Bias Against Abused Mothers

(motín del pan en Richmond, USA. Source: Prensa, 1863)

(motín del pan en Richmond, USA. Source: Prensa, 1863)

I’ve written quite a lot about bias against abused men, and about bias against fathers. Today I surprise everybody by suggesting the possibility that some family court personnel may be, or may be becoming, biased against abused mothers.

This may seem like old news to some. After all, the American Bar Association distributes literature asserting that most men who fight for custody are abusers. Further, their literature claims that abusive fathers who seek custody of their children are usually successful.

As I and others have explained elsewhere, these conclusions are based on illogical inferences derived from flawed data.

The origin of these myths is a fascinating story in itself (it is actually very good evidence of systemic bias against male parents), but it is one for a different day. Today, I want to talk about the importance of remembering that the failure of an attempted proof of a proposition is not proof that the opposite proposition is true. Likewise for exaggerations. The fact that the extent or frequency of an occurrence is exaggerated does not mean it never happens. That attempted proofs of bias against abused mothers are seriously flawed, or that the extent of the problem has been grossly exaggerated, does not mean it never happens.

Minneapolis parents revolt

The impetus for this blog post is an article that appeared in a widely circulated Twin Cities newsmagazine earlier this month.1 The story focused on a single guardian ad litem2 about whom a number of parents had complaints.3 Some of these complaints were of the kind I’ve grown quite accustomed to hearing, i.e., the guardian taking the mother’s report of the father’s abuse at face value, and/or ignoring or discounting evidence of the mother’s abusiveness. This time, however, mothers were voicing these kinds of complaints, too. In fact, the lead story in the article was about a mother who allegedly lost custody of her children to an abusive father.

This grabbed my attention because it is almost axiomatic in legal circles that a mother is virtually assured sole legal and physical custody of the children if she can prove domestic abuse.

Apparently, this woman did win sole custody, initially. The father, at first, was permitted only supervised parenting time with the children. After he had complied with the court-imposed conditions, however, the court eventually allowed him to resume unsupervised contact with his children. After a while, he petitioned for sole custody, and he won.

The mother complained that the guardian and the court ignored the children’s reports of abuse while in their father’s care. According to the article, the guardian suggested to a child protection investigator that the mother had mental health issues resembling Munchausen Syndrome by Proxy, a mental illness in which parents hurt their children to get sympathy or attention. According to the article, that assessment “came out of nowhere.”

While there are some who would immediately take this as evidence of the guardian’s bias against mothers, the article also tells of children whose reports of horrific incidents of child abuse while in their mother’s care were allegedly downplayed or ignored, too.

Over-reporting fatigue

The picture that emerges from the article is one of an overworked guardian besieged with reports of alleged abuse from parents desperately trying to win custody of their children.

Having helped a number of fathers prove their innocence in the face of false allegations of domestic abuse and child endangerment (before transitioning my practice to other things), I am very aware of the frequency and facility with which these kinds of accusations are made in custody cases. And people do seem to be making them a lot more often these days.

In family court, the traditional wisdom has long been that a mother’s allegation of domestic violence can be all it takes to win a custody case. Sometimes there may be doubt, though. The allegation may be untrue, difficult to prove, or about an incident that happened a long time ago; or the woman may be guilty of physical violence herself; or there may be other factors present (a drug addiction, for example) that militate against an award of custody to her. In these situations, there is a substantial risk that the “nuclear bomb of custody cases,” as family law practitioners call it, will be dropped: a report that the father has sexually abused a child. If believed, it is a virtual guarantee of a win for the mother, or at the very least a denial of custody to the father.

Many people adamantly deny that any woman ever lies. I know from experience, however, that false reports of abuse often are made when parents – even female ones — become very worried about losing custody of their children.

I believe the reason some guardians, child protection workers and judges become inclined to downplay, discount, or doubt reports of abuse in custody proceedings is precisely because they know people abuse abuse-reporting. And they are doing it a lot.

The damage done

Some judges are coming to view false reports of child abuse as a form of child abuse. There is some logic in this, especially in the case of reports of child sex abuse. When a report of sexual abuse is made to a child protection agency, the child is likely to be made to undergo an invasive and embarrassing forensic examination. Causing a child to be subjected to that for no good reason certainly is not in any child’s best interests. A good argument can be made that it is tantamount to sexual abuse in itself.

Those men and women who think they are promoting women’s interests by rushing to deny the reality of false reports of abuse are deluding themselves. Worse, they are hindering the ability of real victims to get the help they need. The same can be said about those who try to protect false reporters from the consequences of their behavior. Like the story about the boy who cried wolf, too many false alarms ultimately weakens the credibility of all women. This is tragic because among those women are some who really are being abused, some whose children really are being abused, some who really do need a court’s help to protect them.

Conclusion

Rather than being so committed to taking sides on issues as to misrepresent facts and blind oneself to inconvenient realities that get in the way of being a “champion” for one sex to the exclusion of the other, the more responsible approach for a policy-maker to take would be to consider what kinds of policies are most beneficial in terms of helping abuse victims get the assistance they need. In the long run, sex-based biases, even those intended to advantage women, end up disadvantaging women along with everyone else.

  1. Susan Du, “Separated From Their Kids, Parents Unite Against One Court Guardian,” City Pages (February 18, 2015)
  2. A guardian ad litem is an individual a court appoints to protect a child’s interests in a legal proceeding. A court typically will appoint one in a custody case when allegations of child abuse have been made.
  3. Out of fairness to her, given that ethical obligations hamstring her ability to publicly defend herself, I have chosen not to disclose her identity.

The Stakeholders in Custody Law Reform

("Lost Child," by Enrique Melida)

(“Lost Child,” by Enrique Melida)

Stakeholder, like competencies and bucketization, is a term for which business managers and corporate officers have developed a special fondness in recent times.

Although it has been around for many years, it was not used very often until the 1980’s. It started becoming wildly popular sometime around the beginning of the new millennium.1 Describing it as a term “plump with cheaply bought respect,” Guardian (UK) writer Steven Poole includes it in his Top 10 list of “the worse examples of management-speak.”2 It now can be found in almost every organizational and/or governmental discussion of family law reform.

But who are the “stakeholders” in the context of custody law reform?

What is a stakeholder?

Business and legal definitions

The term stakeholder first appeared in the English language in 17083, apparently invented for the purpose of describing the person who holds the money (the “stakes”) in a bet. Black’s Law Dictionary still defines it this way, but adds a second, broader definition, namely, a “third party who holds money or property, the right to which is disputed between two or more other parties.”4 Courts continue to employ this meaning of the term.5

Using this definition, the stakeholder in the context of custody law would be a person who holds other people’s money until a winner of the custody contest, presumably one of the parents, is declared. An attorney would be an example. Family law attorneys typically take money from their clients (called a “retainer”) and hold it in a trust account until work on a divorce or custody proceeding is completed,6 it being anticipated that a “winner” of the custody proceeding will be declared at that time.

A second meaning of the term began to emerge in the corporate world during the latter half of the twentieth century. In his 1965 book, Corporate Strategy, Igor Ansoff used the term to refer to those people who, although not directly invested in a corporation as a shareholder, nevertheless had a financial interest in a company’s operations – i.e., employees and officers of the corporation, and firms having business dealings with it. Edward Freeman popularized this use of the term in his influential 1983 book, Strategic Management: A Stakeholder Approach. U.K. Prime Minister Tony Blair fostered its spread into the realm of politics in 1996 by using the term “stakeholder economy” to convey the idea that everyone has a financial interest in the well-being of a nation’s economy.7

By the mid-1990’s, the term had become a favorite among corporate executives and business project managers, who used it somewhat more loosely to describe anyone with an interest that may be affected by a firm’s operations or the outcome of its business decisions. Modern dictionaries now include this as an additional definition of the term. For example, in addition to the original legal definition (one who holds the bets for a wager), the online dictionary at Dictionary.com lists “a person or group that has an investment, share or interest in something, as a business or industry” as an alternate definition of the term.8

A “stakeholder” in the custody law context, then, can mean an attorney (or some other person who holds money pending the decision of a custody dispute) or some other person or group that has an investment, share, or interest in a business or industry related to custody decision-making. Logically, this would include, in addition to family law attorneys, judges, custody evaluators, guardians ad litem, and mediators. Since the amount of child support often is affected by the custody designation or schedule, and because mothers are awarded sole custody (or primary residential responsibility) far more frequently than fathers are, women and their advocates would also come within the business/financial definition of “stakeholder.”

Academic definitions

Some academicians have used the term in an even broader sense, to designate any person at all who may be affected by a process or the outcome of a process, whether business-related or not. Legal scholar Kathryn L. Mercer, for example, has written a law review article analyzing custody law in terms of the competing interests of four categories of people she describes as “stakeholders” – the father, the mother, the state, and the child.9

Arguments have been made that another category of “stakeholders” should also be recognized, namely, private care providers, such as foster parents.10

Mediator definitions

As used among mediators, stakeholders are “the people or organizations involved in, or affected by [a] negotiation.”11 A mediator typically will say that in a married couple’s custody dispute, the husband and the wife are the stakeholders.12

Although some mediators acknowledge that children have an interest in the outcome, they generally treat the two parties who are competing for custody of a child as the stakeholders in a custody dispute.

How courts and family law reform organizations conceptualize the term

Courts and family law reform organizations often reference the need to involve “all stakeholders” in the discussion of custody law reform, but they rarely define that term. They are more likely to simply cite some examples. The examples they cite, and the “stakeholders” they select, are revealing, though.

In the Foreword to the report on the Family Law Education Reform Project (© 2006 Association of Family and Conciliation Courts), the importance of “involving stakeholders” is stressed.13 In this court association publication, the “stakeholders” identified are judges, lawyers, mediators, parent educators, mental health experts, and financial planners.14 The Association says it is “looking to cosponsor a series of stakeholders meetings to bring together representatives of law schools, the bench, bar, mental health, and dispute resolution communities.”15

The American Bar Association has a similar view. In its seminal publication, A Judge’s Guide: Making Child-Centered Decisions in Custody Cases (2008), it says, “all relevant stakeholders should participate …  to ensure children’s issues are addressed” and then proceeds to identify these as being judges, family law attorneys, women’s advocates, child protection officers, educators, health care providers, business representatives, and people who will ensure “racial and cultural diversity.”16

In short, courts and officially organized family law reform coalitions generally have not adopted the academic  definition of “stakeholder.” Rather, they have stayed fairly true to the original and modified-corporate meanings of “stakeholder” – i.e., those persons and organizations that have a business, financial or proprietary interest in the custody decision process or outcome.

Who are the only real stakeholders in custody law reform?

Children.

Conclusion

A custody law reform committee or coalition should not consist of a bevy of judges, attorneys, mediators, court personnel, women’s advocates, or anyone else with a financial stake in children or the custody decision-making process. Rather, it should consist of a panel of child development experts, perhaps aided by an attorney or two with an understanding of how to draft statutory language to mesh their recommendations with legal requirements.

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My book, The History of Custody Law, is available in paperback and Kindle e-book formats at Amazon.com:

Purchase The History of Custody Law
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  1. To see this, try running the term in GoogleBooks’ Ngram Viewer application.
  2. Steven Poole, 10 of the worst examples of management-speak, http://www.theguardian.com/books/2013/apr/25/top-10-worst-management-speak, accessed on February 14, 1015.
  3. OXFORD ENGLISH DICTIONARY (2d ed., 1991)
  4. BLACK’S LAW DICTIONARY 660 (2d ed., 2001)
  5. See, e.g., Booth v. Booth, 134 P.3d 1151 at fn. 6 (Utah Ct. App. 2006); State v. Dudley, 21 A.2d 210 at 129-30 (N.J. Sup. 1941) (describing a stakeholder as one who receives wagers and then pays them over to the winner of an event, such as a horse race.)
  6. A retainer agreement may also authorize withdrawal of money as it is earned, or as expenses are incurred, rather than upon completion of the case.
  7. Mike Clayton, THE INFLUENCE AGENDA 9 (2014)
  8. http://dictionary.reference.com/browse/stakeholder, accessed on February 14, 2015.
  9. Kathryn L. Mercer, A Content Analysis of Judicial Decision-Making – How Judges Use the Primary Caretaker Standard to Make a Custody Determination, Kathryn L. Mercer, 5 WM. & MARY J. OF WOMEN & THE LAW 1, 14-21 (1998)
  10. See, e.g., Susan V. Mangold, Challenging the Parent-Child-State Triangle in Public Family Law: The Importance of Private Providers in the Dependency System, 47 BUFF. L. REV. 1397 (1999)
  11. Jim, Hilbert, Collaborative Lawyering: A Process for Interest-Based Negotiation, 38 HOFSTRA L.R. 1083, 1093 (2010).
  12. Id. at 1095.
  13. Andrew Schepard & Peter Salem, Foreword to the Special Issue on the Family Law Education Reform Project, 44 FAM. CT. REV. 513, 519 (2006).
  14. Id.
  15. Id. at 520.
  16. American Bar Association, A JUDGE’S GUIDE: MAKING CHILD-CENTERED DECISIONS IN CUSTODY CASES 275 (2008)

Should Parents’ Wishes Matter? A look at Minn. H.F. 465 (2015)

Dusten Brown with the biological daughter he lost to adoption. (Photo: Associated Press, 2013)

Dusten Brown with the biological daughter he lost to adoption. (Photo: Associated Press, 2013)

The Minnesota legislature is set to remove the parents’ wishes as a consideration when judges decide the custody of children.

Background

In May, 2012, Governor Mark Dayton vetoed a bill that shared parenting advocates hoped would bring Minnesota one step closer to making shared parenting the norm among divorced and never-married parents, as it is in a growing number of states. The bill would have raised the presumptive amount of time each parent is entitled to spend with a child from 25% to 35% of the year. In his veto message, Dayton suggested a group comprised of “stakeholders” and their representatives should be formed to study the issue and make a recommendation for the following year.

An ad hoc coalition promptly formed to carry out the governor’s directive. Members included select judges, attorney members of the bar association’s family law section, attorney members of the American Academy of Matrimonial Lawyers, the Minnesota Coalition for Battered Women, the Center for Parental Responsibility, court-appointed personnel (e.g., custody evaluators) and a few others.

Out of this came a bill, H.F. 2722. It was signed by the governor on May 5, 2014 and took effect on August 1, 2014. It directed courts to take a neutral stance toward shared parenting. Specifically, it added language to Minn. Stat. Section 518.17 stating that there is no presumption either for or against joint physical custody. This new language codified existing Minnesota appellate court rulings to that effect.1

The group has continued to function. This year it has created fourteen new bills, running the gamut from authorizing judges to deviate from the statutory child support guidelines when they do not believe the outcome is fair, to regulating the content of paternity recognition forms.

One of the bills they have come up with, H.F. 465, will make “the benefit to the child in maximizing parenting time with both parents and the detriment to the child of limiting a parent’s parenting time” a required consideration in custody cases, while removing the parents’ wishes from the list of factors judges are required to consider when deciding the custody of children.

Current law

Minnesota, like nearly every other state, has enacted a statute setting out a list of factors for judges to consider when deciding the custody of a child. In Minnesota, the list appears in Minnesota Statutes Section 518.17, subd. 1(a).

The thirteen factors listed in the statute cover things like the parties’ mental and physical health; the child’s interaction and relationship with parents, siblings and others; who has been primarily responsible for care-giving; the child’s preference; any domestic violence that has occurred; and other things.

The bill rewrites existing factors, adds the new one mentioned above, and proposes moving the joint-custody-related factors directly into the list of “best interest” factors rather than listing them separately. This would seem to signal some interest in moving away from Minnesota’s historical hostility to joint physical custody. This change is being offered at a price, however, namely, the right of parents to have a say about the custody of their children.

The constitutionality of removing parents from the custody decision

 The U.S. Supreme Court has declared that parents have a fundamental right to the custody and care of their children, including the right to make child-rearing decisions.2

While many people think that this fundamental right only exists in third-party custody disputes (where a non-parent fights a parent for custody), no court has ever held that it is so limited. There are many cases outside of the third-party-custody context holding that parents have a fundamental right to the custody and care of their children, including the right to make childrearing decisions.3

At least one constitutional law scholar has suggested that because of this,  a list of “best interest” factors that does not include the parents’ wishes would be unconstitutional.4

It is sometimes suggested that parents waive their constitutional rights when they file for a divorce or initiate a custody proceeding against the other parent in some other way. There is no reason in logic or  case precedent, however, why a parent’s fundamental rights should be deemed “waived” whenever one or both parents ask a court for help ordering  those rights when the parents are not in agreement.  Waiving the right to decide is not the same thing as waiving the right to have one’s wishes considered before another person makes a decision.

A waiver is not valid unless it is voluntary. Not every parent who is involved in a custody proceeding has voluntarily given the court power to decide custody issues. The respondent in a divorce case often is brought into the case against his will. An unmarried mother often is  brought into the father’s parenting time petition against her will.

Nor is a waiver valid unless it is knowingly made. Yet, couples who file for a divorce, or an unmarried father who asks the court for an order giving him enforceable parenting time rights, are never informed that by simply filing that form or making that request they are thereby waiving fundamental parental rights. There is nothing inherent in either of these acts that would put a reasonable person on notice that he or she is doing so.

Parents are reasonably entitled to assume that they will be allowed to have a say before a court issues an order concerning the upbringing of their own children. They may not be entitled to assume that the judge will give them everything they want, but they are reasonably entitled to assume the judge will at least give some consideration to what they have to say about how they think their own children should be raised.

The Minnesota bill is part of a national trend to commit ever-increasing authority to the state to decide what is best for its citizens. Yet, the U.S. Supreme Court has held that the “Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made.”5

Of course, the state has a legitimate interest in protecting children — even from their own parents sometimes. Parental rights are not absolute. The fact that a right is not absolute does not mean it does not exist at all, though. A defeasible or conditional right is still a right. That parents have a right to have their wishes considered does not mean they have an absolute right to insist that courts give them what they want.

Considering parents’ wishes is in children’s best interest

“Natural bonds of affection lead parents to act in the best interests of their children.”6 The common law has recognized this for hundreds of years, and the U.S. Supreme Court has made it something akin to a constitutionally mandated rebuttable presumption.7

Since parents are presumed to act in their children’s best interests, it would make sense for a court that is concerned about doing what is best for a child to consult the child’s parents, that is to say, to consider the parents’ wishes.

Proponents of the bill maintain that parents should no longer be presumed to act in their children’s best interests when they seek a court’s help deciding how they will exercise their parental rights, either by filing for divorce or, in the case of an unmarried couple, asking a court to issue a custody or parenting time order. No case has ever held, however, that parental rights cease to exist in family court, or that the fact that parents get a divorce rebuts the presumption that natural parents act in their children’s best interests, or that the fact that unmarried parents ask a court for help with defining how they are to exercise their parental rights, rebuts the presumption that natural parents act in their children’s best interests.

The act of getting a divorce does not disprove a parent’s natural inclination to act in her child’s best interests. A wife who is married to a man who has abused or molested their children certainly is acting in the children’s best interest when she files for a divorce.

Even in ordinary divorce situations, where the spouses simply cannot get along with each other, they may reasonably decide that a divorce is in their children’s best interests because it will protect them from growing up in an unloving household where they are exposed to parental conflict on a daily basis.

The fact that two people have stopped caring about each other simply does not mean they have stopped caring about their children.

A radical change

It is the law in every American jurisdiction that courts must consider the parents’ wishes when making custody and parenting time decisions concerning their own children.8 This is partly because of constitutional requirements and partly because of common law parental-preference doctrines.

The Uniform Marriage and Divorce Act (“UMDA,” now called the Model Marriage and Divorce Act (“MMDA.”)) lists “the parents’ wishes” as one of the five elemental “best interest” factors.9 The Official Comment describes this as a codification of the common law of every jurisdiction in the United States.10

It might be thought that Minnesota is being progressive here, but it may be questioned whether impairing fundamental rights is “progressive.”

Is the “parents’ wishes” factor unnecessary?

Some might argue that it is not necessary to list the parents’ wishes as a consideration in a “best interests” statute because courts will always give effect to their wishes if they are in agreement, and if they aren’t in agreement then their wishes cancel each other out. Neither assumption is correct.

 Courts do not always approve parents’ agreements as to custody

 It is not true that courts always give effect to parents’ wishes when they agree. Courts are never bound by the parents’ agreement as to custody, and there have been cases where judges have rejected the parents’ agreement. This is because courts are entrusted with both the power and the responsibility to protect the interests of all children within their jurisdiction. Called parens patriae authority, it is inherent to courts, i.e., not a product of legislation. If a judge does not believe the parents’ agreement is in children’s best interests, she may require the parties to schedule a hearing so she can make an independent determination whether their agreement is in their children’s best interests or not.11

Historically, courts did not respect parents’ wishes when they were in agreement on joint physical custody. There has been a trend toward greater acceptance of joint physical custody in recent years, and it may be expected that last year’s codification of appellate court rulings that there is no presumption either for or against it may help encourage that trend. Nevertheless, judges still are not bound to respect parents’ wishes just because they are in agreement. They still have the responsibility to make an independent determination that the parents’ agreement is in the best interests of their children.

It is true that judges generally are inclined to respect parents’ wishes when they are in agreement. But that is largely because Section 518.17 currently tells them  that the parents’ wishes is a factor that is a relevant consideration in connection with determining what is in a child’s best interest. The agreement is very good evidence of their wishes as to custody and parenting time. Removing that factor from the “best interest” standard will leave judges floundering for some other basis for assuring themselves that the terms of an agreement are in a child’s best interest.

 Parents do not “cancel each other out” just because they disagree

 Saying that parents’ wishes “cancel each other out” if they conflict assumes a court must give effect to either one or the other’s wishes. But this assumes that a court must treat a parent’s wishes as controlling. That is not what Section 518.17 says about how these factors are to be applied. It says that all factors must be considered, but no one factor is to be treated as controlling. “The parents’ wishes” factor doesn’t mean a court is required to do what a parent says. It only means a court must consider their wishes.

Example. Contested custody case in which the “best interest” factors are equally balanced. Father has come around to wanting Mother to have sole custody, but a hearing is still necessary because their inability to decide on a schedule has prevented them from entering into an agreement. At the hearing, Father tells the judge that his wishes as to custody are different now, but the judge refuses to listen, telling him his wishes as to custody are no longer to be considered.  After the hearing, the judge orders joint custody over both parents’ objection because he thinks the child would benefit from spending  equal time with both parents; under the statute there is no presumption against joint custody; and the legislature, by deleting “the parents’ wishes” from the “best interest” standard, has expressed its intention for judges to disregard parents’ wishes when making  custody decisions.

Example. Mother refuses to participate in mediation, or otherwise communicate with Father, because she is afraid of Father, or mediation reaches an impasse solely because there are unresolved underlying issues having to do with hurt  feelings (e.g., one of them had an affair.) Accordingly, the case proceeds to a hearing. If the judge inquired of them what kind of parenting time arrangement each of them wanted, it may turn out their wishes are actually not that different. Under the new law, that would not be a sufficient basis for issuing an order resolving the matter in the way both parents want, because the parents’ wishes are no longer enough to support a “best interest of the child” finding.

Parents’ wishes can be relevant to custody and parenting time issues even if they do not agree about anything at all.

 Example. Mother says she wants custody because she loves her child. Father says he wants custody so he won’t have to pay child support. The court does not have  to give either parent what they want for either of these reasons. But one would think a court should at least be authorized to consider these statements when  deciding what kind of custody arrangement is likely to serve a child’s interests  better.

It is possible for a couple to be unable to agree even though their wishes do not conflict.

 Example. Parents both wish that each parent could have midweek contact with the child in addition to weekends and holidays, but they can’t agree on which days they should be. Notice how the parents’ wishes to allow each parent to have some midweek time continue to exist even though they can’t agree on what particular days those should be. Their wishes on this point are not “cancelled out.” Under current law, the judge should consider the parents’ wish to let each parent have some midweek time, and then fashion an order that is designed to effectuate that wish by either deciding for them which days of the week it will be or ordering midweek time for each parent but leaving it to them to work out the specific details (e.g., through mediation.) The bill would remove the parents’ wishes from consideration, leaving the judge – and a reviewing court — hard-pressed to find some other way to justify such an order.

Parents’ wishes are not adequately protected by other Minnesota statutes

Minn. Stat. § 518.13 authorizes a court to approve a divorcing parents’ agreement without a hearing if they have signed a stipulation and they are both represented by counsel. Gen. R. Prac. 306 lets courts approve pro-se agreements if a waiver of counsel is filed. The court must set a hearing, though, if the agreement “does not appear to be in the best interests of the children.” At first blush, these seem to give adequate assurance that courts will give due consideration to parents’ wishes, but they do not.

Preliminarily, it is worth noting that judicial approval of parental agreements without a hearing will become problematic if “parents’ wishes” is removed as a “best interest factor.” This is because Section 518.13 does not direct courts to consider parents’ wishes when deciding whether their agreement is in children’s best interests or not. Section 518.17 is the statute to which judges turn to guide their“best interest” determinations. Yet, if the only evidence with which a judge is presented is the expression of the parents’ wishes (i.e., their agreement), then on what basis is she supposed to determine whether an agreement “appears to be in the children’s best interests” if that factor no longer appears?

More to the point, though, the parents’ wishes are relevant to a child’s best interests even if they aren’t able to enter into a written agreement to submit to the court. There are many reasons a couple may not be able to enter into an agreement even when their wishes do not conflict.  (See the examples given above.)

What is best for children is not necessarily the same as what the parents want, but sometimes it is

 The justification that is most often given for silencing parents in custody proceedings is that courts should focus on what is best for children in custody cases, not what parents want. This is true, but in many cases this is a false dichotomy. In many cases, what a parent wants may also be what is best for the children. And courts are constitutionally required to presume that parents want what is best for their children. It’s a rebuttable presumption, of course, but if it is to mean anything at all it must, at a minimum, mean that a parent’s wishes about custody and parenting time are to be treated as being at least relevant to the issue – something a judge must at least consider even if she is not bound by them.

Again, like all the other “best interest” factors, the parents’ wishes are not binding on courts. Just as the child’s preference is not binding on a court if other factors lead a judge believe it is not in his best interest, so the parents’ preferences are not binding on a court if other factors make a judge believe they are not in the child’s best interest. Listing a factor does not make it controlling on the question of what is in children’s best interests; it only means it is something that must be considered.

Not all parents are so intent on hurting each other that they lose sight of what is best for their children

 Supporters of excising parents from the custody decision typically argue that divorcing parents’ wishes are to hurt each other, which is not in the best interest of their children.

Not every parent seeking a custody or parenting time order is motivated to hurt the other parent, though. Even if a parent hates the other parent, that does not mean she is no longer able to care about what is in her child’s best interest. Many divorcing parents actually believe it is in their children’s best interests to maintain frequent contact with both parents despite the parents’ divorce.

An unmarried father has to initiate a proceeding to establish enforceable  rights even if he and the mother are getting along well. Otherwise, by law, he has none – not even a right to talk to his child on the phone, to enroll the child in school, to make major medical decisions for the child, or many other things that the law would recognize as his right if he were married to the mother.

Moreover, even if a particular parent does wish to use custody and parenting time as weapons of destruction of the other parent to the detriment of the child, that fact would seem to be highly relevant to what is in the child’s best interests. It is evidence that a particular parent is more likely to put his or her own interests ahead of the child’s, which rebuts the presumption that this particular parent acts in children’s best interests. A judge should consider this fact, if it is present in a particular case.

In any event, courts are not required to allow parents to use custody and parenting time as a way to hurt each other. Again, including the factor only means courts have to consider the parents’ wishes, not that they have to give controlling effect to them in every case — or even in any case, for that matter.

Will it make a difference if the parents’ wishes are deleted from the statute?

 Yes. It could make a difference, if courts properly apply rules of statutory construction.

Expressio unius est exclusio alterius is a rule of construction that says the inclusion of one thing in a statute implies the exclusion of the other. A listing of factors implies a legislative intent to exclude consideration of other factors.

This rule will not be applied if it can be shown that the legislature probably would have intended to include the omitted item if it had thought of it. In the case of a repeal of a factor, however, the legislature takes deliberate action to remove something from a list. In that situation, it is clear it not only thought about the factor, but it took deliberate, intentional action to remove it from consideration. Expressio unius would apply.

Another rule of statutory construction is that every part of a legislative enactment must be assumed to be intended to have an effect. The deletion of a factor from a list of things a court is to consider must be assumed to be intended to have the effect of removing it from among the things a court is to consider.

Applying these rules, a reasonable judge would infer that the legislature is telling him that he is no longer supposed to consider the parents’ wishes when making custody decisions concerning their children.

Why should we care about this if other parts of the bill seem to be signaling movement toward greater acceptance of shared parenting?

It is not necessary to trade one piece of what is in a child’s best interest off for another. Viewing different “best interest” factors as bargaining chips that can be traded away is the wrong approach to deciding what factors are pertinent to the determination of what is in children’s best interest. It is antithetical to the goal of doing what is best for children.

Parents can provide valuable input on a wide variety of things that are addressed in a custody and parenting time order, not just the label or the quantity of time each gets. The details of the schedule, for example. Judges and evaluators should value this input and encourage parents to provide it. Something is terribly wrong if they would prefer to have parents just shut up and “leave the decision about your children to us.”

H.F. 465 is good in other respects. It would only take one small amendment to make it acceptable: Keep “the parents’ wishes” in Section 518.17 as one thing (among many) a judge is to consider when deciding what is in a child’s best interest.

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  1. See, e.g., Schallinger v. Schallinger, 699 N.W.2d 15 (Minn. Ct. App. 2005). The law recognizes a distinction between a presumption and a preference. There is a long line of Minnesota appellate court cases holding that sole physical custody is the preferred outcome, although they do not go so far as to say that it  rises to the level of a legal presumption. See, e.g., Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. Ct. App. 1993). It is not clear what effect the new statutory language will have on the cases holding that there is a preference (as distinguished from a presumption) for sole physical custody.
  2. Troxel v. Granville, 530 U.S. 57, 72-73 (2000))
  3. See, e.g., Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Wisconsin v. Yoder, 406 U.S. 205; Santosky v. Kramer, 455 U.S. 745, 753 (1982) (“The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child”)
  4. See Raymon Zapata, Child Custody in Texas and the Best Interest Standard, 6 The Scholar 197, 208 (2003)
  5. Troxel, supra note 2 at 73.
  6. Parham v. J. R., 442 U.S. 584 (1979).
  7. Id.
  8. Jurisdictions that include the parents’ wishes as a “best interest” factor in custody cases include:

    Alabama, Ala. Code § 30-3-152(a)(1) (2014)

    California, Cal. Fam. Code § 3043 (2014) (court must “consider and give due weight” to parents’ wishes); § 3041 (requiring courts to abide by parents’ wishes as to custody unless doing so would be detrimental to child)

    Colorado, Colo. Rev. Stat. § 14-10-124 (2014)

    Connecticut, Conn. Gen. Stat. § 46b-56(c)(4) (2014)

    Delaware, Del. Code, tit. 13, § 722(a)(1) (2014)

    District of Columbia, D.C. Code § 16-914(a)(3)(B) (2014)

    Florida, Fla. Stat. § 61.13(2)(c)2(a) (2014) (must “consider the expressed desire of the parents” as to custody in a divorce); § 751.05 (same re: third party disputes)

    Guam, Guam Code § 19-8404(h) (2014) (as to visitation)

    Idaho Code § 32-717(1)(a) (2014)

    Illinois, 750 Ill. Comp. Stat. 5/602(a)(1) (2014)

    Indiana, Ind. Code § 31-17-2-8(2) (2013)

    Iowa Code § 598.41, subd. 3.g (2014) (listing each parent’s wishes as to joint custody as a “best interest” factor); § 598.41, subd. 2.a (requiring court to “consider” a parent’s wish for joint custody, whether or not there is an agreement)

    Kansas, Kan. Rev. Fam. Code § 23-3203(b) (2014)

    Kentucky, Ky. Rev. Stat. § 403.270(2)(a) (2014) (wishes of the parents and any de facto custodian)

    Louisiana, La. Civ. Code art. § 134 (2014) (each parent’s disposition to continue rearing the child); art. § 132 (shall give effect to the parent’s agreement as to custody unless court finds it is not in child’s best interest)

    Maine, Me Rev. Stat. § 19A-1653, subd 2 (2014) (court shall give effect to parent’s wishes if they have an agreement); subd 3 (parent’s motivations listed as a “best interest” factor)

    Maryland, Best v. Best, 93 Md. App. 644 (1992)

    Michigan, Mich. Comp. Laws § 722.26a (2014) (court must consider either parent’s wish for joint custody, if requested)

    Minnesota, Minn. Stat. § 518.17 (2014)

    Mississippi, Albright v. Albright, 437 So. 2d 1003 (Miss. 1983)

    Missouri, Mo. Rev. Stat. § 452.375 (2014) (“The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties”)

    Montana, Mont. Code § 40-4-212(1)(a) (2014)

    Nebraska, Neb. Rev. Stat. § 43-2923 (2014) (each parent’s wishes, as expressed in a proposed parenting plan the parent submits to the court, is included as a “best interest” factor)

    Nevada, Nev. Rev. Stat. § 125.480, subd. 4(b) (2014) (“Any nomination by a parent or a guardian for the child”)

    New Jersey, N.J. Rev. Stat. § 9:A-1(c)(2) (2014) (“parent’s willingness to accept custody”)

    New Mexico, N.M. Stat. § 40-4-9(A)(1) (2014)

    New York, Bishop v. Lansley, 106 A.D.2d 732 (N.Y., 3rd Dept. 1984) ) (court to consider wishes of parents as to custody, which may be inferred from their conduct)

    North Carolina, N.C. Gen. Stat. § 50-13.2 (2014) (court must consider a parent’s wish for joint custody)

    Ohio Rev. Code § 3109.04(F)(a) (2015)

    Oregon, Or. Rev. Stat. § 107.137 (2014) (listing the “interest of each party in the child” as a “best interest” factor)

    Rhode Island, Pettinato v. Pettinato, 582 A.2d 909, 913-14 (R.I. 1990)

    South Dakota, S.D. Codified Laws § 25-4A-21 (2014) (requiring courts to consider any parent’s wish for joint physical custody); § 25-4A-24 (requiring courts also to consider any parent’s opposition to joint custody)

    Texas, In re Chambless, 257 S.W.3d 698 (Tex. 2008)

    Utah Code § 30-3-10(3) (2014) (parent’s wish not to have custody shall be taken into consideration in determining whether custody award to the other parent is in a child’s best interest)

    Washington, Wash. Rev. Code § 26.09.187(3)(a)(6) (2014

    Virginia, Va. Code § 48-9-208 (2014) (requiring courts to consider parents’ wishes as to how custody and visitation disputes will be resolved)

    Wisconsin, Wis. Stat. § 767.41(5)(am)(1) (2014)

    Wyoming, Wy. Stat. § 20-2-201 (2014) (“Each parent’s willingness to accept responsibilities of parenting”)

    Several states require parents to file a parenting plan(s) in custody cases, i.e., to put their wishes in writing and submit this written expression of their wishes to the court for its consideration. Most of these states include provisions for filing separate proposed plans when the parents are not in agreement.

    Arizona, Ariz. Rev. Stat. § 25-403.02 (2014) (requiring parents who are not in agreement to each express their wishes in a proposed parenting which they must submit to the court for its consideration)

    Georgia, Ga. Code § 19-9-1 (2010) (requiring each parent to submit a parenting plan expressing their wishes as to custody, if they are not in agreement); § 19-9-5 (2010) (requiring court to approve agreed-upon parenting plans unless contrary to child’s best interest; court is prohibited from declining approval of an agreement on the basis that it calls for sharing custody jointly.)

    Hawaii, Haw. Rev. Stat. § 561-46.5 (2014) (parents required to file parenting plans. If unable to agree, then each must file a separate proposed plan expressing his or her wishes as to custody for the court to consider)

    Louisiana, La. Civ. Code art. § 131 (2014) (requiring court to order the parents to submit a parenting plan, either jointly or separately)

    Massachusetts, Mass. Gen. Laws ch. 208, § 31 (2014) (“if the issue of custody is contested and either party seeks shared legal or physical custody, the parties, jointly or individually, shall submit to the court at the trial a shared custody implementation plan…. At the trial on the merits, the court shall consider the shared custody implementation plans submitted by the parties.”)

    Missouri, Mo. Rev. Stat. § 452.375 (2014) (requiring courts to consider “|t|he wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties”)

    Nebraska, Neb. Rev. Stat. § 43-2923 (2014) (each parent’s wishes, as expressed in a proposed parenting plan the parent submits to the court, is included as a “best interest” factor)

    New Hampshire, N.H. Rev Stat.  § 461-A:4 (2014) (“the parents shall develop and file with the court a parenting plan”)

    New Jersey, N.J. Rev. Stat. § 9:2A-1(g) (2014) (if no agreement, then court to consider each parent’s wishes as set out in each parent’s proposed custody plan); 9:2A-1(h) (court to give deference to parents’ agreement as to custody)

    North Dakota, N.D. Cent. Code § 14-09-30 (2014) (requiring parents to submit parenting plans)

    Oklahoma, Okla. Stat. tit. 43, § 109(C) and (D) (2014) (court must consider any plan for custody that either or both parents submit)

    Oregon, Or. Rev. Stat. § 107.101 (2013) (stating policy of law is to give effect to parents’ wishes by encouraging and giving parents wide discretion to develop their own custody arrangements); § 107.101 (requiring parents to develop and file a parenting plan)

    Tennessee, Tenn. Code § 36-6-403, -404 (2014) (requiring the parties to each submit a proposed parenting plan for the court’s consideration if they are unable reach an agreement through mediation or otherwise)

    Utah Code § 30-3-10 (2014) (requiring parent seeking joint custody to submit a parenting plan for court’s consideration; and requiring a parent’s wish not to have custody to be taken into consideration in determining whether a custody award to the other parent is in a child’s best interest); § 30-3-10.8 (requiring parent seeking joint or shared parenting to submit a parenting plan; § 30-3-10.3 (requiring court to approve parenting plans (i.e., to consider and give effect to a parent’s wishes) wherever possible)

    Virginia, Va. Code § 48-9-205 (2014) (mandating submission of parenting plans.)

    In these states, it is not necessary to list “parents’ wishes” as a required consideration in a “best interest” statute because another statute (the parenting plan statute) provides a mechanism adequate to assure that parents’ wishes are considered.

    Minnesota does not have a statute mandating either the filing of a parenting plan or a judge’s consideration of one unless it is requested by both parents. (See Minn. Stat. § 518.1705 (2014).)

  9. See MMDA § 402.
  10. Id.
  11. Some people mistakenly believe that parens patriae power only comes into existence when there’s been a finding that the parents are abusive, etc. This is not true. For example, the power to order an investigation of whether abuse has occurred is an exercise of parens patriae before there has been a finding of abuse. It is true that there will need to be a finding of abuse, etc. before a judge may exercise the power in certain ways, such as by issuing an order terminating or substantially restricting a parent’s rights. The inherent parens patriae power of courts is broader than that, though. It refers to the broad responsibility of the state to ensure that the interests of those citizens who are unable to protect their own interests are protected. A judge exercises parens patriae power every time he issues an ordinary custody or child support order.

    One reason for the confusion about this may be the fact that the term is not often found in cases other than those challenging a statute or court order terminating or substantially restricting a parent’s rights. In these cases, the state will defend by arguing that it was a legitimate exercise of state power, and it may cite the parens patriae power to support that argument. It isn’t often invoked by name in custody decisions because the issue is not very likely to be raised in those kinds of cases. It would be difficult to successfully challenge a legislature’s enactment of a law listing relevant “best interest” factors, or a court’s decision to use that statute as a basis for a custody decision, on the basis that it is an improper exercise of parens patriae power.

Education as a custody outcome improvement strategy

schoolhouse
Parent education

Parent education programs for divorcing parents, mandated in every divorce case involving children, is probably the least controversial reform that has been suggested in the past ten years.

The goal of parent education is to sensitize parents to the impact of divorce-related conflict on children,  and to the damage to children that is done when their parents fight; and to explain ways to minimize the negative impact on children.1 Divorce education could also inform parents about their options, such as joint custody and shared parenting; explain the meanings of terms like legal custody, physical custody and shared parenting; and perhaps even provide some basic information about the legal standard for deciding custody, such as that judges no longer apply a presumption in favor of the mother, the father or the primary caretaker.2 Education programs might also cover the kinds of considerations a parenting plan or settlement agreement should address.

Currently missing from most parenting education programs is information about resources available to attempt reconciliation. Yet, the purpose of no-fault divorce laws was only supposed to be to give individuals greater power over their own relationships, not to discourage couples from trying to remain together. There is no reason in logic or policy that exposure to reconciliation-oriented options should not be included as a component of divorce education programs. In the absence of such a component, divorce education programs are open to the criticism that they have the purpose or effect of encouraging — or even coercing — divorce.3

Parenting educators sometimes strive to discourage parents from asserting parental rights. This is also a noticeable trend among many family law attorneys. The following statement from a past chairperson of the family law section of a bar association appears in an article making the case for mandatory education for divorcing parents:

“We want to pull away from the idea that parents have rights in relation to their children….”4

It is true that irrational insistence on a wide range of both real and imagined “rights” will lead to impasse in mediation, and may be unhealthy behavior on the part of parent. On the other hand, it simply is not true that parents have no rights in relation to their children. Not only do parents have rights, but according to the U.S. Supreme Court, they are rights that are so fundamental as to warrant the highest level of protection under the United States Constitution.5

Telling a divorcing parent that he or she has no rights is telling a parent she is not entitled to provide input to the court about what his or her wishes are as to custody. This does not seem to serve any legitimate interest except possibly a judicial interest in absolute power. That is not a legitimate state interest.

Numerous judicial decisions have held that parents do have the right to have their wishes as to custody taken into consideration. Parent educators should not lie, or be encouraged to lie, to parents. What they should be telling both parents is that their input and opinions about custody issues related to their own children are extremely valuable and important, and that for this reason, they should think very seriously and carefully about them.

Judicial education

Better judicial education is also sometimes suggested as a reform measure, and some efforts have been made to implement that suggestion. Women’s groups and bar associations have done a great deal to educate judges about violence against women. Not many judges, however, are educated in child development and attachment theory. Yet that kind of information and understanding is critical to the ability to make appropriate judgment about what kinds of parenting arrangements are in children’s best interests.6

The results of surveys of judicial attitudes also suggest a need to sensitize judges to stereotypes and prejudices that may cloud a judge’s judgment when making custody determinations. While commendable efforts have been made to sensitize judges to the condition and needs of abused women and working mothers, to date it does not appear that any programs have been initiated, or efforts made, to sensitize judges to their pre-conceived notions about, and in some cases bias and antagonism toward, fathers and abused men.7
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  1. S.S. MCLANAHAN & G.D. SANDEFUR, GROWING UP WITH A SINGLE PARENT: WHAT HURTS AND WHAT HELPS (1994); NATIONAL COMMISSION ON AMERICA’S URBAN FAMILIES, FAMILIES FIRST (1993); James D. Lambert, Postdivorce Father Involvement: Innovations in Child Custody Reform, 3 MICH. FAM. R. (Winter 1997-98)
  2. L. Lehner, Mediation parent education programs in the California family courts, 30 FAM. & CONCILIATION CTS. REV. 207-16.(1992); R.A. Thompson, The role of father after divorce, 4 FUTURE OF CHILDREN 210-235 (1994)
  3. See JUDY PAREJKO, STOLEN VOWS: THE ILLUSION OF NO-FAULT DIVORCE AND THE RISE OF THE AMERICAN DIVORCE INDUSTRY 11 (2002) (recounting that in her experience as a parenting educator, “|t|he fact that one parent didn’t want the divorce—or that one of them had broken the promises they’d made when they were married—these were issues I was supposed to ignore….”)
  4. Cristin Schmitz, “Force Divorcing Parents to Take Courses: Lawyers,” NAT’L POST, 9 July 2001 (quoting Jennifer Cooper.)
  5. Meyer v. State of Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944); Ginsberg v. New York, 390 U.S. 629 (1968); Wisconsin v. Yoder, 406 U.S. 205 (1972); Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974); Moore v. East Cleveland, 431 U.S. 494 (1977); Smith v. Organization of Foster Families, 431 U.S. 816 (1977); Quilloin v. Walcott, 434 U.S. 246 (1978); Parham v. J. R., 442 U.S. 584 (1979); Santosky v. Kramer, 455 U.S. 745 (1982); Reno v. Flores, 507 U.S. 292 (1993); Washington v. Glucksburg, 521 U.S. 702 (1997); Troxel v. Granville, 530 U.S. 57 (2000)
  6. See Joan B. Kelly, The determination of child custody, 4 FUTURE OF CHILDREN 121-142 (1994). A call is also sometimes made for the cross-education of attorneys and other family law professionals in child development. See, e.g., L.L. Schwartz, Enabling children to win at divorce, 32 FAM. & CONCILIATION CTS. REV. 72-83 (1994).
  7. See Tom James, What Judges Really Think About Fathers: Responses to Court-Commissioned Judicial Bias Surveys, http://tomjameslaw.com/blog/what-judges-really-think-about-fathers-responses-to-court-commissioned-judicial-bias-surveys/

Nonadversarial Models: Parenting Plan Legislation

Nonadversarial models

In most countries, including the United States, court processes are designed for adversaries. A competitive, zero-sum model is used: one party wins something; one party loses what the other wins.

When a couple submits a dispute over custody of their child to a court, it generally will be inclined to deal with it in the same way it deals with all conflicts that are submitted to a court for resolution: It will try to determine a winner and a loser; the winner will be awarded a prize; and the loser will have to pay. The “prize” in a custody case, of course, is a child. To win the prize, the parties will have to compete against each other in a contest to determine which of them is better for the child. In this model, each parent has an incentive to prove the other is a bad parent, or at least a comparatively inferior parent. Since the stakes are high, the parties may be expected to use every possible means at their disposal to do this, so they will bring up – or make up – every fault and shortcoming of the other parent that they possibly can.

Unlike other kinds of court proceedings, in which very few, if any, aspects of the parties’ personal lives are relevant, in a custody war virtually every aspect of the parties’ lives – past, present and future – may be examined, and very often is. In a cruel inversion of 1 Corinthians 13:5 (“keep no record of past wrongs’), the adversary system often will reward the individual who has kept the most thorough record of past wrongs. If parents were not hostile toward each other before they entered into a custody proceeding, they almost certainly will be afterwards. And no matter how the decree is worded, the parties will believe that one of them has been officially declared the better parent, and one has been declared the worse parent.

In many cases, the victorious parent may develop an unhealthy sense of entitlement, privilege and power. The defeated parent, meanwhile, may be expected to resent the other, and either will embark on a quest to right the perceived wrong the court and the other party have committed; or will remove himself completely from the situation. Either way, the child is assured of growing up feeling embattled, guilty, depressed, confused, betrayed, abandoned and angry.1

Recognizing that the adversarial approach to allocating parental rights and responsibilities is a burden on the courts, unhealthy for parents, and detrimental to children’s psychological interests and well-being, some states are beginning to explore alternative methods of dealing with custody issues.2

Parenting plans

Several states have enacted parenting plan legislation.

Parenting plan legislation requires or permits the parties to a custody dispute to detail how they plan to allocate decision-making and care-giving responsibilities between themselves. In a very small number of states, they are mandatory.3 In most states that have adopted this kind of legislation, however, they are voluntary.4

The three main purposes of parenting plan legislation are: (1) to shift the emphasis in custody cases from parental rights to parental responsibilities;5 (2) to involve the parties more directly in their own custody determination;6 and (3) to encourage and promote amicable resolutions of custody disputes without judicial intervention.7

To the extent it requires the parties to answer specific questions about how particular responsibilities are to be allocated between them, parenting plan legislation at least partially achieves the first objective. On the other hand, it does not seem reasonable – or for that matter, necessary — to expect parents to lose interest in preserving and protecting their rights simply because they are also thinking about responsibilities.

Parenting plan legislation also partially achieves the second objective. It does not really take the power to decide custody away from judges and give it to parents, though. Even if the parents reach an agreement that they believe is in their children’s best interests, a court retains the power to reject the parties’ plan and impose its own if the one the parents devise is not close enough to the one the judge believes is ideal for them.

A serious question exists as to whether parenting plan legislation accomplishes the third objective, i.e., whether it really yields more amicable settlements without judicial intervention. Achievement of this goal requires an assumption that parents are always motivated by a desire to act in their children’s best interests. That assumption may not be realistic. For example, experience teaches that when child support is inversely correlated with the custody designation, as it is in many states, each party will be motivated by a desire to acquire that designation in order to be the one entitled to receive support instead of being the one required to pay.

Even if the parties are able to agree on that issue, they will still have competing financial motivations. If child support is calculated on the basis of the proportion of time each parent has with the child, as it is in several states, then one party will have an incentive to seek more parenting time for herself in a parenting plan in order to attain a greater amount of child support, and the other will have an incentive to fight for more parenting time for himself in a parenting plan in order to reduce the amount of child support he has to pay.

Even if parents are able to put their self-interests aside, parenting plan legislation does nothing to help people who have reasonable disagreements about how their children should be raised and how time with a child should be structured between the parents.8 The fact that two people are committed to acting in their child’s best interest does not necessarily mean that they will be able to agree what that is.

Another defect with parenting plan legislation is that, in most states where it has been enacted anyway, it is merely permissive, not mandatory. So long as submission of a parenting plan is not mandatory, such legislation really does nothing to change the existing status quo. Parents have always been free to work out settlement agreements between themselves. The vast majority of custody cases were settled by agreement even before parenting plan legislation was enacted. There is no evidence that parenting plan legislation has had any effect on settlement patterns.9 If submission of a parenting plan is voluntary, only those parents who are already disposed to settle their custody dispute will be likely to utilize a parenting plan. Those who are not so disposed will continue to require a judicial determination. Unless the submission of parenting plans is made mandatory, such legislation really does not accomplish much other than add more detail to what must be included in the settlement agreements that are reached by those parents who are already disposed to settle their cases anyway.

Parenting plan legislation has also been criticized on the basis that many, if not most, parents do not know what kinds of custody or shared parenting options are available to them, or what kinds of arrangements are most beneficial to their children.10 Many laypersons assume that the maternal preference is still in force; or they do not understand the difference between custody and legal custody, or between legal and physical custody; or they have not heard or do not know much about newer options like joint custody and shared parenting. As may be expected, most laypersons who are not adequately informed on these matters will designate the mother as the sole custodial and residential parent simply because they believe that is how it has to be, or that fathers have no real legal rights in this area.11 To be beneficial for children, parenting plan legislation would need to be accompanied by a parent education program and, arguably, at least some involvement with a competent, unbiased mediator.12

A final criticism of parenting plan legislation is that it does not go far enough. If either party believes he or she is likely to receive a more favorable award in court than what the other parent is willing to give, then that party will likely opt for a decision by a judge. If the legal standard, or the way that courts apply it, is unfair, then parenting plan negotiations and the results they yield will be, too. Parenting plan legislation will work in a way that is fair and reasonable, and will operate in children’s best interests only if custody law, both in theory and in practice, is fair and reasonable, and operates in the best interests of children.

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  1. Thomas J. Walsh, In the Interest of a Child: A Comparative Look at the Treatment of Children Under Wisconsin and Minnesota Custody Statutes, 85 MARQ. L. REV. 929, 957 (2002) (recognizing that “laws can create tragic dynamics for the children of divorcing couples.”)
  2. Mothers, fathers, children, attorneys and judges appear to be in agreement, on the whole, that the adversarial system is not a satisfactory method of deciding custody. See ROBERT E. EMERY, RENEGOTIATING FAMILY RELATIONSHIPS (1994); FRANK F. FURSTENBERG & ANDREW J. CHERLIN, DIVIDED FAMILIES (1991); Francis J. Catania, Jr., Accounting to Ourselves for Ourselves: An Analysis of Adjudication in the Resolution of Child Custody Disputes, 71 NEB. L. REV. 1228 (1992); Glenn Stone & Patrick C. McKenry, Nonresidential Father Involvement: A Test of a Mid-Range Theory, 159 J. GENETIC PSYCHOL. 313-36 (1998).
  3. See, e.g., WASH. REV. CODE § 26.09.181 (2011).
  4. See, e.g., MINN. STAT. § 518.1705 (2012) (permitting, but not requiring parties to submit a parenting plan; and authorizing but not requiring court to create one for them if they cannot agree; cf. WIS. STAT. § 767.41 (2011) (requiring each party to submit a parenting plan if the case is not settled or resolved through mediation); )
  5. C. Buehler & J.M. Gerard, Divorce law in the United States: A focus on child custody, 44 FAM. REL. 439-458 (1995); K. Czapanskiy, Volunteers and draftees: The struggle for parental equality, 38 UCLA L. REV. 1415-81 (1991); L.S. Hallmark, Chairperson’s message, 24 MICH. FAM. L.J. 1-3 (April 1997); R. Tompkins, Parenting Plans: A concept whose time has come, 33 FAM. & CONCILIATION CTS. REV. 286-97 (1997)
  6. Heather Crosby, The Irretrievable Breakdown of the Child — Minnesota’s Move Toward Parenting Plans, 21 HAMLINE J. PUB. L. & POL’Y 489, 509 (2000); Walsh, supra note 1 at 957
  7. Walsh, supra note 1 at 957. Another purpose of parenting plan legislation is to produce more fact-specific, individualized custody decisions. Jane W. Ellis, Plans, Protections, and Professional Intervention: Innovations in Divorce Custody Reform and the Role of Legal Professionals, 24 U. MICH. J.L. REFORM 65, 70 n.10 (1990); cf. Audio Tape: Parenting Plans, 2000: Hearings on H.F. 3311 Before the House Civil Law Committee, 81st Leg., 2000 Reg. Sess., Tape 1, Side B (March 2, 2000) (statement of Rep. Andy Dawkins) (describing parenting plan legislation as having five goals: (1) reduce the number of custody battles; (2) eliminate the wounds caused by custody battles; (3) improve future relations between the parties; (4) maximize the involvement of both parents; and (5) make families healthier.
  8. Walsh, supra note 1 at 972 (observing that parenting plan legislation “fails to recognize that parents can oftentimes have a genuine and reasonable disagreement about certain issues involving the raising of their children” and that “|t|hese ‘reasonable disagreement’ situations may not lend themselves to solutions with a parenting plan.”)
  9. Id. (observing that “most couples who are disposed to reaching agreements with their spouse were already doing so without parenting plans.”)
  10. See Joan B. Kelly, Developing and implementing post-divorce parenting plans: Does the forum make a difference? in NONRESIDENTIAL PARENTING: NEW VISTAS IN FAMILY LIVING 136-55 (C. E. Depner & J. H. Bray, eds., 1993)
  11. J.W. Ellis, Plans, protections, and professional intervention: Innovations in divorce custody reform and the role of legal professionals, 24 U. MICH. J.L. REF. 65-188 (1990)
  12. Kelly, supra note 10; Joan B. Kelly, The determination of child custody, 4 FUTURE OF CHILDREN 121-142 (1994)

New Terminology

Terminology

Custody law traditionally has been conceived as a contest for a prize. The winner of the contest is “awarded” the prize of custody, i.e., the right to continue parenting a couple’s children, and to have the final say in all matters concerning the child. The loser is consigned to a secondary role, that of an occasional visitor. Many noncustodial parents, having been marginalized in this way, bitterly resent the term visitation. As one writer put it: “The words ‘custody’ and ‘visitation’ belong to prisons and hospitals.”1 Feeling as if they have been, or are being, excised from their children’s lives, some parents may give up trying to be involved in the parenting of their children.2

Theorizing that removing the stigma of losing custody and of being demoted from a parent to a “visitor” would reverse the process of driving fathers out of their children’s lives, suggestions have been made to change the terminology in a way that emphasizes that a parent who loses custody nevertheless remains a parent. Accordingly, one type of proposal that has been gaining a lot of traction is to discontinue the use of terms like custody and visitation, and instead use terms with fewer negative connotations, such as decision-making responsibility, residential responsibility and parenting time.3

While terminological changes undoubtedly are beneficial in terms of removing the stigma of losing custody (and the loss of parental authority and respect it entails), they are not a complete solution. They do not alter the basis on which residential responsibility and parenting time are allocated between the parties. They do not make the legal standards clearer or more responsive to changing conceptions of male and female parenting roles, or to the needs of children for a meaningful relationship with both parents. If these kinds of things are goals, then something more than terminological changes alone will be needed.

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My book, The History of Custody Law, is available for purchase in paperback or as a Kindle e-book at:

Amazon.com
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  1. Marilyn Gardner, Yours, Mine, Then Yours Again, Christian Sci. Monitor 13 (May 3, 2006) (quoting a shared parenting supporter)
  2. See Frank F. Furstenberg et al., The Life Course of Children of Divorce: Marital Disruption and Parental Contact, 48 Am. Soc. Rev. 656, 663-64 (1983) (finding that two years after a divorce, half of noncustodial fathers have virtually no contact with their children at all); see also David Blankenhorn, Fatherless America: Confronting Our Most Urgent Social Problem 22 (1995); Mavis Hetherington & John Kelly, For Better or for Worse: Divorce Reconsidered 118-21 (2002); Cynthia R. Mabry, Disappearing Acts: Encouraging Fathers To Reappear for their Children, 7 J.L. & Fam. Stud. 111, 114-18 (2005); Solangel Maldonado, Beyond Economic Fatherhood: Encouraging Divorced Fathers To Parent, 153 U. Pa. L. Rev. 921, 946-47 (2005); David D. Meyer, The Constitutional Rights of Non-Custodial Parents, 35 Hofstra L. Rev. 1461, 1469-70 (2006); Judith A. Seltzer, Relationships Between Fathers and Children Who Live Apart: The Father’s Role After Separation, 53 J. Marriage & Fam. 79, 85 (1991).
  3. Peter V. Rother, Balancing Custody Issues: Minnesota’s New Parenting Plan Statute, 57 Minn. Bench & B. 28 (Dec. 2000) (noting the reason for allowing parties to use terms other than custody and visitation in a parenting plan is that those concepts represent possession and control.)

Right of first refusal

(Photo credit: Bill Branson (Public domain), via Wikimedia Commons)

(Photo credit: Bill Branson (Public domain), via Wikimedia Commons)

A “right of first refusal” provision sometimes is included in negotiated parenting plans and custody orders. It says that if a parent is scheduled to have parenting time during a given period, but is unable to care for the child throughout the entire period, s/he must offer the other party an opportunity to care for the child; and this offer must be made before placing the child in the care of any other person, or in a child-care facility.

Because parents do not have a common law right of first refusal, its existence is entirely dependent upon contract. If the parties do not provide for such a right in their divorce or custody agreement, it does not exist.

Since children generally benefit from frequent contact with both parents, it could make sense for a legislature that is concerned about promoting the best interests of children to consider establishing such a right by statute. For example, legislation could be enacted to require the inclusion in every custody order of a provision giving each parent a right to provide direct care for their children before the other party places the child in the care of a third person, provided the parent is available, willing and able to assume such care.

Of course, legislation of this kind would need to be limited to situations in which there are no restrictions on parenting time. A child abuser, for example, should not acquire any greater rights of access as a result of an enactment of this kind than s/he would otherwise have under existing law.

Not everyone may want to have such a provision included in their custody orders. There does not appear to be any good reason to force this right on people who wish to waive it. Accordingly, a legislature considering this kind of bill may want to make it subject to the condition that it applies “unless the parties otherwise agree.”

In lieu of mandating the provision in all custody orders unless there are grounds for restricting access or the parties otherwise agree, legislation could simply direct courts to “consider” including such a provision. This option is not as satisfactory, however, because it provides no standard for the exercise of a court’s discretion, thereby making it vulnerable to abuse, or at the very least, creating the appearance of impropriety and unfairness in some cases.

To be workable, the legislation should define the circumstances under which the provision is triggered. For example, the definition of “care of a third person” should not be so broad as to include the child’s school. A legislature will need to consider, though, whether pre-schools fall within the definition of “third person care,” on one hand, or “school,” on the other.

A legislature should also consider the length of time needed to trigger the right. If it were to apply to all third-party care, then it would be triggered anytime a parent wanted to leave a child in an older sibling’s care while making a quick trip to the store, for example. That would seem to be unnecessarily burdensome.

If it is only to apply to longer periods of time, then the minimum period of time to which it applies should be specified.

Of course, even if no legislation of this kind is enacted, the parties to a custody or parenting time agreement may still choose to voluntarily include such a provision in their agreement or order. The same general kinds of considerations apply in both cases. In addition, in order to prevent subsequent disputes, it would be a good idea to include details about how far in advance notice must be given; how it must be given (e.g., in writing); how long a party must wait for a reply before arranging third-party care; and who will be responsible for pick-up and return.

Whether the provision is included in a reform bill or in a voluntary agreement, some thought ideally should be given to the question whether and how providing direct care at the other parent’s request will impact the calculation of child support, if at all. Short periods of time (e.g., a couple of hours a few times per year) normally should have little or no effect on responsibilities for support. Longer periods of time, on the other hand, can yield inequitable results. If the noncustodial parent ends up providing a substantial amount of direct care, a good argument can be made that the amount of his child support obligation should be reduced proportionately. Accordingly, some thought should be given to whether the exercise of a substantial amount of “first refusal” care should be grounds for modification of the support obligation; and if so, what amount of time should qualify as “substantial.”

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My book, The History of Custody Law, is available for purchase in paperback or as a Kindle e-book at:

Amazon.com
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Mandating findings on all factors in custody cases

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Another kind of approach to custody law reform involves mandating consideration of a particular factor, or set of factors, in every case.

The best example of this kind of reform is the “domestic violence” factor. Although courts have always had the ability to consider the impact of domestic violence on children, a concern arose that courts may not be giving this factor sufficient consideration. In 1990, a joint resolution of Congress urged states to adopt a presumption that an award of custody to an abusive spouse is detrimental to children’s interests.1 The American Bar Association adopted this recommendation, and in 1994 it was incorporated into the National Council of Juvenile and Family Court Judges’ Model Code on Domestic and Family Violence.2 By 1999, nearly every state had enacted legislation requiring courts to consider domestic violence before making custody decisions.3

To ensure judicial compliance with legislation mandating consideration of a particular factor or set of factors, the legislation may require a court to make a written finding of fact on the factor or factors in every case (or in every case in which an allegation raises the issue.) Requiring written findings also helps ensure that there will be an adequate record for review in the event the order is appealed.4

Mandating consideration of all factors listed in a state’s “best interest” statute goes part of the way toward reining in abuses of discretion in custody cases. So long as the factors themselves are vaguely worded, however — and so long as they are unaccompanied by any overarching, meaningful standard for their application (i.e., something a good deal more specific than an individual judge’s opinion about what is in children’s “best interests”) — mandating consideration of factors cannot be a complete solution.

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My book, The History of Custody Law, is available for purchase in paperback or as a Kindle e-book at:

Amazon.com
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  1. H.R.J. Res. 172, 102d Cong. (1990).
  2. See NAT’L. COUNCIL OF JUV. & FAM. CT. JUDGES, MODEL CODE ON DOM. & FAM. VIOLENCE § 401 (1996).
  3. Hon. Judith J. Gische, Domestic Violence As A Factor In Custody Determinations In New York State, 27 FORDHAM URB. L.J. 937, 939 (1999). For an example of such legislation, see Act of May 21, 1996, ch. 85, 1996 N.Y. Laws 273, 275, providing that were there are allegations of domestic violence in a custody or visitation proceeding, “and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to this section.” See also 1997 Or. Laws ch. 707, § 35 (amending OR. REV. STAT. § 107.137 (1995).) Since then, many states have established a rebuttable presumption that an award of custody to an abuser is contrary to children’s best interests.
  4. See, e.g., MINN. STAT. § 518.17 (2012) (requiring the court in a custody proceeding to “make detailed findings on each of the |“best interest”| factors and explain how the factors led to its conclusions and to the determination of the best interests of the child.”)

A Note About This Blog

Most of the responses to the posts on this blog (other than blogspam) are constructive. Every now and then, though, I receive one that is not. I’ve discerned a pattern in the latter kind: It invariably comes from someone who has made incorrect assumptions about me and/or the purpose of this blog. I’ve done this before, but it may be useful to explain, once again, the purpose of this blog.

To begin with, it is not an advertisement. Yes, I am an attorney, but no, I am not seeking custody clients. Years ago, when I discerned what I believe are fundamental flaws in custody law, and the legal process associated with it, I resolved not to take part in custody contests. I recognize that this is how family law attorneys get rich. I am not one of those attorneys.

Since it is not an advertisement, I suppose some explanation for why I am doing this in order. There are several reasons. To begin with, I have a great deal of respect for the American constitution and the fundamental rights it was designed to protect. I am troubled by family court violations of them. More than that, I am deeply troubled by the disruption, acrimony, and anguish that routinely running custody cases through an adversarial system that is intent on declaring a “winner” causes to parents and their children. If you’ve ever seen children crying after being told they can’t see one of their parents anymore, or known a parent who has been driven to view killing himself, herself, the other parent, or her children as an outcome preferable to “losing” a custody war, you might understand. As hard as it may be to believe, not all people operate exclusively from a profit motive.

In all the years I have been involved with people who are disenchanted with the current system, I have noticed that discussions tend to focus more on the problem than on solutions. I have seen many forums for people to fix blame. “The problem is greedy lawyers;” “the problem is corrupt judges.” Oftentimes, this seems to be the stopping point. Evidently, some people don’t believe any solutions are possible. When someone does come to a conclusion that he or she has found a solution, the next step almost inevitably seems to be to take up arms and fight for it — very much like the inclination to take up arms and fight for sole custody of one’s children.

My hope for the “History of Custody Law” blog was that it would provide useful information to those with a genuine interest in law reform in this area. The theory was that gaining insights into the origins of a problem can better equip a person to deal with the contentions of opponents of reform, i.e., the defenders of the status quo. And as the old slogan goes, those who don’t learn from history are doomed to repeat it.

My hope for the “Future of Custody Law” blog is that it will provide reformers a supply of ideas upon which to draw, and suggest an outline of an analytical framework for their evaluation. In doing this, I may attempt to offer some discussion of possible advantages and disadvantages of an idea, but my intention is not to advocate specifically for one kind of reform or against another kind of reform. My intention is to try to lay out ideas that others have come up with, along with some that I have come up, and to subject them to logical, practical and policy-based analysis. In some cases, this may involve summarizing the work that others have already done; in others, it may involve beginning that kind of work for the first time.

So, for example, when I post a discussion of a possible new “best interest” factor, or of how an existing “best interest” factor might be improved, I am not instructing the reader to go out and start lobbying legislators for it. Nor am I suggesting that this is the only possible solution. Nor still am I suggesting that this idea is superior to all others. I am simply letting people know about it, and sharing what my thoughts about it are. It is up to you to think further about it if you are so inclined, and it is up to you to decide whether it is a good idea or not.

Similarly, when I discuss more sweeping kinds of reform — whether it’s presumptive joint custody, limiting court jurisdiction, mandating mediation, abolishing custody labels altogether, or whatever — the purpose is simply to facilitate — or in some cases, begin — a discussion of these ideas.

I do moderate comments on the blog. It is necessary to do this, given that over 90% of them are what is known as “blogspam” – messages designed solely to advertise things like pharmaceuticals or to boost a commercial web site’s search engine rankings. Your chances of having a comment approved increase greatly if you actually have something constructive to contribute to the discussion, and if you refrain from being a bigot.

Thank you for reading.

Responsibility and commitment as new “best interest” factors

(Photo: Kattygalvez, public domain)

(Photo: Kattygalvez, public domain)

Recognizing the importance to children of growing up in an intact family, and the painful impact of divorce on children, a legislature may want to consider adding a factor favoring the party who has demonstrated the greatest commitment to preserving the family unit. This new factor might be worded something like this: “responsibility, dedication to family, and except when it has been breached, respect for the marriage commitment.”

On the other hand, people should not be expected to sacrifice their lives or health to preserve a bad marriage. Just as the “disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child” factor is subject to an exception for cases in which domestic violence has occurred between the parties, so the “respect for commitment” factor could be made subject to a domestic violence exception. No one should not be expected to remain committed to a spouse who has perpetrated domestic violence against him or her, or against the children, or who has breached the marital contract in some other way, such as by committing adultery.

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While adding new factors and modifying existing factors can provide courts with better guidance about what kinds of considerations are relevant to custody determinations, they do not provide courts with any guidance about how the factors are to be applied either as a whole or relative to one another. This leaves too much room for the operation of biases and prejudices that may have very little to do with what is in children’s best interests in particular cases. To give prejudices and other factors that may not be conducive to children’s best interests less room to operate, the overarching goal of family law policy, together with a starting point (or default position) for custody cases should be defined. There is room for debate over what these should be. Whatever they are, though, they will need to be a little more specific than “whatever is best for children.”

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My book, The History of Custody Law, is available for purchase in paperback or as a Kindle e-book at:

Amazon.com
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