Coordinator of the Child Custody Task Group of the National Organization for Men Against Sexism

 


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