The ease with which fathers lose parental rights sometimes astonishes. This is one of those cases (Leagle, 9/30/11). Into the bargain, it’s an example of a case in which the Danish approach to child custody might prove to be better than ours.
On the face of it, the case is one that, I imagine, family court judges would be happy to preside over. The parents divorced, but in their dealings with each other and the child, they made the effort to get along and handle child-care issues constructively. Moreover, both were good, loving parents. In short, everything was about as good as one could hope for in a custody case.
The father, Tinotenda Rutanhira, immigrated to the United States from his native Zimbabwe in 2000. At some point he became a United States citizen and has no intention of returning to live in the country in which he was born.
The parties were married on April 7, 2004, and their daughter was born on March 11, 2005. In August 2009 they separated. Mother filed for a divorce in October 2009. Under a temporary order, the parties shared physical rights and responsibilities for daughter on a roughly equal basis. The parties ultimately agreed to continue sharing physical custody, but could not agree on sharing legal rights…
The court found that the parties were “very cooperative” in determining daily arrangements for daughter, and the court highlighted the fact that “there is really little to choose from as between these two parents.” The parties agreed on where to send daughter to school, her travel around the country, the choice of doctors, dentists, and religion.
In short, the two divorced parents got along well. They shared physical custody of their daughter and cooperated well in decision making.
The problem arose, not over parenting time, but over decision-making authority, i.e. legal custody. But even about that, there were only two bones of contention.
The first involved a disagreement in 2009 about whether daughter should be inoculated with the H1N1 flu vaccine; father eventually supported mother’s decision not to inoculate. The second was the real issue of contention: foreign travel…
In 2009, [the father] expressed a desire to bring daughter to visit Zimbabwe, along with other members of his immediate family, to see his remaining family there. The trip, planned for the summer of 2010, coincided with the World Cup in South Africa. Mother objected. She viewed the trip to Zimbabwe as far too dangerous for daughter. Though father wanted daughter to know her heritage, he ultimately acquiesced to mother’s wishes.
So when she was four, Tinotenda, doubtless proud of his young daughter, wanted to take her to visit his relatives who remained in Zimbabwe. That’s not hard to imagine; I’d think any dad would be so inclined. But Mom objected saying she thought Zimbabwe was too dangerous. And it’s true that there was political violence there and often food shortages. At the same time, Tinotenda’s relatives lived there, apparently in peace.
But whatever the facts of the situation in Zimbabwe, Dad ultimately agreed with Mom and stayed home in Vermont.
Nevertheless, this was the issue upon which the family court based its award of legal custody to mother.
Huh? Dad wanted to take his daughter to visit her relatives in Zimbabwe, Mom objected and Dad agreed with Mom. And that’s what the court based its decision on to award legal custody to Mom? What basis?
Well, it seems the fact that Tinotenda wanted to take his daughter to visit her relatives is what tipped the scales of justice against him. He never took her, he just had the desire to do so. That’s what I mean about how astonishingly easy it is for fathers to lose parental rights.
Now, the good news is that the Vermont Supreme Court reversed the trial court’s decision. But it did so, not because of the amazingly trivial nature of what the judge based his/her decision on. The state’s Supreme Court reversed the lower court because the judge had conducted an online investigation of conditions in Zimbabwe, and that information wasn’t in evidence. So, if the online information had been in evidence, the trial court’s decision would stand, irrespective of the fact that both parents are clearly qualified to raise their daughter and get along well doing so.
And it’s here that I argue that the Danish approach might be better than ours. As I reported just a couple of days ago, Denmark passed a law governing allocation of parental responsibility back in 2007. It basically requires joint custody unless there’s actual proof of wrongdoing by one parent. It also requires judges to push parents to cooperate in decision-making.
In so doing, it seems to abandon the concept of legal custody that requires a court to place decision-making authority in the hands of one parent only. And it’s exactly legal custody that the judge in the Rutanhira case was forced to decide even though he/she was clearly uncomfortable choosing between the two.
Remember, the judge said that there was really “little to choose” between the two parents. The Supreme Court sympathized;
We appreciate the difficulty facing the trial court–the challenge of choosing between two equally capable and caring parents.
I argue, and I believe Danish law agrees, that it shouldn’t have to choose. My understanding is that in Denmark, there would have been no issue. The parents had a minor disagreement, discussed it, thought it over and came to an agreement. There’s nothing for the court to decide. Indeed, if two Danish parents had brought a similar matter to a family court, my understanding is that they’d have been told to work it out between themselves which is what the Rutanhiras had done in the first place.
Look at what the American court had to do with an issue that’s surpassingly trivial: The trial court conducted a two-hour hearing, the court reporter recorded the testimony, the court made findings of fact and conclusions of law and entered a written order. All of that required the assistance of pricey attorneys. The order was appealed to the Vermont Supreme Court whose justices individually read the briefs and the trial transcript, decided to reverse and wrote down their opinion. Now the case returns to the trial court for further consideration.
That’s what the Vermont courts had to do. The Danish courts would never have heard about the matter because there was nothing to decide. The parents had worked it out between themselves. Simple, cheap and altogether lacking in conflict.
As I said in may previous piece, maybe the Danes are on to something.