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.
this article tells us that the Oklahoma House of Representatives has passed a law reversing a previous one (KFOR, 3/17/11). Existing law gives joint custody to fathers and mothers when a child is born to an unmarried mother. The new law would give sole custody to the mother. The reason for the reversion to a less sensible rule that invidiously discriminates against fathers based on their sex? The bill's author, Rep. Aaron Stiles, explains. Or does he?
Stiles said the Department of Human Services experienced problems this year because of the change. He says when mothers would reach out to DHS to try to get child support from the father, the father would instead remove the child from daycare.Maybe that means something to someone in a parallel universe, but I confess, it escapes me. How is it that a non-custodial father can "remove a child from daycare?" And what possible difference could it make to whether he should have joint custody or not, or pay child support or not? Fathers of children born to single mothers can still assert their parental rights by a paternity action of course. But that assumes they know about the child and that the child is theirs. It also requires them to spend time, money and energy to obtain parental rights. It therefore plainly discriminates against fathers based on sex and sex alone. The proposed statute also seems to violate fathers' due process rights. On that issue, the U.S. Supreme Court said in Troxel v. Granville,
[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.The Oklahoma bill plainly "injects the State into the private realm of the family," despite no finding of unfitness on the part of the father. As such, it is of dubious constitutional validity. Second, I've followed the case of William McCormick III in a couple of posts. He's the former student at Brown who was accused of rape by a female student and forced by the school to drop out and enroll elsewhere. He's sued the school saying that he didn't rape anyone, the school strong-armed him and failed to give him a proper hearing. Because the woman didn't go to the police in time, there's no evidence of rape beyond her word. She continues to maintain that McCormick raped her. McCormick's claims seem to be corroborated by the fact that the woman is the daughter of an influential and monied alumnus. Emails from him to school officials suggest that he was trying to pressure the school into forcing McCormick off campus. The latest news is that similar influence has resulted in the recusal of the third federal judge from the case. Although the exact facts are complicated, Providence, Rhode Island, where Brown is located is a small world and lawyers for Brown, the woman and her father have connections with the various recused judges. The upshot is that the case has now been moved to New Hampshire. That's a win for McCormick. Brown and its wealthy patrons have a lot of power in Providence, so the farther away from there the trial is held, the better for him. Third, they must be going for a world record of some sort. NOW is criticizing the "War on Drugs," as this article shows (Reno News and Review, 3/17/11). I don't object to anyone's criticizing the War on Drugs, but NOW's reasoning is all but beyond belief. In a nutshell, NOW objects to the war because it, according to them, discriminates against women.
As the National Organization for Women has described the situation, "the incarceration rate of women convicted of low-level drug-related offenses has increased dramatically in the past decade as a result of our nation"s relentless ‘War on Drugs," and poor women and women of color have been disproportionately targeted for drug law enforcement and receive long mandatory prison sentences that have little relationship to their actions or culpability.Needless to say, that's nonsense. The facts are that roughly equal percentages of men and women use pot and other illegal drugs. The percentages that are in no way equal are incarceration rates of men and women. In fact, over 90% of people incarcerated for drug possession are men. How NOW figures that "disproportionately targets" women of whatever class or race, I'll never know. And then there's NOW's backup theory that motherhood should be a Get-Out-Of-Jail-Free card.
[T]wo thirds of women in prison have at least two children who are displaced as a result of their incarceration, often forced to live in the care of family, friends, or state-sponsored foster care where they may be at increased risk of emotional, physical, or sexual abuse.'I can just hear it in court: "Yes, judge, I robbed the liquor store and shot the clerk, but you can't jail me; I've got a kid at home." Do I have to add that these are the same people who miss no opportunity to oppose fathers' rights to a relationship with those same kids? Yes, kids are at greater risk of abuse in foster care, so why is it that NOW prefers foster care to father care? I seem to remember a time when these people claimed to stand for gender equality. I'm sure it was just a dream.
this article puts some flesh on the bones of the report to the U.N (Toronto Star, 9/3/10). In 2008, Henry Da Massa lived in England. He had weekend visitation with his daughter Pearl, who was then four years old. But Da Massa wanted more and he soon got a "residence order" from the court. That meant that he would get substantially more time with Pearl. He was pleased, but Pearl's mother, Helen Gavaghan apparently wasn't.
Still, he says for about six months after the court order he thought things were going really well. He later learned that Gavaghan had been planning the whole time.
"It did turn out that as soon as that order was made Helen began to put together the building blocks for leaving England,' he says.He got a telephone call from a friend of Helen saying she and Pearl were going to India on holiday. Was the friend in on the scheme to abduct the child? Who knows? But Helen didn't take Pearl on vacation; she took her to Mexico where she changed her own name to Meta International. From there the pair walked across the border into Texas and for a time disappeared. But last year, the Helen and Pearl were sighted in Toronto living once again under different names, this time, Dana Flaherty and Belle. Da Massa was elated to know where they were, and flew to Toronto expecting to be reunited with his daughter. But Gavaghan and the child had disappeared again. Now this article tell us that they've been seen again in Toronto and the police have become involved in finding them (Toronto Sun, 3/16/11). They know the immediate area the two are thought to be living in and are posting flyers in the area asking for information. An English court has declared the abduction to be unlawful. Canada is a signatory nation to the Hague Convention on the Civil Aspects of International Child Abduction, so when Pearl is found, Da Massa will have to institute proceedings under the convention for her return. Supposedly, proceedings brought under the convention are to be concluded within two months, but as a practical matter, that rarely happens. The report on the psychological damage done to abducted children sounds a lot like what Pearl may be going through.
A health-care professional came forward with some serious concerns in terms of her (Pearl) emotional state, her development and her social progress,' Da Massa says.
"Those concerns have been compounded by a person very close to this community, this alternative community, and we are all very worried about Pearl,' Da Massa says.According to the U.N. report, that's because abducted children are suddenly deprived of almost all of their adult support system. Abduction means they never see the other parent and all of that parent's extended family. Familiar surroundings, playmates and friends are gone as well as is schools, teachers, etc. All of that is replaced by the unknown - unknown places, languages, residences and the rest. The child therefore comes immediately to rely on the abducting parent for everything. All support, all nurturance, all understanding of people, events and the outside world come from a single source. That is a very precarious position for a child and, predictably, the child is aware of just how thin the ice is on which he/she skates. So anxiety on the child's part is greatly heightened. Into the bargain, the child often concludes that, because the abducting parent is his/her sole source of care, the child must do what he/she can to make sure all is well with the parent. Thus is a kind of inverted relationship formed in which the child cares for the parent.
[Da Massa] worries about the psychological effect this whole ordeal will have on Pearl, but says proudly that she is a "very strong, healthy, sturdy, smart kid.'
"She"s probably provided a lot of support to Helen during this time,' he says, his eyes welling up again.She probably has, and that's part of the problem. Abducting parents frequently have emotional/psychological problems of their own and, from what I've read, Helen Gavaghan is no exception. In addition to abducting Pearl, Gavaghan apparently was fleeing debts in England. Not only that, but she seems to have decamped with a sizeable sum of money withdrawn from her bank account. Her own parents say they have no idea where that money came from. So there's more here than meets the eye and more reasons than just one why Helen Gavaghan doesn't want to be found. Meanwhile, Da Massa and the Toronto police continue the struggle to locate Pearl and her mother. When that happens - if it does - he may find a little girl who's substantially changed from when he last saw her. That's what the report to the U.N. would predict and it's what the health care professional in Toronto observed when Pearl was last seen.
Here's another example (Daily Express, 3/19/11). Back in the early 90s, James MacLetchie of Scotland had a relationship with his girlfriend Roberta. She became pregnant, but both knew that the child could not be his. That's because doctors had already told MacLetchie that he was incapable of fathering a child. Despite that fact, he agreed to have his name placed on the birth certificate and the two married. The article doesn't explain just why he did those things, but it looks like he was trying to be kind, supportive and loving. That was fine then, but three years later, he and Roberta split up and, since his name was on the birth certificate, to the Child Support Agency, that meant he was the father. And since he was the father, he owed maintenance, i.e. child support. In vain did MacLetchie show them proof provided by multiple medical professionals that he was physically incapable of being the father. And of course that inability hadn't come about since the child's birth; MacLetchie had proof of that too. None of that mattered to the CSA. For sixteen years it turned deaf ears to his positive proof of non-paternity. As a practical matter, that meant taking 40% of his wages in child maintenance. It also meant fighting him in court, a process that ultimately bankrupted him. He lost his house; he lost his job. He had to take out loans just to live; his debts mounted. CSA threatened to impound his car. He felt suicidal, "driven beyond the edge of human endurance," in MacLetchie's words. But really, what was the problem? After all, a simple DNA test would have proven his non-paternity, so why didn't CSA agree to that and let MacLetchie off the hook for a little boy they well knew could not be his? The answer is that it wasn't up to the CSA any more than it was up to MacLetchie. It was up to the mother. Under Scottish law, no DNA test could be done without her consent. And she did not consent. Why not? The articles don't say. My guess is that she figured she was better off with MacLetchie's support than with the real father's. But whatever the case, it was her decision; his rights, and those of the true father were in her hands and no one else's. And because she chose to withhold her consent to DNA testing, MacLetchie went through years of torment and has been left literally penniless. But of course there's more. Scottish taxpayers - who support the CSA and its attorneys, the courts and their judges and other personnel - ponied up large sums of money pursuing a man solely because the mother of the child in question elected to deny consent to DNA testing. Their money was wasted. But that's still not all. The true father hasn't spent a single minute with his son. The boy hasn't spent a single minute with his true father. And that man, whoever he may be, has paid not a farthing to support the child he helped bring into the world. Why? Because one person was empowered by law to decide those things. After sixteen years, James MacLetchie has finally been granted the right to prove that he is not the child's father. Of course that was proven long ago, but now he gets to do it again and one supposes that this will be the final time. Now that the boy is an adult,MacLetchie will finally be allowed to prove that he isn't required to pay maintenance. To say the least, the horse is out of the barn. What will proving non-paternity now do for MacLetchie? Will it return his money to him? Will it give him back the peace of mind he lost fighting CSA? Will it give him back his house? His job? It will not. It will only do what should have been done years ago. And none of what is to come will give the true father the opportunity to care for his son, to see his first steps or hear his first words, to read him to sleep, to cuddle him, kiss him, dry his tears. He won't help with homework, discuss which college is best, try to explain about girls. No, none of that will happen for one reason and one reason only - because the mother decided that it should be so. Understandably, MacLetchie has sued CSA for the grief it put him through and the loss of his money and livelihood. Will he win? Strange to say, I doubt it. After all, what did CSA do that was legally wrong? It seems to have applied the statutes correctly. His name was on the birth certificate; there's no provision in the law for CSA to consider his inability to father a child, only to do DNA testing; and testing could only be done with the mother's consent. CSA's hands were tied. Should he sue the Roberta? Apart from the fact that she probably has no money to pay a judgment, she too seems to have done no legal wrong. If there's a requirement in the law that she give her consent when she doesn't want to, I'm not aware of it and in any case, it was never enforced over 16 years. From where I stand, it looks like James MacLetchie has no legal recourse. Under Scottish law, everything was done according to Hoyle. And when everything was done appropriately, and such outrageous consequences resulted, you know there's something wrong with the law. And that 'something' is that fathers' rights are placed in mothers' hands. Is there a question about paternity? Too bad; everything and everyone await the decision of the mother. Is it thumbs up or thumbs down? Does she agree to allow the truth to be known or not? In James MacLetchie's case, it was thumbs down, and everyone, from the child to MacLetchie to the father to CSA to judges and lawyers, to Scottish taxpayers, suffered as a result.
Mr MacLetchie, formerly of North Uist, wants a change in the law so DNA testing can be enforced without the mother"s permission...He's got my vote.
this article explains one of the significant ways in which the Benjamin Mills case can help to improve Ohio adoption law (Dayton Daily News, 3/19/11). This article gives more details (Dayton Daily News, 3/19/11). Ohio has a Putative Father Registry. In all the 29 states that have them, those registries serve to deprive biological fathers who aren't married of the right to notice of the adoption of their children and the termination of their parental rights. That's what happens if those unmarried dads fail to file the appropriate form with the PFR. On the other hand, if they do file the form within the allotted time (in Ohio, it's within 30 days of the child's birth), they must be notified and given an opportunity to contest the adoption. But, as anyone familiar with fathers' rights in family court would expect, there's a catch. And the Mills case highlights it. In Ohio as elsewhere, courts are required by law to check with the PFR to see if there's a dad claiming paternity of the child. If so, he's supposed to get notice. But here's the catch: the court has to check the PFR before the adoption can be finalized, but not before the child is placed with the adoptive parents. And that's just what happened in the Mills case. The child was turned over to Californian Stacey Doss who intended to adopt her, and off they went to the Golden State. As we know, once a child is in the hands of adoptive parents, it's hard for the birth father to get it back. Benjamin Wyrembek can tell you that. It took him three years, and at that he was luckier than many dads.
Elizabeth Gorman, attorney for birth father Benjamin Mills Jr., noted, "If the registry had been searched before the baby was taken to California, this would never have happened.'Just so. The simple failure of the court to check the PFR before turning over the child rather than after, resulted in wasting enormous amounts of court time, attorney time and taxpayer's money. As a practical matter, the Ohio Department of Job and Family Services has already started checking the PFR before placement is made, but, as its spokesperson pointed out, that's just an informal policy, not something that's required by law. So clearly, Ohio law - and that of every other state that allows placement before checking the PFR - should be changed. No child placement should be made before reviewing PFR filings. But if Ohio really wants to improve its adoption laws, it'll repeal the law that established the PFR in the first place. Putative Father Registries serve one and only one purpose - to make adoptions go more smoothly by cutting the dad out of the loop. The whole point is to facilitate adoptions by depriving fathers of their legitimate parental rights. As such, PFRs are morally wrong and of course establish a different standard of parental rights based entirely on sex. No mother in the country can have her rights terminated without a hearing and an opportunity to prove she's entitled to custody. They also violate the most minimal concepts of due process of law. In order to terminate or diminish constitutional rights, states are normally required to give a person notice and the right to be heard by an impartial tribunal. None of that happens with PFRs. Most men don't even know they exist. That's because states make no effort to publicize either their existence or their draconian effects. So the notice requirement of due process is clearly absent. The lack of a hearing follows inevitably on the lack of notice. On the practical side of things, PFRs are the equivalent of using 1000-lb bombs for a July 4th fireworks show. They overdo it. PFRs were first conceived of because, in a few high-profile cases, dads who hadn't been informed of a child's adoption asserted their rights months or years after the fact. Those cases were indeed traumatic for all concerned, but scarcely warrant the deprivation of rights of all single dads whose paramours are clever enough to conceal their children from them. Face it, notifying fathers about their children shouldn't be an onerous task. In very close to 100% of cases, the mother knows who the father is. In some of those cases, there may be more than one possibility, but she still knows who they are. If more than one guy may be the dad, it's a simple process to tell both and do genetic testing to sort out paternity. The problem arises because mothers don't want the dad to know. That's exactly what happened in Benjamin Mills's case. The mother wanted the child to be adopted and she figured the easiest way to accomplish that is to keep Mills in the dark and then lie to everyone else by saying she didn't know his identity. What PFRs do is promote exactly that sort of dishonesty. And, as the Mills and Wyrembek cases show, they promote colossal wastes of court time and taxpayers' money. Worse, as I've said before, every time a qualified father has his child adopted via a PFR, there's a child somewhere in the world who loses out on good, loving adoptive parents. That's because adoptive parents, both in the U.S. and around the world - are a scarce resource. There are far, far fewer of them than there are children who need adopting. So when parents adopt a child with a qualified father, another child with no parents goes without. That's not just a deprivation of rights; it's a tragedy.
I am writing to you in support of SB 377, because when I was 17-years-old I was victimized by the problem which the bill addresses. The hospital manipulated me into signing a paternity declaration when my former girlfriend gave birth to a son she said was mine. There was no parental consent nor did I have access to legal counsel or advice. I was never informed of the legal implications of what I was being asked to sign and I did not fully understand them. I thought that because I was a minor, there couldn"t be serious legal implications. I have since learned differently. The mother of the child has not allowed me to have a relationship with the boy, and several of her relatives have told me that another young man who I knew in our community is in fact the biological father. I tried to rectify the situation, but the judge ruled me to be the biological father and denied my request to establish paternity, even after the child"s mother initially agreed in court to have DNA testing done. I am now on the hook for 18 years of child support to support a boy I"m not able to see and who perhaps is not even mine. Moreover, someday I would like to marry and have a family, and I am instead faced with the potential prospect of losing a quarter of my after-tax earnings because I was defrauded. SB 377 would resolve these kinds of injustices by "invalidat[ing] a voluntary declaration of paternity that is signed by a minor parent if it is not also signed by the parent or guardian of the minor parent.' SB 377 would also require that the parent or guardian of the minor parent receive oral and written information relating to the voluntary declaration of paternity. I wish this legislation had been in place when I was 17--it would have saved me a lot of pain and problems. Sincerely, Thomas Rodriguez Riverside, CA
To learn more about our 2011 paternity fraud legislation, please see the Holstein/Sacks opinion column Bill would give ‘duped dads" some fairness under the law (Los Angeles Daily News, 6/2/11).
This is not a National Lampoon of a Time Magazine article; it's a Time Magazine article (Time, 3/18/11). I don't mean to be flippant, because what the article reports on is extremely serious. It's about a practice that began in Spain during the Franco era. It seems the fascist government had some definite ideas about who should raise children and who shouldn't, so it developed a program the article describes this way:
In the years after Franco won Spain's civil war, he had tens of thousands of former Republicans and other dissidents arrested. The small children of imprisoned women dissidents were sent first to state-run centers or convents, and then reassigned to families whose values better coincided with the regime's. "The state considered these children in need of re-education," says University of Barcelona historian Ricard Vinyes, who has written a book on the subject. "It was actually proud of these efforts and would publish the results of how many children had been 'welcomed' annually."That official practice seems to have ended in the late 1940s, but, at least in some minds, a precedent had been established.
In what appear to be thousands of cases throughout Spain, individual doctors and nurses - many of the latter nuns - took newborns from obstetric wards and sold them to prospective adopted parents. That's the claim by victims who, in many cases, can support their theory with death certificates that have clearly been falsified or cemetery documents that contradict what parents were told at the supposed time of death.In short, there was a market for healthy newborn children, and hospitals developed the habit of selling the children to adoption agencies that were doubtless all too happy to get them. The agencies would then receive money for each child from the adoptive parent, turning a profit in the process. Meanwhile, the hospitals would cover up the whole scam by telling the parents the child had died and issuing a fake death certificate to 'prove' it. That was in the 1960s, and now, for the first time, the Spanish Parliament is listening to the complaints of parents who lost children, they believe, in just that manner. Some 1,000 parents have joined in a lawsuit, presumably to recover damages from the hospitals, for their stolen infants. Apart from the outrages that apparently were committed against Spanish parents between the 1930s and 60s, there's a good bit to say not only about the parallels to U.S. adoption practices currently, but also about press coverage of the theft of children from fathers via the adoption process. Of course there are clear differences between what went on in Spain and what happens to U.S. fathers today. For one thing, hospitals are not in the business of selling newborns, lying to their parents and forging birth certificates. And the intention of adoption law is not to deprive of their children people whom the government decides are enemies of the state. But whatever the intentions, the results, at least as far as fathers go, are remarkably similar. Child theft? Ask John Wyatt or any number of other dads if that happens in this country, and with the imprimatur of the state. An adoption agency official and its attorney, in cahoots with the mother of his child, walked out of the hospital to a nearby hotel where the child was handed over, put on a plane and taken to Utah. Wyatt, a fit father who's never made a secret of his desire to raise his child, got there a few hours late. Looks like theft to me. Money? At every stage of the proceedings, it's money that makes the process go. Explicit payments for children are of course outlawed. But adoptive parents routinely pay "for the mothers' medical and living expenses prior to and after birth." And of course the adoption agency gets paid as do the attorneys. Oh, it's all quite above board, but let's not pretend that it would all work the same way if there were tighter oversight of who gets paid what and by whom. Frank deprivation of parental rights? I don't think I have to say a lot about that, given all I've written in the past. But suffice it to say that adoption law throughout the country does all it can to deprive fathers of their children, irrespective of their fitness to parent. Putative Father Registries are one handy way, but the simple expedient of mothers lying about paternity is another. If she says she doesn't know who the dad is, the court will publish a notice of the adoption in the newspaper and if no dad comes forward, the adoption goes through. There have never been, to my knowledge, any adverse consequences for any mother's lying about paternity in an adoption case. As if to make the case even clearer, the Time article is all about mothers losing their children. That of course is an outrage, if even only half of what the Spanish litigants claim is true. But isn't it curious that, in a lengthy article, the word 'father' doesn't appear. Every aggrieved person is a mother; none are fathers. But, terrible as the mothers' suffering surely is, didn't fathers lose children too? Of course they did, but, as is so often the case with the U.S. press, when it comes to parenting, fathers' needs, fathers' rights, fathers' suffering at the loss of a child somehow seem to count for less. Indeed, that's exactly what we've seen in countless adoption cases. In the Benjamin Wyrembek case, for example, if there was ever an article (other than mine) that was at all sympathetic to him, I haven't seen it. According to them, the deprivation of his rights to his child was, if not admirable, certainly acceptable. Has there yet been an article (again, apart from mine) that criticized the plain fact that the mother of Wyrembek's child lied repeatedly? What about the fact that the adoptive parents, knowing full well that they would eventually lose in court, nevertheless kept the child from his father for three years, thereby guaranteeing that the eventual handover would be more traumatic for the boy than it otherwise would have been? No, as far as the U.S. press is concerned, all of that is perfectly fine. In fact, it's the dad, who's done nothing wrong, who must be criticized as in some way deficient and interfering in something that as they see it, is none of his business. All of that of course eerily echoes the theft of children by the Spanish government and later Spanish hospitals. What gets Time's dander up is that that was done in a foreign country under a fascist dictatorship. Above all, it was done to mothers as well as fathers. When it happens in the U.S. and when it's done only to fathers, it either escapes their notice altogether or they rationalize the practice as in the best interests of the child. But that of course was precisely the rationale offered by the hospitals in the 60s. As one journalist investigating the matter explained,
"Nuns and priests who simply decided that the child would be better off with families they trusted than with the ones to which they had been born."Just so. Thanks to Betsy for the heads-up.
There are myriad ways in which the family law system separates decent loving fathers from their children, and the above are merely two examples. Regardless of our varied beliefs, fathers being allowed to step up and raise and nurture their children should we something that all of us support.The full piece can be seen at Why Fathers Need Help (Good Men Project Magazine, 3/14/11). To comment on the piece, click here.
this review of the research describes it (Wall Street Journal, 3/9/11):
The best childhood predictor of longevity, it turns out, is a quality best defined as conscientiousness: "the often complex pattern of persistence, prudence, hard work, close involvement with friends and communities" that produces a well-organized person who is "somewhat obsessive and not at all carefree."That's the upside of their findings. The downside has much to do with divorce.
Some of the findings in "The Longevity Project" are surprising, others are troubling. Cheerful children, alas, turned out to be shorter-lived than their more sober classmates. The early death of a parent had no measurable effect on children's life spans or mortality risk, but the long-term health effects of broken families were often devastating. Parental divorce during childhood emerged as the single strongest predictor of early death in adulthood. The grown children of divorced parents died almost five years earlier, on average, than children from intact families.Parental divorce is traumatic to children and, generally speaking, the younger the child when the divorce occurs, the more traumatic. The rhetoric promoting no-fault divorce, when states began passing those statutes in the 1960s, was, in typical 60s fashion, all about freedom. Parents shouldn't be "trapped" in an unhappy marriage, so the story went, and children would actually be better off when parents were free of the burden. It's an optimistic theory; too bad it's not true. Time and again, in physical health, emotional health, educational performance, involvement in crime and substance abuse, and a host of others, divorce harms kids. I'm not a fan of fault-based divorce, but somehow, parents need to get the message that their children will likely be better off if they stay together. Maybe the concept should be taught in school. Maybe married people with kids should be held to a higher legal standard than those without, before they can be granted a divorce. If married adults don't have kids, they can divorce any time they like and it won't bother me in the least. But those with kids need to change their ways and they need to do it for the children. Life is long and there'll be plenty of time to divorce once the kids are out of the nest. But as long as they're in it, parents need to stay together if at all possible. Thanks to Ronald for the heads-up.
"I think the time has come for a fresh conceptual approach to resolution of family disputes in Ontario."
This one (The Australian, 3/24/11) takes a decidedly sunnier view than this one (The West Australian, 3/23/11). The ink was barely dry on the Howard government's 2006 amendments to the Family Law Act promoting shared parenting, when opponents started attacking them. They claimed that, despite clear language indicating that commission of domestic violence by a partner must be taken seriously before deciding custody, judges weren't doing so. That pattern of behavior, so opponents claimed, was resulting in "abusers getting custody." Never mind that they started leveling the claims long before any evidence for the proposition had been accumulated, let alone analyzed or published. But, as is so often the case with those who pretend that men pose a unique threat to children, evidence wasn't necessary. They had their narrative of events and they were stickin' to it. Even now, they have essentially nothing beyond anecdotes to back up their claim. After all, it's been about 4 1/2 years since the effective date of the 2006 amendments and I for one have neither seen nor heard about a single authoritative study of post-amendment custody cases showing that judges were turning children over to abusers. Indeed, the amendments could scarcely have been clearer about the importance of domestic violence in deciding custody. Now, the rude among our readers are probably thinking "judges have always given custody of children to abusers. That's because 83 - 90% of custodial parents (depending on the country) are mothers and mothers commit the vast majority of child abuse and neglect. Ergo, it's almost a certainty that judges have given children to abusers." That fact, plus the absence of any comprehensive evidence that judges ignore the strictures in the amendments when it comes to abuse by fathers, pretty much compel the conclusion that the torrent of outrage directed at the amendments stems from a desire to keep mothers in command of fathers' access to children and not concern for the children themselves. So while the first article is headlined "Family Law Revamp to Keep Shared Care," don't be fooled. From the two articles' descriptions, the proposed bill submitted by Attorney General Robert McClelland will do exactly that, but merely as a fig leaf covering serious backtracking on fathers' rights.
Under proposed new arrangements, the Family Court will still have to consider whether divorced parents have encouraged a close and continuing relationship between the child and their former partner when awarding custody.That looks like a good thing until you consider that claims of domestic violence trump all else. Of course that's true now but the proposed law,
redefines domestic violence and places greater weight on child safety, meeting a key criticism of the Howard reforms.How does it "redefine domestic violence?" Apparently in about as general a way as can be imagined.
The definition now contains a general characterisation of harmful behaviour instead of an exhaustive listing, and provides examples of stalking, maiming pets and financial abuse.You read that right, a "general characterization of harmful behavior." Could any terminology be more apt to result in wildly differing interpretations by courts? Could any words open the door wider to judges to simply substitute their own biases about parenting for reliable, gender-neutral analyses? And "financial abuse" is now officially considered to be violent. As a practical matter, that means that the dad who persistently tells his wife "Dear, we really don't have the money for you to buy so many shoes," can lose his kid in divorce court because of it. Under countless circumstances of course, his behavior could be considered responsible and caring, and by no definition of the word is it violent. But in Australian divorce court it's exactly that and yet another excuse to deprive fathers of their children (as if there weren't enough already). But there's worse to come.
Under Labor's amendments to the Family Law Act, the evidentiary burden on those seeking to show that a child faces a risk of violence has been eased after concerns that lawyers were advising clients against disclosing violence against them in case they were seen as an "unfriendly parent".That evidentiary burden has never been heavy. As many fathers have said, pretty much any allegation will suffice; now courts will be able to accept even less. The flip side is that any dad seeking to prove that the allegations are baseless has an even steeper hill to climb to get the judge to ignore false claims. Remarkably, the first article's view of all that is entirely equable. It ends with the claim that not much will change from existing law. As I said, the second article's view of the matter is less optimistic and, I'm sure, more accurate. One of its main points is that the proposed law, by encouraging claims of domestic violence and greatly expanding the definition of the term, will result in courts being flooded with angry parents, charging and rebutting domestic violence.
Divorced parents' groups say proposed family law changes will swamp the courts with vexatious claims of family violence made by embittered ex-partners in custody disputes.
Brian Fisher, a spokesman for the Family Law Reform Association, said under the proposed changes, the definition of family violence would be left open-ended and become too subjective, making it easier for judges to restrict or terminate parental contact.
As an example, he said a woman could make an allegation that her estranged husband "raised his voice and I was scared", leaving it virtually impossible for the accused to challenge that claim.
The changes will also water down sanctions against partners who made false statements about their exes, which Mr Fisher said would only encourage further damaging and untrue claims to be made during ugly court battles.The veneer of gender equality in all this is not just tissue-thin but shredded. No serious person pretends that the proposed changes are anything but a roll-back of fathers' rights to their children and children's rights to their dads. And no one can pretend that anything else is the intent. No informed person believes that it'll be dads coming into divorce court saying "she frightened me, so I get the kids." And no one believes that if they did the courts would take them seriously. The proposal is so far just that - a proposal; it's not yet law. In order for it to become law, it has to get a majority of votes in the Australian Parliament. So now is the time for father's groups and all those who truly care about children's welfare to step up to the plate. Specific MPs should be identified and their names and contact information should be distributed far and wide. Those MPs should be contacted and told in no uncertain terms that a vote for this travesty means they will lose their seat in parliament. And, those who vote 'Aye' must find themselves the target of a concerted electoral effort to defeat them. Before any vote is held on the new amendments, fathers' rights lobbyists must sit down for face-to-face meetings with MPs and explain all the many reasons why the bill must fail. The game is afoot. Thanks to Ned for the heads-up.
here's the amicus curiae brief of the American Civil Liberties Union and others in Turner. However tedious you may find reading legal briefs to be, I recommend that you read it. It compellingly makes the case that states must provide attorneys for the indigent child support debtors it seeks to jail. According to various news articles about this case and others, notably the Randy Miller case in Georgia (whose representation is Sarah Geraghty of the Southern Center for Human Rights who also contributed to the ACLU's brief) states raise two primary justifications for not providing an attorney to indigent child support debtors. Neither holds water. The first is that states can't afford to provide attorneys to indigent debtors. The short answer to that is that they can't afford not to. In fact, out of 50 states, 44 already provide attorneys to indigent debtors in child support contempt hearings. If they can, why can't the other six? More to the point is the fact that incarceration costs the state far more than providing an attorney. As the ACLU brief points out, ten years ago it cost the State of Indiana about $62 per inmate per day to keep people behind bars. That's risen to about $93 per day in 2011. Therefore, to house an inmate for 30 days would cost about $2,700; two months incarceration would cost $5,400. Given that contempt hearings usually take about 20 minutes, states pay a small fraction of that to attorneys representing alleged contemnors. The second claim is that, because these are civil contempt hearings, states don't owe the same obligation to provide representation as they do in criminal cases. This claim makes even less sense than the first. Again, as the ACLU brief makes clear, jail is jail, irrespective of why the state puts a person there. The U.S. Constitution conceives of liberty interests. Those are clearly infringed when a state puts someone behind bars. The fact that it does so in civil contempt cases as opposed to criminal cases is a classic example of "a distinction without a difference." Beyond that, the brief makes all the obvious points. Indigent litigants are very often undereducated. As such, they're clearly unable to present the defense of inability to pay or to understand the various ways the state's case can be attacked. The brief cites data from the Office of Child Support Enforcement showing that 70% of child support debt is owed by parents having either no quarterly income or those earning under $10,000 per year. Only 4% of child support debt is owed by parents earning over $40,000 per year. In short, the threat of jail is aimed overwhelmingly at the poor. And those poor are likely to be undereducated. Some 41% of indigent fathers owing child support haven't graduated from high school. Many aren't functionally literate. Needless to say, lack of even the most basic education makes representing oneself in court particularly difficult. Attorneys make a difference in whether these people go to jail or not. One study cited by the brief found that, of 75 people in a Georgia jail for child support contempt, 100% were indigent and none had been represented by an attorney. According to the law, none of those should have been in jail. One of those was the somewhat famous Frank Hatley, about whom I've written a couple of times. He was in prison for contempt for failure to pay for a child well known to be not his. He knew it, courts knew it, but because he was indigent and barely literate, Hatley failed to raise the issues of inability to pay or nonpaternity, so it was off to prison for him. Perhaps even more outrageous is the case of Quenton Jackson and Marquita Johnson who were also in jail in Georgia. The father and mother of a six-year-old, they're indigent and therefore unable to repay the state for welfare income they received. The state's solution? Jail them both and place their child with relatives. Of course, incarceration accomplishes nothing toward providing child support. Mostly, indigent parents just sit in jail until they're released having paid no money because they have none. State taxpayers have paid to house them, but their children haven't seen a dime. And all the time they're behind bars, their debts just keep piling up an up. As the ACLU says, jailing for nonpayment those who can't pay "serves no coherent policy." It costs the state money and collects none. Because the indigent can't pay, incarceration serves no coercive effect. How could it? If you don't have the money, sitting in a cell doesn't make it somehow magically appear. And coercion - getting the comtemnor to obey the court's order - is the whole point of the contempt process Also, many jails don't allow children as visitors, so the parent-child relationship is interrupted when the obligor is serving time. The ACLU calls for a concrete, clear ruling from the Supreme Court that, when states seek to take away an indigent person's liberty, whether in criminal court or civil, they must provide legal representation. That's important not only in states like South Carolina and Georgia that don't provide it, but those like Pennsylvania whose laws require it but often don't. In truth, those who can't pay should never go to jail for failure to do so. That's a rule of law that should apply in all cases of debt, whatever its source. Turner v. Price doesn't quite get to that question, but it does the next best thing. The Supreme Court should prohibit states from establishing modern-day debtors' prisons.
http://www.ag.gov.au/familyviolencebill and Family Violence Bill) contain the following provisions:- The Court, in every case before it, will be required to "proactively inquire' i.e. invite the parties to make allegations of family violence against each other. This is additional to similar obligations on the party"s legal representatives (refer page 5, item 9, subsection 12E(3) and page 11, item 32 "before paragraph 69ZQ(1)(aa)"). The definition of "family violence' will not be restricted to physical or mental abuse but will be completely open ended. It will include any behaviour a party claims makes them feel threatened "irrespective of whether that behaviour causes harm', or to feel unsafe. Such fears need not be reasonable but instead are to be totally subjective, based only on the complainants claimed state of mind. The normal legal standard of the reasonable person test will not apply. Thus, it will be almost impossible for an accused to refute such claims (refer page 3, item 3, subsection 4(1)). The Family Court does not have criminal penalties for perjury despite false testimony having the potential to create enormous wrongs, injustice and damage. Partly because of this, the Family Court is notorious as "The Liar's Castle'. The Court"s reputation will be further damaged by the proposed provision to dispense with the existing meager sanctions for those knowingly making false allegations or statements in proceedings. This can only give encouragement to make such allegations or statements. When added to the other proposed provisions it creates a toxic legal cocktail. (refer page 12, item 37, Section 117AB). The dangers outlined above are further exacerbated by the removal of the "friendly parent provisions". This will prohibit the Court from giving consideration to the extent the parents have fulfilled their obligation to encourage a healthy relationship between the children and the other parent. The Court should not be placed in this legislative "straightjacket". It is vital that The Court is able to examine all the issues central to the welfare of the child rather than having to operate wearing legislative "blinkers". Given that the parties before The Court are in dispute, standard legal principles require the Court be able to investigate all issues directly relevant to the merit or otherwise of the parties. Any attempt to fetter a Court of Law in its relevant enquiries is generally condemned by the legal fraternity. Again, this provision reveals a diminished view of the importance of maintaining a healthy relationship between both parents and the child and exposes the true intent of the amendments. (refer page 7, items 18,19 and 20. Section 60CC and refer page 10. items 25 and 26 (Note 1)). Effects of the amendments Inevitably and predictably, the amendments will encourage a sharp increase in totally false or grossly exaggerated allegations by one parent against the other in cases before The Family Court. Far from diminishing actual family violence, the following likely outcomes will only increase the risk. Greatly increase the workload of The Court and other organisations as a plethora of claims are investigated and assessed. Greatly increase the time and cost in settling cases creating a lawyers bonanza whilst increasing stress and frustration to the parties. Greatly increase the cost to the taxpayer of operating the Family Court and its associated agencies and the cost to the community as a whole of increased friction and more protracted Family Court cases. Increase the demand on limited government funded legal aid. Greatly increase the demand for supervised contact centres, already overburdened, costly and unavailable to most parents desperately needing such a service. Greatly increase the number of children whose relationship and contact with their non resident parent is terminated, postponed, reduced or otherwise curtailed due to false or grossly exaggerated claims of "family violence'. Greatly increase the amount of friction between the parties as one or both take advantage of system"s multiple invitations to make allegations of "family violence' against the other. Hamper the Courts ability to identify real and acutely dangerous situations as it is diverted with vexatious, false or grossly exaggerated allegations. Greatly increase the potential for actual violence between parties where previously there would have been little or none. This will occur as non resident parents find the system has stacked all the cards against them, dramatically affecting their contact and relationship with the children and all the associated consequences. Greatly increase the level of suicide and deterioration of mental health for non resident parents (typically the male). Respected studies have shown that separated males are six (6) times more likely to suicide than attached males. Further, this rate was even higher amongst younger males (thus more likely to have younger children ). Moreover, the highest rates occurred during the divorce phase. Without the normal legal protections, the chances of success for the vexatious, manipulative, inflexible, vindictive, dishonest, or mentally unbalanced parent will be greatly increased. Parents with these and similar attributes will readily take advantage of the "free kick' being offered by the proposed amendments. This parent will then become the primary or sole parental role model for the children. Faced with the prohibitive cost of pursuing a right of contact, and the associated psychological stress, many non resident parents will simply withdraw, leading to a great increase in the numbers of the "family law stolen generation' children wrongfully alienated from a non resident parent (typically the father). This will amplify the well documented higher rates of negative outcomes for children brought up in fatherless environments. Impact on legal principles The proposed amendments have provisions which are unmatched in any other area of law. We believe they offend several basic legal principles: a) The ambiguity and lack of certainty in the new, unlimited and subjective definition of "family violence'. b) The presumption of guilt unless an allegation of "family violence' can be disproved which will be frustrated by the subjective test for "family violence'. c) The proposed amendments will force the judge to ignore the standard legal test of the reasonable person. d) The restrictions on the court"s ability to investigate the merit of the parties. e) The lack of any real sanction from knowingly making false allegations and statements in the proceedings. f) The court making "proactive inquiry' into the single issue of "family violence' tantamount to inviting the parties to make an allegation and additional to similar obligations on the parties legal representatives. Lack of objective research Although the amendments are claimed to be supported and underpinned by various academic studies etc, such studies are only valid if they are objectively conducted with an open mind and from a non ideological platform. We have seen no reliable statistics or studies which show: a) Any significant upsurge in actual family violence, supported by police and medical records since the introduction of the 2006 Family Law reforms and which can be reasonably attributed to the 2006 reforms. b) Any explanation of how an inevitable increase in tensions, legal costs, case time and demands on limited resources will reduce family violence. c) Any explanation of how an inevitable increase in the number of cases where parent – child contact is unjustly affected, will reduce family violence. d) Any studies on the affect on children of curtailing contact with a parent who has had a caring, loving relationship with the child but has been subjected to allegations by the other parent. e) Any studies on the impact on suicide rates and other mental issues in non contact parents, unjustly denied contact with their children. Summary Based on our research and experience, we maintain that the 2006 reforms have worked well and sensibly in encouraging shared parental responsibility while at the same time providing appropriate protective measures for adults and children against family violence. The evil in the amendments is to encourage a presumption that family violence and abuse of children customarily exist in contested matters before the Court. We also believe the amendments are an underhand means of sabotaging the 2006 reforms under the guise of preventing family violence. We will vigorously oppose the amendments and, if enacted, we will call on our organisations to make their repeal an issue at a federal election."
here includes the audio tape police made when neighbors called them to apprehend Ligia who was in the street, partially clad and screaming about sexual abuse. The state Department of Health and Human Services investigated Ligia's claims and found them to be entirely baseless. The family court judge was so impressed with Ligia's claims that she awarded custody of the children to Vladek saying,
"[Ligia Filler] accused Mr. Filler of molesting the children. That allegation was false and known to be false. She has shown a capacity to manufacture claims…That capacity for manufacturing claims apparently came, not only from her relationship with Vladek, but as well from those with other men previously. Having failed in her attempt to separate him from his children, Ligia then cried rape. That got Vladek jailed; he made bail and turned his attentions to saving his children from harm at the hands of their mother who seems to have mental/emotional problems. Such was the conclusion drawn by police and sheriff's deputies. That's when the family court awarded him custody. But just when it seemed that justice had prevailed, enter stage left, Assistant District Attorney, Mary Kellett. Kellett looks to be the type of prosecutor who, steeped in the politics of the 80s, assumes all claims of rape to be true. It seems she takes them all to trial irrespective of their objective merits. Given that rape, unlike most criminal charges, requires nothing beyond the say-so of the complaining witness to get to trial, there's nothing to stop the likes of Kellett from forcing falsely accused men to trial. That's what it looks like happened in Filler's case. After all, many prosecutors would look askance at a case in which the woman had praised the man as "the most loving and caring man and father" she had ever known, but who suddenly, when he announces his intention to divorce her, levels baseless accusations of child sexual abuse at him. Into the bargain, Ligia refused to be medically examined and there was in fact no medical evidence whatsoever offered by the state at trial. There's more. Ligia claimed Vladek had assaulted her on several occasions, but the defense was able to prove that many of those times Vladek was elsewhere. On one of the dates, their 12-year-old son was present. He testified that nothing had occurred. He also testified that he'd never seen his father be violent toward his mother, but he had seen her commit violence against his dad. Add all that to that the fact that the complainant has falsely accused men in the past and has evident emotional problems and most prosecutors would know what to do - drop the case. Not Kellett. She took Filler's case to trial and won a conviction. How? She got the judge to exclude all evidence that the allegations arose from a fight over child custody as well as all evidence of Ligia's previous lies. If that weren't bad enough, she then told the jury in closing argument that there was no custody case. That proved too much even for the trial judge who ruled the verdict to be a product of prosecutorial misconduct and ordered a new trial. The Maine Supreme Court agreed and Vladek Filler will get another opportunity to prove his innocence. Hopefully the trial judge will have learned his lesson about just who Ligia Filler is and will make evidentiary rulings accordingly. The life of a thoroughly decent man and the welfare of his children are at stake. In the mean time, Vladek has filed a multi-page, multi-count complaint with the Maine State Bar concerning Mary Kellett's misbehavior. When that is scheduled to be ruled on, I don't know. I'd bet good money that Vladek Filler is an innocent man railroaded into prison by an unstable wife threatened with the loss of her kids and an unscrupulous prosecutor who believes all claims of rape. We'll follow this case as it goes to trial.
this article (Examiner, 3/24/11). It seems there's a bill before the Iowa state Senate to that would establish a presumption of joint custody in divorce cases. Whether the word 'joint' means 'equal,' I don't know. I suspect it doesn't. But whatever the case, the bill handily passed the Iowa House and now is before the Senate Judiciary Committee. It's prospects don't look good. That's in part because the senator who's been assigned to floor manage the bill appears to know nothing about the facts of divorce and to be hostile to the concept of fathers and their parental rights. Here's Senator Gene Fraise on House File 345:
"There"s no easy solutions to figure out where we want to be,' Fraise said. "You don"t want to take the judge"s discretion away to say this person should have the children. It"s kind of a no-win deal. My greatest desire is, don"t get a divorce. Stay with the kids. When you do that, you create a lot of emotional problems for the kids. Most kids adjust to it, some don"t. Then we have to deal with those disturbed kids down the road. There"s just no easy answer.'
Fraise said he"s getting emails from men advocating for the bill, which would give divorced fathers more time with their kids rather than what joint legal custody with visitation rights currently provides.
"They seem to think they are discriminated against, but why did they get into that situation? I don"t know. Maybe not a good husband, not a good father,' Fraise said. "Irregardless of which way we go, there"s going to be unhappy people.'His reaction to a child custody bill is "don't get a divorce." Well, as I've said many times, divorce is bad for kids and should be avoided if at all possible. But of course divorces do happen and so Iowa needs to deal with that. Fraise's plaint is silly. Then there's the "don't take away the judge's discretion" argument which the bill plainly doesn't do. Does Fraise really not understand the concept of a legal presumption? It's really simple; it just means that if the party opposing the presumption doesn't produce evidence to rebut it, or not enough evidence, then the presumption stands. So, as we all know, there's a presumption of innocence in criminal court. That in no way ties the judge's hands; it just means that the prosecution has to prove its case. Would Fraise do away with that presumption too? By far the worst though is the notion that dads don't get custody because they're bad husbands and fathers. No, actually they get divorced because their wives know that they'll get the kids and it's wives who file 70% of divorce cases. That's the clear finding of a large amount of social science of which Fraise seems blissfully unaware. He's also unaware of the social science that shows that courts prefer maternal custody not because it's in children's best interests, but in spite of it. Canadian researcher Paul Millar has found that there is no correlation between child outcomes and maternal custody and that there's some correlation between good outcomes and paternal custody. As to discrimination claimed by all the dads who've been emailing him, how does Fraise explain 83% maternal custody in this country? That's currently over 13 million non-custodial dads in the U.S. according to the Census Bureau. They're all bad fathers and husbands and none of the mothers are? No, there's a much simpler explanation for officeholders like Fraise hiding behind any excuse that comes to hand for refusing to do the obviously right thing - they pay no price for their behavior. At some point the movement for fathers' rights and family court reform will start bringing our weight to bear on these politicians who spout nonsense like Fraise's. Let just a few of them find themselves looking for other work and we'll start to see sensible changes in state laws.
California Family Courts Helping Pedophiles, Batterers Get Child Custody (3/2/11)--a one-sided attack on the legitimacy of Parental Alienation that dismisses the widespread problem of false accusations in family court proceedings. We asked you to write a Letters to the Editor of the SF Weekly and tell them your thoughts and experiences. Your response was overwhelming--the San Francisco Weekly was so bombarded with letters that they decided to "dedicat[e] a full page to readers' response to the story." All of the letters can be seen here. To read Fathers and Families' full critique of the San Francisco Weekly's California Family Courts Helping Pedophiles, Batterers Get Child Custody, click here. The Weekly also published F & F Executive Director Glenn Sacks' letter Fathers are often wrongly accused. Now San Francisco Weekly writer Peter Jamison has penned another ill-informed attack on the credibility of Parental Alienation--'Parental Alienation Syndrome' -- Judge Isn't Buying it (3/24/11) ? The article is based on the opinions of only one family law authority--Sacramento Superior Court Judge Jerilyn Borack. Borack is the sister of longtime California politician Sheila Kuehl, who is known for being an ardent feminist and sole custody advocate. Borack is known to share many of her sister's views. Jamison opens his piece with a very misleading definition of Parental Alienation Syndrome. Jamison writes:
Invented by the late Richard Gardner -- a psychiatrist who argued that society treated pedophiles too harshly before he stabbed himself to death with a steak knife in 2003 -- the theory of PAS asserts that mothers brainwash children to believe that estranged fathers have sexually molested them.There are numerous problems with this statement. They include:
1) PAS wasn't "invented" by Gardner--it was a phenomenon long noted by mental health professionals, family law attorneys, and divorced parents who were targets of it. Gardner deserves considerable credit for delineating the cluster of symptoms that comprise PAS, but to portray this internationally known and widely accepted social phenomenon as one psychiatrist's "invention" is highly misleading. 2) Attacking Richard Gardner personally has always been a very weak way to challenge the validity of Parental Alienation Syndrome but Jamison does it, so we'll briefly deal with it. Jamison and many of Gardner's critics continually use his suicide as a way to discredit him. However, at the time of Gardner's death at age 72 he was suffering from Reflex Sympathetic Dystrophy (RSD), a painful neurological syndrome often associated with suicide. Dr. Anthony Kirkpatrick, Chairman of the Scientific Advisory Committee of the International Research Foundation for RSD/CRPS, explains: "As RSD progresses over time...the syndrome tends to become more unresponsive to treatment...At an advanced stage of the illness, all patients develop significant psychiatric problems and narcotic dependency, and are left completely incapacitated. Some commit suicide." How this sad, painful story has anything to do with the legitimacy of Parental Alienation Syndrome remains a mystery to thinking people. 3) To say "the theory of PAS asserts that mothers brainwash children to believe that estranged fathers have sexually molested them" is also misleading. PAS exists in a wide variety of scenarios, of which sexual molestation charges are only one.Many of Jerilyn Borack's statements in the article are also problematic. Jamison writes:
As for the underlying idea of PAS -- that mothers frequently make false child-abuse allegations as a litigation tactic against fathers -- Borack said she doesn't buy it. Based on her experience as a family-law judge, she said, malicious false accusations simply don't happen often...[Borack says] "I think it occurs incredibly seldom that someone actually designs a false allegation for an objective."Actually, family courts are rife with false accusations of all sorts, and false accusations of domestic violence are widespread. In an article in the Family Law News, the official publication of the Family Law Section of the State Bar of California, family law attorneys Lynette Berg Robe, C.F.L.S. and Melvyn Jay Ross, C.F.L.S. explain:
[Domestic violence] protective orders are increasingly being used in family law cases to help one side jockey for an advantage in child custody…[the orders are] almost routinely issued by the court in family law proceedings even when there is relatively meager evidence and usually without notice to the restrained person.Jamison writes:
Borack said that inaccurate accusations of child abuse do occur in divorce proceedings, but are typically the result of a sincere belief by one parent that the child is being harmed.I don't know of any authoritative studies on how many abuse accusations are made in good faith and how many are simply custody maneuvers, but I do know that a substantial number of them are intentionally false. Still, it is important for litigants to realize that a false accusation isn't necessarily malicious, and that some parents who make them are acting out of a sincere concern for their children's welfare. Jamison writes:
[Borack] says the key to improving court assessments of potential child abuse is devoting more resources in the form of money or personnel to the system. That could allow more time to look into abuse accusations when they arise...Fathers and Families is certainly in agreement with this. We have always believed that family courts need to take accusations of domestic violence and child abuse seriously--what we've long opposed is the way spurious accusations are so often accepted and are used as basis to separate fit, loving parents from their children. Borack is correct that one of the biggest problems in cases where there are allegations of abuse is simply that courts don't have the proper time to examine and weigh the evidence. Unfortunately, given the budget problem most states and the federal government are facing, we doubt that more resources are going to be committed to the family courts any time soon. To comment on 'Parental Alienation Syndrome' -- Judge Isn't Buying it, please click here.
This article exemplifies some of the many problems that arise when we give governmental agencies the power to substitute their own ideas about parenting for those of parents (Houston Chronicle, 3/27/11). It seems that Darcy and Tye Miller had premature twins whose birth weights were five and six pounds respectively. Worse, they seemed to be having trouble gaining weight. The Millers brought the girls to the pediatrician weekly, obviously concerned about their wellbeing. That's when X-Rays revealed broken ribs on both of the little girls and the local Child Protective Services swung into action. It went to court for an order removing the twins to foster care and didn't tell the Millers or their attorney about the hearing. It also didn't tell the judge that there was an agreement between the Millers and CPS to place the children temporarily with in-laws. CPS waited until after 5 P.M. on a Friday to request an emergency hearing that Judge Michael Schneider, being uninformed of the agreement with the Millers, granted. (Full disclosure: I've mediated cases for Judge Schneider in the past.) He also granted the placement of the children in foster care because he was in the dark about the Miller's representation in the matter. Not content with violating its own agreement with the Millers or misrepresenting the case to the judge, CPS also neglected to look at obvious facts or ask an expert witness what might have caused the injuries to the newborns. If they'd done either, they'd have noticed that the rib fractures were in the same place on both children. If they'd asked a pediatric orthopedist, they'd have learned that the injuries likely occurred when the parents lifted the children and that the absence of any sort of internal bleeding virtually ensured that the fractures hadn't resulted from blows. Not surprisingly, judge Schneider is less than favorably impressed by the actions of CPS. He's now ordered the children back into the care of their parents and told CPS to pay the Miller's attorney $32,000 for the needless litigation required to right the patent wrongs done by the agency. But that's not all. He's also ordered two CPS officials to turn in to him within 30 days, a report demonstrating that "they understand the state's child removal statutes." Schneider's order is laced with the term "bad faith" referring to the actions of CPS. The children's guardian ad litem, appointed by the court concurs with what the judge did. Is this the worst abuse of parental rights by a child welfare agency? Far from it. The list of those cases in Texas alone would fill a small book. But can we seriously pretend to be surprised? Faced with a report from a local hospital that two children had fractured ribs, CPS took the children from the parents and cut corners to do it. It also cost the taxpayers of the state a fair chunk of change in the process. None of that is right, but all of it is, in a sense, predictable. Over the past 40 years, we've made a choice - that divorce and out-of-wedlock childbearing are acceptable ways to raise children. Well, this is one of the consequences of that choice. CPS agencies that are understaffed and underpaid are given the unenviable task of sorting out good parents from bad ones, dangerous situations from benign ones, neglect from poverty. It's far from the best situation for children, and we know it. But it's the situation that obtains until we wake up to the reality that children do best in intact, two-parent families.
H02684. (Previous numbers were temporary and should be disregarded.) Its lead sponsor is Representative John Scibak ("Sigh-back"). It is entitled "A Bill Relative to Supporting Children and Parental Custody." It supports children and strengthens families by creating a rebuttable presumption of shared parenting in divorce cases, so that children can sustain their loving relationships with both parents. Fathers and Families continues to seek lead volunteers to coordinate our efforts to win over legislators. If you are willing to take a lead role, please contact me at [email protected] by email or at (617) 542-9300. To learn more about the bill, please see our Massachusetts Shared Parenting page here. Together with you in the love of our children, Ned Holstein, M.D., M.S. Founder, Chairman of the Board, Fathers and Families
- The judge in the murder case gave Borukhova's attorney only overnight to prepare his final argument to the jury;
- The law guardian in the custody case may be a nutcase given to believing bizarre notions of conspiracies against the republic;
- Borukhova claimed that Daniel was a kind of Jekyll and Hyde figure, one way in public, another altogether at home.
this one (Village Voice, 3/23/11). This is journalism at its best. The writer, Nick Pinto, strips bare for all to see the women's advocates, the politicians and, yes, the journalists, who combined to perpetrate a fraud on the American people. In this case the fraud was about child sex trafficking in the United States. Readers might remember that last year, The Guardianin England did a similar report on sex trafficking into that country. For years, organizations like Oxfam had been ballyhooing figures about the number of women brought into the U.K. for the purpose of staffing brothels. According to those groups, some 28,000 women had been brought into the country to be sex workers. So when over 50 national, international and local police agencies combined to do a sweep of sex workers throughout the country and arrested almost 800 people, it was worth noting that not one of them had been trafficked. At the time, advocates for sex workers loudly proclaimed that they did the work of their own free will because it pays well. Now we have our very own homegrown scandal about child sex trafficking. It seems an organization called the Women's Funding Network, in conjunction with the Atlanta Women's Foundation, the Juvenile Justice Fund and others hired a business consultant called the Schapiro Group to study trafficking of underage girls. Now, the Schapiro Group had never done such a study before and had no apparent qualifications for the job. But what everyone seems to have understood is that, if you want government funding, you'd better produce some splashy figures. So they did. How they did is the nut of the matter. The "methodology" they utilized would be laughed out of a freshman sociology course, but for Congress and countless media outlets, it was fine. Essentially, the Schapiro group first asked 100 people to look at photos of young women on Craigslist "escort" pages and guess which ones were under 18. It turned out that 38 of them were wrong. So they used that figure (38%) as an across-the-board factor to correct future estimates by other people about the ages of the women on Craigslist. They then had people look at Craigslist photos, decide which women were underage, took 62% of that number and reported it as the number of underage women trafficked for sex in the particular state in which the Craigslist was located. Pinto quotes numerous qualified social scientists as, to say the least, critical of that "methodology." Pinto himself hits the nail on the head calling it "junk science." In fact, that's putting it mildly. After all, no one involved in the study knew the ages of the young women in the photos, so there was no way to ascertain whether they were of age or not. Into the bargain, it's not exactly a secret that many people post photos of themselves at ages younger than they are at the time the photos appear. The Schapiro Group apparently hadn't gotten the memo. About other holes in their research, Pinto says,
When we asked Schapiro and Rusty Parker, the leader of the classifieds study, to fill in some of the missing pieces in their methodology, they had a hard time coming up with straight answers. In fact, Parker couldn't remember key information about how he constructed the study. When asked where he got the sample pictures used to calibrate the all-important 38 percent error rate, he wasn't sure.
"It was a while back," he says. "I forget exactly where we got them from." Parker was equally fuzzy on how the researchers knew the ages of the people pictured in the control group. "Um...I'm afraid I do not remember," he says.
You might say that this is important information. The Schapiro group has been telling the world that it cracked the alchemical code that transforms dumb guesses into hard statistics, and that the magic number is .38. But the leader of the study can't remember the procedure he followed to get that number.Meanwhile, Beth Schapiro, having first put forth her figures on child sex trafficking as gospel, then turns around and says
"We're the first to tell you, this is not a precise count of the number of girls being prostituted," Schapiro said. "We make no bones about that."But then does another about face.
Of course, a precise count of the number of girls being prostituted is exactly what the statistics are being presented as in the media, in press releases, and in Schapiro's own study. When this is pointed out, Schapiro reverses herself.
"Well, yes, these are specific numbers," Schapiro backpedals. "And yes, they are hard numbers, and they are numbers that we stand completely behind."Except she doesn't stand behind them or maybe she does. Ultimately she opts for doing both.
This is the kind of cognitive whiplash you have to endure if you try to follow Schapiro down the rabbit hole. The numbers have the weight of fact and can properly be cited as actual incidents of juvenile prostitution, she insists. But when pressed to justify the broad and unsupported assumptions of her study, she says the study is just a work in progress and the numbers are only approximations.
Schapiro's grasp on empirical rigor is such that when asked point-blank to choose between her two contradictory interpretations--estimates or facts--she opts for "all of the above."
"I would square the circle by saying that you can look at them both ways," she says.Got that? Having done what no other media outlet did - examine the supposed "study" instead of unquestioningly reporting its claims - Pinto is not very impressed by publications that dropped the ball. Those are papers like USA Today, the Houston Chronicle, the Miami Herald, the Detroit Free Press, and others, supposedly reliable organizations. Nor does he think much of the motivations for such an approach to studying sex trafficking which turned out to be purely mercenary. One of the prime movers behind the bogus study was one Kaffie McCullough.
In early 2007, McCullough approached the Georgia Legislature to ask for money for a regional assessment center to track juvenile prostitution. "We had no research, no nothing. The legislators didn't even know about it," she recalls. "We got a little bit. We got about 20 percent of what we asked for."
Later that year, the first Schapiro Group counts were made, and when McCullough returned to the Legislature the following session, she had the study's statistics in hand.
"When we went to the Legislature with those counts, it gave us traction--night and day," she says. "That year, we got all the rest of that money, plus we got a study commission."For McCullough, the bottom line is, well, the bottom line.
"I would say, 'The research costs money, but we've been able to broker--I don't know what it is now, I think it's over $1.3, $1.6 million in funding that we never would have gotten,'" McCullough says...
Admitting that there isn't any authoritative scientific count of juvenile prostitution, as (researcher David) Finkelhor recommends, isn't an option in McCullough's book. She recalls an early presentation she made in Nebraska, when a politician gave her a piece of advice that stuck.
"He said, 'If you all as a movement don't start having numbers, you are going to lose the money,'" McCullough recalls. "'How can you justify millions of dollars when there are only hundreds of victims that you're actually serving?'"And so people like Deborah Richardson of the Women's Funding Network went before a Congressional committee to loudly proclaim the staggering figures
[O]ver the past six months, the number of underage girls trafficked online has risen exponentially in three diverse states," Richardson claimed. "Michigan: a 39.2 percent increase; New York: a 20.7 percent increase; and Minnesota: a staggering 64.7 percent increase."What matter that those figures are essentially made-up. The news media love a lurid story and can be counted on to not actually read the "study." Congress can be counted on to become indignant about anything that has to do with children and sex. And all that means the continuing flow of taxpayer dollars into the pockets of those promoting the cause. Hey, it beats working for a living. Thanks to Ronald, John and others for the heads-up.
Here'sa law review article by nationally-recognized constitutional law scholar, Eugene Volokh (56 UCLA Law Review, 2009). In the pdf. version, go to pages 61-65 where he discusses TROs as they affect 2nd Amendment rights. What happens is that judges issue TROs in individual cases that are designed in part to address the individual circumstances of those cases. But they often do something more; they add "boilerplate" language that's lifted directly from a federal statute. The operative language refers to any court order that,
(B) restrains such person from harassing, stalking, or threatening an intimate partner . . . or child . . . , or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.Anyone who's the subject of such an order loses the right to possess a firearm. Volokh notes that the insertion of the word "or" instead of the word "and" between (C)(i) and (C)(ii) means that a state court judge may issue such an order based on no finding of past violent or threatening behavior. That is, a TRO may be issued on the basis of the possibility of future violent behavior and not objectively proven past violent behavior. Volokh goes on to point out the ease with which a judge might issue such an order.
And a judge might not think much about issuing an order barring the use of injury-causing force even without a finding of threat or past misconduct: After all, such force is already generally illegal (setting aside self-defense, which would likely be implicitly exempted), so why not prohibit it?Why not prohibit it? The answers are several, but I'm sure Volokh is right that judges don't really think much about this. The first answer is Volokh's - such orders violate the person's 2nd Amendment right to keep and bear arms. Indeed,
[A]t least some courts seem willing to enter orders simply based on "verbal[ ] abus[e]' that consists of "insulting and foul language [used] to humiliate and degrade.' Likewise, even statutes that ostensibly require a finding of domestic violence could be satisfied simply by "a communication. . . in offensively coarse language' made "with purpose to harass,' or based on "making annoying telephone calls, directly or indirectly destroying personal property and ‘contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party . . . ."'And those of course are instances in which presumably the allegations are truthful, which, as we know, is far from always the case. Now, I'm not the world's greatest fan of the 2nd Amendment. My only point is the ease with which domestic violence restraining orders trump the Constitution. There's another deprivation accomplished by the type of TROs he's discussing that Volokh doesn't address, though. That's the deprivation of the ability to earn one's livelihood due to the prohibition on possession of a firearm. Think of everyone that prohibition applies to. All law enforcement officers from the local cop on the beat to FBI agents, DEA agents and the like are covered. So are all military personnel and many security guards. Do I have to point out that the vast majority of those are men? So, improvidently granted TROs based often on mere allegations and sometimes on false ones, that involve no finding of actual violence can easily deprive a person (usually a man), not only of his 2nd Amendment rights, but also of his ability to earn a living. Bad as that is, it's not all. Consider the Jeffrey Ruggiero case that I've written about before. Recall that his ex-wife Kristin is a convicted liar. After their divorce and concerned that Jeff might have more contact with their daughter than Kristin wanted, she sent herself threatening and harassing emails, and made them appear to come from him. That fooled police long enough to get him arrested and charged. It also allowed the family court to issue a TRO against him. Now, Jeffrey Ruggiero was perfectly happy to never be near his wife again, but there was another bigger problem - his job. He was a petty officer in the U.S. Coast Guard. The TRO took away his right to carry a weapon; in so doing, it took away his ability to continue his military service which was his only means of support. But it gets worse. Kristin apparently knew full well the consequences to Jeff's livelihood of the TRO. So she made him an offer he couldn't refuse - sign a termination of your rights to your daughter and I'll drop the TRO. And that's just what happened. Faced with loss of his career and bankruptcy, he gave up his parental rights. Shortly afterward, the police figured out who the harasser was, who the stalker was, who the liar was. They released Jeff and prosecutors dropped all charges against him. In turn, they arrested Kristin and charged her with 12 felony counts of perjury, lying to the police, filing false claims, etc. She's been convicted of all of those counts and is now serving 7 - 14 years in prison because of it. But what of Jeffrey Ruggiero's parental rights? Two years after the fact, he's still battling in family court to get his daughter back. Jeffrey Ruggiero, a decent man and a good father, a man who's done nothing wrong throughout the whole sordid saga of his divorce and custody battle, still has no rights to his child. And why? Add one unscrupulous ex-wife to an already-unhealthy stew of bad DV laws and slipshod court practices and this is what you get. A man can lose his constitutional rights, his job and his child, all based on lies. Thanks to Jim for the Volokh heads-up.
Here's the complaint SAVE filed against Kellett. I have no idea of the tendencies of the Maine Board, but I'd be surprised to see Kellett get disbarred. Here in Texas, attorneys have to establish a record over time of bad acts in order to lose their license. Either that or they have to do one really bad act. Maine may be different, but from where I stand Kellett will keep her license to practice law. She may, however incur some form of discipline. That's because the complaint cites several instances in which Kellett has withheld potentially exculpatory evidence from defense attorneys and their clients and prosecuted plainly innocent defendants. Those are clear violations of ethical rules and, done once or twice might not mean much to the state's bar association, but done many times over many years may get her some form of discipline. More importantly, it'll bring her to the attention of the disciplinary apparatus of the bar. Once that happens, any future complaints will be taken more seriously with the threat of greater disciplinary actions to come. If she keeps it up, she'll find herself in their crosshairs. All that means that, whatever the outcome of SAVE's complaint, Kellett will likely be a little more circumspect about complying with ethical rules. If that happens, it'll be a win for all the men in her district. Kellett looks very much like one of the true believers regarding women and sexual assault. Back in the 80s and 90s, there was a movement to "believe the woman" about all allegations of rape or sexual assault. That doing so would have built a conveyor belt leading directly from allegations to charges to conviction to prison with no inconvenient stops along the way for due process of law, presumption of innocence, evidence, defense, etc. bothered the faithful not a bit. So Kellett's promise on her website to "prosecute all cases," fits squarely into a belief system that holds all rape claimants to be telling the truth and all rape defendants to be liars. That's the type of theoretical worldview that may get a pass in the ivied walls of academia, but should be squashed like a bug when real people, real rights and real freedoms are involved. The simple fact is that Kellett's approach is at best a waste of time and the taxpayers' money. By pursuing cases that have either no chance of winning, or every chance of imprisoning innocent men, she does violence to the most basic concepts of legal fairness and human decency. In the Filler case, pretty much any prosecutor who wasn't steeped in the religion that every rape claimant is telling the truth, would have dropped it like a hot rock. With a complaining witness who looked mentally unbalanced, a history of false allegations, a history of domestic violence against her kids and her husband, and no physical evidence to back up her allegations, it wouldn't take a genius to drop the case and move on to prosecutions of the guilty. But that's not Kellett's style. By withholding evidence and misrepresenting matters to the jury, she got a conviction of an almost-certainly innocent man, Vladek Filler. She also got a new trial for the defense. And it must be some measure of what the family and criminal courts think of Kellett's case that he's currently living in Georgia with full custody of his kids. As I said, if the Filler case were the only one, we'd still be up in arms because of the blatancy of Kellett's misconduct and the conviction of a probably innocent man. But the Filler case is far from the only one.
Although the focus of the current Complaint is the case of State of Maine v. Vladek Filler, there have been numerous prior cases stretching over several years in which Kellett appeared to ignore normal probable-cause and/or due process standards. In each of these cases, the defendant was found innocent on all charges.
According to media accounts, ADA Kellett: 1. Did not provide the jury with any physical evidence of assault; 2. Ignored "beyond a reasonable doubt' evidentiary requirements; 3. Ignored important discrepancies in suspect identification procedures; 4. Discounted the possibility of consensual sexual relations; 5. Glossed over the accuser?s clear motive for making a false accusation; 6. Was not deterred by the fact that the alleged incident occurred 10 years prior to the filing of the case; 7. Allegedly breached standard witness interview procedures, then attempted to block release of the forensic tapes.Those refer to eight different cases in which Kellett, according to news sources withheld evidence and brought cases to trial in which there were obvious defects in her ability to prove guilt. Those included things like the complainant's fabrication of the crime, the description of the perpetrator as "an old man in his 60s" when the defendant was 20, cases in which impartial witnesses contradicted the complainant's claims and one in which the alleged incident had occurred 10 years previously during a custody dispute. That history paints a pretty clear picture of an Assistant District Attorney who ignores the plain requirements of legal ethics as they apply to prosecutors. It's a history of a prosecutor whose commitment to prosecuting all cases causes her to waste courts' time and taxpayers' money in an effort to convict and imprison plainly innocent men. That's the picture of a lawyer who needs to change her behavior or lose her license.
Here's a guy who gets it (Huffingtom Post, 3/28/11). The writer is family attorney David T. Pisarra and he's got a few things to say about the all-too-apparent bias against dads in family courts. But his piece is more than that. Pisarra isn't just talking about fathers' rights and their deprivation by courts across the land. He also grasps one of the fundamental points I've been making for a long time - that courts' underemphasis on dads is unavoidably an overemphasis on moms as well. How could it be otherwise?
While there are inherent animal instincts hardwired into our species when dealing with infants, parenting is a learned behavior. And the myth that women automatically know how to be a good parent solely by virtue of having given birth doesn't only put unfair expectations on women but minimizes the role of men in the rearing of a child. Short of not being able to breast feed, men have the same abilities to protect and guide the development of a child as women. Yet this myth propagates the notion that men are innately incompetent to nurture a child which, unfortunately, plays itself out daily in Family Court.Does it ever. It's not only that men are as capable as women at caring for children as much research makes clear. There's also the misguided notion that earning a living somehow doesn't qualify as caring for your child. We all agree that feeding children, bathing them, changing them, reading to them, etc. qualify as good and necessary parenting behavior. So why don't we regard as equally valuable earning the income that makes all of the above possible? Objectively it is and, when combined with the other things dads do for children, their contributions to the child's welfare, in most cases deserve equal respect by courts. But they don't get it. And lest anyone cry out that mothers do as much earning as fathers, be advised, they don't. Take a look at the Bureau of Labor Statistics data on employment and its Time Use Survey and you'll see right away that men do more paid work than do women and women do more childcare than do men. Those figures are from the overall American population, though. It's much more extreme among parents and still more so among parents with young children. Take a look at this article by the always solidly-based W. Brad Wilcox of the University of Virginia (National Review, 6/19/09).
In most American families today, fathers still take the lead when it comes to breadwinning: In 2008, the Census estimated that fathers were the main provider in almost three-quarters of American married families with children under 18. Providership is important to protect children from poverty, raise their odds of educational success, and increase the likelihood that they will succeed later in life.Got that? Providing is good for kids, not just in the immediate term but in the long one as well. OK, I know you get it. It's judges who don't get it. And dads' propensity to provide is exactly what moms want. Wilcox again:
Moreover, most women who are married with children are happy to have their husbands take the lead when it comes to providing and do not wish to work full-time. For instance, a 2007 Pew Research Center study found that only 20 percent of mothers with children under 18 wanted to work full-time, compared with 72 percent of fathers with children under 18. My own research has shown that married mothers are happiest in their marriages when their husbands take the lead when it comes to breadwinning – largely because his success as a provider gives her more opportunities to focus on the children, or balance childcare with part-time work (the most popular work arrangement for married mothers).So the fact that dads express their love and their commitment to their wives and children more by providing is not only what they want, it's what their wives want too. And as we know, the hands-on parenting dads do is not the same as that done by mothers. The two form a sort of synergy that children require to grow into fully-formed adults. Wilcox cites a
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 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.'So explain to me again why dads are penalized in divorce court for doing what's good for their kids and what they and their wives want them to do. All that is trumped by family court practice, as Pisarro has seen first hand.
But having been in countless court cases where I've seen men who wanted nothing more than to be actively involved in their children's lives fall victim to a system that regularly sides with gender over parenting skills, it's clear that statutes alone aren't enough to change the preconceived biases that still exist.Yep. I know of no family laws that spell out that mothers are to be favored over fathers. And yet they are. In state after state, country after country, 83% - 91% of custodial parents are mothers. In the U.S. that's remained true for almost 20 years with literally no change. Likewise, I doubt that there are many family court judges with a conscious anti-father bias. My guess is that the preference for maternal custody comes from tradition, an ignorance of the social science and a culture rife with messages about good moms and bad dads. And Pisarro understands, as I've said many times, that the way custody is apportioned by family courts is in fact bad for all concerned. That's because for every dad who loses contact with his child, there's a mom who can't get a break from childcare, who can't improve her education, her job skills or who can't just take a few hours off to hang out with her friends.
As long as the notion exists that gender serves as the defining factor in determining parenting skills both men and women will suffer. Good mom's will shoulder too much of the burden while good dad's are denied access to what matters to them most.And as long as one sex is split off from his child post-divorce, children will suffer. The loss of a parent is traumatic for children and no amount of intoning the mantra of "the best interests of the child," will salve the wound. It's one of the great ironies - not to say one of the great tragedies - of our time that those words are so often used to describe a system that in many ways seems designed to achieve the opposite. Thanks to Ned for the heads-up.
this piece about what had become a familiar refrain - that non-custodial parents can "visit" their children via the Internet and, if they've got the equipment, Skype (Fathers and Families, 11/4/10). I reprised the history of move-aways in which custodial parents thwart visitation by the non-custodial parent by the simple expedient of moving far away. As I said, courts have begun requiring evidence that a move-away won't harm the child and, if the move-away is granted, balancing dad's time lost with, for example, longer summer contact. Of course chatting with your kid on the Internet or face to face on Skype is fine as long as it's just taking the place of a usual nighttime telephone call. But I was concerned that judges would start granting move-aways again and justifying them with the claim that 'virtual visitation' is as good as the real kind.
Now, no serious person believes that talking to a child for a few minutes a night via Skype constitutes actual parenting. Indeed, the thrust of almost all social science on the subject of parenting post-divorce is toward greater equalization of time and responsibilities between the two parents. That"s because the post-divorce legal paradigm of the non-custodial parent having visitation every other weekend plus Wednesday night has made the NC parent more of a babysitter than a parent.To state the obvious, pretending that Skype is an acceptable substitute for hands-on parenting will only make a bad situation worse - far worse. Put simply, this is an idea that cannot be allowed to take hold. The divorce and custody system does far too much already to marginalize non-custodial fathers in their children's lives. Returning to move-aways under the pretense that Skype provides "good enough" parenting would be outrageous. Sadly, that's exactly what happened in this case (Daily Mail, 3/31/11). In it the mother, who predictably has primary custody, wants to move from England to Australia. The father passionately pleaded that her doing so would destroy his relationship with his two children. And the lower court agreed with him.
At Exeter County Court, Judge David Tyzack QC agreed that the children were at a critical stage in their links with their father.
He said the bond between the youngsters and the paternal side of their family would be severely damaged if they emigrated. Any departure would be a ‘grave loss".But the appellate court - according to the appellate court - knows better.
The country"s most senior family judge yesterday told a father fighting to stop his former partner taking their children to Australia that he could keep in touch with them via Skype...
The leading judge said he ‘did not minimise" the father"s objections but added that modern ways of keeping in touch meant the children"s move would not destroy their relationship.Well isn't that special. This judge is the top family court judge in the United Kingdom and presumably an adult. And yet he seems unaware that "keeping in touch" and parenting aren't the same thing. Does he have kids? Is that how he was a dad? He changed diapers via Skype? He helped with homework via Skype? He heard important confidences long-distance? Tucked them in via Skype? If that's not bad enough - and surely it is - someone needs to explain to Judge Wall that courts must do more than simply "not destroy the relationship" between father and child. Does the honorable judge not think that sets the bar rather too low? Where does he find it in the law that 'not destroying' the relationship between a father and his children is an adequate basis for ruling in a case? Maybe he should take another look at the findings of the lower court, that the children were at an important stage in the relationship with their dad and that any move would constitute a "grave loss." But of course Judge Wall already knew that. He just substituted his own opinion for those of the lower court judge who, after all, was the one to hear the witnesses and judge their credibility. Into the bargain, what the case is all about is not the kids but the mother.
The mother said she would be ‘devastated" if her plans to go to Australia with her children were not allowed... The mother had said she felt ‘isolated, trapped and depressed in England" and Sir Nicholas added the children clearly wanted to go with her.These are pre-teen children, and as such are not usually consulted by courts regarding their preferences about custody matters. So the situation is that she feels depressed in England and thinks that Australia is the land of milk and honey. Fine. But she also wants her emotional state to dictate not only the children's lives but the father's relationship with his kids. If that sounds to you like more power than one person should have, I think you're right. So it's worth noting that the court apparently never considered letting the mother go and leaving the kids with dad. No, Skype's good enough for him. Would it be good enough for her? Would it be acceptable to her and the court for him to keep the kids and her communicate with them online?Somehow I doubt that either she or Judge Wall would think so. And that truly is the proverbial bottom line. This judge brings a double standard based on sex to his rulings in family court. The court's attitude toward this father and fathers generally is all too tellingly reflected in the words he uses. For a father, "keeping in touch" with your kids is all you need to do - that and sending the check regularly, of course. If you're a dad, your kids are really more like friends or acquaintances with which you might want to correspond regularly. You don't want to lose track of them, so you "keep in touch." According to this judge, as a father, you have no special attachment to your children and they have none to you. 'Keeping in touch' is enough. Do you passionately plead otherwise? Do countless social scientists support you? Does the lower court agree? Too bad, the judge knows better. Children benefit from involved, hands-on fathers. A flickering image on a computer screen for a few minutes every so often is not the same and it is not good enough. And it is not remotely acceptable for a judge to substitute his own patently anti-father sentiments for fifty years of social science on the value of fathers to children. 'Virtual visitation' must be stopped in its tracks. Thanks to Malcolm for the heads-up.