NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission. All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.
Crime has a context and part of that context is that children are "growing up not knowing the difference between right and wrong,' he said.
"In too many cases, the parents of these children -- if they are still around -- don"t care where their children are or who they are with, let alone what they are doing,' he said. "The potential consequences of neglect and immorality on this scale have been clear for too long, without enough action being taken.'
"Upon further investigation the deputies watched a video recording the male had made that showed the female telling him that she was calling the police because he was making her leave the apartment and she would tell the police he assaulted her."The woman was arrested for making a false report to police. It's an important lesson. Within the bounds of the law, people can protect themselves against all sorts of things by the simple expedient of recording - either by audio, video or both - what another person is doing. The man in this case certainly saved himself a trip to jail and possibly prison time and a lifetime on the sex offenders registry, just by recording the woman with his phone. Check out the law on recording others, in private, in public and on the telephone. Depending on your jurisdiction, some or all of that may violate criminal law. Educate yourself about who and where you can record; then protect yourself accordingly. Thanks to Jerry for the heads-up. Next up is this article (ABC News 4, 8/4/11). Breast cancer in men isn't common, but it happens. According to the Center for Disease Control, about 2,000 men per year will be diagnosed with the disease each year. Sadly, that's just what happened to Raymond Johnson, a 26-year-old tile layer from South Carolina. Johnson is uninsured and not a wealthy guy, and the diagnosis and treatments for his cancer are costly. So he went the Medicaid route, for which he qualifies. But there's a catch; Medicaid reimburses health care providers for services for breast cancer only if the sufferer is female. Men and boys aren't covered.
A patient advocate from the Charleston Cancer Center, Susan Appelbaum, applied to a state program that provides Medicaid for breast cancer patients on Johnson's behalf, but Johnson was denied because he's a man. He recently underwent his second round of chemotherapy, which runs around $10,000 a treatment, and will need several more.Apparently the state's Department of Health and Human Services has known about the anti-male discrimination in breast cancer care for a long time and has begged the feds to change the regulations, but to no avail. My guess is that Raymond Johnson will find himself the plaintiff in a lawsuit against the U.S. Department of Health and Human Services soon. Any lawyer will see this case for what it is - a slam dunk. It's as plain a case of discrimination based on sex as I've ever heard of. Let's just hope Raymond Johnson is around to get the benefit of it. It's a bit hard to figure out why Medicaid excludes men from treatment for breast cancer. The Department surely knows men get the disease and, since so few do, the amount of money saved by not treating them is insignificant. Plus of course it's blatantly illegal. I wish Mr. Johnson the best of luck with his treatments and with his lawsuit. Surely this will encourage the Department to change its regulations denying men coverage for breast cancer care that should never have been promulgated in the first place. Thanks to John for the heads-up. Finally, I've written a couple of times recently about the heavy flak being taken by the Los Angeles County child welfare authority. It's currently resisting compliance with a state-ordered audit of it and similar offices in three other counties. Its resistance is flagrantly illegal, but the office is digging its heels in anyway, strongly suggesting its got a lot to hide. It's the kind of thing that happens when 70 children die in less than three years after the child welfare office was notified they were in danger. Now this article tells us that parents in Utah are demanding a state audit of the state's Division of Child and Family Services (Salt Lake Tribune, 8/12/11).
Led by Darcy Van Orden, an activist who is one of the leaders of Utah"s tea party movement, the protesters claimed the entities are unjustly taking children and placing them with foster and adoptive parents because it"s more lucrative than working to reunite families. The event was part of a national protest of government abuses, Van Orden said.
"I believe there is corruption in the system with built-in incentives for caseworkers to remove children from homes," Van Orden said, adding that too much federal funding goes to support foster care and adoption rather than family reunification services.I've got my doubts about the notion that states make money on the foster care system. I've never seen any reliable data that suggests it's a money-maker for states, but I'd be glad to look at any well-done study of the matter. What's more interesting is the fact that the Division has already undergone an audit that revealed budgets that stand its mission on its head. Child welfare agencies are usually tasked with keeping families together if at all possible. That's known as "family reunification."
A legislative audit released in February found DCFS spends more than $112 million on foster care and adoption assistance, but just $7 million on in-home services aimed at helping reunify families. The audit recommended that the division "reverse its practice of diverting resources from in-home programs."So for whatever reason, the DCFS prefers foster care and adoption to family care. My strong suspicion is that a large subset of that is a preference for foster care over father care. We know that the problem of child welfare agencies ignoring fathers when children are taken from mothers for abuse or neglect is nationwide. That's what the Urban Institute reported four years ago. Indeed, although the identity of the father is known in over 80% of cases, no effort to even contact him is made in over half the cases in which a child is taken from a mother. That's despite federal guidelines encouraging child welfare caseworkers to contact fathers as possible alternatives to foster care. So almost surely that's what's been going on in Utah. The spending habits of the DCFS strongly suggest it bypasses dads in favor of foster care and adoption. And I'd be willing to bet that has more to do with an anti-dad culture among child welfare caseworkers and administrators than it does with making money for the state.
During a lengthy deposition last Tuesday, Pinault's lawyer grilled her on just why she needs a team of heat-packing drivers who are former police detectives - at a cost of $175,000 a year. Evangelista also wants $80,000 a year for a nanny, Pinault lawyer David Aaronson complained to the judge.Now think about the work requirements of a highly sought-after model. How much time does she actually spend - you know - at work? The answer is bound to be "not much." She certainly doesn't work 9 AM - 5 PM the way so many parents do. My guess is that she's actually on the job only sporadically, but it seems that's not all there is to being a super model.
"How many hours a week do you work?" the judge asked the model at one point.
"On days when I do not work, I am working on my image," Evangelista answered, her voice soft, and tinged with defensiveness. "I have to hit the gym. I have beauty appointments. I have to work toward my next job and maintaining my image," she said, "just like an athlete."Well, that's one way to work on one's image and doubtless necessary to a model. Another way of working on one's image would be to try to avoid appearing like one was attempting to use the birth of a child to cash in. But that's the kind of image with which Evangelista seems less concerned. And speaking of motherhood, Evangelista also provided this gem in her deposition:
"She testified that she wants to have a 24-hour nanny because she does not want to be alone with the child..."Yes, that does make being a mother more difficult. It also makes us wonder why she had the child in the first place. Lots of mothers and fathers value that time alone with a newborn more than just about anything, but not Evangelista. She wants the money. The kid? Not so much. All of that is tawdry beyond even what we've come to expect from wealthy and privileged celebrities. But the linked-to article is even more so, seeking to justify the whole thing. And that's particularly strange given the fact that the writer understands that child support in the case won't be based on the earnings of the parents.
New York law states that in high income cases where parental income exceeds $130,000, as in this case, an award of child support should be based on the child's actual needs and the amount required for the child to live an appropriate lifestyle.But the writer, Evangeline Gomez, conflates the needs of the child with those of the mother. To Gomez, round-the-clock nannies for a mother who doesn't want to be alone with the child is perfectly reasonable, even though she grudgingly admits that armed chauffeurs may be less so. Face it, no child with competent parents needs a nanny 24 hours a day, seven days a week, 52 weeks a year, much less armed guards. Courts rightly expect parents to spend some time doing what parents do - taking care of the child. Evangelista seems not to want to do that, which strongly suggests the case should be more about who gets custody that the amount of child support to be paid. Thanks to John for the heads-up.
1) Nothing ever could come close to justifying what Moni Samaan did to his daughter.
2) It is questionable whether Moni Samaan was, in fact, mistreated in family court.It is absolutely true that many California fathers are manhandled in family court, often cut off from their children, punished without evidence on spurious abuse claims, and bankrupted by confiscatory financial orders and demands. However, Moni Samaan had a decent child custody arrangement, apparently over 30% physical time. In the end he was stripped of all parenting time with his child for a perfectly good reason--he repeatedly disappeared with the girl when it was time to bring her back, violating the court order and causing the girl's mother much stress and worry. Tragically, the mother had every reason to worry. The Center for Judicial Excellence is now involved in the case--see the Capitol Weekly piece here. The CJE works to drive recognition of Parental Alienation out of the family court system and encourage courts to uncritically accept mothers' abuse allegations. We laid out the problems with the CJE and its allies position in our Capitol Weekly column Preventing courts from considering parental alienation will harm kids (2/25/10). The CJE is one of our main political opponents, and we were instrumental in blocking two of their bills last year--to learn more, click here. The CJE also stereotypes fathers as abusers and killers, ignoring the well-documented fact that the vast majority of parental murders of children and child abuse are committed by mothers, not fathers. However, in this case it must be said that the CJE is correct in condemning and making an issue of Nabil Samaan's despicable comments. The case is also being discussed in the American Bar Association Journal here. [Late Note: Nabil Samaan has now issued a statement retracting his previous comments.]
Joe Cioffi, a physician from Fairfield, Connecticut, settled for visitation rights to his son after he and the boy"s mother split up. Soon, he decided that wasn"t enough, so he spent four years struggling to win primary custody.
"Why should I be the underdog here?' Cioffi, 59, said of his clash with his former girlfriend. "I"m a professional. I pay my bills. I"m not a criminal. I"m home at night. So we played hardball.'As a physician, Cioffi is probably better suited than most to play hardball in family court. Less well-heeled guys are pretty well stuck with the same old arrangement - she gets primary custody, he gets two days every two weeks visitation and pays child support. But Cioffi and fathers in his income bracket aren't the only ones getting primary custody. The 8% of single fathers with custody of children has a far more diverse demography.
"It"s time for us to stop assuming that single parents are always women,' said Andrew Cherlin, a professor of sociology and public policy at Johns Hopkins University in Baltimore. "There is a visible presence now of single men caring for their kids. We didn"t see that a few decades ago.'Cherlin is a highly respected sociologist who's been studying and writing about family dynamics for many years. And family law professor Margaret Brinig agrees with him. Brinig has done some of the most important analyses of divorce and custody data in the country.
As fathers have gotten more involved in the lives of their children and mothers have increasingly entered the workforce, it has become less unusual for fathers to seek and gain custody.
"If the dad is really interested in getting custody and wants to have a relationship with his kids, he is far more successful than he was 20 years ago,' said Margaret Brinig, a family law professor at the University of Notre Dame.All that shows a small trend toward the realization by courts, fathers and mothers that paternal custody should be judged by the same standards as maternal custody. That's been brought about by more and more women in the workplace who often outearn their male partners and by the growing realization among men that fatherhood is both an honorable calling and one they're good at. But it's just a trend in that direction. We're a long way from where we need to be. Up to date data from many sources, such as that compiled yearly by Washington State, show that fathers still struggle to achieve in court what even inadequate mothers would be insulted by. The Washington statistics show that from year to year, women overwhelmingly receive primary custody and the rate of their doing so actually goes up when men contest the matter. Brinig apparently has recently studied what happened in Oregon in the five years after that state passed a law mandating a presumption of joint physical custody in 1997. The results have been good - or not - depending on your point of view.
A recently published analysis of Oregon divorce records by Brinig showed that sole custody awarded to mothers dropped to 51 percent from 68 percent in the five years after the law took effect.That's an improvement of course, but the fact that over half of all cases still resulted in sole (i.e. in which dad has no contact) custody for mothers means there's nothing like equality in family courts. And keep in mind, that's in a state with a presumption of joint physical custody. Either the judges can't read or the law provides ample opportunity for mothers and judges to rebut the presumption. As I've said before, we can change all the laws we want, but until we change misandric mindsets, children will still go without fathers courtesy of family courts that loudly proclaim they act "in the best interests of children." The data that tell us there's a trend toward greater paternal custody of children are building up. That's a good thing because it indicates a greater willingness of courts to honor fathers as caregivers. But let's not lose sight of the fact that the real goal should be equally shared parenting by mothers and fathers. Whichever sex has primary custody and whichever one has visitation, it's that system that shortchanges kids. Substituting fathers for mothers as the primary custodian still marginalizes one parent in the child's life. That's not what we should be aiming for. We need to scrap the system of primary parent/visitor in favor of keeping both parents actively involved in children's lives post-divorce.
Before 1997, Oregon"s divorce law regarding custody was fairly typical. It provided for joint legal custody (shared decision making) in the vast majority of cases and physical custody awards "in the best interests of the child.' Although joint physical placement was a possibility, it was not favored. The legislation amending the statute, 1997 Oregon Laws Ch. 707 (S.B. 243), shows the change in emphasis.
The court may hold a hearing to decide the custody issue prior to any other issues. When appropriate, the court shall recognize the value of close contact with both parents and encourage joint parental custody and joint responsibility for the welfare of the children.The amendments went on to encourage mediation of custody disputes. But the preference for both mediation and joint custody was negated in the law by allegations of domestic abuse. Allen and Brinig gained access to all divorce and custody records in the state beginning three years before the change in the law and five years afterward. They randomly selected 500 cases for each year totalling 4,000 that were winnowed down to a little over 3,800. The authors' goal was to learn the effects of the new law on parental behavior in custody matters. The results, for many of the variables studied, are not what the authors - or the state legislature - expected. Here's how the authors describe their findings generally:
This article has empirically examined a change in custody rules, and has shown that this legislation did influence behavior on several margins, mostly in ways one might expect. In particular, the movement toward joint custody had real effects on custody awards, the use of mediators, and divorce proceedings. Paradoxically, many changes were not those sought by the legislation"s proponents, who sought more equal parenting in the context of less acrimonious and less costly divorces and mediated solutions. Rather, the legislation created incentives that led to more dragged out and acrimonious divorces and no more equal parenting.The reason for the perverse outcomes of the law can be stated in four words - claims of domestic abuse. Because domestic abuse was included in the law as the card that trumped all its other requirements, claims of abuse were used to thwart its overarching goals of more equal parenting, shorter divorce proceedings and less acrimony in the process. The authors identify some changes that are attributable to the new law. For example, before 1997, sole maternal custody was granted in an average of 66% of cases. After the law changed, that dropped to an average of 59% of cases. That drop in sole maternal custody was mirrored by an increase in sole paternal custody, but the number of cases was much smaller. Sole paternal custody increased from 8% of cases before, to 10% after the statutory change. Meanwhile, shared custody remained statistically unchanged. Split custody (in which each parent gets sole custody of one or more children) increased from 2% to 3%. The authors explain:
Whereas split custody decisions were declining over time, they start to increase after the legal change. Ironically, and perhaps most surprising, the effect on joint parenting shown in Regression (3) shows there was effectively no change that can be attributed to the law. Thus, the joint parenting law altered custody, but this came through changes in sole and split custody. This result is quite surprising.So the law that was aimed at greater shared parenting missed the target. In fact, it simply replaced a bit of sole maternal custody with a bit of sole paternal custody and tossed in some split custody for good measure. Likewise, the length of time it took to finalize a custody case increased. And all of that can be laid at the feet of the universal "out clause," i.e. claims of domestic violence. The authors note that the law's goal of greater joint custody was in fact a threat to mothers who received the overwhelming share of parenting time prior to the change in the law. They had the most to lose and therefore were overwhelmingly the ones to file claims of abuse (91% before, 82% after 1997), although fathers filed abuse claims as well in an attempt to get sole custody. Overall, claims of abuse rose significantly and false claims doubled from 3% of all cases to 6%. (The authors defined a false claim as one that was made, but for which no order was made.) The increase in claims resulted in a "dramatically increasing" number of protective orders after the change in the law.
The bottom line is more divorce cases contained more accusations of domestic violence abuse, and these cases were revisited more often, after the introduction of joint parenting.One of the hypotheses tested by Allen and Brinig asked whether, faced with the new law, mothers would simply trade decreased child or spousal support for maintaining their pre-1997 level of custody. That proved not to be so. There was little or no change in levels of child and spousal support suggesting that mothers preferred to use the abuse exception to maintain both the money and the kids. Here is the author's summary of the new law's effects:
1. A fall in sole custody to mothers, a rise in sole custody to fathers, and surprisingly, little change in joint custody. 2. A strong and significant change in the percentage of mediated divorces. 3. No significant change in the raw number of spousal support motions or in the dollar awards of spousal or child support. 4. A decrease in the speed of divorce. That is, divorces happened later after separation. 5. An increase in the number of abuse actions filed, particularly by wives. These abuse actions led to an increase in court no-contact orders, though not by as much as the increase in claims. The accusations were made by both the husband and wife, and were more likely to be repeat allegations.
Taken together, the results paint the following picture. The change in joint parenting law transferred custody rights to fathers who were able to use them to increase sole and split custody. There is no evidence that mothers bought these rights back through reduced support. In addition, the "abuse' escape clause, although utilized by both parents, was mostly wielded by wives. Thus, at least over the first five years of the law, the formal transfer of legal rights led to more disputes in settling the divorce, leading to longer divorces. Our evidence suggests this increase in the length of trial comes from increased accusations of abuse and battles over custody of children.In short, laws intended to increase joint parenting will fail if they include the all-purpose domestic abuse "escape valve," and they all do. That points toward a direction that family court reformers must follow - the reform of domestic violence laws and the use of DV claims in custody litigation. Domestic violence allegations will likely always play a part in child custody disputes, so the goal must be to make them function in a non-biased and sensible way. Non-biased means that allegations by men and women must be treated with equal respect. Among other things, Allen and Brinig's study strongly suggests that they weren't by Oregon courts during the eight years studied. Second, DV allegations must be subjected to some reasonable level of judicial scrutiny. That is, reliable evidence must be required for a finding of actual physical violence. As long as mere allegations of placing a parent "in fear" can be used to deprive a child of its father, family court reform is a dead letter. We've known the pernicious effects of domestic violence allegations for many years. This study shows plainly that the battle for family court reform will be fought on the field of domestic violence.
Cincinnati Monday, September 12th 6:00 – 7:45 P.M. Wyoming Branch Library 500 Springfield Pike Cincinnati, Ohio 45215
Cleveland Area Thursday, September 15, 2011 5:30 P.M. – 7:30 P.M. Holiday Inn 6001 Rockside Road Independence, Ohio 44131
Columbus Monday, September 19th 7:00– 9:00 P.M. Motorists Mutual Insurance Building 471 East Broad Street Columbus, Ohio 43215 We're looking forward to seeing you there---please let us know which of the meetings you will be attending by emailing us at [email protected] or calling us at (617) 542-9300.
It's easy to write off a noncustodial parent who fails to pay child support as a deadbeat who ought to be hauled into court and perhaps off to jail. But the sad fact is, too many don't pay because they can't pay; and prosecution often serves only to make it tougher on kids and taxpayers alike.That's dead-on, and is similar to what Fathers and Families Board Chairman Ned Holstein, MD, MS told the Star in their recent piece Those who owe child support get a break (Indianapolis Star, 8/18/11). In the piece, Holstein explains that state laws on delinquent parents are counterproductive and unfairly punish poor parents:
It turns poor fathers into fugitives who have to work in the underground economy and keep moving, and Mom doesn't get anything because of it. They'll go after a guy who is making minimum wage, trying his best but only making 80 percent of the payment.The editorial notes:
Marion County Prosecutor Terry Curry has struck a blow for common sense with his new amnesty program for some parents who have fallen behind. Better yet, the initiative reflects a fundamental change in approach toward the huge task of filling the support gap.
"The old philosophy was, 'I'm the prosecutor, I'm just going to hammer everyone equally,' " says Deputy Prosecutor John Owens. "That's not effective today."
Especially with a depressed job market. Especially given the fact that a large proportion of the approximately 76,000 child support cases now before the prosecutor's office involve ex-offenders, who not only find employment hard to find but also face probation and community corrections fees in many instances. Their fragile freedom and finances can't withstand court trouble over nonsupport...
He even bought a second house near his daughter's school so that his 88-year-old mother could see her only granddaughter.
He tried to fit with the restrictive dietary regime demanded by her mothers, with vegan meals every two hours, Chinese herbs, homeopathic salts, kombu seaweed, miso, cashew nut butter, spelt bread and supplements.But no more. All of that changed recently due to a law passed in 2008 granting lesbian women parental rights. Somehow that's meant that Williams is no longer considered the father of his daughter, the girl who looks like him, who has his eyes and whom he's helped raise for all of her 10 years.
Yet the District Court judgement this week expunged sperm donor John Williams (not his real name) from his 10-year-old daughter's birth certificate.
The girl now officially has two mothers - the biological mother and her estranged lesbian partner. But by law she has no father, thanks to the introduction in 2008 of retrospective NSW legislation giving lesbian couples equal parent status.
"It's terrible. It's a nightmare. It's just about killing me," said Mr Williams, sitting on his daughter's neatly made bed in his inner-west home yesterday...
"I'm told by the law that she's no longer my daughter and I'm no longer her father," he said.That's true despite the fact that the two women have split up. So the law giving lesbian women parental rights somehow has been read to mean that fathers in Williams' place have none. To say the least, it's a strange outcome. Here's a guy who's done everything right. He's done everything we say dads should do and none of the things we say dads shouldn't do. He's been an active, hands-on, loving father for ten years, plus he's the girl's biological dad. But for some reason, a law giving lesbian women parental rights cuts him out of his daughter's life. Now, elsewhere in family law, children have more than two parents. It comes about when Mom and Dad divorce and one or both remarry. The child all of a sudden acquires a new parent or possibly two. It's called divorce and remarriage, it's common as dirt, and no one thinks twice about it. So why can't the same thing happen in Williams' case? After all, the non-biological mother who's no longer with the biological mom seems to have visitation rights, so why can't Williams. As a matter of fact, that same non-biological mother has a new partner, so yet another mother has been added to the child's life. But for reasons I can only guess at, John Williams is the only person in the whole drama with no rights and no contact with his daughter. And speaking of the child, where is the usual inquiry into the "best interests of the child?" Apparently the court made none, which is interesting. That inquiry is almost invariably made in custody matters, and fathers like Williams often benefit from it. Imagine a straight father and straight mother involved in a custody dispute. He's done everything Williams has done and there are no allegations of violence against him. He may not get primary custody, but he'd surely not lose his rights altogether. Indeed, the court would probably opine that it's in the child's best interests to maintain an active loving relationship with her father. And that would unquestionably be true. So why not here?
"I just hope that one day, maybe when she's about 15 she'll want her father and she'll come to my door and say 'Daddy I don't want to live with that mother any more'. And when that day comes I won't be sending her back."
Mr Williams has written to Attorney-General Greg Smith asking the state government to amend the law to uphold father's rights.
Mr Smith is on leave but his spokesman said yesterday: "We are considering the judgment."Fathers and Families has always actively supported the parental rights of gay men and lesbian women. We'll continue to do that. But I can think of no reason why parental rights for those groups should be interpreted to lessen the parental rights of fathers, gay or straight.
[P]rior to the mother"s consent to adoption, the father must have "fully complied with the requirements to establish parental rights in the child, and to preserve the right to notice of a proceeding in connection with the adoption of the child,' of the state where the child was conceived or the last state where he knew that the mother resided.In other words, John Wyatt, who knew nothing about Fahland's intention to place the child for adoption, had to have gone to court filed a paternity action, filed a form with the state's putative father registry, gotten a DNA test proving his paternity of a child not yet born and received a court order establishing his paternity of the child. Failure to do all those things, while ignorant of Fahland's intentions, meant that in Utah, he had no right to contest the adoption of his child. Never mind that his failure to do those things was brought about solely by Fahland's fraud. Never mind that the man had no reason to know Utah adoption law and no reason to think it had anything to do with him or his child. Never mind that the Utah statute is an open invitation to theft of children by mothers who, for their own reasons, have decided the father of their child should be removed from its life. And of course never mind the fact that the Utah statute treats unmarried fathers differently from unmarried mothers and married fathers. And never mind the fact that there are hundreds of thousands of children throughout this country who actually need adopting, but who won't get adoptive parents. They won't get them because there are too few adoptive parents (about 125,000 per year) and too many children without parents (about 425,000 at any given time). Little Emily had a fit father who was eager to be her dad, but he can't be because Colleen Fahland so decreed. In so doing, she and the rest of her enablers denied loving adoptive parents to one of those 425,000 children. Oh, and never mind the fact that Colleen Fahland later changed her mind and now regrets what she did. No, in Utah, all of that stands aside for the mother's power to decide a father's rights and for the power of the adoption industry in that state.
Five years ago, Chad Craig learned a painful truth. The 14-year-old boy living under his roof was, in fact, another man"s son.
Having grown suspicious of his son"s evolving appearance, Craig swabbed the boy"s cheek as he slept and sent the sample off for a DNA analysis. While the results confirmed his fear, he didn"t share the results with the boy, Kyle, who is now 19, and hoped to continue their relationship. He did tell his ex-wife and Kyle"s mother, however, and when Tina Marie Hodge spilled the news, Kyle decided to move out of Craig"s house and back in with his mother...
At issue is whether Craig can sue Hodge for fraud and damages for allegedly assuring him when she got pregnant in 1991 that the child was his, while also withholding the fact that she had recently had sex with another man, Joey Hay, who is Kyle"s biological father. The case asks Tennessee"s high court, for the first time, if it should create a cause of action for so-called "paternity fraud,' or decide that it"s not the courts" role to remedy such betrayals.
In 2009, a Maury County judge ruled in Craig"s favor and awarded him $26,400 for child support and medical expenses he paid between the couple"s divorce in 2001 and Kyle"s decision to move in with Craig in 2005; $8,500 in attorney fees; and $100,000 "for the emotional distress suffered by (Craig) because of the fraud, intentional misrepresentation and negligent misrepresentation of' Hodge. Craig claimed he never would have gotten married shortly after high school, taken certain jobs, gotten a vasectomy and made various other life decisions had he known the child was not his...
Last year, the state Court of Appeals agreed that Hodge committed fraud but struck down Craig"s awards, ruling that the reimbursement for child support and medical expenses is barred by a state law that does not allow valid child support orders to be retroactively modified. The $100,000 award for emotional distress also was struck down on the basis that noneconomic damages are not allowed for a claim of misrepresentation.
In his appeal to the Supreme Court, Craig isn"t disputing the reversal of the $100,000 award for emotional distress but argues that the smaller award did not constitute the retroactive modification of a child support order, but was simply a calculation of damages based on Hodge"s conduct.
"The appeals court could have found a reason to award damages to Chad if it cared to, but it didn"t,' said Dr. Ned Holstein, a physician and founder of Boston-based family court reform organization Fathers & Families. "This father is deserving of being made whole based on the deception he has suffered and the harm to him.'
Others say the issue is not as simple as it seems. For instance, while Holstein believes it"s obvious that Hodge should compensate Craig, Nashville family lawyer Jeffrey Levy notes that child support payments are for the benefit of a child, not the spouse receiving them, so basing a damage award on past child support payments could be viewed as punishing an innocent party...
Nashville family lawyer Karla Hewitt, however, said Craig and similarly situated fathers share some of the blame and shouldn"t wait years to raise questions.
"I mean, he obviously had doubts about the child"s parentage, or he wouldn"t have asked the mother if she was sure it was his,' Hewitt said. "He should have marched right down to the lab when the baby was born and gotten the DNA test. I think he sat on his rights in that regard.
"There should be some responsibility on the part of the father to look into his suspicions by having a DNA test done before the child is raised as his own and obviously has some serious emotional issues as a result.'
Some advocates are citing the gut-wrenching case between Hodge and Craig as evidence that supports calls for mandatory DNA testing of supposed fathers at childbirth to leave no doubt about paternity and avoid anguish down the road.
Rosenburg is in this camp. Holstein supports such tests, too, but only in cases of children born out of wedlock.
"Use science to solve an age-old problem,' Holstein urged. "We have a scientific tool, and we have had it for 15 years, and it"s not being used to its full effect. ... Look at all the heartache that has resulted (from this case).'We suggest you write a Letter to the Editor of the Tennessean by clicking here and also comment on the piece by clicking here. Fathers and Families and its allies and partners have for many years helped take the lead in paternity fraud reform nationwide. We have:
- Helped pass paternity fraud legislation (AB 252 and SB 1333) which allows California child support obligors to use DNA evidence to set aside false paternity judgments and the concomitant child support orders
- Helped spearhead a successful campaign to counter the County of Los Angeles" California Supreme Court petition to depublish the historic Navarro decision. Navarro was the first published case to hold that the statute of limitations did not apply in setting aside an old default judgment against a paternity fraud victim.
- Garnered extensive media attention for the issue, doing many radio and TV interviews on the problem and publishing opinion columns on paternity fraud in the Orange County Register, the Baltimore Sun, the Los Angeles Daily News, the Denver Rocky Mountain News, the Detroit News, the Washington Times, and others.
- Helped introduce a California bill (SB 375) to help "duped dads' free themselves from being forced to pay 18 years of child support for other men"s children and crack open the current, restrictive time limit for challenging paternity. To learn more, see our Los Angeles Daily News column Bill would give 'duped dads' some fairness under the law (6/2/11).
- Helped introduce a California bill (SB 377) to end the abusive practice of coercing boys under the age of 18 into signing legally binding paternity declarations without parental consent or legal counsel.
- Worked with the Massachusetts Medical Society to introduce and co-sponsor paternity fraud legislation in Massachusetts.
- Recruited many prominent physicians to endorse DNA testing to determine correct paternity.
The average split costs a couple $2,500. A new single-parent family with children can cost the government $20,000 to $30,000 a year. That"s $33 billion to $112 billion a year total in divorce-related social-service subsidies and lost revenue.Just where those numbers come from is anyone's guess. Mine is that they wouldn't stand up to much scrutiny, so take them with a grain of salt. Whatever the case, organizations promoting divorce reform have seized on the idea of tight budgets to promote their ideas.
The country is "absolutely' ready for divorce reform, said Chris Gersten, founder and chairman of the nonpartisan Coalition for Divorce Reform.
If states pass the coalition"s legislative model that aims at cutting divorce rates by a third in five years, "the savings to taxpayers will be pretty dramatic,' he said.
Even a "modest reduction' in the U.S. divorce rate likely would benefit 400,000 children and save taxpayers significant sums, wrote retired Georgia Supreme Court Chief Justice Leah Ward Sears and University of Minnesota professor William J. Doherty, proponents of a new "Second Chances' divorce reform.
"We have to rethink this ‘easy-to-divorce" strategy,' added Michael McManus, author and founder of Marriage Savers, which promotes a community marriage strategy that has been shown to reduce divorce rates by an average of 17.5 percent.
Americans have consistently supported more restrictive divorce laws. For more than 30 years, the General Social Survey asked Americans if divorce should be "easier or more difficult to obtain than it is now?' The most popular answer is always "more difficult.'That may be because it can't get much easier, but the point is clear - Americans aren't comfortable with the family breakdown or the ease with which it's accomplished. And that means they're probably smarter than the elites who told us in the 1960s that children would be better off if their parents could split easily. The theory then was that children would benefit from lower levels of conflict between their parents if the adults could go their separate ways. Now we know better. Now we know that divorce itself is harmful to children.
Children of divorce are often stunted economically and can"t seem to work their way into higher-income levels, a 2010 study from Pew Charitable Trusts says.
If the U.S. "enjoyed the same level of family stability today as it did in 1960,' there would be 750,000 fewer children repeating grades, 1.2 million fewer school suspensions, about 500,000 fewer acts of teenage delinquency, about 600,000 few children receiving therapy and 70,000 fewer suicides every year, writes W. Bradford Wilcox in a 2009 paper, referring to research by Pennsylvania State University professors Paul Amato and Alan Booth.
Children of divorce have shorter life spans - by an average of five years - compared to children whose parents didn"t divorce, according to a new study by Howard Friedman and Leslie Martin.
That longevity data is "the most devastating analysis that we"ve seen … of the impact of divorce on children. They don"t ‘get over it," ' said Mr. Gersten, who was a Department of Health and Human Services official in the George W. Bush administration.(Brad Wilcox is a highly respected sociologist, and I'm sure he didn't say that divorce reform could save 70,000 suicides a year. Since about 32,000 people a year commit suicide, that would be impossible. My guess is it's a typo and that Wilcox actually said 7,000.) So groups pushing for divorce reform are asking state legislatures to take action.
Mr. Gersten"s coalition already has seen a victory: New Mexico state Sen. Mark Boitano introduced the Parental Divorce Reduction Act in this year"s session, and Mr. Gersten expects lawmakers in a dozen states to do so in 2012.
The act requires parents of minor children who are contemplating divorce to first attend six hours of "divorce-reduction' education. They would then enter an eight-month "reflection' period with access to marriage-strengthening materials and workshops. After that, they can go ahead with a divorce, "and we let the lawyers take over,' said Mr. Gersten, who added that couples in certain circumstances, such as domestic violence, would be exempted from the program.Let's be clear about the real problem with divorce. If two adults are childless, no one but them should care whether they're married or not. Divorce may hurt them individually, but no one else. Who's hurt in a divorce is the child. Essentially all of the bad data on divorce involves its effects on children. So any attempt at divorce reform should be aimed solely at couples with children, as the Coalition for Divorce Reform's proposal is. I'm all for the institution of marriage. There's little doubt that children raised in a marital household with two biological parents tend to do better than any of their peers raised in other situations. But we've lived for almost 40 years with no-fault divorce and my guess is that people aren't clamoring to be less free than they are now. Oh, I know people are dissatisfied with the state of marital breakdown, but that doesn't mean they want their freedom to divorce impaired. And it's anything but certain that more restrictive laws will actually cut the divorce rate. Gersten's group's model legislation calls for education and a period of "reflection." I don't see that stopping many divorces, although I'd be happy to be proven wrong. More draconian penalties would, I suspect, simply reduce the marriage rate rather than the divorce rate. To avoid the penalties for divorce people would simply cohabitate, a "cure" that's probably worse than the disease. We'll see how this plays out. Certainly our willingness to form and dissolve partnerships irrespective of the injury done to children needs to change and indeed, many people have read the writing on the wall and are resisting divorce. Their stories are mostly anecdotal, but the divorce rate, at least among the better educated, is falling, not rising. As long as we have no-fault divorce, what's needed to soften the blow for children is the assurance that they won't lose one of their parents in the process. One of the hardest and most injurious aspects of divorce for children is the loss of the non-custodial parent. Shared parenting legislation that's actually enforced by courts would go a long way toward salving children's wounds when their parents split up. Restricting divorce is well-intentioned, but probably misguided. We'll see how it goes. In the next few years, we'll see how open legislatures are to the concept and, more importantly, how well it works at reducing divorce. If it does, I'll be the first to stand up and cheer. In the meantime, I'll promote shared parenting that'll continue to be necessary regardless of how many divorces there are. Thanks to Don and Ned for the heads-up.
Alaska, Illinois and Kentucky are among the states that have decided paternity fraud is no different than any other fraud and that compensating paternity fraud victims outweighs the potential harm to children.
An Illinois court opinion pointed out that not allowing such cases would be to let deceitful mothers off the hook for lying about a child"s paternity. The court wrote "that public policy does not serve to protect people engaging in' such behavior and that it would not allow a mother "to use her daughter to avoid responsibility for the consequences of her alleged deception.'There's much to be said after all for honesty and much to be said against dishonesty. Any state that prohibits a defrauded man from pursuing a civil remedy for the wrong done to him stands on the side of wrong against right. It stands for lying, fraud and deception against telling the truth. Moreover, allowing men to sue for paternity fraud would do two of the things civil suits are meant to do - compensate the victim and discourage others from engaging in the wrongful behavior. That's Magistrate Rosenburg's position, and I agree.
"With this kind of cause of action, maybe everyone will be a lot more careful,' Rosenburg said. "It would almost put an affirmative duty on women to disclose sexual relationships in the period of potential conception. That could be the ultimate outcome of this case.'It should do exactly that. Again, it's the woman, and only the woman, who has the information necessary for the men to make informed decisions. She knows with whom she had sex and they don't. Therefore if there's any possibility that any of two or more men may be the father, she should be required to say so. If she does, they can do DNA testing and sort the matter out before years have passed and relationships formed. To do anything else is, once again, to place men's parental rights in the hands of women. In this case, as in every paternity fraud case, two men and a child have all been hurt for one reason - because Tina Marie Hodge didn't have the moral fiber, the common decency, the simple honesty to tell one simple truth. "I'm not sure who the father is" may be hard to say, but it sure beats the alternative, as Craig, Hay and the boy can all attest. That brings us to yet another silly argument, that of lawyer Karla Hewitt.
Nashville family lawyer Karla Hewitt, however, said Craig and similarly situated fathers share some of the blame and shouldn"t wait years to raise questions.
"I mean, he obviously had doubts about the child"s parentage, or he wouldn"t have asked the mother if she was sure it was his,' Hewitt said. "He should have marched right down to the lab when the baby was born and gotten the DNA test. I think he sat on his rights in that regard.No, this is not the man's fault. This is the mother's fault. She has the knowledge and a moral (and I'd argue a legal) obligation to divulge facts known only to her. The idea that the man has an obligation to figure out her deception, but the woman has none to refrain from deceiving is too silly - and, yes, too misandric - to even think about. The final argument that the court of appeals swallowed hook, line and sinker, is that for Craig to recover the amounts he was fraudulently led to pay in child support would be a retroactive modification of a child support order just doesn't make sense. He's not modifying anything at all. He's suing for damages for an intentional civil wrong, the way countless people do every day in different circumstances. And that of course is the main point. For some reason all those opposed to Chad Craig's being compensated for Tina Marie Hodge's 14-year deception of him believe that, for some reason, paternity fraud is different from all other civil wrongs. They want us to believe that mothers, alone among all other people, should be allowed to lie to men about one of the most important things in their lives - their children. The Tina Marie Hodges of the world want the law to protect that deception, to create a little zone of safety for them alone in which they're free lie with out consequences. We'll see what the Supreme Court of Tennessee does. But however this case comes out, the real way to deal with paternity fraud is to make sure it doesn't happen in the first place. We can do that any time we want to by the simple expedient of genetically testing every child at birth. That would cost money, but it would save it in the long run by entirely stopping all future paternity fraud and all the litigation that goes with it. Stay tuned.
At present, a non-custodial parent has two options if the custodial parent is not following a court-ordered visitation schedule. The first is to report the visitation interference to the police, as it is a crime, and the State Attorney"s office could then prosecute the parent who is interfering. However, many parents report that police consider this a petty crime and refuse to enforce the law.
The second option for the non-custodial parent is to file a petition for civil contempt and ask for a modification of the visitation order, compensatory visitation, supervised visitation or any other equitable remedy the court deems just. The success that parents have using this method is inconsistent around the state and often results in judges merely dismissing the cases.That's a sanitized way of saying that convincing a judge to actually enforce a visitation order is like pulling teeth - hard, painful, with a not-very-gratifying result. Of course the parallel order - that of child support - is approached completely differently. There, the most draconian penalties are meted out to non-custodial parents who are so callous as to lose a job and be unable to pay. In that case, no punishment is too severe, including prison for those without the money to pay what they owe.
The proposed legislation would bring the penalties for visitation abuse in line with those for failure to pay child support. The bill calls for suspending driver"s and professional licenses of offending parents, as well as fines of $500 for each instance of visitation interference. If the court finds a parent in contempt for visitation interference and the parent commits another offense, the bill allows courts to order the parent to jail or to post a $5,000 bond -- which the parent would lose if he or she committed another offense -- to ensure compliance with the court ordered visitation schedule in the future.Although the bill passed the House, predictably, it has its opponents many of whom relentlessly parody themselves.
Not everyone is in favor of the bill. The Secretary of State"s office, which currently teams with the Department of Healthcare and Family Services to suspend driver"s licenses of those who are delinquent in child support payments, issued a statement opposing the legislation for fear of the expanding role of the office in enforcing the law turning the office into an arm of the police force, unnecessarily burdening the office.You have to love that last bit, "unnecessarily burdening the office." Do these people ever pause to notice, as the rest of us do, what they consider necessary and what unnecessary? Don't they understand that enforcement of visitation is necessary? As necessary as enforcement of child support? Apparently they don't. Then there's the part about making the Secretary of State's Office an arm of the police department. The office is already an arm of the police force in child support matters and no one gripes, but when it comes to lifting a finger for fathers, all of a sudden a different standard applies. Funny how that works. Maybe someone should let the Secretary of State's Office in on a little secret - non-custodial parents whose visitation isn't obstructed are far more likely to pay child support on time and in full (see, Sanford Braver, Divorced Dads, Shattering the Myths, Taucher/Putnam, 1998). So enforcing visitation isn't just good for non-custodial parents and their children, it's good for custodial parents and the child support enforcement wing of state government. You might think that would be important to the very office charged with child support enforcement, but no. Of course none of this would be necessary if family courts would just do what they should have been doing all along - using the power they already have to enforce the orders they issue. The only reason there's a special bill before the Illinois legislature is the abject failure of courts to effectively enforce the visitation rights of non-custodial parents. So let's give a big shout-out for the Illinois bill that seeks to take visitation as seriously child support. With luck and a few principled votes, Stephen Watkins won't have died in vain.
"The letter explained how she felt threatened by the courts, and that she was afraid she was going to lose custody of Emily sooner rather than later," Michael wrote on his website, BringEmilyHome.org. "She was also angry that I knew she was not a legal U.S. citizen and scared that she was going to be deported."Sanchez filed missing persons reports and soon enough the U.S. State Department learned that Machado had purchased a one-way ticket to her native Brazil. Now, students of international parental kidnapping know that Brazil is a notoriously difficult country from which to extract a child who's yours. Despite being a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, Brazil routinely makes no pretense of compliance with its strictures. The most shocking example of that is Sean Goldman whose son was abducted from New Jersey to Brazil by his mother. Despite the clear terms of the Convention and despite the death of the child's mother, it took Goldman five years to regain custody of his son. But it wasn't just the passage of time that was required; eventually it took the intervention of Goldman's congressional representative and the threat of economic sanctions by the U.S. against Brazil for the child to finally be returned. So Sanchez faced a long, uphill struggle to get Emily back into his care. It took him almost four years of working two jobs to pay his legal fees. At one point he travelled to Brazil to see his daughter, only to be told by Machado that he couldn't. But just a few days ago, he got her back. Remarkably, that had nothing to do with the Hague Convention or Brazilian courts doing what they should have done years ago. No, it seems Machado had a change of heart. She and Sanchez have entered into an agreement, the details of which remain confidential. How much time he'll have with his daughter under the terms of the agreement is known only to him and Machado. A few points. First, the law that exists to correct one thing and one thing only - international child abduction - failed totally. Sanchez has his daughter back, but no thanks to the Convention or the Brazilian courts. How long the case would have dragged on before Sanchez got his daughter back is anyone's guess. What type of pressure would have been required for that to happen is likewise unknown. Second, once again, a father's rights were placed in the hands of his child's mother, not his. Machado kidnapped his child for the least compelling of reasons - that a court might take away or limit her parental rights. Presumably there was a reason why the court was considering that extreme step, but that didn't matter to Machado; she doubtless knew she could take the child to Brazil and there be no legal consequences for her doing so. Given that, what was the downside to her for doing so? Meanwhile Sanchez was stuck with the Hague Convention, little as it is. As the parents who testified before a U.S. House subcommittee said, the State Department is worse than useless in dealing with these cases even though it's tasked with doing so. The State Deparment sees its primary role as promoting commerce and good relations between the U.S. and the various nations of the world. Demanding compliance with the Hague Convention and threatening sanctions for failure to do so seem low on State's list of priorities. Sean Goldman and now Michael Sanchez can testify to that. So once again, the law has failed a father seeking one of the most humble things a man can want - a relationship with the child he helped bring into the world. Tellingly, just last week, in a similar case, the three children of a California man were returned to him only two days after they were discovered in Mexico - another inveterate violator of the Hague Convention. Why did things go so smoothly in his case and not in Goldman's or Sanchez'? Well, the dad happened to be the son of a U.S. congressman, that's why. In fact, the Hague procedures were bypassed altogether in that case. The Mexican police picked up the mother and the children, took them to the border and turned them over to police on this side. They took Mom to jail, charged her with criminal interference with custody and the kids have been reunited with their father. Dads like Sanchez and Goldman, and indeed all those who aren't lucky enough to have a politically powerful father have to do the best they can with the tools at their disposal, i.e. the law. Time and again, the law fails fathers. It did this time too.
Sir Nicholas said: ‘Allegations of sexual abuse were first made by the mother and not by X. These were false and the mother knew them to be false. X was coached by the mother to make allegations of sexual abuse against the father."
He added that two judges examined the case at previous High Court hearings and both found that Mr Tune was not a paedophile and had not sexually abused his daughter.
Sir Nicholas said: ‘The child"s mother is wholly unable to accept the court"s verdict and, with the misguided assistance of Elizabeth Watson has unlawfully and in breach of court orders, put into the public domain via email and the internet a series of unwarranted and scandalous allegations about the father and others. ‘She has repeated the untruth that the father is a paedophile and – without a scintilla of evidence - has attacked the good faith of all the professionals who had had any contact with the case.
‘These proceedings have had a serious effect on the life of the father and have threatened the stability of the child. Her mother"s actions are wholly contrary to her interests."Watson has been sentenced to nine months in prison. So far there's no word if Haigh will receive any punishment at all. As I said, this type of thing goes on all the time in family court and it's one of the scandals of the family court system that it routinely allows perjury and false allegations to go unpunished. The unsurprising result is that the practice of false swearing continues. Why wouldn't it? But the real issue to the judges was that Haigh and Watson aired the whole thing publicly, and that, as Judge Wall made clear "will not be tolerated." You see, in the United Kingdom, family court proceedings occur in secret. Usually, no one is allowed to name names or reveal much of anything about who said or did what. The press is generally barred from reporting anything of substance about family court. And it is that secrecy that is surely to blame for much of the anti-father decision-making of British family courts. The theory behind the secrecy is that the publicity would be too traumatic for children (another "best interests of the child" argument, don't you know.) Of course with the number of divorces involving children, 99% of them would never make the papers anyway, and of those that did, most would do so completely outside the child's awareness. So it's always seemed to me that the secrecy imposed by British family courts has a lot more to do with protecting judges than with protecting children. And I'd say this case bears that out. Enter John Hemming. He's a Liberal Democrat MP who made the mistake of taking up Haigh's cause in the House of Commons. He did the same in a previous case.
The MP said Haigh had been unfairly put under threat of imprisonment by Doncaster Council for speaking to a Westminster meeting about family law issues.Again, Haigh had named names and among them were the Council and the social workers in her case. More to the point, he was sticking up for Haigh's right to speak publicly about the doings of family courts. He picked a uniquely bad case in which to do so, but that's what he was doing. Now he too is in hot water, with at least one MP calling for his resignation from the office his constituents elected him to. Well, I can't go to bat for two women who slander, libel and defame a father in order to deny him custody, an attempt that failed by the way. I'm glad Watson is going to prison and I think Haigh should too. What she did was illegal and should be punished. But what's also true is that courts routinely tolerate exactly that type of behavior with nary a blink. The reason they didn't in this case is that the pair, plus MP Hemming, made the matter public. They divested the family court of its cloak of secrecy, and that, and that alone brought the wrath of the court down on them. But the High Court should direct its attention elsewhere. First, it should punish perjury, false allegations and false swearing in custody cases. It should do so not in isolated cases that are forced into the public eye, but in all cases. Only then will the practice cease. Second, it should do away with the secrecy of family courts that serves to shield from public scrutiny the often outrageously anti-father decisions of those courts. As long as the press can only guess at what happens behind the closed and locked doors of family courts, there can be no effective public clamor for reform. So this case should be seen for what it is. The judges feign outrage at the lies of two women. What they're really upset about is the women's breaching the secrecy of family court proceedings. Both must change.
Attorneys who practice family law in Texas point out that in cases of abuse, it is common for courts to prevent children from being alone with specific people. But those same lawyers say that they"ve never heard of a case in which a step-parent or long-term partner is permanently enjoined from being alone with his or her step-children when abuse is not even alleged, let alone proven. No lawyer consulted for this story has ever heard of an order which prohibits children from being left alone with an entire gender.And I suppose we shouldn't be surprised that the gender in question is male or that the person restrained by the order is a father. Flowers is appealing the order.
In brief, the mother"s application was refused because the damage to the children caused by the reduction in the contact with their father, should she be allowed to relocate, outweighed the damage arising from the distress to the mother if the application was refused.Interesting too is the fact that the appellate court didn't simply rule that the father's visiting the kids via Skype should be good enough for them. I reported on a case just like that not long ago. There, the mother wanted to return to Australia from England and the court ruled that that was perfectly acceptable because contact with Dad on the Internet was good enough for the children and good enough for him. So it's with a deep sigh of relief that I'm able to say that neither the trial nor the appellate court resorted to that worst of all possible "solutions" to a mother's move-away request that would take the father out of his children's lives forever. Still, it's worth mentioning the reasoning of British courts in move-away cases. One of the major - if not the major - factor in the courts' determinations is the "distress" caused to the mother by remaining. Never mind the father, the courts want to know how upset she'd be by being chained to the island nation. And that too is interesting. That's because the single most common rejoinder over the years to the assertion of fathers' rights in custody disputes is "it's not the parents who are important, it's the children." That is, if Dad really cared about the kids he'd butt out of their lives instead of asserting his rights. Now the ways that argument is bogus are too numerous to list, but the main one is that fathers enhance child welfare. So Dad's insistence on his parental rights is, with rare exceptions, in the child's best interests. Opponents of fathers believe the wellbeing of children and fathers' custodial rights are mutually exclusive. On the contrary, each promotes the other. Turning back to move-away cases, it's always intrigued me how courts in this country and England place so much emphasis on Mom's state of mind. If staying in a particular place distresses her, children's rights to their father and father's rights to his children all take a backseat. The reason?
Until now courts in England and Wales have followed the general principle which was that if refusing the primary carer"s (usually the mother) reasonable proposal for relocation of her family life should impact detrimentally on her emotional state, that in turn would impact detrimentally on the welfare of her dependent children. And family courts work on the basis that the welfare of the child is paramount.See? The courts rule openly that mothers and children's interests are the same. If she's upset, so will they be. But when it comes to fathers, the opposite assumption wins the day. Depriving children of their father, in any of a number of ways, is assumed to be either neutral or actually in their interests. The interests of fathers and children are assumed to be antithetical, so it's OK to separate them, if doing so satisfies Mom. As President Obama said, "When Mama's happy, everybody's happy." Well, not everyone, but we know what he meant. It's straightforward example of a double standard in a court system that's stuffed to the gills with them. Meanwhile, back in the U.K., the appellate court strongly encouraged Mom and Dad to make the best of things there for the time being.
The court told the Canadian couple to explore an immediate future in the UK, flowing into a planned future move to Canada.Here's my prediction: a few months will pass and Mom will go back to court explaining again how very distressed she is. Dad will reply that he's still doing a lot of the child care and doesn't want to move to Canada. The court will find that he hasn't made plans for "flowing" back there and his failure impermissibly contributes to her distress. And she'll be free to go. We'll see.
Hungarian authorities unsuccessfully tried to get the mother to oblige.I love that. Here's a sovereign nation with a ruling by one of its courts ordering the return to France of a child unlawfully abducted by her mother. That of course means that she's under court order to take or send the child back to her father. Refusal to do so is a violation of a court order that the court is empowered to punish by incarceration or other sanctions. In short, Hungary had the power to force the mother to do what she was legally obligated to do or jail her and return the child itself. So the fact that the country merely "tried to get the mother to oblige," I find... quaint. The fact that its efforts were unsuccessful is beyond belief. I see a picture of Hungarian judges and police asking the mother very nicely to please follow their orders, her shaking her head and them turning away with a shrug that means "what can we do?" But Dad wasn't finished. He got a criminal warrant from a French court to have Mom arrested. He also got an award of sole custody. Pursuant to the warrant, the Hungarian police finally got around to arresting the mother, but released her the next day. She then promptly disappeared with the child and hasn't been found. That was over two years ago. It would be hard to imagine what else a nation could do to abet parental kidnapping than what Hungary did in this case. I suppose they could have given her written instructions on how to avoid her legal obligations, but failing that, jailing her and then letting her go the next day was surely the next best thing. After all, what did that do but tell her to run? At that point, Dad was out of options for getting his child back, so he turned to the European Court of Human Rights for compensation. The laws of the European Union specify a right to family life that the mother plainly violated. Moreover, Hungary abetted her violations by failing to do what it was required by the Hague Convention and the charter and laws of the European Union to do. So Dad sued Hungary and won. He was awarded €20,000 in compensation and €12,000 in legal expenses by the court. That of course is nothing compared to a lifetime with his daughter. And the money will do nothing to replace her father in the life of the girl who must be 11 now. I wonder if, when she reaches adulthood, she too could bring suit against Hungary for depriving her of her father. I don't see why not. Still, it's worth noticing that, at least in Europe, countries covered by the Union's charter and laws, aren't entirely free to do as they please with fathers' rights and children's welfare. Unlike so many other places there seem to be consequences, albeit slight ones, for running roughshod over fathers and children. And that's a small step in the right direction.
[A] person standing in loco parentis to a child is one who has put himself or herself in the situation of a lawful parent by assuming the obligations incident to the parental relationship, without going through the formalities necessary to a legal adoption, and the rights, duties, and liabilities of such person are the same as those of the lawful parent.So, for example, a stepparent who's actively cared for a child may be ruled to have the rights and duties of a biological parent via the in loco parentis doctrine. So may a grandparent, or indeed, anyone else whose ongoing behavior toward a child is that of a parent. Moreover, what's important in deciding whether a person has taken the actions necessary to qualify under the doctrine is his/her relationship with the child, not his/her relationship with the other adult. So what the trial court now has to decide is whether Latham and P.S. have the type of relationship, the absence of which would be detrimental to P.S.'s interests.
The in loco parentis basis for standing recognizes the need to guard the family from intrusions by third parties and to protect the rights of the natural parent must be tempered by the paramount need to protect the child"s best interest. Thus, while it is presumed that a child"s best interest is served by maintaining the family"s privacy and autonomy, that presumption must give way where the child has established strong psychological bonds with a person who, although not a biological parent, has lived with the child and provided care, nurture, and affection, assuming in the child"s eye a stature like that of a parent.The Nebraska court's reasoning makes sense to me. Latham clearly established a parental relationship with P.S. For the first five years of his life and for some time thereafter, she did all the things loving, hands-on parents do. Doubtless, through all that, she and the boy developed a parent-child relationship that shouldn't be tossed aside at the whim of his other parent. Clearly, it's in his interest to maintain ties with Latham. That said, much time has passed. It's now 2011. Latham hasn't seen him nor he her, in two years, and their visits were few and far between for two years before that. So they've had limited contact for about four of his 10 years. By now a court may well find that, in fact, their relationship isn't worth preserving. Still, the principle stands and it has the potential to affect fathers. Certainly gay men who raise children conceived and given birth to by another will be affected. Likewise, a man defrauded by a mother will have his rights protected by the doctrine. So, he may not be the father, but if he desires a continuing relationship with the child after he learns he's not, he'll be able to assert his rights in loco parentis irrespective of the mother's wishes. The term "the best interests of the child" is much used and much abused by courts nationwide. Often it seems to be little more than a mantra judges intone hoping it has magical powers to confer benefits on children. That's because rulings judges make regarding child custody are often at odds with social science on what promotes healthy outcomes for kids. Most importantly, social science shows no correlation between maternal custody and improved child outcomes, but year after year, 84% of primary and sole custody goes to mothers. But this is a case in which the actual best interests of a child (as opposed to those presumed by judges) seems to have won out. When children develop bonds with an adult who takes the role of parent over a significant period of time, those bonds shouldn't be broken willy-nilly by the other adult. Importantly, the adult who stands in loco parentis to the child should have his/her own parental rights that he/she can assert independently of the other adult. Men and fathers know all too well how often the law takes their parental rights and places them in the hands of the mother of their child. This Nebraska case does the opposite and should be applauded for doing so. Thanks to Jim for the heads-up.