I testified at a Massachusetts State House hearing on S.834 An Act relative to Child-Centered Family Law. This changes the language that courts will use but there are no restrictions on what judges can do and litigants will still fight over a potential for 0/100, 100/0 or any other time split in between; see the “Renaming Custody” section in this chapter for how this has worked in the other states that have tried it. The parent who wins a custody lawsuit would become the “primary parent” rather than the “custodial parent.” (See my own testimony on the likely effects.)

One intriguing idea that I learned at the hearing was that in some cases men might be better off not showing up to court when a case is being decided under the family law and domestic violence system. U.S. Census data from March 2014 show that, when there is enough income for a child to yield a cashflow, men in Massachusetts lose custody lawsuits roughly 97 percent of the time. Typically the man is therefore spending $100,000 to $1 million in legal fees in order to have a shot at being one of the 3 percent. But is the guy actually digging his own grave by showing up?

[In theory the law, unlike in some European and Islamic jurisdictions, is gender-neutral. And, as discussed below, the citizens who came to the hearing included a woman who lost custody of her children due to her higher-income, harder-working status. In practice, however, attorneys say that men cannot prevail on a domestic violence complaint against a woman.]

“I was advised by my lawyer not to show up to defend against a restraining order,” said one father, “because if the man doesn’t show up he can be restrained for only 7 days but if he does show up the order can last for a year.” One take-away from the hearing was that when when the children were potentially profitable, motivated female plaintiffs would eagerly seek, and typically win, restraining orders to keep children from seeing their fathers.

[“The Domestic Violence Parallel Track” explains why this is typically a powerful tool for plaintiffs nationwide, but in Massachusetts a restraining order has a specific cash value. Given a $250,000-per-year defendant, for example, obtaining ordinary “winner parent” status and 2/3 time with the child yields $40,000 per year in tax-free cash via the child support guidelines plus, typically, an order that the defendant pay 100% of the child’s actual expenses (e.g., day care, uninsured medical/dental). If a plaintiff can get the defendant entirely excluded from the child’s life, judges are explicitly encouraged to award additional child support (due to the fact that father is not providing free babysitting 1/3 time). Having 100% “custody” may simply mean dumping the child into commercial care, such as day care or with nannies, and the loser parent will pay for those on top of the enhanced child support.]

This father’s understanding from his attorney was that if a judge doesn’t see a man’s threatening posture alongside the vulnerable plaintiff victim, the judge cannot legally evaluate whether or not a restraining order/custody plaintiff’s case is strong enough to merit a one-year order.

In fact it is likely the case that this layperson was wrong and/or misunderstood his lawyer. I later talked to a Massachusetts litigator and he said that in fact eventually a restraining order could be made permanent (“remember that judges don’t want the woman to keep coming back to court”), but I am wondering if the basic idea could be extended to all of family law. Suppose that the man doesn’t file an Answer to the woman’s Complaint (the document that starts the divorce lawsuit). He will lose a default judgment. In theory she gets whatever she has asked for. She wants the house, the kids, and the cash, for example. But she starts out with more than a 90-percent chance of winning these things anyway. The typical rationale for a defendant in a civil lawsuit, of which a Massachusetts divorce is a subcategory, is that by hiring an attorney he can limit some of the loss. But witnesses who testified at the hearing had been ordered to pay their plaintiffs’ legal fees in addition to their own. Every attempt at defense resulted in larger losses due to the legal fees (up to $2.7 million in one case). Whenever it seemed as though they were making a little progress in defending the divorce lawsuit, their plaintiffs made an end-run around that multi-year procedure with a 15-minute restraining order hearing. As one successful entrepreneur noted, a couple of years after his wife sued him, “every time you score a point against her by proving that she is wrong or lying that’s like giving her $1000 in cash. The right way to deal with this is just to let her punch you over and over, never hitting back, until she finally gets tired of punching. The best defense is no defense.”

What about admitting defeat on Day 1 of a Massachusetts divorce lawsuit? It would seem that there must be some limits on what a plaintiff can achieve via a default judgment against a man who chooses not to show up (as happened 18 percent of the time in our statistical study of Middlesex County Probate Court). A plaintiff cannot expect to prevail with “I have no documents to prove this, but my defendant earns $10 million per year so I want $1.5 million per year in tax-free child support.” She will be limited by what the judge is likely to believe and, perhaps, by any paycheck stubs that she can find (or what the man’s employer produces in response to a subpoena). Without the man there to offer a competing story, the woman’s accusations may be less credible. If the mother says “He is having sex with the daughter” and the father says “No, I’m not” it is natural for a listener to assume that the truth lies somewhere in the middle If the father isn’t there at all the judge might wonder “Wouldn’t it be a little too convenient for this woman seeking 100% of a guy’s money if he were actually having sex with the daughter?” Judges have also seem virtually every plaintiff lie regarding household expenses. They’ve seen women get cash back or a gift card with every grocery purchase. They’ve seen women claim $90,000+ per year in current expenses for which there is no evidence from credit card and checking account statements. So a judge might by himself or herself scale back a plaintiff’s demands just as effectively as a high-priced defense lawyer.

Let’s consider a middle-class couple with 90 percent of their home mortgaged and some savings for the children’s college. Based on our study of Middlesex County, our interviews with attorneys in Massachusetts, and witness testimony at the State House, assuming that both sides lawyer up, the mother is going to get the house and the kids and perhaps above-guidelines child support (in a state that already has the world’s most lucrative guidelines) if she spins a good tale and the father doesn’t seem like the world’s nicest guy and just pleased as punch to have been been sued. The father will be ordered to babysit the kids every other weekend. The lawyers will get the home equity and all of the savings, including the children’s college fund, before telling the parties to settle (see “Divorce Litigation”).

What if the father doesn’t show up? In that case maybe the judge simply won’t have enough evidence to support an above-guidelines child support order. Can the woman show that she is destitute when there is still home equity and a savings account? The woman’s lawyer comes to court asserting that child support should be based on last year’s income times two. Why? The man could work extra hours to support his plaintiff. But how can the judge find that to be true if the target didn’t show up to be questioned? Can the man be ordered to pay his plaintiff’s legal fees (limited to filling out a Complaint form and showing up to court once or twice)? Under what theory did he run up her bill by failing to cooperate? Can the man be ordered to work beyond normal retirement age (67) and continue to pay alimony despite the recent statutory discouragement of this time-honored practice? How can the judge find that he is exceptionally healthy and work-ready if he has never shown up to court?

What about losing custody? Statistically that’s a foregone conclusion in Massachusetts for a father, but losing custody after a default judgment might actually be better. The mother, having secured a total legal victory, won’t have an incentive to rat the father out to DCF as a child molester. The mother’s lawyer will have told her that custody and child support are theoretically modifiable at any time that someone can show a substantial and material change of circumstances (not the “best interests of the child” standard as in other states). So she might not want to block the children’s access to their father for fear that he will go to the courthouse with a post-divorce custody and child support modification case. She would then face at least some risk of impairment of her control over the children and the cashflow that comes with the kids.

Nearly all of the people who testified at the hearing regarding their personal experiences with the Massachusetts family courts would have been better off had they not defended the lawsuit. The legislators hearing the testimony might have assumed that these were unusual and/or horror stories, but our interviews and statistical studies show that their experiences were fairly typical. (Note that, at least for one of the legislators, divorce litigation is never a horror story. Cynthia Creem, a $500+/hour divorce litigator (she’d be getting paid closer to $200/hour in a state without a winner-take-all system), was sitting right next to the chairman. Thus were citizens able to watch, in real time, people with a financial stake in the law making the law.)

Legal-minded readers: Can you think of a good reason for a middle-class man with no unusual financial circumstances to put hundreds of thousands of dollars into defending one of these actions? There is probably a flaw in the above reasoning but I can’t figure out what it is.

[Of course, this advice would not be good in a state that offers fathers a realistic chance at obtaining 50/50 parenting time schedule, e.g., Alaska, Arizona, Delaware, Maine, Pennsylvania ]

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