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Bai MacFarlane update

Readers might remember that back in March the Plain Dealer had a story about the impending divorce of Bud and Bai MacFarlane, founders of the Mary Foundation. I blogged about it here.

Next week will be an especially sad and difficult one for Mrs. MacFarlane. Under court order and threat of being held in contempt, she will have to send her school aged children to school next week for the very first time. This is despite the fact that the court psychologist had found that Mrs. MacFarlane had done an "excellent job" in educating her kids, but in the words of the psychological report "To this point, Mrs. Macfarlane has done an outstanding job educating her sons. I believe, however, that the boys will benefit from a more traditional educational environment."

According to Bai MacFarlane:
"On August 30th I will be having to decide to home school their children against the opinion of a court ordered psychologist OR l will have to send them to the school designated by the psychologist. In January 2004, (without having the opportunity to give testimony as required by Ohio Law before a judge makes orders for children) I was threatened that if I don't agree to quit home schooling, the judge would take our children away from me all together. I am arguing that the church should have jurisdiction and the whole case should be dismissed."


I find this outrageous on a number of levels, but particularly because Bud MacFarlane was such a supporter of Home Education! It's appalling to me that he would use his children as pawns against his wife and that in the middle of his divorce action he would yank them out of the routine and educational environment they were thriving in. How upsetting this must be for them.

This however is not the first time that the children have been forced to endure a court ordered mandate that disrupted their lives at the demands of their father. On Bai's web site she says that she was forced to wean her youngest child because her husband demanded that all of the children be able to spend time with him - without her.

From the website:
See that beautiful boy up there. He was weaned by court ordered visitation. He was forced to leave his familiar surroundings to go be with his father in the place he rented.


Bai MacFarlane also sent out a press release last week.

Press Release — August 23, 2004
-- submitted by Judy Parejko

Couples who marry in the Roman Catholic Church are bound by an antenuptial agreement (also called a prenuptial agreement), which includes specific rules about separation and divorce, according to a brief filed today by Cleveland attorney Bob Lynch, on behalf of his client, Marie (Bai) Macfarlane.

Mr. Lynch has asked the court to dismiss all temporary orders, arguing that his client's husband, William (Bud) Macfarlane, Jr., violated the couple's "prenuptial" by moving out of the house and filing for divorce without first contacting the bishop. A judge, operating under the Ohio No-Fault code, has already ordered the sale of the family home as well as a change in schooling for two of the couple's four children.

According to the argument presented by Mr. Lynch, the couple willingly agreed to abide by the Church's "rules" during their Pre-Cana marriage
preparation and also prior to exchanging vows on their wedding day. He supports his argument with a 4-page affidavit, written by Ben Nguyen, who is a canon lawyer and serves as Chancellor of the Diocese of La Crosse, Wis. The affidavit outlines the nature of the "de facto" prenuptial agreement to which all Catholics consent prior to marrying in the Catholic Church.

Previous case law shows that the prenuptial agreements of Orthodox Jews have been upheld by civil authorities. Mr. Lynch asks the court to uphold his client's prenuptial agreement in the same way.

Judge Cheryl Karner, who is hearing the case, and is herself Jewish, does not appear to understand the significance of the Macfarlane's Catholic prenuptial, evidenced by the following comments she made at a prior hearing:

". . .your religious conviction and the contract you entered into in front of your priest, has priority, I can understand that from a religious point of view, but it doesn't from a secular point of view and doesn't from a legal point of view."

Typically, the Catholic Church does not get involved in divorce until after the divorce has been granted. At that time, when one of the parties petitions for an annulment in order to re-marry within the Church, the case for annulment is heard by the Church's tribunal. But in The Code of Canon Law, canon 1153 requires that a spouse must first demonstrate to the bishop or the tribunal that there's an acceptable reason for separating from the other spouse, unless there is "danger in delay". In addition, canon 1692 requires that a spouse must receive authorization to "approach the civil forum." Mr. Macfarlane did not first consult with Cleveland's Bishop Pilla before moving out of the family home and subsequently filing for divorce. Ohio courts grant a no-fault divorce to the petitioner after one year of separation, no matter what the circumstances are.

Stephen Safranek, a professor of Law at the Ave Maria School of Law in Ann Arbor, Michigan, maintains that the contract they made placing jurisdiction in the courts of the Catholic Church should be upheld, in the same way that other arbitration agreements are upheld.


When the case was first filed, Mrs. Macfarlane had asked the judge to send both herself and her husband to conciliation services, so they might resolve their conflict, but Judge Karner would not do so unless both parties were willing to attend, and Mr. Macfarlane refused.

Mrs. Macfarlane then learned that Cuyahoga County had never even instituted any conciliation programs, as are required in Ohio Revised Code 3117, which was enacted to ameliorate the affects of the "no-challenge" system of no-fault divorce, where the petitioner is always granted his/her request for a divorce. She suspects that this Code has not been properly implemented in any Ohio county, which means there is nothing offered to the spouse who wants a chance at preserving his/her intact family when facing the threat of divorce.

The change to "no-fault" divorce was originally promoted in the late '60's by lawyers as a way of actually saving marriages --- by eliminating the bitter acrimony of the "fault"-based divorce system where one party had to accuse the other of wrongdoing. In addition, discussion about changing the law included the idea that "court-ordered counseling" would be part of this new system.

The sinister side to no-fault divorce is that most people believe that it means "by mutual consent", whereas up to 80% of divorces are "coerced" by judges who feel pressured to keep the divorce "conveyor" belt rolling. Reluctant spouses are forced to sign "agreements" about property and children at the threat of being jailed. Mrs. Macfarlane has documented her own experience in a 100-page book, "and Justice for None" which she quickly wrote to convey how diabolical the system treats people like her.

The Macfarlane case is significant, since there are no safeguards left in the civil system for marriages facing divorce. The Catholic Church, which views marriage as a Sacrament, can use the laws that are "on the books" in The Code of Canon Law to help families avoid the devastation of divorce. Other churches may be challenged by this Catholic example and institute their own similar policies to help families.


read this too:

August 23, 2004
An Ohio wife and mother has filed an unprecedented divorce challenge, which has the potential -- certainly for Catholic marriages but possibly for ALL marriages -- of impacting the "routinized" approach now taken by courts in handling no-fault divorce. In confronting the prevailing "no-fault" system with its harmful effects on adults, children, and society, she models her convictions after Catholic Saints --- Thomas More, Joan of Arc, and Maximillian Kolbe --- all of whom stood up against great odds for what they believed in.

Marie (Bai) Macfarlane, who is the defendant in the case, has asked the civil court to transfer jurisdiction of the case to the Catholic Church, arguing that, prior to their marriage, she and her husband had entered into a "de facto" prenuptial agreement to abide by the "rules" of the Church. These rules include the requirement to first contact the bishop before moving out or filing for divorce.

On her behalf, the Chancellor of a Wisconsin Diocese who is a canon (Church) lawyer, has filed an affidavit, outlining the nature of their binding prenuptial agreement. A supportive legal opinion is anticipated from an Ann Arbor law professor. The press release below is designated for public distribution. Links to the legal arguments used in the case can be found in the online press release at http://www.marysadvocates.org/815pressrelease.html

Attorney Bob Lynch can be reached through his answering service: 216-771-0999 or cell phone 216-401-2488


This is awesome. Too bad its in the Cleveland Diocese but it will still be interesting to follow and see what Bishop Pilla does with it.


There are somethings that we as a community at St. Blog's can do.

First, pray for the healing and reconcilliation of the MacFarlane Marriage. This is still what Bai MacFarlane wants more than anything.

You can help Mrs. MacFarlane with her legal fees and support by ordering the book she has written on her experiences from her web site.

Lastly, Bai is asking folks to help in a letter writing campaign regarding the homeschooling issue. here is a sample of what she would like, sent in your own words of course.

Dr. Deborah A. Koricke, PhD. Judge Cherly S. Karner
Center for Effective Living, Inc. Cuyahoga County Court
INA Building Third Floor
14701 Detroit Avenue, #660 One West Lakeside Drive
Lakewood, OH 44107 Cleveland, Ohio 44113-1056
fax (216) 464-8733
ph (216) 464-7555

Dear Dr. Koricke and Judge Karner,

re: case DR- 03 294327

I have read the psychological report's statement about the Macfarlane boys' education:

"To this point, Mrs. Macfarlane has done an outstanding job educating her sons. I believe, however, that the boys will benefit from a more traditional educational environment. It is therefore recommended that Jude and William enroll in [Name] School as soon as possible, so that they may have the opportunity to enjoy all of the benefits, social, education, and otherwise, that traditional schooling affords. It is also recommended that all of the boys be enrolled in traditional school no later than the third grade. [Name] School is recommended as both parents seem to feel this school provides an environment that will be beneficial for their sons."

[I have read Mr. Bud Macfarlane's writings and he has always supported and promoted homeschooling. It is quite mysterious that he would change his mind regarding his own children]. I would like to offer you an experienced opinion. I am a ________ professional, and as the [father/mother] of [four/three] children, we have been successfully homeschooling for [ten/five] years and we believe homeschooling provides superior educational and social formation.

I assume you are aware that divorce has been shown statistically to be devastating to children -- they are more likely to have trouble with drugs, sex, the police, and with their self esteem; they perform worse in school and professionally. Homeschooled children are statistically more likely to have less trouble with drugs, sex or the police and they have great self esteems and they perform better academically and professionally. I understand Bai has provided you with material from Dr. Brian Ray, of the National Homeschool Education Research Institution, which supports these statements.

From Bai's family I have learned that none of the boys want to go to institutional school, and their mother wants to continue homeschooling. I pray that you recommend the Macfarlane boys continue to be homeschooled as long as possible, especially since homeschooling is one cause of joy and stability in their lives which they can retain after their intact home has been destroyed by their father who abandoned their mother. Their suffering should be minimized; they are innocent bystanders.

Sincerely


Bai suggests that everyone keep a copy of the letter they sent in case they get discarded. It would be good to know how many were sent as well. I would be happy to keep track and pass that information along if anyone is interested in writing.



marriage


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