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.

Wednesday, October 7, 2009

Montana Supreme Court upholds parental rights in Missoula same-sex case

This case has been in the news before and is interesting in that it involves lesbians. Its impact is profound as it can also be interpreted that dads have the same rights as a true natural parent instead of being marginalized. It's ironic it took a woman to cause judges to do this. I'm suggesting this is quite a precedent setting decision for all parents in Montana - and it may be used as a precedent elsewhere.MJM

Font Size:
Default font size
Larger font size

Related Stories

HELENA - The Montana Supreme Court Tuesday upheld parental rights for a Missoula woman who'd been part of a same-sex couple that cared for two adopted children, saying she's entitled to joint custody of the kids.

Supporters of the 6-1 decision hailed it as a victory for all parents, regardless of their marital status or sexual orientation.

"This is a victory for families in all shapes, sizes and colors," said Betsy Griffing, legal director for the American Civil Liberties Union of Montana.

Justice James Nelson also issued a special concurrence, in which he wrote a blistering denunciation of discrimination against homosexuals.

"Naming it for the evil it is, discrimination on the basis of sexual orientation is an expression of bigotry," he wrote. "Lesbian and gay Montanans must not be forced to fight to marry, to raise their children and to live with the same dignity that is accorded heterosexuals."

Yet opponents said the ruling had little to do with the rights of same-sex couples or gays and lesbians, and instead opens the door to challenges of parents' rights to raise their own children.

"Now, even parents who are fit and capable ... are potentially subject to the claims of third parties for rights to their children," wrote Justice Jim Rice, the sole dissenting vote on the Supreme Court decision. "Consequences of geometric proportion will fall in the future upon many fit parents."

Jeff Laszloffy, president of the Montana Family Foundation, a conservative social group that says it focuses on "strengthening families across Montana," said the court "simply bent existing law to reach a predetermined social position. ... This is an egregious decision."

A former live-in lover, no matter what sex, may now attempt to claim parental rights to children against the wishes of the legal parent, after the parent has ended the relationship with the lover, Laszloffy said.

The case before the Supreme Court involved a female couple who, while not legally married, had exchanged rings, lived together in near Missoula for 10 years and acted as parents to a young boy and girl.

The two children had been adopted by Barbara Maniaci, a chiropractor in Clinton, while she had been involved in a lesbian relationship with Michelle Kulstad. After the couple separated in 2006, Kulstad sued to maintain parental rights to the children and for an interest in the property the two women had shared.

District Judge Ed McLean of Missoula ruled in Kulstad's favor last year after a trial, and Maniaci, who has since married a man, appealed to the high court.

Justice Brian Morris, who wrote Tuesday's majority opinion, said state law allows a non-parent to seek a "parenting interest" in a child if the person has established a child-parent relationship.

He said the District Court properly ruled that Kulstad had established that relationship, and therefore was entitled to joint custody of the children. Maniaci, the legally adoptive parent of the children, also had "ceded her exclusive parenting authority" to Kulstad during their relationship, by treating Kulstad as an equal parenting partner, Morris said.

"Maniaci cannot rewrite the history of the fact that she and Kulstad lived together for more than 10 years and jointly raised the minor children in the same household," Morris wrote.

Kulstad appeared at a news conference Tuesday outside the Supreme Court, saying she's grateful that the court recognized her parental rights.

"I want what every parent wants," Kulstad said. "I want to love my children and care for them. I am looking forward to being in their lives for the rest of my life, to see them graduate from high school, get married and have children of their own."

The boy, 9, and the girl, 6, live with Maniaci and her husband.

In his dissent, Rice said the court should have struck down the law that allows nonparents to assert parental rights without proving that the "natural parent" - in this case, Maniaci - is an unfit parent.

"This statute ... invades the constitutionally protected natural parent-child relationship without first requiring termination of the parent's interests," he wrote.

Rice said Tuesday's ruling goes against former precedent, which said a natural parent can't be denied custody of their children unless abuse or neglect is shown.

The case attracted attention from national and regional groups, which filed friend of the court arguments with the Supreme Court. They included the conservative Pacific Justice Institute, and, on the side of Kulstad, the National Association of Social Workers and the Northwest Women's Law Center, which has been active in women's rights cases involving lesbian couples.

Decision Rendered in Major West Virginia Domestic Violence Lawsuit

LogoHome Banner
blue bar - stationery

Learn More Join Donate

Dear Mike;

Many of our readers have experienced the problem of false allegations of abuse in the context of divorce and custody proceedings. Today in West Virginia a significant decision was released in the case of Men and Women Against Discrimination (MAWAD) versus The Family Protection Services Board of West Virginia. The findings of fact and conclusions of law contained within Judge Stucky's decision declared several rules of the West Virginia Family Protection Services Board null and void, stating the rules directly conflict with the express intent of West Virginia's legislature that domestic violence programs be administered in a gender neutral fashion while further finding the rules had a chilling effect on MAWAD members free speech right.

Read Judge Stucky's entire decision here. Several of the findings and conclusions include:

19. West Virginia Code 48-26-404 mandates the Board to propose rules for programs of intervention for perpetrators of domestic violence...

20. In response to this legislative mandate the Board adopted Rule 191-3-3....

21. The promulgation of this rule forms the basis for the Board's official position that perpetrator intervention programs should actually be and, in fact are, administered as "batterers" intervention programs with the fundamental premise that only men can be batterers and therefore only men are appropriate candidates for participation in perpetrator intervention programs.

22. The Legislature has expressed a clear intention to provide licensure and funding of perpetrator intervention programs that are gender-neutral; the Board, acting on its own, has ignored this intent and created a gender specific program that includes only men and excludes all women.

From the conclusions:

"The legislature has expressed a clear intention to provide for licensure and funding of perpetrator intervention programs that are gender-neutral. The Board, acting on its own, has morphed this intent into a gender specific program that includes only men and excludes all women...This rule conflicts with the clear intent of the legislature and is void."

Let us know what you think of this decision by responding here. We'll post these responses over the next several days.


Domestic violence groups are one of the primary impediments to getting shared parenting enacted. They actively lobby against two parent involvement around the nation. Help educate your legislators about this problem and ask them to investigate DV programs in your state to see if similar situations are occurring. Take a copy of this decision and circulate it to your state and federal legislators. Find your legislators by clicking here. Include a reference to Dr. Stephen Baskerville's report on Family Violence in America. Also send them a link to the resources of RADAR.

You haven't heard from us for awhile, but we're still leading the way in substantive reform and you'll be hearing much more shortly. By the way, did you receive your most recent copy of The Liberator? More on Alec Baldwin and his efforts for the movement soon.

Congratulations again to Men and Women Against Discrimination. We all appreciate you. Here are links to some of their great spots on DV and Shared Parenting.

Billboard, radio spot 1, radio spot 2, radio spot 3, radio spot 4,

Stay tuned, and help us keep the lights on and the efforts for shared parenting ongoing by making a donation.


Mike McCormick ACFC Exec. Dir.

Dad support group coming to Chatham


Posted 3 hours ago

Dave Flook wouldn't be moving to Chatham if his ex-wife didn't live here with their daughter.

But since he's coming here anyway, the current London resident wants to make an impact on the community.

Flook, 32, who founded "Not All Dads Are Deadbeats," about a year ago plans to move the support group to Chatham in November.

He is also planning to hold an introductory meeting for Chatham NADAD Oct. 15 at the Chatham public library branch, beginning at 6 p. m.

A web designer by trade, Flook said he created the online support group blindly, noting he felt alone and isolated in the court process and just wanted to meet other people in the same situation.

But he didn't realize how quickly it would grow, noting the first seminar attracted about 130 people.

The website www.notalldadsaredeadbeats.com has received over 20,000 unique hits. He also receives calls daily from all over Canada, noting many people are asking questions because they are confused about the whole process.

Flook has what he calls "de facto custody," noting his daughter stays with him every other weekend.

"The main reason why I started up Not All Dads Are Deadbeats was that realization if you don't stand up and fight against it than you support it indirectly," he said.

"The issue of parental alienation in court and justice is very prevalent, however, it's one of these things that's not generally talked about as much as it should in society," Flook added.

He also plans to organize playgroups through the group.

Flook said having the role of being a "weekend dad," it can be difficult to find other kids for your children to play with because "you're just so disconnected from their normal lives."

Flook also hopes to create some jobs, noting he will be looking to hire web designers and sales people for his business Pure Web Group.

And he has plans to create the Web Design School of Chatham.

The focus will be on teaching people to create higher-end web sites, known as content management web sites.

A former graphic design and web design instructor at Fanshawe College in London, Flook said he has researched the area and said there is no course offering thorough instruction in this area.

"Essentially, I love being in front of a crowd of people sharing my passion for my web design and I'd like to express that further."



Where separation occurs without anxiety

More and more jurisdictions are moving to a more equal system in marital breakdown instead of the winner take all in Canada that awards a single gender over 90% of chidren's physical custody. Australia's system is an improvement but not a complete model. Only 15% of cases result in 50-50 custody. That is certainly better than before and far better than the sorry state of affairs in this country brought about by lawyers and judges. We do have some centres in Canada that could easily become similar to the OZ Family Relationship Centres. One good example is the Calgary Counselling Centre. Belgium's model is one of the best with a presumption of equality from the start. I too share the dream of Mr. Parkinson. One day perhaps we can set up centres to act as the first line of defense for saving families from the disaster of family law. We have first responders for Fire, Police and Health emergencies. Family breakdown is a crisis of major proportions and money needs to be invested in 1) saving marriages that can be saved 2) If abuse is involved get family counselling instead of the current paradigm of providing $208,000,000.00, in Ontario alone for a single gender. This is not working 3)Treat each member of the family equally but truly look at the best interest of children. Currently that appears to award custody physically to mom and marginalize dads as visitors 4) if abuse, physical and/or emotional cannot be curtailed the non-abusive parent gets custody. 5) Include a follow-up appointment process to let parents and children know they are not forgotten and alone. 6) As they do in Belgium severe penalties for with holding access. That is equivalent to kidnapping there and jail can result for the abductor. You can be ensured it will only happen once, if at all. Often the canard of male abuser - female benign is brought up as an issue for shared parenting. It is a non-logical argument. Stats Can reports abuse between genders as pretty much equal. It impacts about 8% of women and 7% of men. Lets turn that around. It doesn't impact 92% of women and 93% of men. The logic of not having shared parenting when 92-93% of the population is not affected makes no sense. Lets start acting logically instead of the shrieking we hear from certain quarters. See my earlier posts on dealing with abuse.MJM

Alfred Mamo, a lawyer in London, Ont., says the province’s family court system has gotten worse in the past decade. It’s “making people crazy,” he says.

Where separation occurs without anxiety

October 07, 2009

Susan Pigg

living reporter

It seems that Australia isn't all that different from Canada – except, of course, for the accents and the kangaroos.

About 40 per cent of marriages end in divorce, weddings are on the decline in favour of living common law, and a lot of couples don't know where to turn when their relationship ends.

Well, at least they didn't until 2006.

That's when the Australian government launched one of the most ambitious set of divorce reforms in the world, aimed at putting family first and providing a raft of supports for couples, whether they're just starting out, or struggling to save their marriage, or trying to shield their children from separation flak.

In the past three years, 65 Family Relationship Centres have opened across the land Down Under. The well-marked storefronts, located in high-traffic city centres, are the backbone of some $400 million in family law reforms meant to ease the pressure on overburdened courts, reverse the phenomenon of "disappearing dads," and ensure divorce is as painless as possible for children.

"They're part of a 20-year cultural change – the first port of call for people managing the transition from parenting together to parenting apart," says University of Sydney law professor Patrick Parkinson, who pushed the previous, John Howard government for the new approach over pumping more money into the courts.

The program is meant to be one-on-one, recognizing that the worst moments for separated couples and their kids are the first hours and days after one partner announces they're leaving.

It's also meant to be affordable. Everyone who walks through the door, or calls the toll-free line, is entitled to three free hours of help every two years, whether it be on-site counselling and mediation or off-site specialized services. After that, costs are based on ability to pay.

Walk in the door of a Family Relationship Centre and you are greeted by a "parenting counsellor" rather than a wall of pamphlets. Their job is to get a sense of your personal situation and how it's playing out for your family, and to assess what help you need to start moving ahead.

The centres are meant to act as triage units for ex-partners who may be hobbled by mental health issues and addictions, or children acting out because of prolonged family conflict. "They will not close that file until they are certain that person has got the help they need," says Parkinson.

Mediation is a mandatory first step, a move aimed at making the costly and adversarial court system a "mechanism of last resort."

The last of the centres opened last year, and already Australia has seen an 18 per cent drop in court filings, Parkinson says.

The reforms included legislative changes aimed at making shared parenting the norm (except if there are extenuating circumstances such as violence in the home, mental health issues or addictions) and support payments more equitable.

The idea is to give ex-partners much-needed flexibility, and the peace of mind that comes from knowing they can go back to the centre in a few weeks, or even years, to tweak details or change custody arrangements without the expense of hiring a lawyer and going to court.

The reforms were inspired in part by a 2003 national survey that pointed to a worrisome trend. It found that 36 per cent of 1,000 separated men interviewed hadn't seen their children in the previous year – because of conflict with their ex-spouses, distance, economics or remarriages – although 80 per cent of them wanted to.

As well, MPs were being deluged with calls from constituents upset about divorce issues and their treatment in the family court system.

But, most of all, there were growing fears that family breakdown and conflict was resulting in increased social problems among kids – from drug abuse to gang activity – and more children being taken into foster care, says Parkinson.

Out of those concerns came a national commission, 1,700 submissions and the landmark "Every Picture Tells a Story Report" – not unlike Canada's 1998 report, "For the Sake of the Children."

The only difference? Australia moved on its commission's recommendations, while most of them remain shelved here in Canada.

Family law lawyers such as Alfred Mamo of London, Ont., contend things here have gotten worse over the past decade.

Many of Ontario's family courts are on the brink of breakdown thanks to a perfect storm of problems: a shortage of judges, lengthy court dockets and a woefully inadequate Legal Aid system that is forcing more litigants to represent themselves, with no understanding of complex family law, rules of evidence or even what documents they need.

Judges complain that has added to the chaos by necessitating adjournments that drag out cases and drive up costs.

The result is a two-tier system of justice in Ontario. Couples who can afford it are flocking to costly private mediation and arbitration to avoid getting bogged down in court. Everyone else is mired in a legal system that's so slow and unpredictable, it can take a child's lifetime and the couple's life savings before a judge finally makes a ruling. Many lawyers believe that's actually ratcheting up tension and adding to the number of high-conflict divorces and allegations of parental alienation.

"The lawyers need to own some of this," says Mamo, echoing litigants who blame attorneys for dragging out cases to make more money. Lawyers call it "milking the file."

In defence of his profession, Mamo adds: "To some degree we're in the cancer business. You want to help everybody, but the reality is you can't because human emotions are just so complicated and there are so many variables.

"We could be doing a lot better, though, there's no doubt about that."

Just 2 to 3 per cent of all disputes end up in full-blown trials, but that's largely because litigants go broke first.

In especially overloaded courts in high-growth areas such as Newmarket, Brampton and Barrie, judges are often expected to plow through 25 to 40 cases a day. Litigants complain they can spend hours – and thousands of dollars on a lawyer – waiting for just 15 minutes before a judge and another months-long adjournment.

"The system is making people crazy," says Mamo, who co-authored a study of the courts two years ago.

University of Western Ontario professor Peter Jaffe, who worked with Mamo on that study, describes family courts as "restaurants without kitchens.

"You can ask for anything you want, but in the end all they have is a couple of items, hamburgers and hot dogs," says Jaffe, word academic director of the university's Centre for Research & Education on Violence Against Women and Children.

Some 17 of the more than 80 family courts in Ontario have on-site mediators, and they have diverted some couples from the courtroom and toward a workable settlement. But the much-lauded Family Law Information Centres – court-based services that were intended to act somewhat like Australia's Family Relationship Centres – are, in most courts, little more than pamphlet booths.

Duty counsel, who are supposed to help ensure litigants are properly prepared for their first court appearance, usually have time for just 20 minutes per client. Volunteer law students pick up some of the slack, but just in major centres like Toronto and London.

"We can't tinker – the system is broken and needs very significant reform," says well-respected family law lawyer Philip Epstein.

Ontario Attorney General Chris Bentley recognizes the need for reform, and says the government has been pressing Ottawa to help – especially in appointing more judges – since 2004.

He's been meeting with family law experts to see what Ontario can do on its own, and quickly. He's already announced $150 million more in legal aid, most of it for family law, but lawyers complain that's far from enough.

Australia's Parkinson is determined that, over time, the Family Relationship Centres will become more than just after-separation services for couples. His dream is that they help prevent family breakdown.

He takes pride in simple signs of progress – like the four filing cabinets that line one wall of the centre in the seaside industrial city of Wollongong, 1 1/2 hours south of Sydney.

Three of them are packed with the case files of separated couples. The fourth is full of families working hard, with the help of centre staff, to save their marriages.

Read more from this series:

Divorced dads can't catch a break

The good divorce: Equally shared parenting

Kids hit hard in nasty divorces

Grandparents go to court for access to grandchildren