Separation of child and state | HBR Talk 42
Last week we looked into the controversy surrounding the separation of migrant parents and children crossing the southern U.S. border illegally. While deep concern over the treatment of children at the border is merited, we also pointed out something that should have been an obvious part of the national discussion from the beginning, but largely hasn’t been: The U.S. government makes a regular habit of separating American children from their parents. 

U.S. divorce law separates children from their fathers, beginning with the presumption, codified into law, that unilateral or primary maternal custody is better for children of divorcing parents. This began with the Tender Years Doctrine, which actually stems from English law, but has continued with the Best Interests of the Child Doctrine, which presumes maternal custody to be in the child’s best interest unless, and sometimes even if, significant proof otherwise is provided.

This assumption is contradicted by data on the results of father involvement. Research gathered from independent sources and compiled and evaluated by the Father Involvement Initiative shows numerous ways in which children benefit from involvement with their fathers. To our gynocentric listeners, please keep in mind, none of the following is intended as a slight against mothers. It only shows that kids need both parents. 

During the tender years when the court considers them unimportant, a father's involvement leads to better ability to handle strange or stressful situations, better problem solving ability, and better ability to relate to others.

Kids with involved fathers perform better academically, show more involvement with their academic community and have fewer discipline issues. They also have fewer social issues and are more likely to resolve them without seeking a teacher's assistance. Father involvement also makes kids less likely to go along with other children in making choices that will get them into trouble. As they get older, kids with involved fathers have better school attendance and are more likely to graduate. 

This trend continues through post-secondary education and is known to affect career success and psychological well being. This means they're less likely to live in poverty and to end up needing government financial aid.

Kids of involved fathers grow up to be more tolerant of others and more likely to have successful marriages and long-term friendships. They're less likely to to engage in self-destructive behaviors such as truancy, substance abuse, or criminal activity. 

They're less likely to end up in jail, or become unwed parents. 

They're less  likely to experience depression and anxiety issues, less at risk for being abused, and less likely to commit suicide.

Fathers’ equal importance to their children notwithstanding, custody in divorce is awarded to mothers over 80% of the time, except in the few areas where fathers’ rights advocates have successfully overcome organized feminist opposition to making 50/50 custody the default in uncontested cases. This, despite the fact that maternal custody often means placing the child with the less financially stable parent and then using state-and-federally-funded resources to extort the more financially stable parent to fund her household before his own. 

Even when fathers win joint custody, also known as shared parenting, their time with their children is limited to alternating weekends and, if they’re lucky, a few hours during the week. For those hearing this and thinking “that’s the same as full custody with visitation,” you’re right. That’s exactly what it is, re-labeled, with some decision-making rights regarding school and medical treatment thrown in. The division is usually classified by the state labeling the parent who has physical custody of the child most of the time something like the parent with “primary residential” custody, or the “primary custodial” parent. Then, there is the phenomenon of custody interference. 

Custody interference is the refusal by one parent to return the child to the custody of the other during that parent’s court-ordered time with the child. While it’s often assumed that fathers who don’t get all of their appointed time with their children are deadbeats who just don’t want to see them, enforcement of custody orders can be arbitrary at best. It is true that the parent whose custody is considered “primary” has some recourse if the other parent refuses to return the child at the appointed time. They can accuse the other parent of kidnaping, using their court-appointed designation as the parent with whom the child resides. The other parent often has no recourse for enforcing their appointed custody except a civil case for contempt, an expensive prospect unavailable to fathers whose income is being confiscated for child support. Even when they can file, a settlement or a win is no guarantee that the situation will change. Mothers with primary custody know they have their children's’ fathers over a barrel, and many exploit that knowledge. According to the 2010 study Frequency of Visitation by Divorced Fathers: Differences in Reports by Fathers and Mothers, by Sanford H. Braver, Sharlene A. WoIchik, Irwin M. Sandler, Bruce S. Fogas, and Daria Zvetina:

  • 40% of mothers reported that they had interfered with the non-custodial father’s visitation on at least one occasion, to punish their ex-spouse
  • Between 25% & 33% of mothers denied visits

Why would custodial mothers do this? According to Surviving the Breakup: How Children and Parents Cope with Divorce, by Judith S. Wallerstein and Joan Berlin Kelly:

“Perhaps half of the mothers valued the father's continued contact with his children, and protected the contact with care and consideration. One-fifth saw no value in this whatsoever and actively tried to sabotage the meetings... In between was a large group of women who had many mixed feelings about the father's visits, resenting the father's excessive gift-giving and his freedom from domestic responsibilities. These irritations were expressed in their difficulties in accommodating the different schedules of the other parent to make the visit possible and to protect the child's access to both parents... in a thousand mischievous, mostly petty, devices designed to humiliate the visiting parent and to deprecate him in the eyes of his children."

So with the power of the state behind them, a significant portion of primary custodial mothers are separating children from their fathers, largely because of their own personal feelings, with legal and social impunity. If that were not enough, the state also uses child support enforcement to do it. 

Civil contempt and the indigent child support obligor: The silent return of debtor's prison, by Elizabeth G. Patterson, a professor at the University of South Carolina School of Law, describes a system in which fathers are routinely saddled by the courts with unsustainable child support obligations based on higher income than they actually earn, using a standard called “imputed income.” That means the court assumes the father is or should be earning a higher income than he has reported. Under the current system, it is not the responsibility of the party demanding money to prove the father’s income is higher than he has reported, or that he has the ability to make larger payments. It is the father’s responsibility to prove it is not, or that he cannot… and doing so is no guarantee that the court will accommodate his situation, even if he is disabled. 

He is then presumed delinquent if he fails to keep up with support payments based on that higher income, regardless of his actual ability to pay. Penalties for failure to keep up can include revocation of driving privileges, which interferes with his earning capacity and his ability to visit his children, and jail time, which eliminates both. As a result, child support obligation based on imputed income can and does result in the separation of children from their fathers. 

Another way in which the state routinely separates U.S. children from their parents is through incarceration. Much has been said among the establishment media regarding children separated from incarcerated parents, an experience which is admittedly traumatic for the family and in the case of wrongful arrest, an egregious attack on the family’s welfare. Little, however, has been said about the separation of incarcerated youth from their families.

As explained in Less Equal: Accountability Gap Enabled - HBR Talk 28, up to 85% of incarcerated youth have disabilities that make them eligible for special education services, yet 63% did not receive these services in school. We reported on the School-to-prison pipeline, which refers to policies and practices that push our nation‘s school children, especially  those most at risk, out of classrooms and into the juvenile and criminal justice systems. As the National Council on Disability states, this pipeline reflects the prioritization of incarceration over education.

The ACLU has identified issues that lead to this prioritization. They cite inadequate resources in federally-funded public schools, leading to conditions which deny students the individual attention they need from teachers, counselors, and special education services. This also leads to increased dumping of minor infractions (like bringing nail clippers to school) that should be handled by parents, teachers, and school administrators onto local police and the court systems. 

They go on to point out that zero tolerance policies and other harsh discipline have led to the temporary or even long-term denial of education services to students based on such minor infractions. Federal policy has also had its influence, as public schools react to federal standardization policies like “No Child Left Behind,” which penalize schools for variations in student performance, by pushing out “problem” students to boost overall test scores. The ACLU also points out that “Suspended and expelled children are often left unsupervised and without constructive activities; they also can easily fall behind in their coursework, leading to a greater likelihood of disengagement and drop-outs. All of these factors increase the likelihood of court involvement.” 

Further, the United States currently incarcerates more young people than any other country. “On any given day, nearly 60,000 youth under age 18 are incarcerated in juvenile jails and prisons...” “Each year, an estimated 250,000 children—some not yet in their teens—are prosecuted in adult criminal courts and subjected to the consequences of adult criminal convictions. In addition, 36 states continue to incarcerate youth under 18 in adult jails and prisons, where young people are at greater risk of suicide and physical and sexual assault.” Also remember, Justice Bureau statistics show that over 90% of incarcerated youth are boys. Approximately 1 in 10 of them will report sexual misconduct, and ⅔ of reported misconduct involves perpetration against inmates by staff - 95% by the less than half of staff that is female, against male inmates - and this is in juvenile detention facilities where the staff know they are exploiting kids. 

A 1998 report on the Sexual Abuse of Boys, published in the Journal of the American Medical Association in by William C. Holmes, and Gail B. Slap, compared and reported on the findings of 166 studies, and noted that sexually exploited boys, including those who did not consider themselves victims, presented an increased rate of a broad range of issues indicating trauma. They faced increased rate of sexually transmitted diseases,, including double the rate of HIV infection. The reviewers also found an increased rate of post traumatic stress disorder, anxiety disorders, borderline personality disorder, paranoia, dissociation, somatization, anger, aggressive behavior, and poor school performance, gender role confusion, and insecurity about intimate partner relationships, with both men and women... and increases in victimized boys’ risk for drug and alcohol abuse, from double to as much as 44 times the risk, including an earlier start down that path.

Sexually abused boys experienced twice the rate of low self-esteem, behavioral problems, and antisocial personality disorder, are twice as likely to run away from home or have legal problems, and three times as likely to have bulimia. They were up to 5 times as likely to report sexually related problems, including sexual dysfunction. Victimized boys were four times as likely as others to experience major depression, and could be up to 14 times more likely to attempt suicide than nonabused males.

In addition to separating incarcerated minors from their parents and putting them at risk for sexual abuse, they may be separated for periods of time from all human contact, as solitary confinement continues to be used as a form of punishment in these facilities and has been since the 1980s, despite mounting evidence of the emotional and psychological damage it does. According to Andrew B. Clark’s report, Juvenile Solitary Confinement as a Form of Child Abuse, published in The journal of the American Academy of Psychiatry and the Law, reasons solitary confinement is used in juvenile detention include disciplinary measures, administrative procedures, personal protection, and management of disruptive behaviors associated with mental health conditions. 

The article cites studies by Dr. Stuart Grassian and Craig Haney, which show that long-term or repeated isolation results in “a distinct syndrome of dissociation, confusion, and paranoia, with a great many developing more chronic difficulties in social interaction,” and “multiple signs of psychological stress,” hallucinations, suicidal thoughts, and fears of a mental breakdown. Clark goes on to report that “One of the more disturbing consistent findings associated with solitary confinement is that a highly disproportionate number of self-mutilation incidents, suicide attempts, and completed suicides occur among prisoners who have been placed in such environments,” with 38% of current jail suicides occurring in isolation, only 8% of which were on suicide precautions at the time of their deaths. In a survey of 100 completed suicides in juvenile detention facilities, Clark reports, researcher Lindsay Hayes found that 50 percent occurred at a time when the juveniles were confined to their rooms, with only 17 percent of the deceased on suicide precaution status at the time of their deaths.

When they aren’t killing themselves to escape this abuse, incarcerated kids are developing behavior patterns that lead to recidivism and a return to incarceration as adults, according to the 2013 report “Juvenile Incarceration, Human Capital and Future Crime: Evidence from Randomly-Assigned Judges, by Anna Aizer and Joseph J. Doyle, Jr, published in the Quarterly Journal of Economics. The study found, based on examining 35,000 juvenile offenders over a ten-year period from a large urban county in the US that (after adjusting for different demographics,) those incarcerated in a juvenile facility are 13 percentage points less likely to graduate from high school and are 22 percentage points more likely to have entered adult prison by age 25 compared with other public school students from the same neighborhood, with those aged 15 and 16, and nonviolent offenders hit the hardest. The effect was greater than that experienced by incarcerated adults.

So in addition to separating children from their fathers on a much larger scale than necessary through divorce, our government also unnecessarily separates them from both parents via incarceration in facilities where many are often groomed to become repeat offenders, and many experience significant abuse so severe it leads to self harm, including suicide. The first of these issues can often be an unfortunate stepping stone to the second, as children disadvantaged by estrangement from their fathers are more likely to suffer the types of social and behavioral issues that lead right into that school-to-prison pipeline. 

It’s great that the problem of separating families at the border is being addressed. Certainly, the effort at reforming the policy behind those separations is important, and should be followed up to its conclusion. However, if Americans are so genuinely concerned about the effects of such policy, and as has been demonstrated, we very well should be, perhaps we should begin with an effort at reforming the systems that are doing it in our own communities. After all, don’t American children deserve the same rights as those who are immigrating into this country?