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May 14th, 2012 by Robert Franklin, Esq.
Here’s British psychotherapist and former family attorney Charlotte Friedman writing in the UK version of the Huffington Post on the widely-anticipated reform of custody laws in the U.K (Huffington Post, 5/11/12).  She nails it.  That’s not surprising because she’s seen the way family courts operate and specifically how they go about cutting dads out of the lives of their kids.

It was only last year that the government’s inquiry into family courts recommended that there be no change in custody practices.  For them the fact that one-third of British children of divorce have little or no contact with their fathers is not cause to lift a finger to ameliorate family court practices.  Nor, apparently is the fact that family courts routinely ignore mothers’ refusal to comply with contact orders.

Friedman, along with much of the rest of the country, knows the Norgrove Report was just an exercise in tolerating dysfunction at the expense of children and fathers.  But unlike a lot of people, Friedman knows it from her experience in family court and from dealing with distraught dads in her psychotherapy practice.

My experience both when I was a family lawyer and now as a therapist is that it is so much harder for a father to maintain a close or sometimes any relationship with his children after divorce or separation. My experience is that if a mother alienates her children against the father or subverts contact, then the court really can do and does do very little about it. It is all very well, bringing a mother back to court for breaching a contact order, but if the only sanction is to have a Judge say that you must allow your child to have contact, then the situation will continue. Sometimes, very rarely, the court removes the children and places them with the father. That is because the Court will say that it is emotionally abusive to make your children not want to go for contact. However, if you balance, that emotional abuse against taking children away from their mother where apart from no contact, they are settled and happy, then 9 times out of 10, the court will decide its best to leave them where they are. There are many fathers up and down the country who would dearly love to see their children and have a full and meaningful relationship with them.

And Friedman is under no illusion about which parent the family courts empower to separate the children from the other parent.

There are many children up and down the country who don’t see their father because of how their parent’s separation has been handled, normally by the resident parent.

And she sees the impact the whole rotten system has on children.

Those children will grow up feeling that their father has abandoned them or that their father is not a sufficiently good person for them to have a relationship with him. Given that every child is made up of half of each of his parents, thinking that your father is ‘bad’ is not a great way to foster self-esteem or encourage healthy adult relationships in later life.

Given that courts are often unwilling to enforce contact orders to permit a continuing relationship between the child and the father, Friedman is skeptical about how effective any new law designed to promote just  that might be.  After all, if they don’t enforce their own contact orders that would promote father/child relationships, what good will new wording do?

If we can’t stop mothers alienating children or being implacably hostile to their ex-partner in front of the children, then at least we can provide some sanction which will release the children from that bind and enable them to have a good enough relationship with their father. Will legislation that simply promotes an ongoing relationship with both parents achieve that? I think not. Will it make any difference to what has been going on and silently sanctioned by our Courts for years?

Again, I think not.

Sadly, for all those fathers who suffer so much by being marginalized in their children’s lives, this legislation when it comes, will be too little, too ineffective and just another example of wasted rhetoric. If the Government means business and truly believes that our society, present and future would be better if children had a good, loving unfettered relationship with both parents, then legislation needs to be introduced which reflects that. The evidence is there, it needs to be acted on.

For my part, I’m a bit more optimistic about legal language that requires promotion of the child’s relationship with the other parent.  The fact is that, in many cases, violation of a visitation order can be tough for a non-custodial parent to prove.  She said the child was sick, the dad didn’t show up for the drop off/pick up, the child didn’t want to go with dad, etc.  How does the father prove those things didn’t happen?  It can be hard sometimes.

Promoting the child’s relationship with the other parent, on the other hand, offers the opportunity to dad to open the evidentiary field up a bit.  Does she leave instructions with school officials that dad is to be allowed access to school records, be informed of school events, etc.?  That’s easy to prove or disprove; just subpoena the school records.  Ditto doctors records to prove whether she instructed the doctor to allow dad access to them.  The same holds true for extracurricular activities like sports.  Did she tell the coach that it’s OK to let Dad know when little Andy or Jenny’s next soccer game is?  It’s easy to find out, and of such things is “promotion of the non-custodial parent’s relationship with the child” made.  So I think the new language – if it comes about – will be a step in the right direction.

That said, I agree with Friedman.  Until courts start showing some spine in dealing with recalcitrant custodial parents, 83% of whom are mothers, we can expect their flouting of court orders to continue.  Why wouldn’t it?  As long as they know to a virtual certainty that no behavior of theirs, regardless of how outrageous, will trigger any sort of punishment by the court, it doesn’t much matter what the wording of the statute is.  They’ll continue to deny children contact with their fathers and courts will continue to turn a blind eye.  The reform language will only make turning that blind eye somewhat more difficult.

Friedman’s point is made at length and elaborated on by Australian historian John Hirst in his long essay, “Kangaroo Court: Family Law in Australia.”  Hirst makes the telling point that no other court takes the view of its contempt powers that family courts do.  All other courts, both civil and criminal know that their orders must be obeyed by the parties and that, when they aren’t, punishment must be meted out.  To do otherwise is to encourage the flouting of court orders.  All judges know this and act accordingly; all judges, that is, except those in family court.  They’re perfectly happy to let violations of contact orders go unpunished with the unsurprising result being that mothers continue to violate the orders.

Kudos to Charlotte Friedman for telling it like it is about the disgraceful behavior of family court judges in continuing to marginalize fathers in the lives of their children.  It’s a practice that harms fathers, children, society generally and does mothers no good.  It’s a practice that’s got to end.

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