The incentive for parents to focus on each other’s faults…

…and to “dig up dirt” on each other.The Family - 2015And…Should Custody Law Be Abolished?

The bigger question behind that one is: Should custody labels still matter? To put it another way: Has the time come to relegate the whole concept of custody of children to the scrap heap of history?causes.comcauses409526updates965813

The United Nations Convention the Rights of the Child

The question is not merely an abstract hypothetical. To the contrary, there appears to be a very definite trend, both in the United States and around the world, away from the concept of custody. The United Nations Convention of the Rights of the Child (“UNCRC”), for example, eschews the word custody. Instead, Article 9 of the UNCRC directs member countries to “ensure that a child shall not be separated from his or her parents against their will, except [in cases involving abuse or neglect, or where] a decision must be made as to the child’s place of residence.” Rather than referencing a  right of parents to custody of their children (referring instead to a child’s right to have the state order what it determines is in the child’s best interest), Article 9 requires member countries to “respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis….”

Shared parenting legislation

Nearly every U.N. country has signed onto the UNCRC. The U.S. Congress has refused to ratify it.2 Nevertheless, there is other evidence of a clear movement away from the concept of custody (or at least that particular word) in the United States, too. In particular, a growing number of states are transforming, or at least supplementing, their traditional custody laws with shared parenting and parenting plan legislation. These kinds of laws use terminology like primary residential responsibility and decision-making responsibility instead of physical custody and legal custody. Sometimes these laws expressly provide that parents may use other words besides “custody,” so long as the alternate terms are defined in a way that is understandable and enforceable.

Reducing acrimony and litigation

Project Fatherhood FL 11- 2015Understandably, not many family law mediators are enamored of the word custody. Fewer still are fans of the winner-takes-all, adversarial approach it connotes. Because neither parent wants to be the one who is deprived of that title and relegated to the role of “visitor,” it is a significant source of impasse in mediation. In many cases, it may actually be the only source of impasse. For this reason, many mediators will not address the issue (if they address it at all) until after all discussions of the details of the actual parenting time schedule and decision-making allocations have been completed.3

Any family court judge or attorney can attest to the fact that the lion’s share of litigation in family court involves a contest for ownership of the custody “prize.” If this incentive were removed, it stands to reason that there would be a sharp decline in litigation in family court. Parents would save literally thousands of dollars in attorney fees and related expenses like custody evaluators, forensic experts, witness fees, and so on.

Removing the winner-gets-the-kids concept would also remove the incentive for parents to focus on each other’s faults, and to “dig up dirt” on each other. It may not be reasonable to expect divorcees to co-parent blissfully, without conflict, but getting off to a less acrimonious start, one that encourages cooperation rather than competition, would certainly seem to have a greater chance of serving the interests of children than the existing system has.

The historical rationale

As explained in detail in other blog posts, and in my book, The History of Custody Law, the concept of custody has been around since earliest recorded human history. The traditional account provided by historians is that all through history, up until the Enlightened Age (i.e., the particular era of time in which the historian providing the account is living), children were viewed as economic assets having the  legal status of chattel. Under this view, an allocation of custody of a child between two parents was required for the same reason an allocation of ownership of any other marital property was required. The owner of property gets to make decisions about what to do with it, and who gets to use it. By dividing up a divorcing couple’s property, a court prevents future disputes over those kinds of decisions from arising. By the same token, “awarding” a child to one or the other parent makes it clear which parent gets to decide how to raise the child, who gets to spend time with the child, and how and when the time will be spent.

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Removing the winner-gets-the-kids concept would also remove the incentive for parents to focus on each other’s faults, and to “dig up dirt” on each other. It may not be reasonable to expect divorcees to co-parent blissfully, without conflict, but getting off to a less acrimonious start, one that encourages cooperation rather than competition, would certainly seem to have a greater chance of serving the interests of children than the existing system has.Parents are the compass that guide us - 2016

The historical rationale

As explained in detail in other blog posts, and in my book, The History of Custody Law, the concept of custody has been around since earliest recorded human history. The traditional account provided by historians is that all through history, up until the Enlightened Age (i.e., the particular era of time in which the historian providing the account is living), children were viewed as economic assets having the  legal status of chattel. Under this view, an allocation of custody of a child between two parents was required for the same reason an allocation of ownership of any other marital property was required. The owner of property gets to make decisions about what to do with it, and who gets to use it. By dividing up a divorcing couple’s property, a court prevents future disputes over those kinds of decisions from arising. By the same token, “awarding” a child to one or the other parent makes it clear which parent gets to decide how to raise the child, who gets to spend time with the child, and how and when the time will be spent.

Those who have read my book, or who have actually read the cases that people cite for the proposition that custody was governed by principles of property law at some time in American history, know that is not true. In America, courts have always regarded the best interests of the child to be the paramount consideration in custody cases. It is true, though, that courts have been at a loss to discover a way to address the question of what is to happen to the children after a divorce other than to say that one or the other parent will get them and the other parent will have a right to  have contact with them from time to time – an outcome analogous to an award of title to property (custody) subject to an easement of use (visitation.)Project Fatherhood FL 4- 2015

Do “physical custody” and “visitation” labels make sense anymore?

In the nineteenth and early twentieth centuries, custody carried with it the power to determine at what times, and where, the noncustodial parent would be allowed to visit his child. Since a noncustodial parent’s contact with a child frequently occurred in the mother’s home, it made sense to call it visitation.

When courts began broadening visitation to include overnights and entire weekends, or even an entire week of time during summer vacations, the justification for calling it “visitation” disappeared. Accordingly, many states have enacted legislation requiring courts to use the term “parenting time” instead.

Since courts can and do designate a child’s “primary physical residence” even in cases where joint physical custody is awarded, it is difficult to see what essential function the term physical custody serves anymore. A parent who has the right to have possession of a child outside of the other parent’s home, even if only on alternate weekends, has a right to possession of the child on those weekends. Why not simply call it what it is, then — alternating periods of physical custody? More to the point, though, why even call it custody at all? Why not simply call any time a child spends with a parent “parenting time” and dispense altogether with calling one, the other, or both parents “physical custodians”?Justice Denied - No Jury in Family Courts - 2016

Legal custody

Most (though not all) states distinguish between legal and physical custody. Legal custody refers to decision-making authority. Physical custody refers to the right to possession. Unlike physical possession time, which can be alternated between two parties throughout the year, decision-making authority is not as simple. A judge cannot simply decree that the mother will decide which school a child will attend half of the year, and the father will select the school for the rest of the year; or that the mother will decide whether their son will be circumcised during the first year of his life, and the father will make that decision the following year. Some kinds of decisions can only be made once.

It is not necessarily the case, though, that it is in a child’s best interest to give one parent sole authority to make all decisions affecting the child. It is possible, for example, that one parent may have greater knowledge of, and interest in, education, but not religion, while the other parent has a greater concern about religious upbringing than choice of schools. Allocating decision-making responsibilities in a more careful, reasoned manner would seem to serve children’s interests better than conferring the title of “legal custodian” with all decision-making power to one parent alone.Right of First Refusal - 2015

Third party custody

One way the custody concept is useful is in distinguishing parental rights from the rights of third parties. As the U.S. Supreme Court and common law judges have said many times, a parent’s right to the custody of his or her children is superior to that of any other person. It is difficult to express this principle of law without using the word custody.

One way to do it would be to include the rights of physical possession and decision-making authority within the definition of parental rights. Currently, things like the right of access to medical records and the right to attend school conferences are included in statutory lists of parental rights. Rights of physical possession and decision-making authority should also be included in the list.broken parents

This approach would have the added advantage of reminding courts that custody is every bit as important a right as, say, access to school records. Just as a judge is not free to terminate parental rights of access to school records absent a showing that such access puts the child at risk of harm, so a judge should not be free to terminate a parent’s rights to physical possession and decision-making authority unless it is shown that such rights put a child at risk of harm. A judge should not have the power to remove children from their parents simply because he believes another person might have better parenting skills, or a greater ability to send the children to a private school, for example.

Of course, there will always be situations involving child abuse, neglect or endangerment – or the death or mental or physical incapacity of a parent — in which a transfer of possession and/or decision-making authority to a non-parent will be necessary to protect a child from harm. There is no reason why these non-parental caretakers could not be called guardians rather than “custodians,” though.

Cordination with other laws

The biggest challenge presented by a proposal to eliminate custody from the law involves coordinating the change with existing law. A legislature considering eliminating it will need to review all of its statutes and administrative rules and regulations to ensure that eliminating the concepts of custodial and noncustodial parents from the law will not have unintended consequences, or make other laws and rules impossible to apply.

For example, how will the change affect state or federal housing assistance programs that  limit eligibility to custodial parents? Child support laws will need to be rewritten if they are couched in terms of custodial and noncustodial parents. Standards for modification of custody will need to be revised.

The effect on jurisdiction and enforcement in other states will also need to be considered. For example, many states have enacted a law known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA.) A state that is thinking about eliminating custody designations should consider not only the impact the change will have on how the UCCJEA is applied, but also how it will impact the other laws, and variations on the UCCJEA, that other states have enacted.

International law will also need to be considered. The Hague Convention, for example, provides ample means for securing an abducted child’s return on behalf of a custodial parent. Securing the return of a child without a custody order in place may be more problematic.

Conclusion

Eliminating the concept of routinely making awards of custody of children whenever their parents do not live together admittedly would be a radical departure from thousands of years of legal tradition. It may not be something that can be achieved overnight, or  with a single stroke of a pen. Nevertheless, at a time when nearly every country in the world takes pride in itself for conceiving of children as human beings rather than property, it could be worthwhile for more policy-makers to give serious consideration to moving away from the routine judicial practice of making what amount to declarations of child ownership anytime two parents do not live together.

  1. “Why the Custody Label Matters” ↩
  2. Various reasons have been given for Congressional refusal to ratify the UNCRC. For example, members of Congress have expressed concern that it might have the effect of outlawing corporal punishment; or that it might mean that children cannot be put to death, or imprisoned for life without possibility of parole; or that farmers could no longer require children under 12 to work under dangerous conditions. There has also been a concern among fiscal conservatives that the provisions classifying education, nutrition, health, and recreation as rights could create significant new entitlements for children, resulting in unfunded mandates. ↩
  3. See, e.g., McKnight, Marilyn S. and Stephen K. Erickson, The Plan to Separately Parent Children After Divorce, in Divorce and Family Mediation 129-54 (Jay Folberg et al., eds. 2004.) ↩

Source: Should Custody Law Be Abolished? | Law Blogs 

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

Purchase The History of Custody Lawdysfunctional-family-courts-2015

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American Fathers

So you’d rather watch tournament games and go bowling than support a “We Are Fathers” campaign for justice and equality. Well that’s your choice, it’s a free country, in theory anyway. But you should know that countless lawyers, child experts and bureaucrats are cheering you on because they profit from all this apathy and a misguided sense of priorities. In America today, our government is engaged in the lucrative expansion of a child control bureaucracy that is harming our families, productivity and moral fiber as a nation. This vast public enterprise has invaded every aspect of private life, often wielding power beyond that exercised by the NSA, CIA or IRS. It is a silent and insidious trend eroding parental rights repeatedly declared by our Supreme Court to be the “oldest liberty interest” protected by the United States Constitution. This interest is shared equally by fathers and mothers. But in practice, the male half has not been accorded its rightful place among our human rights due to a profit motive in family court driven by needless custody, support and divorce contests. Census Bureau reports continue to show the gender disparities on all domestic fronts. After promoting a parental rights cause in Paris recently, I was amazed to note how a million people together with world leaders could rally in that city within days to support free speech. Meanwhile, here in the states, more than 70 million fathers have yet to mobilize after a century of widespread discrimination. Such discrimination is having harmful impacts on all aspects of society and quite likely the female population more so than its counterpart. Veterans, minorities and high profile figures are particularly vulnerable to a court system that has placed money and politics over genuine parent-child relationships. Fathers are a vital component of any social or family structure as they have been since the beginning of civilization. Unfortunately federal entitlement laws and incentive funding to the states have marginalized that role to a point of virtual extinction. This has led to educational costs, heinous crimes and moral deterioration on a vast scale corroborated by an exodus from all manner of religion. In practical terms, our taxpayers are funding the creation of social ills and then forced to pay for it on the back side with costly welfare programs. Future generations will look back one day and be amazed at how truly barbaric our domestic relations courts once were. A scheme of laws and processes derived from feudal equity doctrines has been retained which features loving parents engaged in brutal contests over their offspring in a public arena. A winner-take-all battle for custody leads to overregulation of families by the state and marginalization, alienation or outright extinction of one fit parent from the children’s lives. Anal investigations of the combatants’ backgrounds by self serving advisors incite further controversy to last a lifetime. It is a spectacle reminiscent of the Roman Coliseum. No person or entity has ever been able to achieve a comprehensive study of the vast detriment which this archaic custody and support system has had upon our society. Any such effort would assuredly be stymied because custody and unequal parenting are highly profitable. Yet common sense dictates that our nation could be well served with sweeping reforms here in our least scrutinized branch of government. We can put a man on the moon, split atoms, engage artificial intelligence and achieve vast breakthroughs in medicine but remain unable to extricate family courts from their nineteenth century practices. www.Facebook.com/AmericanFathers

6 thoughts on “The incentive for parents to focus on each other’s faults…”

  1. Every child deserves an involved dad.

    Many people are surprised at the research which shows a connection between father absence and an increase in social problems in America including: poverty, teen pregnancy, juvenile delinquency, physical abuse, suicide, substance and alcohol abuse and a host of other troubling social problems. The sad fact is that not only does father absence hurt children, fathers suffer as well.

    Developing positive relationships with their children encourages and motivates fathers to lead more constructive lives, even in the most difficult of circumstances. For instance, the simple act of regularly writing to their children from prison improves outcomes for incarcerated fathers, including increasing their odds of training for, finding, and keeping a job once they reenter society. Evidence shows that fathers who write to their children once a week have a lower risk of violence in prison and recidivism when released. These positive outcomes are multiplied when we study the impact on the children of inmates, and how father contact can change the trend of their children’s lives – even while the father is still incarcerated.

    In addition, research and experience tell us that there is a strong correlation between lack of father involvement and many larger social challenges. Sadly, trends are against us. The Centers for Disease Control and Prevention (CDC) notes, in a study that investigated these trends, 2006 – 2010, “fewer fathers now live with their children” over the period studied. Reasons for this depressing trend include incarceration, non-marital childbearing and other factors.

    According to the U.S. Census Bureau, 24 million children in America, one out of three children in America, now live in biological father-absent homes. Furthermore, according to the national surveys conducted by NFI, 9 in 10 parents believe there is a father absence crisis in America.

    This study, an excellent resource on the impact of father-child involvement, also describes how “increased involvement of fathers in their children’s lives has been associated with a range of positive outcomes for the children.”

    Fatherhood is in crisis in America, and you can help. By using our evidence-based programs your department, agency, or not-for-profit group can increase father involvement, improve the lives of children everywhere, and reverse negative trends in a wide range of social issues. Or, by becoming an individual activist, you can bring fatherhood programming to your community and help to reduce a host of social ills in your neighborhood.

    NFI is a nationally respected, oft-cited, non-profit organization committed to better outcomes for children and our society as a whole. Our research and programs make a positive difference in the relationships between fathers and children – even in cases where a father is not physically present in the home. You don’t have to be a bystander to the fatherhood crisis in America; you can help to turn the tide and help us create a world in which every child has a 24/7 Dad.

    Thank you for your interest and support,

    The National Fatherhood Initiative® Team – http://www.fatherhood.org/social-problems-in-america

    Liked by 4 people

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