I have met and heard the tragic stories of many parents. PA is a function, by and large, of a custodial ex-partner, although some alienation can start while the couple is still together.

This blog is a story of experiences and observations of dysfunctional Family Law (FLAW), an arena pitting parent against parent, with children as the prize. Due to the gender bias in Family Law, that I have observed, this Blog has evolved from a focus solely on PA to one of the broader Family/Children's Rights area and the impact of Feminist mythology on Canadian Jurisprudence and the Divorce Industry.

Monday, January 5, 2009

Minnesota reviewing child custody laws to see if a presumption of shared parenting should be implemented

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A "Fathers 4 Justice" member in the U.K. wearing a Superman outfit sits next to a banner reading "A father is for life, not just conception," on top of Deputy Labor Leader Harriet Harman's home on June 8, 2008 in south London. 'Fathers 4 justice' is a group with chapters throughout the world, including Minnesota, that says it fights for fathers' equal access to see their kids following a divorce. (Photo by BEN STANSALL/AFP/Getty Images)

Child custody law up for review

by Elizabeth Stawicki, Minnesota Public Radio
January 5, 2009

Within the next two weeks, a state court official must report a study group's findings to the Legislature on whether Minnesota should change its child custody laws. At issue is whether judges should automatically presume that children split their time living with each of their divorced parents.

St. Paul, Minn. — When a couple with a child divorces, a judge is supposed to start with a clean slate before deciding whether the child will live solely with mom, dad, or split living with each of them.

But under a legislative proposal, judges would presume the child would live with both parents unless there's a good reason not to -- such as child abuse.

While adding the word "presumption" to a statute may seem trivial, it would level the legal playing field that fathers' rights groups say is currently tilted against them.

That's the way Les Jobst of Andover sees it. He drives a semi with a picture of his smiling 9-year-old daughter on the dash. He's also a member of the fathers' rights group called, Fathers-4-Justice, which contends that the court system tends to favor mothers in divorce cases.

"Joint custody can be the worst for kids if it's used to divide the child between two very contentious parents. It can leave children in essentially a war zone."
- Robert Emery, scholar on children and divorce

Jobst says once a judge decides that a child will live solely with one parent, society views the other parent as having no rights.

"I'm a concerned father. I'm here, I'm trying to work and find out what's going on with my child," said Jobst. "It happens in the doctor's office, it happens in the dentist's office, wherever you go. All you have to have is one parent say, 'I've got sole physical custody,' all bets are off."

Jobst says changing the laws so that judges presume divorced parents share physical custody would allow children to spend more time with both parents.

The state already presumes that both parents will share legal custody of children, which is different from physical custody.

Legal custody gives parents the right to make important decisions for their children such as what religion to follow, what medical procedures are necessary or what school to attend. Physical custody determines with whom the child lives.

One divorced mother believes changing the law on physical custody would simplify the divorce process. Ann Fleischauer says divorcing parents now can use the issue of who the child lives with as a bargaining chip in negotiations.

Fleischauer says the presumption of joint physical custody would take one of the most contentious divorce issues off the table. She says society has changed, and the law needs updating.

"With families where you have both parents who've got busy careers, both parents who are used to dealing with a lot of the same challenges around kids and activities, balancing financial situations -- it just seems as though it's a better starting point," said Fleischauer.

But another divorced mother isn't quite sure the law change would make any real difference. Martha West says the label of joint physical custody is a bit misleading, because it leaves the impression that children would split their time 50/50 with both parents, when in reality one parent could end up living with the child most of the time.

West says the presumption may save one step in the process, but the couple still has to hash out a schedule and child support for two individual households.

"You're creating a binuclear family, and so how is that going to work?" West asked. "To say that the parents will have joint physical custody is great. It might make everybody feel better, and it may take some of the emotion out of the mediation process at the outset. But unless there's going to be some connection made with the visitation schedule, I'm not sure it really has a lot of impact."

One father has deeper concerns. George Slade of St. Paul is a divorced father of two girls. He says his divorce was amicable, and both he and his ex-wife wanted to share physical custody of their daughters.

But Slade questions the law's impact on families where one parent may know he or she can't be a good parent on their own.

"When you get divorced, in some context you have to stand up in front of a judge and say, 'I no longer want to be married, I want a divorce, I want to separate from you.' You have to say this to someone to their face," Slade said. "But to say this about your children, even if it's just to a judge, in effect you're speaking to the kids through the court record. What a guilt-ridden thing that would be to force someone to say, 'I don't want my kids.'"

One national scholar on children of divorce says a number of states have considered using the presumption, but only Iowa has actually done it for the past several years. Robert Emery says Australia has also enacted it with varied results.

Emery says ordering judges to start with the idea that joint physical custody is the way to go in divorce cases can be the best and the worst of worlds for children. He says it's the best arrangement for children when parents can set aside their conflict.

"Because kids can learn, even despite their parents' divorce, that they still have two parents. And we have good research that shows kids thrive in that situation," said Emery. "But unfortunately, joint custody can be the worst for kids if it's used to divide the child between two very contentious parents. In that case, it can leave children in essentially a war zone."

Emery favors an idea that mirrors the amount of time parents spend with their children during the marriage. So if a mother spent 40 percent of the time with a child during the marriage, the child would live 40 percent of the time with her after the marriage is over. This would all be open to negotiation.

The group looking at the custody issue must submit a report to the state court administrator. That administrator is supposed to report the group's recommendations to the Legislature no later than Jan. 15.

5 comments:

Anonymous said...

While I support this idea to a certain extent, it still leaves one parent vulnerable to baseless allegations of child abuse in over to override the default assumption of the joint custody idea. It may in fact even promote the number of cases of baseless allegations in divorce cases in order to pursuade the court to stray from the guidelines.
While I know I will take heat over the second part of what I belive is the only way to eliminate a high percentage of this, its simple. If custody and regular visitation is not allowed, then no child support. If that parent is really as abusive as one party is claiming, then you shouldn't be asking for a handout or provoking that person by forcing them to pay child support on children he/she does not have a relationship with.
Alternatively, when allegations of abuse surface during a divorce, then maybe the child(ren should be placed in foster care UNTIL the allegations can be substantiated, or proven to be baseless in nature, and then custody should be determined based on those findings.
There needs to be a safety catch for all involved- Especially the children, and also for the parents.
After all that, then it would be time to proceed after clearing up any questions.

Anonymous said...

There are a lot of great Dad's out there, and there are great mom's too who only want what's best for the child. Not what's best for the parent. I am a woman who has custody of my one any only child. My only concern ever for my son has been his health. And that includes his mental and emotional health as well. In my case, it's the opposite. My son's father belittles me in front of my son. My son is 12 years old. This has been going on since my son was just a toddler. I have letters saved from my lawyers dating as far back as 1999. All of the issues that have gone on and that were never looked into are in these letters. One of them which states "the father only wanted to alter the access order to include half of the summer for visitation just so he could say HE GOT WHAT HE WANTED. My son's father and step mother have been working on my son's brain for a long long time. They have him brain washed. When my son brings up the conversations held at his father's during the times he is there, I tell him "let's not talk negatively about your dad. Let's be positive." I tell him his dad loves and cares about him. But you know what? It doesn't matter what I say. They have him controlled. Right now I'm facing a threat from his dad to "get my son to live wit him." I don't know how well this will go over in court for him, seeing as he has attempted suicide in the past and denied any treatment afterwards. He will not give my son his medication while there on REGULAR VISITATIONS, does not pay his child support...I could fill a book with everything that's been going on. Seems these days the kid(s) take up for the "evil one"
He is in breach of the court order right this minute by with holding my son past his "court order visit" but there's nothing I can do. So I was told by the police. Apparently 12 year olds can now tell their parent "what they can and can not do." So explain that.

Michael J. Murphy said...

@ Anonymous 2 - When a parent uses a child to belittle and alienate the other parent it is child abuse and can affect the mental health of the youngster. Often the parent doing it doesn't realize the impact but some also do it deliberately. Those who do it deliberately should have no custody at all and supervised visitation if it is ongoing.

I wish you well. It is difficult to deal with. You are also not alone. I belong to several groups who are trying to create greater awareness of the problem.

Anonymous said...

Please let me know where your groups are. I would love to be a part of your support.

Michael J. Murphy said...

Most of the ones I'm involved with are dad dominated but the best one for Parental Alienation is here. http://www.paawareness.org/ They deal with the issue of Alienation without any gender bias and have affiliations world wide.

There are also groups on Yahoo dealing with it you may want to check out. This is one that is popular. I'm not a member but know folks who have been. http://groups.yahoo.com/group/ParentsAgainstParentalAlienation/