TUG OF WAR

Debbie Cafazzo; The News Tribune

In hindsight, the divorce proceedings of accused serial sniper John Allen Muhammad and his ex-wife, Mildred, appear festooned with red flags.

In papers filed over several years in Pierce County Superior Court, Mildred accused Muhammad of threatening to kill her and of abducting their three school-age children - charges he denied.

Based primarily on the statements of the woman who knew Muhammad best, the court eventually issued a protection order, barring him from harassing his ex-wife or their children.

But in late 1999, when the former Mildred Green first decided to end her 11-year marriage to Muhammad, the Tacoma couple's situation might not have raised major alarms.

The ending of their marriage seemed at first destined to play out like many others in an era of commonplace divorce. Custody battles frequently lead to bitter hide-and-seek games, and violence between spouses and ex-spouses requires the intervention of police and courts.

If Muhammad is eventually found guilty of the crimes he is charged with, authorities will no doubt spend years debating what motivated him.

For now, some observers see in Muhammad's and Green's domestic problems the tragic expression of an imperfect system that frequently fails those families it is designed to serve.

Those who advocate fathers' rights - rights they say are too often given short shrift in divorce cases - might see a man pushed to the edge after his wife won custody of their children and disappeared with them.

Others, including those who work with victims of domestic violence, may see a woman who felt forced to take her children and run for her life.

Whose children are they?

Historically, English common law held that children were the property of a father, and until well into the 19th century, fathers almost always won custody of their children in divorce cases.

But by the 1920s and '30s, societal attitudes had begun to change. Those attitudes were bolstered by modern psychology, which held that mothers and children had a special relationship that should only rarely be disrupted.

By the 1960s, as divorce rates began to rise, other forces came into play. Women entered the work force in large numbers, and in the 1970s and '80s, men began arguing for their role in children's lives.

"Culturally and socially, we have expanded our conception of fatherhood over the last several decades," said Jane Murphy, professor of law and director of clinical education at the University of Baltimore School of Law. Men are now seen as having an "active, rich, full role to play in raising children."

Courts began trying to involve both parents after divorce, developing a legal concept known as joint custody, which allowed both mothers and fathers to share parenting responsibilities after divorce.

The family law system

In Pierce County, judges rotate in and out of family law and other civil cases, along with criminal cases. Because of a shortage of judges, they often rely on court commissioners - attorneys appointed by the court - to hear and grant temporary requests involving divorce. In uncontested cases, the court commissioners may follow the case until the end.

If child custody is contested, judges may ask a guardian ad litem, who may be an attorney, psychologist or family therapist, to investigate and make recommendations to the court. Ideally, the guardian looks at both parents, trying to discover what is in the best interests of the child.

"We rely a lot on the eyes and ears of the (guardian)," said Pierce County Superior Court Judge John McCarthy. "Some of these dissolution and family law cases are very demanding and very emotional. Often, there isn't enough money out there for a really extensive investigation."

"We used to have fault-based divorce," said Janet Bowermaster, associate dean of the California Western School of Law in San Diego. "We got rid of that. Now, all that's left to focus on is the fight over the kids."

People think joint custody means parents sharing time with children equally, Bowermaster said. But those in the legal system often draw a distinction between which parent decides major questions about a child's education or religious upbringing - often equally shared responsibilities - and who has day-to-day physical custody of a child.

"In reality, one person typically provides the majority of the care," Bowermaster said.

The most common custody order gives physical custody to the mother and some kind of visitation to the father. Experts say failure to develop written specifics about transitions between parents can lead to power struggles between divorcing couples and can have negative impacts on children.

A recent U.S. Census report found that, as of the spring of 2000, an estimated 13.5 million parents had custody of 21.7 million children under age 21 whose other parent lived elsewhere. Of all custodial parents, 85 percent were mothers and 15 percent fathers.

Some men's rights advocates say this is evidence of gender bias in the courts. Dean Tong, a trial consultant and author from Florida, blames what he calls political correctness on the part of courts.

"They don't see enough child development experts testifying on the significance of paternal attachment in the life of a child," Tong said. He said the societal results of what he calls an increase in "fatherectomies" have been disastrous.

But a 1989 study of the Massachusetts court system found that when fathers actually sought custody, they received it about 70 percent of the time. Most of the time, the study said, they didn't ask.

Warren Farrell, the San Diego author of "Father and Child Reunion," said too many men are told by their attorneys that fighting for their children will be costly. And he said they also fear being falsely accused of battering or sexual molestation of the children.

Who pays?

In the census report, 60 percent of custodial mothers and 39 percent of fathers had child support payments awarded to them. Custodial mothers received about 60 percent of the support due them in 1999, an average of $3,800. Custodial fathers, on the other hand, collected only 48 percent of the money due them, an average of $3,200.

Some advocates for low-income parents say that expectations about child support payments have been unrealistic. They claim the government's child-support enforcement systems were designed not with the best interests of families in mind, but to reimburse state and federal governments for money spent on welfare payments to poor parents.

"A lot of what was well-intended federal legislation designed to fix the welfare system and encourage child support payment has kind of backfired," said law professor Murphy. "It has sort of pushed low-income fathers out of children's lives. They are disproportionally hit with child support because the guidelines, as a percentage of income, are greater in the lower ranges than in the higher income ranges."

Critics say that courts sometimes base child support on what a judge thinks a noncustodial parent should be earning, rather than on actual circumstances.

Men who feel unfairly burdened with child support payments can petition the courts for reductions - but only for future payments. Past debts that accrued must be paid, Murphy said.

But she adds that some lobbying by fathers' rights groups comes from the wrong place; some groups, she said, are simply motivated by a desire to avoid payment.

Advocates for victims of domestic violence warn that abusive spouses can sometimes use the court system to keep coming back at a victim, trying to exercise emotional and financial control.

"I've had batterers tell me to my face that if the only place I can see her is in court, I will file hearing after hearing just to be in court with her," said Ann Eft, who heads the Pierce County Commission Against Domestic Violence.

Eft said domestic violence victims, male or female, may see the courtroom as a place where their abuser can continue to stalk or harass them.

"Even if the victim is not present, it's still an opportunity for a batterer to deliver a message," Eft said.

Proposed remedies

Pierce County Superior Court Judge Kitty-Ann van Doorninck heads a committee that has begun looking at ways to improve the handling of family law cases.

Often, she said, couples going through a divorce are involved in other legal proceedings. There may be grandparents seeking custody of children, a parent filing a "youth-at-risk" petition and more.

One way to help speed handling of these cases - and bring a measure of finality for children - is to gather them together under one judge, van Doorninck said.

Some judges already do this informally, she said. What is needed is a way to institutionalize the practice, she added.

Some observers say the key to making the family law system work more effectively lies in replacing litigation with mediation, and providing more social services for families.

Washington state courts have pioneered the use of parenting plans, which spell out in detail parents' responsibilities and time with their children. But to make those plans work, experts say, parents must have a history of cooperating for the benefit of their children.

Parent education - for the past two years a requirement for divorcing parents in Pierce County - helps divorced parents learn how to work together for their children and avoid using them as pawns in their own conflicts. Research indicates it takes about two years after a divorce for parents to regain their focus on parenting, said Bowermaster.

"Parent education is a somewhat helpful process," Bowermaster said. "But it doesn't work for everybody. Mediation doesn't work for everybody."

One proposal would allow retroactive modifications of child support in cases where noncustodial parents have no hope of paying their past debts. Others, like Tong, say judges should be required to stay on the divorce court bench for a full term to develop expertise, rather than rotating in and out of civil and criminal cases.

"We've got to stop looking at divorce as an adversarial legal problem," said Stephanie Coontz, a history professor at The Evergreen State College and a family studies expert who helps run the national Council on Contemporary Families. "We have to look at it as a social services problem: How can we help people look at this in the least damaging way?"

Coontz, who has documented the history of the American family, said that divorce is here to stay. What's needed is a societal change in attitude, one that would help divorcing couples know how they're expected to behave.

"Conservatives say we mustn't normalize divorce," she said. But right now, she added, "we have no norms for divorce.

"Everything is a bitter individualistic struggle for personal advantage," Coontz said. "There's strong evidence we can make this a lot easier on everybody concerned. It just becomes a question of fine-tuning both our legal and social service systems and our emotional expectations about marriage and divorce."

Compared to 20 years ago, she pointed out, more couples divorce amicably, more fathers work to stay connected with their children after divorce, and more parents seek to share custody of children equitably.

"We need to teach people how to do it better, instead of just setting them off at each other, and winner take all," she said. "These are very hard questions. But we know that they are not unsolvable."

Debbie Cafazzo: 253-597-8635
debbie.cafazzo@mail.tribnet.com

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