The extent of illogic required to deny a fit father access to his child is often astonishing to behold, and this case is no exception. Equally qualified parents plus the court's acknowledgment that "[t]o the extent feasible, and in the best interest of the child, physical custody of the child should be shared equally" equal 50/50 shared custody, right? Wrong, as this case
The extent of illogic required to deny a fit father access to his child is often astonishing to behold, and this case is no exception. Unlike so many, the case of Mark Griffith vs. Evlyn Lary
is pretty tame - very tame in fact. There are no allegations of violence or abuse, no child abductions, no gunshots, no contracts with hit men.
That's good news on a number of fronts, one of which is the fact that it allows us to see unadorned, the workings of the mind of a family court judge - a fairly typical one I'd guess.
Griffith and Lary never married, but are the parents of a daughter, S.G. who's now 4 1/2 years old. Griffith is 26 years old. He's employed full-time as a mechanic and is married to a school teacher named Lacy Griffith. He has 50/50 custody of a son, C.G.
Never having been married to Lary, Griffith went to court to seek an equal parenting arrangement of the type he apparently has with the mother of C.G. That's because
Mark and Evlyn currently share physical custody of S.G., and since she was ten months old, Evlyn has allowed Mark to spend time with S.G. on Tuesday and Thursday night of one week, and Thursday, Friday, and Saturday night of the following week. Mark contends that Evlyn indicated that they would share custody equally once Evlyn graduated from college. However, since Evelyn graduated from college in December 2009, the parties' arrangement has remained the same.
Note that Lary "allowed" Griffith certain minimal visitation with his daughter. I'll guess that Griffith wasn't happy with an arrangement that was solely at the Lary's discretion. Plus, he thought they had an agreement to go to 50/50 parenting time once she graduated, but she reneged on it.
So he went to court to get equal time spelled out in an enforceable court order. Too bad for him. Although it's hard to tell what percentage of the parenting time Lary "allowed" him it's possible that the trial court actually reduced his access to his child. Here's what the court gave him:
a. Every other weekend from Thursday afternoon when the child is picked up from daycare or school, until Sunday morning at 10:00 a.m.;
b. Every Tuesday from the time the child is picked up from daycare or school until the child is returned [to] school or daycare on Wednesday morning;
c. One-half of all holidays; and
d. At least one full week in June, July and August, in addition to the regularly scheduled custodial periods.
That works out to a little more than 25% of the parenting time. Now, remember what the appellate court said that I quoted in the first sentence: "Physical custody should be shared equally." That's not just the court saying that, it's actually referring to a state statute mandating equally shared custody.
But of course there are a couple of qualifiers. One is "to the extent feasible," which is sensible. We don't want parents who live 500 miles apart to be hamstrung by an untenable custody order. The second is "in the best interests of the child."
So how do those two qualifiers affect Griffith's claim to equal custody? Mark was the only witness at the trial of the case, so there is nothing to contradict what he said there.
Mark notes that he and Evlyn live within the same school district about four miles apart. He also notes that he and Evlyn have no scheduling problems or transportation issues. Mark asserts that this is the ideal case in which LSA-R.S. 9:355(A)(2)(b)'s goal of granting the parties equal sharing of their daughter should apply. Mark concludes that there is no evidence in the record to support anything other than an equal sharing custody arrangement.
Mark believes that the ideal custody arrangement would allow him to raise his two children together. Mark indicated that S.G. and C.G. have a close relationship and that they enjoy spending time together. Mark testified that the children always ask about each other when he does not have physical custody of both.
Mark also testified that on the weekends Evlyn has allowed him to keep S.G., he does not "even have that whole Sunday." Mark indicated that he returns S.G. to Evlyn at 9:30 a.m. or 10:00 a.m. Sunday morning. Mark testified that he has asked Evlyn to allow him to keep S.G. until Sunday evenings, allowing him to spend more time with S.G., but Evlyn has denied this request. Mark indicated that he returns the child on Sunday morning per Evlyn's request because he is "just trying to keep the peace."
So there's nothing whatever to suggest that a 50/50 arrangement wouldn't be feasible. The two live in the same school district four miles apart and their schedules don't conflict.
There's further nothing to suggest that S.G.'s best interests wouldn't be served by 50/50 custody. According to the appellate court's description of him, Griffith seems like a stand-up guy. He's employed, married and has 50% custody of C.G. Plus, S.G. and C.G. have a good relationship and want to be together.
To me it looks like Griffith was correct in arguing that his is the "ideal case" for equal custody.
Despite all of that, the trial court ignored the statute that requires equal custody and went with its version of the same old "every other weekend plus one other night" routine. And according to the appellate court, that's perfectly alright.
From here it looks like a clear violation of the statute as passed by the people's elected representatives. And it's there that the appellate court, like the trial court, goes off the rails.
Appellate courts have a pretty easy job. They usually review a trial court's decisions for an "abuse of discretion." That means that the trial court has broad latitude in what it does and the court of appeals won't second guess it. And that's what the appellate court in Griffith vs. Lary
claims it did - refuse to substitute its judgment for that of the lower court.
But did it? From the record as described by the appellate court, the trial court didn't just abuse its discretion, it misapplied the law. That's exactly the type of thing appellate courts are there to correct. If not that, what? But the court let it pass.
Well, actually it didn't. Actually it reversed the trial court in one way; it told the lower court to change its order to allow Griffith to keep S.G. until 5 PM on the Sundays he has her anyway, instead of returning her at 10 AM.
In other words, somehow it was an abuse of discretion for the court to not add those seven hours to Griffith's parenting time, but not an abuse of discretion to ignore the statute mandating equal parenting in the qualified situations. You figure it out; I can't.
What I can say is that this is the type of nonsense fathers deal with in family courts every day.