Gender Violence: The Case of Daniel Malakov

Last week I wrote about Miguel Ángel Salgado Pimentel, murdered the same day he won custody of his daughter. Miguel Ángel, sad is to say, has many brothers around the world. Brothers like Daniel Malakov.

Daniel, born in the former Soviet Republic of Uzbekistan, thirty-four years old, Ivy League-trained orthodontist, lived in Queens, New York.

Daniel, after a nasty divorce from the woman he was married for six years, Marina Borukhova, a doctor at North Shore University Hospital, and a brutal custody battle, won custody of his only child, his four years old daughter Michelleka.

Daniel, just before 11:00 AM of October 28 of 2007, was shot three times in the chest in front of his daughter, at the Annadale Playground, the Flushing Meadows Park, where he was meeting his ex-wife to hand the little girl off for a visit.

After Daniel was murdered, Michelleka was taken into custody by the Administration for Children's Services.

When Daniel won custody of his daughter, he was extremely happy; he made a big room for her, he bought new clothes and was committed to give her all the education she wanted.

When Daniel won custody of his daughter, Borukhova paid $20,000 to Mazoltov Borukhova and Mikhail Mallayev to shoot Daniel. On April 21 of 2009, the three of them were sentenced to life without parole for first-degree murder, with an additional 8 1/3 to 25 years for conspiracy in the second degree

Although Daniel always complained that Borukhova obstructed his visitation rights while she had the custody of the child, when he won custody he regretted that things happened the way they did. Always concerned for his daughter's well-being, he told his mother: “A daughter should have a father and a mother in her life. She (Michelleka) shouldn’t have to go through this.”

On the very day of his murder, Daniel invited Borukhova to spend time together as a family. They agreed to meet at the Queens’ park where he was murdered.

Gender Violence: The Case of Miguel Ángel Salgado Pimentel

Maybe because the media has the bad habit of informing us of what is irrelevant and of keeping silence regarding what is relevant, I knew about the case of Miguel Angel Salgado Pimentel just recently, when the day on which his death is remembered was already over. I want, anyway, to remember him today.

Miguel Angel married the attorney Maria Dolores Martín Pozo in 1998 and the couple had a daughter, María José. Miguel Angel decided to leave home on December de 2001 and in 2002 submitted the petition for divorce. As usually happens in divorces processes, the judge Juan Pablo González del Pozo awarded the custody of the child to the mother, who started to interfere with the relations between father and daughter, refusing to bring the child to the meeting point determined by court.

In 2003, the mother accused falsely Miguel Angel for sexual abuse, and for that reason, the court suspended his visits to his daughter. After two years without contact between father and daughter, on September of 2005 the court lifted the suspension due to the lack of evidence of the accusations. The judge ordered then that the mother should bring the minor to a series of visits to the father under the supervision of psychologist, in order to observe the behavior shown by the child towards her father, to which the mother refused, for which the judge imposed her a fine of 250 euros and warned her of the possibility of losing custody of the minor. The mother argued that the child did not wanted to see her father, the judge requested a report from the psychologist, and that report sustained that the mother was deliberately obstaculizing the contact between the child and her father, blocking his visits to her for three years already.

During the trial celebrated January 24 of 2007, the mother threatened to kill him Miguel Angel in front of a witness. The judge signed the divorce sentence on March 14 of 2007, giving Miguel Angel the custody of the child, and ordering a police operative at the child school to secure the pick up.

That same day, Miguel Angel was murdered, shot three times at the garage of his house by Charles Michael Guarín Cercos, in agreement with Eloy Sánchez Barba, by order of the mother. To complete the horrors, the president of the Constitutional Tribunal, María Emilia Casas Bahamonde, ordered a phone call from her office to the mother, offering her support, advising her to go to two female attorneys of the Themis Association, a radical feminist organization, and offering her help in the eventuality that the case reached the Constitutional Tribunal.

After the murder of Miguel Angel, the judge requested a new expert report to determine the custody of the minor. The mother refused again to obey this order and, with the purpose of separate the judge from the process, accused the judge for committing a felony in a legal process, without specifying the felony, but the accusation and the subsequent legal complain were rejected.

After the incarceration of the mother in May of 2008, the judge opened a new process to determine the custody of the minor, orphan of her father and with her mother in jail, and that process determined that the custody of the child should belong to the Community of Madrid.

The mother, who now is looking to get the sole custody for her parents and to block the relationship of the child with Miguel Ángel’s parents, leads from her cell a campaign to discredit judge González del Pozo, placing her relatives and friends in front of the court to harass the judge with insulting pamphlet and a megaphone. The purpose of the campaign is to force the judge to submit complaint or to file a suit against the mother, giving her the opportunity of recusing him and of separating him from the legal process. Knowing this, the judge limited himself to request the protection of the General Counsel of the Judicial Power from the harassment he was being submitted, avoiding this way being recused. Last September of 2008, a witness against the mother, denounced that he was receiving death threats.

Currently, the minor is under the custody of the mother’s love partner, with whom she does not have any family bond.

Each March 14 at 7:00 PM, the day and time on which Miguel Ángel was murdered, the Asociación de Padres de Familia Separados (APFS), one of the groups that form the important and growing movement in favor of joint custody in Spain, celebrates the International Day of the Elimination of Violence against Men. On that day, as an act of remembrance and solidarity, a minute of silence is kept and a white candle is placed on the window sill.

The Impact of Domestic Violence on Children

The advantage of having a wide circle of friends is that you’re exposed to a variety of experiences, and that is how I found myself watching a little-known foreign language film that dealt with the subject of rivalry between two schoolboys, with the stories of their families also weaved into the screenplay. It was heart-warming to say the least, because it was a no-nonsense, no-frills movie that dealt with two themes that are essential to the happiness of every child and every family – there must be healthy competition between children for them to bring out their best, and the relationship between both parents and the general environment at home plays a large role in determining how children perform in other aspects of their lives.

Domestic violence has now become such a regular part of many American households that it does not seem like something that is significant enough to be discussed in relevance to the well-being of children. Parents fight with each other and hurl abuses without realizing the detrimental effect that it could have on the mental psyche of their children. When children are constantly exposed to the sights and sounds of their parents arguing, they tend to:

•Misbehave: Some children become more aggressive when they see their parents fighting or arguing and misbehave at school and in other arenas too. It’s their way of seeking attention and crying out for help, but they are often misunderstood and punished.

•Withdraw into a shell: Others withdraw into a shell that no one seems to be able to penetrate; they become recluses and shut themselves up with no social contact. And a few of them even take to drugs and alcohol as a way to relieve the misery they feel because of the state of their parents’ marriage.

•Perform badly at school: Even the brightest children start performing badly at school when their parents fight and the atmosphere at home is not peaceful. They’re either affected mentally or not able to concentrate on their homework and studying at home because of all the noise and confusion resulting from the fights.

•Lose confidence: Most kids from broken or abusive homes lose confidence in themselves and generally give up without even trying at their studies or other aspects like sports. They grow up to be either aggressive or pushovers – in short, they’re not normal.

Parents must realize that they need to do what’s best for their children instead of thinking about themselves. If there is constant strife at home, they could seek counseling or seek the help of relatives and friends to decide how best to move forward so that the kids are not affected more than they already are.

By-line: This guest post is contributed by Brooklyn White, who writes on the topic of Forensic Science Technician Programs. She can be reached at brookwhite26@mail.com.

NOTE BY VIDAL GUZMÁN: I want to thank Brooklyn White for her contribution to our blog. Her post is a brief but comprehensive summary of the effects that domestic violence has in our children. If any other of my readers wants to contribute with an article to this blog, please feel free to do so. Send me the article, I will review it, and if I believe that it fits in our concept, I will surely publish it.

There are several reasons to publish this post in our blog. First, the father’s rights movement in no way denies the social problem that domestic violence represents. Second, domestic violence is problem that affects both genders, not only women. Finally, the way that the state deals with domestic violence is one of the biggest roadblocks that our movement has encountered.

Grandparents and Joint Custody

Recently I received news from Spain (“Los abuelos por la custodia compartida piden a la UE poder ver a sus nietos”) that reminded me of one of the many faces of the tragedy lived by many families after divorce.

Representatives of the Grandfathers and Grandmothers pro Joint Custody Association (ASACCO) of Catalonia will meet in Brussels with members of the directive board of the European Commission of Civil Justice, to whom they will expose their impossibility of seeing their grandchildren on a regular basis after the divorce of their children.

The Association considers that their right to have a relationship with their grandchildren is not respected, and that the Spanish courts allow “a biased juridical practice that hinder the consecution of authentic justice" in these cases. The Association believes that the current Spanish law against gender violence "causes damage” in the life of these families, depriving children of divorced parents of a healthy relationship with their extended families.

We should never forget that current family laws affect not only divorced parents, but the totality of the involved families, uncles, aunts, grandparents, cousins, who after divorce lose their loved ones too. It is for this reason, because we all have divorced couples in our families, that not only fathers, but also everyone should be committed with the fight for a reform of family courts and of the laws that rule them. Thank God for people like the member of ASACCO, who have realized that when a member of a family suffers, all the members of that family suffer too.

Cathy Young and the Gender War

Cathy Young (Moscow 1963), an author, a public speaker, and a regular columnist for The Boston Globe and Reason, her articles have also appeared in The New York Times, The Wall Street Journal, The Washington Post, The Philadelphia Inquirer, Newsday, The American Spectator, Salon.Com, National Review, and The New Republic. She published in 1999 the book Ceasefire! Why Women and Men Must Join Forces to Achieve True Equality.

In her book, Young states that there is no war against women, and rebuts a series of controversial issues, from the incidence of domestic violence (it is not as frequent as the feminist media wants us to believe), the nature of domestic violence (she states that domestic violence is a two-way street: University of New Hampshire researchers consistently report women as often as men initiate physical violence. Furthermore, recent studies reveal that lesbians have also high rates of violence toward their own partners) Mainstream media hides or misreports these facts, fomenting this way legislation constructed on false assumptions), that male violence is directed primarily against women, or that girls are ignored in classrooms.

She offers evidence that these and other basic feminist credos are mistaken, mainly due to a feminist propensity for exaggeration, stereotyping, and over-generalization based on little or no evidence.

Young argues that the battle for equal rights is not an excuse for portraying men as fundamentally malevolent. She explains that in the '80s, a radical sector of feminism became mainstream, and equality for women began to mean inequities for men; is at this moment when she and many others became part of a new brand of feminism that looks for true equality.

One good example of this attitude towards an unequal equality, and the one that for our cause matters the most, is these feminists’ attitude toward joint custody. While they condemn men for not contributing enough in raising the kids, at the same time they demand that women should automatically have child custody following a divorce, because they have an inherent capacity to nurture children, while men do not. Young make an interesting point here: as Victorian morality believed, these feminists believe that women are the fragile guardians of good who must be placed on pedestals and protected. Young cleverly points out this "strange convergence of radical feminism and patriarchal conservatism - and the alienation of both ideologies from real life." Weirdly enough, the arguments of the Christian fundamentalist Promise Keepers and the National Organization of Women are based on the same premises.

Young believes that women and men need to learn to get along. Women have sons, husbands, fathers, and brothers. Because we have families, we cannot battle each other, we have to work together, and we have to look for each other’s wellbeing. In the final chapter of Ceasefire, Young proposes a twelve steps program for de-escalating the gender wars. These steps include:

-Do not assume sexism is the root cause of all women's problems.

-Rewrite sexual harassment law.

-Demand that husbands and wives serve as equal parents.

-Take gender politics out of the war on domestic violence.

-Stop acting as if women’s claims were more legitimate than men’s were.

In summary, the book is well written, well argued, and carefully reasoned, a book that should be read by anyone interested in real gender equality.

Receipt Acknowledgement: On domestic Violence

I have been writing lately about domestic violence, and how the way courts deal with this issue is strongly connected to the way courts deal with father’s custody rights. Recently one of my readers, Suzane Smith, sent me an article written by her titled “10 Myths about Domestic Violence”. I encourage my readers to read this article. In her post, Smith does a great job clarifying the main misconceptions regarding domestic violence.

On “Divorced from Reality” by Baskerville (2 of 2)

This is the second and final article on Stephen Baskerville, “Divorced from Reality”.

Baskerville believes that the child abuse “epidemic” is almost entirely the creation of radical feminism and the welfare bureaucracies. He quotes evidence that proves that an intact family is the safest place for women and children, and that very little abuse takes place in married families. Child abuse and domestic violence overwhelmingly occurs in homes from which the father has been removed. According to the Department of Health and Human Services (HHS), children of single parents have a 77% greater risk of being harmed by physical abuse, an 87% greater risk of being harmed by physical neglect, and an 80% greater risk of suffering serious injury or harm from abuse or neglect than children living with both parents. And according to Britain ’s Family Education Trust, children are up to 33 times more likely to be abused in a single-parent home than in an intact family. Baskerville writes:

“The principal impediment to child abuse is thus precisely the figure whom the welfare and divorce bureaucracies are intent on removing: the father.”

It is not married fathers, but single mothers who are most likely to injure or kill their children. Research shows that the most likely physical abuser of a young child will be that child’s mother, not a male in the household. Mothers accounted for 55 percent of all child murders. Women ages 20 to 49 are almost twice as likely as men to be perpetrators of child maltreatment: and since male perpetrators are not usually fathers but boyfriends or stepfathers, fathers emerge as by far the least likely child abusers.

In family courts, false allegations of child abuse and domestic violence are routine, and used almost always for purposes of breaking up families, securing child custody, and eliminating fathers. These false accusations are virtually never punished, and as a result of them, protective orders separating parents from their children are issued without any evidence during divorce proceedings.

There is a cruel political rationale behind all this government family-destruction machinery. Bureaucracies expand by creating the very problem they exist to address. By eliminating the father, government officials can present themselves as the solution to the problem they have created. The more child abuse there is, the more justification the government has to expand the child abuse bureaucracy.

Judges create the most dangerous environment for children when they remove fathers in custody proceedings, and they do it because they know they will never be held accountable for any harm that may come to the children. As Baskerville writes:

“On the contrary, if they do not remove the fathers, they may be punished by the bar associations and social work bureaucracies whose funding depends on a constant supply of abused children.”

The figure of the “deadbeat dad” is another result of hysteria manufactured by the divorce machinery. Fathers are less likely to abandon offspring than to be involuntarily divorced fathers who have been “forced to finance the filching of his own children.” Originally a method of recovering welfare costs, child support is now a “massive federal subsidy on middle-class divorce.” If no-fault divorce allowed a mother to divorce her husband for no reason and to take the children with her, child support allows the divorcing mother to use the now-fatherless children to claim her ex-husband’s money, money that she may spend however she wishes with no accounting requirement, and if he refuses to pay, he could be incarcerated without trial.

Child support finances family dissolution by paying mothers to divorce: it’s “an incentive for divorce by the custodial mother.” Evidence shows that only one-fifth to one-third of child-support payments is actually used for the children, the rest is profit for the custodial parent. Furthermore, mothers are not the only ones who profit from child support. State governments receive federal funds for every child-support dollar collected, what gives states a financial incentive to create as many single-parent households as possible by encouraging divorce. Baskerville writes:

“This is why state governments set child support at onerous levels. Not only does it immediately maximize their own revenues; by encouraging middle-class women to divorce, governments increase the number of fathers sending dollars through their systems, thus generating more revenue.”

The logical conclusion of this draws a terrible picture of how the power structure works:

“All this marks a new stage in the evolution of the welfare state: from distributing largesse to raising revenue and, from there, to law enforcement. The result is a self-financing machine, generating profits and expanding the size and scope of government—all by generating single-parent homes and fatherless children. Government has created a perpetual growth machine for destroying families, seizing children from legally blameless parents, and incarcerating parents without trial.”

Finally, Baskerville, an Anglican, accuses the church of refusing to protect the marriages it has consecrated, leaving a vacuum that has been filled by the state. He believes that family structure will be restored when the church takes families out of the hands of the state, does what is supposed to do by helping them to survive, and protects them from government intervention.

Again, I insist the the readers should read the full article. Every father who has been a victim of the family court system should.

On Baskerville’s “Divorced from Reality” (1 of 2)

In the January/February of 2009 issue of the Christian magazine Touchstone, Stephen Baskerville published the article “Divorced from Reality” (http://www.touchstonemag.com/archives/article.php?id=22-01-019-f), on the family crisis in the US. I would like to summarize its content, but strongly recommend my readers to read the full text, due to to the extension and depth of Baskersville’s analysis on the issues discussed.

According to the author, the decline of the family structure has reached dangerous proportions, and it is the major source of social instability in the Western world, and a major threat to civic freedom and constitutional government. Quoting G. K. Chesterton, he sustains that the family structure serves as the principal check on government power, and that today family and state confront one another as the primary social organizing factor. He believes that today’s divorce laws are used by the state to erode family primacy, and to enhance its own power as social control. He writes:

“Indeed, many are devastated to discover that they can be forced into divorce by procedures entirely beyond their control. Divorce authorizes unprecedented government intrusion into family life, including the power to sunder families, seize children, loot family wealth, and incarcerate parents without trial. Comprised of family courts and vast, federally funded social services bureaucracies that wield what amount to police powers, the divorce machinery has become the most predatory and repressive sector of government ever created in the United States and is today’s greatest threat to constitutional freedom.”

Baskerville’s main concern are the laws regulating “no fault divorce”. When four decades ago laws were passed to legalize “no fault” divorces, these laws enabled the government, at the request of one spouse, to dissolve a marriage over the objection of the other. Divorce today, he states, seldom involves two people mutually deciding to part ways, but are unilateral in nature, prevailing over the objection of one spouse. He writes:

“Under “no-fault,” or what some call “unilateral,” divorce—a legal regime that expunged all considerations of justice from the procedure—divorce becomes a sudden power grab by one spouse, assisted by an army of judicial hangers-on who reward belligerence and profit from the ensuing litigation: judges, lawyers, psychotherapists, counselors, mediators, custody evaluators, social workers, and more.”

Unilateral divorce generates political and costitutional problems because by its nature, it requires constant government supervision over family life. Divorce expands government power because it involves state functionaries to enforce the divorce and the post-divorce order.

The implications of unilateral divorce are terrible: it allows the government to remove innocent people (usually fathers) from their homes, to seize their property, and to separate them from their children, even if they are innocent of any legal wrongdoing. The state seizes control of his children with no burden of proof to justify why; the burden of proof (and the financial burden demanded by it) falls on him. Baskerville writes:

“By far the most serious consequences involve children, who have become the principal weapons of the divorce machinery. Invariably the first action of a divorce court, once a divorce is filed, is to separate the children from one of their parents, usually the father. Until this happens, no one in the machinery acquires any power or earnings. The first principle and first action of divorce court therefore: Remove the father.”

The divorce machinery can take an respectable parent, block him for seeing his own children without government authorization, arrest him for failure to conform to a variety of additional judicial directives that apply to no one but him; arrest him for domestic violence or child abuse, even if no evidence is presented that he has committed any; arrest him for not paying child support, even if the amount exceeds his means; he can even be arrested for not paying an attorney or a psychotherapist he has not hired.

The growth of the divorce machinery has generated a series of hysterias against fathers so hideous that no one dares to defend those accused: child abuse and molestation, wife-beating, and nonpayment of child support. The accused of these offenses, even in the absence of any formal charge, evidence, or conviction, loses his children and is isolated from everyone, since no one wants to be associated with a “pedophile,” “batterer,” or “deadbeat dad.”

An while all these happens, there is no evidence that the family crisis is caused significantly by fathers abandoning their families, beating their wives, and molesting their children, but there is irrefutable evidence indicating that this crisis “is driven almost entirely by divorce courts forcibly separating parents from their children and using these false accusations as a rationalization.”

False Domestic Violence Accusations Can Lead To Parental Alienation Syndrome

Written by David Heleniak

Parental Alienation Syndrome (PAS) is a pattern of thoughts and behavior that can develop in a child of separated parents where the custodial parent causes the child, through manipulation and access blocking, to unjustifiably fear and/or hate the other parent. PAS is more than brainwashing, in that the child comes to actively participate in the degradation of the target parent, coming up with original (often ludicrous) reasons to fear/hate him or her.

Domestic violence (DV) restraining orders are a perfect weapon for an alienating parent. Typically, in addition to removing an accused abuser from the marital home, a DV restraining order also “temporarily” bars the accused abuser from seeing his or her children, and “temporarily” gives the accusing parent exclusive physical custody. And temporary, in the Family Court, has a funny way of becoming permanent.

Obtaining a restraining order based on a false allegation of domestic violence gets the target parent out of the house and out of the picture. A father who can’t see his kids, for example, is unable to rebut the lie “Daddy doesn’t love you anymore. That’s why he left you.” Nor can he rebut the alternate lie, “Daddy is dangerous. The wise judge said so. That’s why he can’t see you.”

Often, if an accused abuser is allowed to see his or her children, it is in a supervised visitation center. As Stan Rains observed in “Supervised Visitation Center Dracula,” “The demeaning of the ‘visiting’ parent is readily visible from the minute that a person enters the ‘secured facility’ with armed guards, officious case workers with their clipboards and arrogant, domineering managers.... The child's impression is that all of these authority figures see Daddy as a serious and dangerous threat. The only time a child sees this type of security is on TV showing prisons filled with bad people.” Not only does visitation in a visitation center send the clear message to the child that the “visiting” parent is a bad person, if children decline to see their parents under such a setting, they are generally not forced to do so. More perversely, if a child is encouraged by the custodial parent to refuse to see the target parent, there will be no significant repercussion to the targeting parent, and, generally, the child will not be forced to see the target parent.

The more time a child spends away from the alienated parent, the worse the alienation will become. As psychologist Glenn F. Cartwright remarked in his article “Expanding the Parameters of Parental Alienation Syndrome,” “the old adage that time heals all wounds, such is not the case with PAS, where the passage of time worsens rather than heals the affliction. This is not to say that time is unimportant: on the contrary, time remains a vital variable for all the players. To heal the relationship, the child requires quality time with the lost parent to continue and repair the meaningful association that may have existed since birth. This continued communication also serves as a reality check for the child to counter the effects of ongoing alienation at home. Likewise, the lost parent needs time with the child to ensure that contact is not completely lost and to prevent the alienation from completely destroying what may be left of a normal, loving relationship.... The alienating parent, on the other hand, requires time to complete the brainwashing of the child without interference. The manipulation of time becomes the prime weapon in the hands of the alienator who uses it to structure, occupy, and usurp the child's time to prevent ‘contaminating’ contact with the lost parent, depriving both of their right to spend time together and furthering the goal of total alienation. Unlike cases of child abuse where time away from the abuser sometimes helps in repairing a damaged relationship, in PAS time away from the lost parent furthers the goal of alienation. The usual healing properties of time are lost when it is used as the primary weapon to inflict injury on the lost parent by alienating the child.” Along these lines, Dr. Richard A. Gardner, who coined the term “Parental Alienation Syndrome” in 1985, maintained: “If there is to be any hope of their reestablishing a relationship with the targeted parent, PAS children must spend significant time with him (her). They must have living experiences that will demonstrate that the PAS parent is not noxious and/or dangerous.”

A parent willing to falsely accuse the other parent of domestic violence would probably be willing to poison a child against him or her. Add to this the problem that a judge willing to “err on the side of caution” by entering a DV restraining order based on a dubious false allegation would probably not be willing to do what was necessary to prevent the development of PAS.

PAS is heart-wrenching and, tragically, common. If the DV restraining order system could be reformed so that only real victims obtained restraining orders and only real abusers were thrown out of their houses, I predict that the number of PAS cases would be greatly reduced. Let’s try to get there.

Connecticut Takes a Step to Protect Men’s Rights

The basic principle of due process is that a defendant whose rights the state wants to limit is entitled to notice of the charge against him/her and a hearing before an impartial arbiter. But in the area of domestic violence law, those two basic rights are usually ignored. The mere allegation of domestic violence can be enough to deprive a person of constitutional rights (refer to my two previous posts).

Connecticut resident Fernando A., whose full name is not released in court records, was divorcing when his wife fabricated the attack story to gain leverage in family court proceedings. He never got a chance to object to the order of protection issued against him that removed him from his house and prevented him from seeing his children. His lawyer, Steven D. Ecker, of Hartford’s Cowdery, Ecker & Murphy, asked for an evidentiary hearing, but Superior Court Judge James Bingham denied the request. Ecker then challenged the denial up to the state Supreme Court.

The Connecticut Supreme Court then ruled an opinion in which states that, in order to award a restriction order, a defendant must be granted an evidentiary hearing at which the state must consider both sides of the story and must prove, by the civil standard of a preponderance of evidence, that the order is necessary. The defendant may testify or present witnesses, and may cross-examine any witnesses against him. The order may be issued initially on little evidence and with no notice to the defendant, leaving the defendant with no opportunity to defend himself, but that order can now remain in force only for a "reasonable" period of time (what constitutes a reasonable time remains gray area).

This is small but very important step towards a fair treatment of those who are accused of domestic violence, which in turn is a step towards a fair custody awarding system, because, as we all know, domestic violence accusations are one of the instruments most commonly used to block fathers from having custody and visitation rights.

This court opinion has its setbacks. Judges have an extremely broad discretion and can emit restriction orders based on little evidence, relying only on the written materials and hearsay to continue their restriction order. How long a defendant may be deprived of his home, his belongings, access to his children, bank accounts, etc., is not specified. The standard of proof required is, instead of the more restrictive criminal standard, the civil one of "preponderance of the evidence," which means that if the prosecution produces barely more than half of the evidence submitted to court, it wins and the defendant's children may face an indefinite time apart from him.

Again: this is a small step, but a small step in the right direction. Hopefully, this Connecticut court opinion will serve as a deterrent against false accusations and as a shield to protect men’s basic constitutional rights. Hopefully this court opinion will save many men from living in constant fear and intimidation.

Review of “The New Star Chamber: The New Jersey Family Court and the Prevention of Domestic Violence Act” by David N. Heleniak. Part 2 of 2

Last week I started a discussion on David N. Heleniak’s text on the terrible legal implications of New Jersey’s “Prevention of Domestic Violence Act.” Today I will focus on his concerns about the constitutionality of the Act. At a 1995 seminar for municipal judges, Judge Richard Russell of Ocean City, N.J., was caught on tape giving the following advice:

“Our job is not to become concerned about the constitutional rights of the man that you're violating as you grant a restraining order, (…) They have declared domestic violence to be an evil in our society. So we don't have to worry about the rights."

Judge Russell’s attitude reflects the general attitude that many family courts judges have towards men. This blatant disregard of constitutional rights has a clear expression in the Act under discussion. Among the deficiencies that make the Act unconstitutional are:

1 - The lack of notice: The Act requires that a summary hearing has to be held within ten days of the filing of the complaint, to determine whether the allegations in the complaint occurred. Ten days is not enough time to prepare a defense. A wife willing to commit perjury can spend years with her lawyer planning to file a domestic violence complaint at an opportune moment in order to gain the upper hand in a divorce proceeding, while the accused husband has only ten days to get ready.

2 - The denial of the right to free counsel: The Act does not provide for the free assistance of counsel for poor defendants, which added to the fact that they have only ten days to prepare their defense, reduces dramatically their chances of a fair trial.

3 - The denial of the right to take depositions: The deposition is usually the most important discovery tool during a trial. During deposition, a defendant's attorney can corroborate the veracity of the plaintiff’s assertions. In a restriction order hearing, a defendant is deprived of this discovery tool because, according to the Chancery Division, allowing the “…alleged perpetrator to depose a victim, (…) perpetuates the cycle of power and control whereby the perpetrator remains the one with the power and the victim remains powerless.” Defendant is therefore unable to anticipate all of the things the plaintiff says at the hearing, is unable to analyze her version of the events alleged in the complaint prior to the hearing, and is unable to test the veracity of her testimony.

4 - An improper standard of proof: The Penal Code treats domestic violence complaints as something other than a criminal offense. The result is that family courts can circumvent the protections normally accorded for an accused in a criminal case, including the right to due process of law, and to a trial by jury.

5 - The denial of the right to a trial by jury: The trial by jury is necessary for preventing the abuse of judiciary power. The fathers of the constitution, reluctant to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges, insisted that the truth of every accusation should be confirmed by the suffrage of his equals. In our constitutional framework, the jury is expected to serve the people by checking the judge, by protecting us against arbitrary actions by courts. By denying the defendant of his right of a jury trial, the Act denies him of one of the most basic constitutional rights.

In summary, the Act is unconstitutional because it denies defendants due process of law. The Fourteenth Amendment of the United States Constitution provides that no State shall "deprive any person of life, liberty, or property, without due process of law." But as we have seen, the Act does precisely that.

And as Heleniak writes, the protection of women does not justify the surrender of civil rights.

Review of "The New Star Chamber: The New Jersey Family Court and the Prevention of Domestic Violence Act" by David N. Heleniak. Part 1 of 2

David N. Heleniak is an attorney in New Jersey. Holding a MA degree in Theological and Religious Studies from Drew University, he is the vice president of RADAR (Respecting Accuracy in Domestic Abuse Reporting), a non-profit organization that works to improve the effectiveness of the approach to domestic violence (http://www.mediaradar.org) and the senior legal analyst for True Equality Network, a group dedicated to educating on how the failures of numerous federal programs and the abuses of federal funding systems affect the sovereignty of the American family (http://www.true-equality.org).

He is the author of several works, one of which is titled The New Star Chamber: The New Jersey Family Court and the Prevention of Domestic Violence Act, published in the Spring of 2005 issue of Rutgers Law Review, adaptations of which were published in the New Jersey Law Journal, New Jersey Lawyer, and The Liberator, America's Shared Parenting Quarterly (PDF: http://www.njccr.org/Articles/Heleniak2006NewStarChamber.pdf) (Video: http://www.youtube.com/watch?v=mwsgT_Yu008). It is this text that I want to summarize on this and next week posts.

The text starts with a disturbing quote by Dean Roscoe Pound: "The powers of the star chamber were a trifle in comparison with those of our juvenile courts and courts of domestic relations." From there, Heleniak develops an exposé on how the family court system, particularly in New Jersey, violates basic constitutional rights.

The title of the text refers to the Star Chamber, so named because of the star pattern painted on the ceiling of the room in Westminster Palace, where the king of England's council met, that was intended to be a more efficient alternative to the common-law courts, but that in fact, it became the embodiment of unfair judicial proceedings. Heleniak argues that through The Prevention of Domestic Violence Act, the New Jersey Legislature has been allowed to create, in the Family Part of the Chancery Division of the New Jersey Superior Court, a modern day Star Chamber.

The Act permits a self-proclaimed victim to file a complaint alleging the commission of an act of domestic violence, and to request a temporary restraining order. If the court determines that an act of domestic violence has occurred, it can authorize any of the following reliefs:

- An order giving the plaintiff exclusive possession of the marital home.

- An order requiring the defendant to make mortgage or rent payments.

- An order restraining the defendant from making contact with the plaintiff.

- Temporary custody of a minor child.

- The suspension of parenting time for the defendant or limitation of visitation to supervised visitations.

- Monetary compensation for losses suffered by the plaintiff to be paid for by the defendant.

- An order requiring the defendant to receive professional domestic violence help.

- An order requiring the defendant to undergo a psychiatric evaluation.

- The award of temporary custody of personal property, such as an automobile, checkbook, and other personal effects of the defendant.

The Act also provides for imprisonment for any person convicted of a second or subsequent nonindictable domestic violence contempt. As it is easy to see, the potential for abuse of the Act is immense. The advantages of a restraining order to the complainant are a temptation hard to resist: exclusive possession of the home, temporary and probably permanent sole custody of the children, and the opportunity to make the other person’s life miserable.

The Prevention of Domestic Violence Act authorizes a chancery judge to bar a defendant from ever setting foot in his house again, yet make him pay the mortgage payments; make him pay large sums of money to the plaintiff; bar him from seeing his children; force him to see a psychologist and/or psychiatrist against his will; temporarily give the plaintiff exclusive possession of the defendant's car, checkbook, and other personal effects; bar the defendant from ever speaking to any individual that the plaintiff does not want him to speak to; force him to turn any firearms he has and bar him from ever possessing another firearm in his life; and make the defendant pay a "civil penalty" of $500.00, and if the defendant refuses to comply with any aspect of the judge's order, he can be tried for contempt and imprisoned. Lastly, he is labeled an abuser and his name is put on a list of domestic abusers known as the New Jersey Judiciary's Domestic Violence Central Registry, a societal stigma that will follow him the rest of his life.

Knowing all this, it should not be a surprise that in many divorce cases, allegations of abuse are used for tactical advantage.

What Would Happen If The Fathers Sue?

I recently read the article “Dad Gets Custody; Sues Oklahoma Dept. of Human Services and DV Shelter” (http://glennsacks.com/blog/?p=4209) by Robert Franklin, Esq. This article is worth reading, due to its particular approach to the problem of domestic violence and to what Franklin calls the “domestic violence industry.”

Domestic violence is an extremely delicate matter. On one hand, domestic violence is a real problem that is suffered by both genders and that causes numerous deaths every year. On the other hand, during child custody disputes, domestic violence accusations (along with sexual misconduct) are often used as means to exclude one of the parents from their children’s lives and to eradicate from the process any chance of fair treatment. Because many divorcing parents know that courts follow the official policy of “shoot now, ask later,” they accuse the other parent of domestic violence to isolate them from their children. And since making false accusations is a crime everywhere except in family courts, the accuser knows that even when the accusations are proven false and malicious, even when in many times the other parent has done time in jail, nothing will happen to them and they would have achieved their goal of planting a physical and temporal barrier between the other parent and his/her children.

It is from the acknowledgement of this complexity that Franklin’s article should be read. The article starts stating Franklin’s concerns regarding the way battered women shelters deal with the problem of domestic violence. Quoting a study done in Germany, he sustains that many shelters work as centers of radical feminism indoctrination, where they teach women that only men are perpetrators and only women are victims. That view assumes that domestic violence is a political act of power and oppression, not the result of a psychological disorder. These shelters, more than making an effort to actually help victims, their goal is often the separation, whether by divorce or otherwise, of the woman and her husband/partner.

Is in this context that the case of Crystal Hall should be understood. Mrs. Hall, who suffers from a form of mental/emotional/psychological impairment, contacted Safenet Services, a shelter for victims of domestic violence in Oklahoma, claiming that she and her five children had been abused by her husband, James Hall. Safenet, through its executive director, Donna Grabow, suggested her divorce as the only solution to her situation, telling her that the court would be sympathetic to a woman claiming abuse.

Over the course of 28 months, Mr. Hall underwent seven evaluations by various state agencies, all of which found him to be a fit and loving father with no evidence of abuse of either his wife or his children. The court ordered the children placed in his custody and further ordered his wife to pay child support, given that she is mentally capable of, and is in fact, working.

Since this ordeal started, there has been no discernible improvement in Mrs. Hall's psychological health, and she has become seriously co-dependent on Grabow and Safenet, who come to her house three times each day, seven days each week to make sure she takes her medication. Furthermore, although the court granted her visitation rights, Mrs. Hall has made no effort to visit her children for over a year. Even more worrying is the fact that the Oklahoma family court judge has forbidden Safenet staff from contacting the Hall children, who feel harassed by the organization.

Franklin assess Hall case as the case of “a mentally unstable woman who fell into the hands of a more or less typical DV shelter.” Because the shelter religiously followed the ideology of men are abusers and women are victims, they accepted unquestioningly Mrs. Hall’s claims, and urged her to divorce with the promise of the custody of her children. And from then, the mess that followed.

Now Mr. Hall has filed a civil suit for damages against the Oklahoma Department of Human Services, Safenet Services, Inc. and Donna Grabow. I have always wondered what would happen to the family courts system if the fathers who suffered their abuse counterattack with legal actions, not against their spouses as they usually do, but against the court system itself. Mr. Hall is probably one of the firsts, if not the first, of a new breed of fathers that should propagate fast.

On the Virtue of Patience

Turbulent river, fishermen gain.
Hispanic proverb

Provoking your enemy to make mistakes is an ancient war tactic used by strategist throughout history. Illustrious generals have done actions against their enemies with the only purpose of forcing them to react in a disorganized manner, allowing them to use that disorganization in their favor. A surprise attack or an act of exemplary humiliation has many times been the difference between victory and defeat.

But this tactic has many applications beyond the battlefield.

Muhammad Ali used to insult and to slap his opponents with harmless blows, just for making them lose their patience. During this moment of chaotic reaction, his opponent would lose also the rational control of his actions, making mistakes that under normal circumstances he never would have made, and Ali would perform then an attack that he had planned thoughtfully, wining easily over an extremely difficult opponent.

This tactic is no stranger to the field of family relations, especially when the subject under discussion is the custody of children. Many divorced men have been lured into situation of disorganized reaction with the only purpose of using their reaction to block their contact with their children and, ultimately, to cancel their possibilities of having their custody.

The most common avatar of this tactic would be as follows: A divorced father meets his ex-wife for any reason (picking up their children for parenting time or bringing them home after, a phone call between parents, etc.), his ex-wife inflicts him some kind of physical or verbal violence, the father reacts accordingly in an analog manner, the ex-wife goes to court to place a restraining order because the father was violent and threatening, the father cannot get near his ex-wife, and since she has custody of their children, he cannot get near his children neither. Mission accomplished. Her real purpose was never putting barriers between her and her ex-husband, but between her ex-husband and their children.

Be aware. Expect the hidden snake.

Though I know that it is easy to say and hard to do, the only adequate response is the old virtue of patience. Having your children in mind, envisioning the happy future that you will have with them, realizing that the current moment is just an entrapment to make you loose everything that you love, will make think twice before reacting to any provocation, to any challenge. And if you are Christians, and even if you’re not, meditate on Jesus’ words:

A woman has pain when her time to give birth comes. But after the child is born, she doesn't remember the pain anymore because she's happy that a child has been brought into the world. (John 16:21)

Patience. It will come a day when everything that you are suffering now will seem little, even laughable. Live for that day.

Fatherhood & Martyrdom

Through history, taking away someone’s children has been always an extremely humiliating act of war. Through history, empires have taken the children of the invaded countries, killed them, sold them as slaves or just removed them from their parents (one of the latest versions of the last one, occurred in Argentina during the Dirty War, during which the Military Junta used to “disappear” members of the opposition and give their children in adoption to pro-government families).

The struggle for the cause of joint custody resembles a war. Like a war, it is the sum of many battles, small and big, that will add up in the end to the final victory. Like a war, it requires a grand strategy viewpoint to focus and organize every action in such a way that those actions could achieve victory. Like a war, it constantly creates traumas in the people involved, traumas that should be addressed and healed, if such thing is possible.

And like a war has its share of dead people. This is not a bloodless struggle. The violence that the current state of family laws generates is immense, and many ways, uncontrollable (and I am not talking now about the suicides that result from these endless and unfair legal processes).

Separating parents from their children is an unspeakable act of violence. And as many have said before, violence engenders violence.

The extremely long, painful and humiliating process to which our family courts submit parents who fight for the custody of their children, many times explodes in the worst form possible. Allow me to give two examples of the terrible violence that the present state of things generates.

Caroline M. Kotoski has been accused in Cape Cod of soliciting an undercover police officer to murder her estranged husband. On September 9 of 2004, she met with an undercover state trooper posing as a hit man and paid the trooper $7,500 to kill William Kotoski and agreed to hand over another $7,500 once her estranged husband was dead. The accused was motivated by her desire to gain custody of her two children and possibly inherit a “huge amount of money” (http://www.capecodtoday.com/blogs/index.php/2006/08/29/cape_teacher_of_the_year_on_tial_for_kil?blog=53).

Mazoltuv Borukhova, estranged wife of orthodontist Daniel Malakov, was charged with murder and conspiracy three and a half months after Malakov was gunned down at a Queens’s playground in front of his young daughter. Malakov and Borukhova had been embroiled in a bitter custody dispute over their daughter Michelle after Malakov had been granted temporary custody. The man arrested in the shooting is a Borukhova's relative by marriage. (http://gothamist.com/2008/02/08/slain_dentists.php)

Let us stop this. Let us have clear family laws that set things straight from the start, that set joint custody by default, stopping this way these endless arguments that create only frustration, anger, and violence.

Let us stop this now. Our children are waiting.

Keynes, Germany and Domestic Violence

In 1919, the British economist John Maynard Keynes published The Economic Consequences of the Peace. In that book, Keynes sustains that the reparations imposed to Germany after its defeat in World War I would have the effect of an unstable German economy, which in turn would have unpredictable terrible consequences. The book includes the ominous prophesy:

"But who can say how much is endurable, or in what direction men will seek at last to escape from their misfortunes?"

Keynes knew that it was impossible to dispossess a nation and to stop this nation to eventually seek revenge for the affronts suffered: the economical situation to which the defeated Germany was submitted after World War I was the foundation of the German aggression of World War II.
“Respecting other’s people rights is peace,” says the Mexican patriot Benito Juárez, and His Holiness Paul VI said, “If you want peace, work for justice.” Only justice, equal rights, the opportunity to live with dignity can ensure a life without violence. It is no accident that the poorest social classes are the ones that generate more violent and criminal behavior. It is no accident that in the South Africa of the apartheid was rich in urban violence, violence that was exacerbated during the immediate years after the apartheid was abolished; violence that now that the equality of rights has matured has decreased enormously.

Inequality and injustice give birth to violence. I have always asked myself why no one has connected the la violence that many men inflict on women during and after divorce, and the conditions to which divorce impose on men in many countries. I have always asked myself why government agencies, professional organizations, and higher education institutions do not produce statistics that try to explain this terrible phenomenon. Everybody complains about the tragedies, everybody says that they want to solve the problem, but nobody looks for its roots.

In Cuba exists an efficient law of joint custody. I understand that the cases of domestic violence are almost inexistent.