A new survey, conducted for the National Parents Organization in Missouri shows once again overwhelming support for equal parenting. The poll was conducted by the professional polling organization, Public Policy Polling. It asked a representative sample of 468 Missourians about a number of issues related to shared parenting. The results were unequivocal, a landslide in favor of shared parenting.
The National Parents Organization has had another success, this time in Massachusetts (Beacon Hill Patch, 7/13/18). NPO helped draft and pass House Bill 3090 that encourages judges to order shared parenting in divorce cases. The Bay State’s House of Representatives passed the bill that has now gone to the Senate Rules Committee for consideration.
If the Rules Committee and the Senate as a whole want to follow their constituents’ wishes, they’ll promptly approve HB 3090. In a non-binding referendum, a whopping 86% of Massachusetts voters said they approved of shared parenting following divorce. As in other states, that support crossed all the usual lines of race, class, sex and party affiliation. As a strictly political matter, it doesn’t get much clearer than that; the voters of Massachusetts want shared parenting. Will their elected officials take heed?
Way back in the 80s, I used to watch what was then “The McNeil-Lehrer News Hour.” It usually dealt with three issues, allocating about 20 minutes to each. The show always had guests with competing viewpoints on whatever the topic was. It was so invariable in that way that it moved some wag to write a humorous takeoff on it, something like “Jesus Christ - Son of God or Jewish Troublemaker? Tonight we have two views…”
This article reminded me of that old send-up of McNeil-Lehrer (Japan News, 7/15/18). It’s about the fact that the Japanese government seems to be considering revamping its child custody laws that desperately need it. Japan is explicitly a sole-custody country. Here’s how the article describes its approach to child custody post-divorce:
National Parents Organization commends the Massachusetts House of Representatives for passing an important child custody bill that not only encourages shared parenting in instances of divorce but also stands to improve the health and well-being of thousands of children throughout the state. Read the article here.
According to the analysis by three lawyers in their article for The Nebraska Lawyer, the best interests of the child rule violates three constitutional mandates – substantive and procedural due process and the equal protection of the law. Given that, how should courts proceed to avoid rulings that violate litigants’ constitutional rights? In other words, is there a constitutional alternative to the current practice?
The good sense and legal rectitude of the article in the Nebraska Lawyer attacking the best interests of the child rule in custody cases continues. Its authors offer a short section on equal protection as a possible way to correct child custody and parenting time orders. It then describes the implications for the future of the law on those issues and prescribes a framework for judges in which to issue orders that pass constitutional muster.
The Equal Protection Clause requires states to behave in ways that don’t discriminate inappropriately between people of different races, sexes, religions, etc. Needless to say, family courts routinely place their thumb on the mother’s side of the scale in deciding matters of custody, parenting time, child support and the like. Indeed, that practice has staunchly resisted all efforts at change. In 1993, the U.S. Census Bureau reported that about 84% of custodial parents were mothers. By 2013, the number was about 82%, i.e. no statistical difference. The survey of Nebraska family court decisions indicated that mothers receive sole or primary custody about five times as often as do fathers.
Allow me to apologize. In my last two posts discussing the article in the most recent issue of The Nebraska Lawyer, I repeatedly referred to the “best interests of the child standard.” Mea culpa; it is no such thing. The BIC is no standard at all and never has been. A “standard,” after all, is some sort of known and agreed-on criterion. By contrast, the BIC is anything anyone imagines it to be. It is one thing to Judge A and another to Judge B in the courtroom next door. It is one thing to Judge A in Smith v. Smith and another to the same judge in Jones v. Jones. Whatever the BIC is, it is not a standard. I therefore make obeisance at the feet of my readers and humbly beg forgiveness.
That done, once more into the breech!
The article in the Nebraska Lawyer magazine entitled “Yes, Virginia, the Constitution Applies in Family Court, Too” is a stunning indictment, not just of the “best interests” standard, but of family court orders generally.
It attacks those orders on three different constitutional fronts – substantive due process, procedural due process and equal protection.
The July/August issue of The Nebraska Lawyer, i.e. the house organ for the state bar association, is quite remarkable. It includes an article by three of the state’s most prominent trial lawyers. Their topic is the dubious constitutionality not only of the “best interests of the child” standard, but of the orders issued by family courts generally. Their article should be required reading for every family court judge and lawyer practicing in those courts. Plainly, neither the lawyers nor the judges have a very firm grasp on some basic constitutional concepts.
One benefit of the excitement over now-rescinded Trump Administration policies regarding undocumented adults entering this country with children is that it’s produced a focus on children and what happens to them emotionally when they’re separated from their parents. This article is a pretty good one in that regard because it truly is about children and the trauma they suffer when removed from their parents (Wall Street Journal, 6/20/18). That is, it’s more than just an excuse to bash the Trump Administration.
It’s hard to know under which category to file scandals like this one (Wall Street Journal, 6/26/18). How about “Government Interference in Families?” Or perhaps “Governmental Deprivation of Parental Rights?” “Big Brother Knows Best” is another possibility. So is “Child Trafficking.”
I first wrote about this way back in 2011. Then as now, thousands of Spanish adults are clamoring for the government to produce records of a policy during the post-WWII Franco regime that encouraged hospitals to take newborns from Leftist parents, tell the parents the children died, produce fake death certificates and hand the children over to parents more friendly to the government. Needless to say, money greased the wheels of this particularly odious practice. It went on from just after the end of the war until after Franco died in 1975.
In 2012, Great Britain decided to prohibit access to legal aid in all cases except those involving domestic violence. And guess what happened. Claims of DV shot up (BBC, 6/3/18). Their numbers have increased 30% since then and are going up again this year. It seems that solicitors are accurately telling potential clients that they don’t qualify for legal aid unless they make a claim of abuse. Unsurprisingly, many people decide that access to free legal help is worth distorting the facts a bit.
Back on May 25th, I wrote this piece on new family law legislation currently before the Canadian Parliament. I pointed out that the bill would do little worth doing. (Changing terminology is hardly earth-shaking.) And of course it entirely ignores the concept of shared parenting. I further said that, since it’s embraced by Canada’s family law bar, the bill is automatically suspect. No family law section in the United States has ever supported a shared parenting bill, mostly because shared parenting threatens lawyers’ fees. Family lawyers thrive on conflict and an equal parenting presumption would tend to make child custody issues easier to understand and less threatening to both parents, thereby reducing conflict.
In short, I excoriated both the bill and the lawyers. Now I learn I was too kind (Advocate Daily).
From Everyone at the National Parents Organization, have an enjoyable and safe 4th of July. Don't even think about family court reform. Save that until the 5th.
The Florida Supreme Court has taken a small step toward sanity in the Sunshine State (WPTV, 6/29/18). For the first time, it ruled that an unmarried father has standing to assert his parental rights to a child born to a mother who’s married to another man. Prior to the ruling, such a father had no legal rights to the child because the law established the husband as the father.
Continued from Friday.
Judge Arali Duarte’s decision to ignore the plain wording of the Hague Convention on the Civil Aspects of International Child Abduction and deny Dr. Christopher Brann the return to the U.S. of his son Nico is, in current parlance, quite a piece of work. To say that it is transparently biased against an American father and in favor of a Brazilian mother whose parents just happen to be quite wealthy and influential is to understate the matter altogether.
As I’ve said before, Judge Duarte was wrong on the law and on the facts. Here is a bit more detail on those concepts.
Continued from yesterday.
In January, 2014, two separate arms of the Brazilian government weighed in on the case of Marcelle Guimaraes’ abduction of her son, Nicolas (Nico). Each of them supported Nico’s father, Dr. Christopher Brann. Those were in addition to yet a third arm of the government, the Ministério Público, that had previously advised the Bahia state court that the matter was one of child abduction governed by the Hague Convention on the Civil Aspects of International Child Abduction and not by the family law of Brazil.
The Brazilian Central Authority, an arm of the Foreign Ministry, concluded that the case was one of abduction, that the Hague Convention governed its disposition, that Marcelle had illegally abducted Nico and that there were no exceptions to the rule requiring his return to the U.S.
Continued from yesterday.
Brazilian Judge Arali Duarte didn’t stop at wrongly deciding Dr. Brann’s parenting time with his son Nico, reversing herself a week later and then reversing herself again. No, she went on to utterly misunderstand/disregard the plain meaning of the Hague Convention on the Civil Aspects of International Child Abduction.
Continuing with the case of the abduction of Nico Brann to Brazil by his mother, Marcelle Guimaraes from his home in Texas.
Dr. Brann’s ex-wife lied to the family court in Houston claiming that he had been abusive toward her. But she soon abandoned the claim and the judge, faced with findings by as many as ten mental health professionals and child custody evaluators in the case, all saying that Brann was an entirely fit and loving parent and some casting doubt on M’s parenting, ordered shared parenting. Realizing that she would never convince the Texas court to grant her sole custody, Marcelle simply abducted Nico to Brazil.
That she did so after long pre-meditation, the evidence makes abundantly clear. For example, she got Christopher Brann to agree in writing to an 18-day vacation to Brazil for her and Nico. That was to begin on July 2, 2013. But as early as April of the same year, she had secretly enrolled Nico in a school operated by her family and, by early May, had accepted a job offer to teach there. The school year was to begin on July 10, just eight days after their arrival.
I return now to the astonishing case of Dr. Christopher Brann, his ex-wife, Marcelle Guimaraes and their son, Nicolas (Nico). Readers will recall that Marcelle abducted Nico from Texas, where he’d lived all his life, to Brazil, her home country. Her parents, Carlos and Jemima, assisted in the abduction. They were apprehended in Florida, arrested and tried in Houston, where a jury found them guilty of aiding international kidnapping. They will be sentenced on August 2.
Since my last post on this case, I’ve received additional information that, predictably, reveals the case to be even more outrageous than I previously thought. Nico has been held in Brazil in clear violation of the Hague Convention on the Civil Aspects of Child Abduction, a fact even the government of Brazil openly acknowledges. And yet there he remains, at least for now. Put simply, the courts of Brazil are in frank and open violation of the Convention to which Brazil and the U.S. are signatories.
The to-do about the Trump Administration’s decision to enforce criminal law by arresting undocumented aliens, even when they’re in the company of minors gets more hypocritical, ironic and frankly dishonest with each passing day. It started with a photographic image of kids in holding cells that went viral over social media. That photo was quickly taken down when it was revealed that it had been taken in 2014, i.e. during the Obama Administration, and therefore couldn’t be used to denigrate the current president.
Then Time Magazine ran on its June 12th cover a photo of a little girl, distraught and weeping, staring up at an apparently unmoved Donald Trump. The caption read “Welcome to America.” Of course no such little girl was ever in Trump’s presence. It was a photo montage, and that much at least was evident.
What wasn’t evident was that, far from being a poster child for the heartlessness of Trump’s policies, the little girl is in fact the precise opposite. Read about it here (Daily Mail, 6/21/18).
I return now to Dr. Brad Wilcox’s pre-Fathers’ Day message in which he debunks five popular myths about dads. My first post on that is here.
His second and third myths don’t require a lot of explication. “Women Want Everything 50-50” is well-known to be false. What women and men both want is a firm sense that a relationship is fair, i.e. that neither is pulling too much of the load. That usually means that Mom does most of the child care and Dad most of the earning, or, some version of traditional sex roles. Few couples, if any, attempt to enforce a strict 50-50 sharing of all tasks and, it seems clear to me, anyone who does is incapable of maintaining a serious, stable, intimate relationship.
Wilcox’s third myth, “Cohabiting Dads are Just the Same as Married Dads,” is similarly easy to dispose of. They aren’t and neither are cohabiting mothers. Like it or not, marriage is a great deal more than “just a piece of paper.” Marriage typically means greater emotional commitment of the adults to each other and to their children. That commitment means a longer-lasting relationship and more careful, loving and nurturing parenting of the kids. Much science bears this out.
Meanwhile, Wilcox’s myths Four and Five go together, but he betrays no awareness of the fact. Myth Four claims that “The Kids are Alright.” Again, they’re not. Kids without fathers are indeed far from “alright” and Wilcox makes the point cogently. After skewering the myth-monger and thoroughly loathsome Sandra Tsing Loh, Wilcox offers this:
According to research by Sara McLanahan of Princeton University and Paul Amato of Penn State, girls whose parents’ divorce are about twice as likely to drop out of high school, to become pregnant as teenagers, and to suffer from psychological problems such as depression and thoughts of suicide. New research indicates they are also less likely, as they move into adulthood, to attend and graduate from graduate school. Girls whose parents’ divorce are also much more likely to divorce later in life.
We are also increasing hearing the voices of adult children of divorce, who tell us that the loss of their parents’ marriages brings lifelong, though often hidden, suffering.
Fortunately for everyone, at least among college-educated Americans, the divorce rate is falling sharply. Those are the ones who were kids in the 70s and 80s when adults decided divorce was a “no-harm, no-foul” event that freed adults from less than perfect relationships and weren’t a problem for kids. Those kids, now grown up, know the truth about divorce and do their best to avoid it.
But is it divorce itself that harms kids? Or is it the way divorce is done by state laws and the judges who adjudicate child custody cases? Wilcox’s fifth myth that “Dads are Dispensable” is of course far from the truth, but I find it odd that he didn’t notice the quite obvious connection between the importance of fathers to children and the harm inflicted on kids by divorce. Put simply, divorce and the loss of Dad are often one and the same. Does Wilcox really not see that?
This myth fails to take into account the now-vast social scientific literature showing that children typically do better in an (sic) intact, married families with their fathers than they do in families headed by single mothers.
Very true, but Wilcox left out another arrangement altogether – equally-shared parental care post-divorce. Yes, intact families are better than families headed by single mothers (or fathers). But there’s an alternative to both. Another “vast social science literature” demonstrates that children in shared parenting arrangements tend strongly to do better than those “in families headed by single mothers.” Is Wilcox aware of that science? If he is, you’d think he’d mention it in an article about the value of fathers to children. If he’s not, he has no business opining on the subject.
[The myth] also overlooks the growing body of research indicating that fathers bring distinctive talents to the parenting enterprise. The work of psychologist Ross Parke, for instance, indicates that fathers are more likely than mothers to engage their children in vigorous physical play (e.g., roughhousing), to challenge their children—including their daughters—to embrace life’s challenges, and to be firm disciplinarians.
Not surprisingly, children benefit physically, mentally, and emotionally from being exposed to the distinctive paternal style. Sociologist David Eggebeen has shown, for instance, that teenagers are significantly less likely to suffer from depression and delinquency when they have involved and affectionate fathers, even after controlling for the quality of their relationship with their mother. In his words, “What these analyses clearly show is that mothers and fathers both make vital contributions to adolescent well-being.”
That of course is something every judge ruling in child custody cases should be made to read and reread every day. Human beings are a bi-parental species. Unsurprisingly, the sexes tend to parent differently and children need both forms of care. Mothers’ style tends to inculcate self-esteem, something that everyone needs.
But self-esteem needs to be tempered by an understanding that, while your parents may love you unconditionally, no one else does. To the cop on the beat, your first-grade teacher, the teller at the bank, etc., you’re just another person, one of many, no more entitled to respect or special treatment than the next person. Fathers’ parenting tends to inculcate that understanding in kids. It’s necessary to get along in the world. And it’s necessary to counterbalance mothers’ style of parenting.
Articles like this one continue the verbal assault on the Trump Administration’s separation of children from adults when they cross our borders illegally (Detroit Free Press, 6/16/18). In this one, a University of Michigan law professor, Vivek Sankaran, reprises the usual talking points that rightly emphasize the trauma to children when the adults go to prison and the kids go either to detention or foster care. Unquestionably, the children suffer the same trauma that all kids do when they’re separated from their parents. These kids additionally suffer the pain of experiencing that in an unfamiliar place.
Sankaran goes a step further than previous articles to compare the Administration’s policy to that of CPS agencies. To put it mildly, he betrays little knowledge of how the child welfare system actually works. He knows the law well enough, but says nothing about the realities faced by children and parents when attempting to deal with CPS.
[F]ederal and state child welfare laws allow the government to remove children only as a last resort, when physical separation is necessary to assure their own safety.