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July|August 2002
Return of the Deadbeat By Amy Benfer
Grave Offense By Emily Bazelon
Milken's Revenge? By Roger Parloff
Language Matters By Michael Erard
Santiago's Aftershocks By David Bosco

Return of the Deadbeat

Amy Benfer on the appearance of her daughter's father, who after his nine-year absence wants to become a dad.

By Amy Benfer

When my daughter was very young, my parents and I joked that her father would reappear in ten years, after he was married and had bought his first house. We were sort of right. He wasn't exactly married—he lived with a twice-divorced woman and her three kids. He didn't actually own a house—his girlfriend had one from her divorce settlement. But our timing wasn't off by much: Kate, our daughter, was 9.

It's easy for me to see why Steve wasn't ready to be a parent when Kate was born; neither of us was. We were both 16. It was the usual accidental pregnancy, and we had the usual high school romance. I never considered marriage, mostly because I knew enough to know that I didn't want to box myself in. I broke up with Steve when Kate was 6 months old (all names have been changed).

The breakup was perfectly amicable; we were just very different. I was living with my parents in Idaho, taking AP classes and getting ready to go to college. He had dropped out of high school before our junior year, was working as a dishwasher, and, for a couple of years, had been in and out of juvenile hall for petty crimes like shoplifting. In the months after the breakup, we talked on the phone, and my parents and I invited him to our house so that he could see Kate. We established paternity (though at first he protested about taking the test) and child support ($80 a month since he was so young, though he didn't want to pay and, after he owed thousands in back support, had his wages garnished). He never asked for a formal agreement about visits, and he saw Kate sporadically when she was a toddler.

I moved to Connecticut to start college when our daughter was 2. Steve didn't object. In fact, he left Idaho himself to join the Army. Apart from the very rare phone call or letter, he didn't contact us for close to a decade. I knew he was living in Georgia and working for a chemical company. Once he told me over the phone that he had sent Rush Limbaugh letters about me.

Then he showed up unannounced at a family picnic at his mother's house. Kate was there; her grandmother had stayed in close touch with her and I did my best to get them together. Steve came with a girlfriend and two kids around Kate's age who called him Daddy. He told Kate, "I am your father." She was curious—by that time the running joke was that her father was my best friend, Alice, who had gone from high school to college with us—but also confused and pissed off. She'd imagined someone glamorous. Now here was this man with a lot of grey hair and other kids competing for his attention.

Over the next two years, without letting us know ahead of time, Steve came to his mother's house to see Kate maybe four times. He didn't ask for regular visits. He would have had no place to bring Kate, since he was frequently unemployed and couch-surfing with friends and relatives. Then he moved in with a new girlfriend and her three kids. Several months later and out of the blue, when Kate was 11, he decided to ask if she could come for overnight visits—or as he put it, sleepovers with his girlfriend's daughter Kim, who was around Kate's age. He wanted Kate to come for Christmas Day and New Year's Eve, and for six weeks in the summer.

To me, the requests seemed outrageous. It didn't help that the differences between Steve and me about politics, lifestyle, and childrearing philosophies had become comic. He worked as a roofer, voted as a conservative Republican, worshipped as a Baptist, and lived in rural Idaho. I worked as a staff writer and editor for a liberal website, made more than twice the money he did, didn't worship anything, and lived in downtown San Francisco. (None of this is necessarily typical—the parent who has to balance childrearing with other goals often has less education and a lower standard of living than the parent who has grown into adulthood without a child to take care of.)

Over months of long-distance phone calls, Steve and I wrestled with our differences. I worried that he believed in physical punishment; he promised he would never hit Kate. He worried that downtown San Francisco was a ghetto and wanted to send her to Baptist camp. I asked him how he would deal with Kate's having different values from his. He said he expected that, just as long as, you know, she didn't think lesbians were O.K. I said that some of our best friends were lesbians.

Steve's plan affected other people besides Kate, him, and me. She had spent each summer with my parents since she was 5. Over the years, my mother had become Kate's second parent. They began to bond in the delivery room, and until Kate was 2, my mother (who was already a stay-at-home parent for me) took care of her while I went to high school. Kate and I came back each summer for three months during college. After I graduated and started working, it became clear that while we enjoyed our life together in the city during the school year, spending the summer apart gave her a break from day care and me a break from my working-parent schedule.

At my mother's house, Kate could sleep in, run around the yard, play with the dog, and get the attention of an at-home parent that I couldn't give her. She became a champion swimmer. She regarded those visits as an inviolable right. Her father, who also worked during the day, planned to send her with his girlfriend's children to the Boys and Girls Club, which had basketball but no swim team. Kate's reaction to the prospect of spending extended time with her father was to say, "He can't have me. That's my time with my Mama." (Kate has always called my mother "Mama" and me "Mommy"—people who don't know us can never decide if her mother is the one who looks too old, or the one who looks too young.)

Her father didn't see the summer as Kate's time with her grandmother. To him, the biological connection between him and his daughter gave him rights ahead of everyone—my mother, his mother, my friends—who had given her emotional and sometimes financial support. I disagreed. Steve, whose mother works as a legal secretary, ended all of our fights by threatening to take me to court. That scared me. Would I find myself standing before a judge in Idaho, where Steve now lived, defending my single parenthood, my gay friends, my tiny, messy, urban apartment, and my propensity to take Kate everywhere with me, from college to literary readings to parties?

When I tried to figure out whether the basis for my fear was real, I learned that the law doesn't have much to say about single parents like me. Every family-court workshop I attended and every book I picked up began with the presumption that I had been married to my child's father and that he and our child had a long, intimate relationship from birth. There were even soothing tips about how to deal with my anger at the breakup of my marriage.

Courts know what to do with deadbeat parents: prosecute them until they pay up. But what about repentant deadbeats? Should they be allowed to see and help make decisions for children they haven't raised? Should they lose their rights as parents entirely? Or is there some legal in-between, like the status of a birth parent who places a child for adoption, that could give a long-absent father or mother the chance to know his or her child, but not with all the rights and authority that parenthood brings? Years of talk about out-of-wedlock births, single parenthood, deadbeat dads, and fathers' rights have left these questions unanswered.

In family law, which is based on sociology and child psychology, decisions about custody and visits are supposed to be guided by the "best interests of the child." Since the 1980s, family courts have shifted away from what was called "the tender years doctrine," which presumed that children did best with their mothers (remember the movie Kramer vs. Kramer?), and toward a preference for giving both parents custody whenever possible. Many states like California, where I live, forbid judges from basing custody on a parent's gender. Joan Hollinger, a law professor at Boalt Hall of the University of California, Berkeley, says that the preference for two parents is increasing. You see this in Republicans' support for tying welfare payments to marriage-incentive programs, and also in the "two is better than one" mantra that gay and lesbian couples invoke to argue for their right to adopt.

If I had been married to a man who wanted to adopt Kate, her father's long absence would have given me a good chance to take away his parental rights, if I'd wanted to, so that she would gain a stepfather. Many states require unmarried fathers to sign a "putative father registry" to establish paternity. If a father doesn't sign, his child often can be adopted—by another couple or by the husband of the birth mother—without his consent. And even if he does sign, adoption is possible if the mother can prove abandonment, which some states define as a year without contact.

But courts have consistently declined to take away an absent parent's rights if the parent caring for the child is single. Cheryl Sena, a family-law attorney based in San Francisco, says that judges generally try to reunite children and their reappearing parents as long as there are no obvious problems between them, like a history of physical or sexual abuse. Jail time or drug and alcohol abuse get taken into account, Sena says, but they don't rule a parent out.

In practice, this means that some courts order visits for parents who have had little or no contact with their children for many years. Often, visits begin a bit at a time. "Maybe you start out by having dinner with the child in a restaurant every few weeks," Sena says. Most courts try to carefully monitor contact, especially if the parent caring for the child expresses concern.

But sometimes—it's hard to say how often, since most custody orders aren't published—courts order extensive contact that disrupts both the life of the child and the parent who has been taking care of her. "Judges can't ever really know the dynamics of a family. They're guessing," Sena says. "Sometimes the experts" that courts rely on "are wrong." While some bad decisions get reversed on appeal, that process can take years, which is a long time in a child's life.

A recent case from Virginia, Long v. Cintron, is an extreme example of a forced reunion. The daughter had lived with her single mother from birth. She didn't see her father between the ages of 4 and 9. In 1997, when his child was 11, the father asked for visits and got them. A year later, the daughter refused to continue the visits. The father went back to court and won more visits. Again, the child said no. Citing the failed visits as evidence of the mother's lack of parenting skills, the judge transferred custody to the father. "It's obvious we're being held hostage by a 13-year-old-child, and I've got to ask myself, 'Who's the parent and who's the child?' " the judge said.

Until that point, the child had done well in school. She was a cheerleader and a dancer who had no problems with discipline. After the judge ordered her to move in with her father, she ran away from home and ended up in a psychiatric institution. Finally, her father sent her to boarding school. In 2000, the Virginia Court of Appeals sent the child back to the mother, saying that the lower court was wrong to "transfer custody of this 13-year-old girl to her father who was essentially a stranger to her."

The lower-court decision in Long v. Cintron is about as far from the "best interests of the child" as you can get. (If it were my daughter who went from the cheerleading squad to a psychiatric institution, I would do everything possible to sue the judge.) But the decision to give the father custody also reveals biases that aren't confined to a single crazy case. The prevailing wisdom is that one parent should never say or do anything that would discourage his or her child from seeing the other parent. California, like many states, has codified this maxim. In custody disputes, courts are to consider "which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent."

So it's no surprise that in Long v. Cintron, the judge described the father as "patient, courteous, [and] respectful." The mother, on the other hand, was described by a court psychologist as "bitter and hostile" toward the father. And in court, the daughter called her father "a prick" and told him to "go to hell." The judge assumed that this anger reflected badly on her and her mother. But couldn't hostility be an appropriate, self-protective reaction to abandonment—which, to a child, can itself feel like hostility? Who's to say that a father who disappears for five years and then demands visits without considering his child's wishes is not, in fact, a prick? It sounds to me like a pretty eloquent expression of rage.

Fathers' rights groups, as well as some psychologists and politicians, place the blame for years of absence on women who frustrate fathers' rights to visit their children, and on the courts. Historically, they have a point. Through the 1960s, unmarried fathers had few, if any, rights concerning their children. The assumption was that the only legitimate family was the nuclear one. Since a child with unmarried parents didn't have a nuclear family, the law was written to allow a single mother to find a married couple to adopt her baby without interference from the father.

But that began to change with a 1972 Supreme Court case called Stanley v. Illinois. For the first time, the custody rights of an unmarried father were recognized (though in this case, only after the death of the mother). The father, who had lived with his children, could win custody because he had what in later cases the Supreme Court would call a "substantial relationship" with them.

Beginning in the 1980s and with more success in the '90s, fathers' rights groups began pushing courts to put aside the "substantial relationship" standard and allow parents to come back whenever they chose. "I see re-entry into a child's life as the desire to take responsibility," says Warren Farrell, author of Father and Child Reunion. "It's like a kid who drops out of high school, then decides to come back ten years later. Of course you let them go back." Farrell says he's backed up by studies showing the benefits of equal involvement by both parents. He thinks the best thing for children is custody divided fifty-fifty, often after six months to two years of regular visits.

Farrell says that many single parents welcome being able to share the work of caring for a child. But his central argument is that the absence of a parent creates a wound in a child that only the missing parent can heal. A stepparent or someone else can stand in, but can rarely be a "real" parent.

The parallel is between children who don't see one parent and children whose parents place them in adoption. "The [biological] parent is in every cell of the child's body," Farrell says. "Even if the adoptive parents are the most caring, giving parents in the world, and the bio-parents are drug abusers or drunkards, the child still has that yearning to know where they come from."

The law, however, gives no authority to biological parents once an adoption is final. Adoption means that you give up your rights, and that any future relationship with your child is based on mutual interest and good will. Usually, the law provides for reunions between a child and a birth parent only if both express a desire for contact by signing an adoption registry. Children can sign after they turn 18. (In open adoptions, which have become more common, children are raised knowing who their biological parents are, and contact between a child and a birth parent is sometimes regulated by an agreement signed around the time of the child's birth.) In other words, a reunion through an adoption registry takes place after a child grows up, and only if he or she wants one.

This model, in modified form, could work for children of long-absent parents. It would recognize that parents have authority over their children in proportion to the day-to-day responsibility they take for them, rather than because they show an interest after years of inattention. And it would prevent judges from making children see parents they don't know against their will.

Some courts view the balance between a long-absent parent's rights and a child's best interests in this way. In Kuntz v. Allen, a Pennsylvania case from 1987, a 13-year-old child said of her father—whom she had seen only during sporadic supervised visits—that she did not want him in her life. The judge wrote that the best-interests standard made a parent's rights "secondary and subordinate to a child's physical, intellectual, moral, spiritual, and emotional well-being." Expressing the hope that in time the child would become less angry, the judge limited contact with the father to letters, cards, and telephone calls. The father got a chance to repair the relationship, but not to the extent of disregarding the 13-year-old's feelings or independence.

It's bizarre to send your child to spend time with someone who is a stranger to both of you. I didn't know Kate's father well enough to trust him. Yet I did want her to know him—at 12, I thought she was old enough to decide what their relationship would be. So finally I compromised with Steve. She wouldn't stay with him for six weeks, but she would spend every other weekend with him while she was with my parents for the summer in Idaho. I also tried to reach out to Steve and to his girlfriend, Jackie, with phone calls and invitations to dinners and swim meets.

Our agreement, a notarized WordPerfect document, proved a mistake. Since I had never gotten full legal custody of Kate, my mother was vulnerable to the possibility that Steve would refuse to bring Kate back. We didn't think he'd really threaten that, but if he did, my mother wouldn't be able to challenge him without me because he was on record as Kate's father and so had greater legal authority than she did. And when I got there, I would have no court order to show the police.

Over six weekends, Kate came back with stories that overshadowed the legal problems. On one visit, she got a high fever and asked Steve to take her home. He refused, telling her, "This is your home." Kate said that Jackie comforted her when she got angry with him, but she came back sick and exhausted and spent the next two days in bed. A few days later, she told me about other things that had happened—a fight between Steve and Jackie that ended with a gun getting thrown onto the front lawn (it was unloaded, Kate pointed out), lunch with Jackie's ex-husband while he was on furlough from prison, and a drive with her father while he was drinking. I decided that there would be no more visits without a court order, and that I would oppose unsupervised overnight visits at Steve's house.

But I was in a bad position for a custody dispute. I had just been laid off from the dot-com where I worked, and I was planning to move to New York City, where I couldn't go to family court until I'd been a resident for six months.

For that reason and others, I decided to stay in California. I got a lawyer and, without telling Steve, filed for sole legal and physical custody. I spent Thanksgiving weekend fielding cell-phone calls from the "hit and run" service processor, as he cruised Steve's neighborhood looking for his truck in the driveway. About 15 minutes after the truck was spotted and Steve got my custody petition, he called me, furious. He would get a lawyer, he shouted, and get the case moved to Idaho. He sent Kate long e-mails about the Christmas presents he was wrapping and the lawyers he was hiring. A week later, the e-mails stopped. At Christmas, he sent a postcard promising to redeem Kate's presents from layaway just as soon as he cleared up some financial matters.

The day for Steve's response to my petition came and went. The silence was more frightening than the threats. Would he show up at our apartment? At Kate's school? We broke our tradition of spending Christmas with my parents. My mother flew out for the court date on January 2 of this year.

At 6:45 that morning, Steve called. Before I could ask if he was in California, he asked for my lawyer's phone number—the same phone number that was printed on each page of the papers he had been given, in person, a month before. Apparently, he had lost the papers, the ones with the big stamp saying that failing to respond could result in losing custody of his child.

Steve didn't call my lawyer or show up in court, and he didn't respond to my petition. It took less than two minutes for me to win custody. The judge who heard my case defined "reasonable visitation" as "whatever the custodial parent deems to be reasonable." She laid down a letter of the law that's now often missing from rulings: "Basically Mom is in the driver's seat."

I'd like to think that if Steve had come to court, the result would have been the same, though that isn't something I can count on in this rickety area of the law. In any case, the judge's order gave me official power to make every important decision about my daughter's life.

In the four months since our court date, Steve has called Kate twice. She hasn't returned the calls. She seems to feel more comfortable with Jackie, whom she occasionally e-mails, and with Kim. I like Jackie, but I don't have a lot of confidence in her judgment. Even if I did, I can't count on her sticking around to be Kate's ally on future visits. And I'm afraid that any good will we managed to foster between our families shattered the moment that the service processor showed up on their doorstep.

Last summer, Kate probably had too much contact with her father after ten years of almost none. The time at her father's, like Steve's absence for a decade before, followed more or less what suited him. Now it's up to me to decide what suits her. But I honestly don't know for sure what that is or will be.

Amy Benfer is a freelance writer living in San Francisco. She is a former editor of Salon's "Mothers Who Think" department, and writes regularly for Salon, San Francisco Magazine, and The New York Times Book Review.

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