More of these kinds of challenges are needed by dads to bring home the point there is something wrong with family law. I'm not aware this has been done under the Canadian Charter of Rights and Freedoms. It has merit in my view and I will see if it should be included in my April/09 trial for custody.MJM
Thursday, January 29, 2009
WorldNetDaily Exclusive Divorced father seeks equal protection Custody challenge cites discriminatory decisions
Posted: January 28, 2009 10:09 pm Eastern
By Bob Unruh
A case is developing in a Tennessee divorce dispute that one attorney believes could impact custody decisions nationwide because it calls down the authority of the 14th Amendment's equal protection clause to help fathers who are good parents and want to remain involved in their children's lives.
The attorney, Stanley Charles Thorne, told WND the issue in the case at hand will be significant, since there are 3,000 divorce or custody cases in courts across the U.S. daily.
And according to the Children'sJustice.org website, those cases leave nearly 38 percent of the fathers with no access or visitation rights to their children. In addition, four in 10 mothers report they interfered with the father's visitation to punish him at least once, half the mothers see "no value" in the father's continued contact with his children and 70 percent of the fathers wanted more time with their kids.
Thorne told WND he is serving as a consultant in the case of Jeremy Hopkins, a successful lawyer, in his attempts to be treated the same as his daughter's mother, Elisabeth, also a successful lawyer, in their custody of Kate.
Since the mother left the family in Tennessee and took Kate to Pennsylvania about two years ago, Jeremy Hopkins has been allowed only sporadic days with his daughter.
"All I want for my daughter is for her to have mom and a dad," Jeremy Hopkins told WDEF-TV in Chattanooga recently.
Michael McCormick of the Institute for American Families said the system is set up to pit a mother against a father in a marital dispute, when it should be working to accommodate the needs of a child for both a mother and father.
"The courts are going to pick a winner and a loser and when they do that, the child ultimately loses," he told the station at a recent rally regarding the case.
"If we look at what's happening to our society we can trace the social pathologies just as increased rates of incarceration, early sexual activity for girls, truancy issues related to the family breaking down and the social fabric of our society is breaking down in terms of the family breaking down, we are being weaken as a nation and we need to change that," McCormick added.
He estimates 17 million fathers nationwide do not have fair access to their children, and about 3 million mothers have the same problem.
Thorne, who has 25 years experience as a lawyer, most recently has specialized in constitutional issues in family courts, representing parents and children on various issues.
He said the case now is entering the briefing stage, and the next court hearings are expected sometime in April.
The family's life was disrupted by the mother's decision to leave, Thorne said, but the relationship of the father and daughter was aggravated by a "family court system that cares for neither of them while it keeps them mired in a swamp of never-ending legal hassles just to be together."
The case began about Christmas 2006 when Kate was 1. Then the mother, Elisabeth, moved to Pennsylvania with Kate, and since then Jeremy has been away from his daughter 86 percent of the time – 633 of the previous 733 days.
At least four judges have been involved in the case, "but none of those … ever ordered the parenting plan required by the Tennessee Legislature and the Tennessee Supreme Court," Thorne's statement said.
"Many constitutional issues will be decided by Kate Hopkins' case," he continued. "Perhaps the most important is where the Constitution draws the line to protect the relationship between an innocent child and an innocent parent from government interference."
The dispute came to a head just before Christmas 2008, following the expiration of the most recent visitation order. Jeremy Hopkins, on a scheduled visit with his daughter, decided to have her stay in Tennessee until a court hearing on the required court-ordered visitation plan.
Instead, he was arrested for interfering with a custodial plan, "even though there was no court order in force," and his daughter was returned to Pennsylvania. The warrant later was quashed by a judge, who essentially determined it never should have been issued.
Thorne questioned the legal system ordering a child taken from one parent "when the child is in no danger … and the child has never been abused, neglected, or harmed" and given to another parent absent a court order.
The 14th Amendment states: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
"The only way to reconcile the parental rights of each fit parent is to divide the time of the child," Thorne suggested.
"This case affects not just the people of Tennessee," he said. "This is huge."
"In this case … this child now aged 3 over the past two years has been rendered fatherless, not because of anything dad did, but because of the way the system tilts," he told WND.
A WND message left with the attorney for the mother did not generate a response.
But Thorne said the cases of the 17 million people across the U.S. who are noncustodial parents also involve more than 18 million children. Not only are the parents denied access to their children, grandparents, uncles and aunts are cut off as well.
Thorne insisted judges should approach custody issues from a different perspective. They are not, he said, dividing property. Instead, they are making rules that impact the equal and sometimes competing parental relationships and rights of two individuals.
"They are not dividing one set of parental rights," he said. "Each parent has their own parental rights and prerogatives as an outgrowth of that relationship with the child."
Numerous organizations are working for the rights of fathers in disputes like the Tennessee case, including FathersCustody.org, LongDistanceParenting.org, Fathers False Charges Helpline, Fathers National Lawyers Referral, WinningCustody.com and FathersRights.org.
The Children'sJustice.org website noted very few children in divorced families are satisfied with the time they have with their fathers and only 11 percent of the mothers value the father's input regarding issues with their kids, well below the 45 percent who value input from teachers and doctors.
The site reported another national study found that more than three-quarters of non-custodial fathers are not able to visit their children as ordered by court decisions.
The issue of the treatment of fathers in custody disputes was the subject of a commentary in WND before the election.
Mike McCormick of the American Coalition for Fathers and Children and Glenn Sacks, who writes on men's and fathers' issues, said the Democrats' 2008 campaign platform targeted fathers for fault.
"The platform's 'Fatherhood' plank puts all blame for father absence squarely on men and promises to 'crack down' on fathers who are behind on their child support. It also promises to ratchet up draconian domestic violence laws that often victimize innocent men and separate them from their children," McCormick and Sacks found.
"It's doubtful that many dads wake up in the morning and say to themselves, 'My child loves me and needs me; my wife/girlfriend loves me and needs me – I'm outta here.' Research shows that the vast majority of divorces, as well as many break-ups of unmarried couples, are initiated by women, not by men, and that most of these do not involve serious male transgressions," they said.
The result? "The father is generally relegated to visitor status and often can only participate in his children's lives if the mother allows it. Courts tilt heavily towards mothers in awarding custody and enforce fathers' visitation rights indifferently. In most states, mothers are free to move their children hundreds or thousands of miles away from their fathers, often permanently destroying the fathers' bonds with their children."
To view this item online, visit http://www.worldnetdaily.com/index.php?pageId=87398
Related special offers:
Judges in Canada are now omniscient parents, willing to practice tough love, even though the plan they rely on to help the children has no longitudinal studies to prove that it works.
In cases of parental alienation, judges are prepared to step in and decide what is right for the children, against their wishes and those of the custodial parent, with whom they may have lived for many years.
That was the upshot of the case reported last week in which an Ontario judge stripped a mother, a 42-year-old chiropodist known in court documents as K.D., of the custody of her three girls, aged 9, 11 and 14.
The news gave hope to many divorced parents, who often give up in the face of their ex-spouses' campaigns to excommunicate them from the lives of their children.
It will still be a long and expensive fight. The father, a vascular surgeon identified as A.L., waged his legal battle for 10 years, and the trial alone would have cost about $250,000 plus $100,000 in expenses, legal experts say.
But the decision points to the severe consequences for the alienating parent.
"There is a greater understanding that the courts really hold the power to rescue the children from the situation of being caught in the middle," says Richard Warshak, a clinical psychologist in Dallas, Tex., and author of Divorce Poison: Protecting the Parent-Child Bond from a Vindictive Ex. A leading authority on parental alienation, Dr. Warshak runs a family workshop to help alienated parents reunite with their children. It was cited in the case last week as the resource to be used for helping the children and their warring parents.
"The Canadian courts are in the forefront," Dr. Warshak says.
Toxic exchanges between divorced parents are not uncommon. But the term parental alienation is used when the custodial parent systematically poisons the minds of the children against the other parent.
The language used in the courts highlights how damaging the problem is now considered to be. In the recent judgment, Madam Justice Faye McWatt wrote that the mother's "unrelenting behaviour toward the children is tantamount to emotional abuse."
A clinical child psychologist, Barbara Fidler, who had been involved with the family for several years, testified at the trial.
The judge also severely limited the mother's access to the children. Ordered not to harass them or go within 300 metres of them, she can see them only in the context of counselling. The father was granted the power to confiscate the girls' cellphones and any other communication devices to prevent their mother's interference. He also has the right to whisk them out of the province and the country to get counselling.
The victory comes after much frustration. The courts want to give parents several chances to do the right thing. In the case between A.L. and K.D., who was described in court documents as lacking in credibility, parenting plans and visitation rights had been mandated over the years - with poor results.
Aside from waiting for the slow wheels of justice to turn, parents must also allow child psychologists time to properly assess the situation.
"There are some cases of what we call realistic estrangement," Dr. Fidler explains. "The alienated parent may be abusive, and the child has good reason for not wanting to visit. And then there is true pathological alienation, in which children are refusing contact without good reason. ... It takes time to figure out what kind [of estrangement] it is and how severe it is."
Removal of the children from the custodial home is "the last resort," explains Harold Niman, lead lawyer for the 56-year-old father.Though this is not the first case - judges removed children from the custodial home, citing parental alienation, in a case in Ontario in 1989 and in another in Quebec in 1991 - imposing custody reversal as a way to address parental alienation signals a shift in thinking.
"There was a period of time when people thought that if you did anything to sever that attachment between the child and the favoured parent - that is, the allegedly toxic parent - that could cause more harm than any good," notes Jeffery Wilson, a family lawyer specializing in child advocacy, and founding partner of Wilson Christen. In fact, in this latest case, the lawyer who represented the children, Elizabeth McCarthy, contravened the wishes expressed by her clients, all of whom did not want to live with their father. Instead, Ms. McCarthy, who declined an interview request, acted on the basis of of the children's best interests. It was argued that the children, even the teen, were unable to think clearly about what they wanted because they had been brainwashed by their mother.
"I give little to no weight" to their views and preferences, the judge wrote.
"The pendulum has shifted slightly where the more courageous judges are making these decisions [because] the courts have seen that children can adjust to these changes," Dr. Warshak says.
"In one of the most severe cases I handled ... the child, now 18, was violent and threatened violence against his mother if the judge made him live with her. He now continues to express gratitude that the legal system set firm limits. He says that what he was saying during the trial were not his true feelings and that he had no choice but to say them."
Even so, there are no longitudinal studies about whether radical intervention works, several experts acknowledged. Dr. Warshak, who stands to profit from this court decision (and one in Ontario in 2007 in which his program was also cited), explains that the workshop helps children to "think critically. It is wrong to call it deprogramming."
The severely restricted access of the alienating parent is usually temporary, as the children only benefit from the program when they are free of that parent's influence. The goal is for the children to have a relationship with both parents eventually, say child psychologists familiar with Dr. Warshak's work.
Partly, the justification for custody reversal comes from studies that look at what happens if nothing is done.
"What's new is looking specifically at children who have rejected a parent and seeing what happens when they grow up," Dr. Warshak explains. "They are angry at the parent that they had aligned with for putting them in that position and they feel terribly guilty at mistreating the other parent."
Dr. Warshak's miracle cure seems to have found considerable favour in Canada. The courts are willing to take a risk that in the long run their intervention will work. Like concerned parents everywhere, who want to do the right thing, they can only hope for the best.