A Parenting Amendment to the Constitution?

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October 2, 2020 by Robert Franklin, JD, Member, National Board of Directors

This looks to me like tilting at windmills, but, even so, it’s a sign of the times, and not a bad one (, 9/29/20).  The link is to a press release from the Family Preservation Foundation and its Executive Director, Dwight Mitchell.  The press release urges readers to sign the foundation’s petition that in turn urges Congress to adopt Resolution H.J. Res. 36 that would create a constitutional amendment establishing parental rights.

Here’s the text of the resolution put forward by Rep. Jim Banks of Indiana and that has 15 co-sponsors.


Nebraska High Court Reasserts Parental Rights

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September 29, 2020 by Robert Franklin, JD, Member, National Board of Directors

On September 7, the Nebraska Supreme Court issued a very good decision in the case of Nebraska ex rel. Tina K. vs. Adam B. and Jo K.  It’s not as perfect as I’d like, but it clearly sets out the conditions under which a court may deprive a parent of the care, love and companionship of his/her child.  The court adopted the reasoning of a New Jersey Supreme Court case that held that the preference accorded biological parents can only be overridden in rare circumstances, defined as “serious physical or psychological harm or a substantial likelihood of such harm.”

Tina K. is the more important because of the nature of the parents involved.  They weren’t good.  Given that, the court’s stringent requirements placed on the state clearly apply to protect almost any parent.

Tina K. and Adam B. lived together for a few months and had a child, Destiny B., in 2003.  It appears that Tina was a heavy user of methamphetamine and did so during her pregnancy with Destiny.  The Supreme Court’s recitation of the facts of the case is sometimes vague, but, over the years, Tina seems to have been more of a drug addict than anything else.  While Destiny was growing up, Tina went to prison twice for selling controlled substances.  When out, she seems to rarely have had a fixed residence or a functioning car. 

Indeed, the one justice concurring in the case had this to say about Tina:

I believe there was sufficient evidence based on a de novo review of the record to find Tina was unfit to parent her minor daughter, Destiny B. Tina’s repeated criminal actions resulted in her inability to parent, and her lifestyle choices created an unhealthy and unstable living environment.

But, during Destiny’s teenage years, Tina definitely improved her behavior, found an apartment and a job and apparently got off the stuff.  She did so sufficiently for the trial court to find that she was not an unfit mother.

Adam B. was less so.  The two traded off custody of Destiny for about 12 years and eventually Adam admitted that he shouldn’t have custody of his daughter.  During the gaps in parental custody, Jo K. stepped in.  She seems to have been, at the very least, a capable and caring stand-in for a parent and Destiny, who was a poor student in her mother’s care, pulled herself up nicely with Jo.  Eventually, she was making honor-roll type grades.

With Adam out of the picture, Jo sought custody of Destiny and the trial court agreed finding that, although Tina was a fit parent, Destiny’s best interests demanded that she live with Jo.  In short, the court used the undefined and free-wheeling “best interests” standard to oust a mother from custody of her child.  And that, under the U.S. Supreme Court case of Troxel v. Granville, it cannot do.

The Nebraska Supreme Court said exactly that.  Given a parent who is not unfit (defined as a personal deficiency or incapacity that has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and that has caused, or probably will result in, detriment to a child’s well-being), a state may only intervene in parenting to prevent the aforementioned “serious physical or psychological harm or a substantial likelihood of such harm.”  The trial court clearly didn’t think any such thing had happened or was likely to, but transferred custody to Jo anyway.  That was legal error and the high court reversed the decision.

This case goes to bat for natural parents against all others.  It may make some readers uneasy because, on balance, Jo seems to be clearly the better caregiver to Destiny.  But it is exactly that type of ad hoc decision-making that Troxel is designed to avoid.  We can always find someone who might be a better parent than the child’s mother or father.  Under the best interests standard, any impecunious parent could be removed by the state in favor of any well-heeled adult.

But to favor such judicial outcomes would be public-policy madness, to say nothing of disastrous for child well-being.  The fact is that, in this country, parents have parental rights, as they should.  As the Nebraska court said,

Parents have a fundamental right to make decisions concerning the care, custody, and control of their children that is constitutionally protected.  Establishment and continuance of the parent-child relationship is the most fundamental right a child possesses to be equated in importance with personal liberty and the most basic constitutional rights.  In recognition of this important relationship, the parental preference principle establishes a rebuttable presumption that the best interests of the child are served by placing custody of a minor child with his or her parent.  Under the parental preference principle, absent proof that a parent is unfit or has forfeited the right to custody, a parent may not be deprived of the custody of a minor child.

Parental rights are enshrined in law as sacredly as any of our legal rights and more than most.  They cannot be removed or ignored by a judge on the basis of what may or may not be of benefit to a child.  Those who believe that a child’s best interests should rule in all cases must consider that the alternative to parental rights is the control of children by the state.  They should then consider that the record of state interference in parental decision-making is littered with incompetence, arrogance and child abuse.  Read the news any day about the behavior of child protective services and see what I mean.

Now, I’m not at all convinced that the above quotation is an entirely fair reading of Troxel.  The U.S. Supreme Court made it abundantly clear that, absent a finding of unfitness, the state has no interest in parenting decisions.  The Nebraska and New Jersey courts skirt that ruling and embroider it with considerations unmentioned in it.

Still, the law in Nebraska appears pretty clear: it takes a finding of parental unfitness for a state to oust a parent of custody and unfitness consists of fairly extreme behavior that states will usually be hard-pressed to prove.


Ruth Bader Ginsburg on Fathers

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September 25, 2020 by Robert Franklin, JD, Member, National Board of Directors

As all now know, Supreme Court Justice Ruth Bader Ginsburg is no longer with us.  She had long been seriously ill and finally succumbed to the cancer that had dogged the end of her life.  In this election year, it goes without saying that her death and the resulting vacancy on the nation’s highest court have caused paroxysms of opinion mongering across the political spectrum.

I offer no deep thoughts on her as a person or as a jurist.  Certainly, she was a hard worker and, if those with whom she worked are any guide, a person with a strong sense of fairness.  She was a feminist who, at least in some instances understood that men sometimes hold the short end of the equality stick.  So, for example, as a practicing attorney, she successfully represented a man against the Social Security Administration.  At the time, if a husband died, his wife was entitled to “widow’s benefits,” but if a wife died, her surviving husband was entitled to zip.  Ginsburg, through her representation of a man whose wife had died and was denied benefits, changed what were plainly gender-biased regulations.

So what did she think about fathers?  There the coast is not so clear.  Here’s what she said in 1993 during a panel discussion for the Women’s Bar Association of the District of Columbia.

“I’m still not going to give up on what I think is not an impossible dream and that is to get men to be parents. I have a law clerk this year who is the primary caretaker of his children. He is on a much more flexible schedule than any other law clerk on that court. People say that it’s got to be an eight in the morning to one in the morning job. Well, it doesn’t have to be, especially with modern technology. So there are people who have reservations about that decision, and there are some people who say, ‘Well, why are you doing it with a guy?’ Well, it happens to be that he clerked for me before and I knew how well this could work out. But there’s another reason, too. I want the men to see that men do this, men who are ‘real men’ still can be loving and caring parents. Because I think if we can ever get across that message there is nothing that will improve women’s status more in the world than for men to be equal parents with women.”

Ginsburg of course was a highly intelligent, highly educated woman.  Despite that, she somehow held the notion that fathers aren’t parents.  Indeed, she offered the strange idea that getting them to be parents was “not an impossible dream.”  So, in her estimation, (a) fathers aren’t parents, but (b) with enough urging, we can get them to be parents even though it’s going to be tough and perhaps not even possible.

Both notions are absurd on their face and both depend entirely on a definition of “parent” as “doing what mothers typically do as parents.”  What Ginsburg was inveighing against of course was the bifurcation of roles that, in 1993 and now, tend toward the mother as provider of direct childcare and the father as provider of resources.  But for her to say that fathers who emphasize paid work in some way forfeit the title of parent is both factually incorrect and outrageous.  The simple fact is that children need what fathers provide.  Story reading and diaper changing are necessary for children, but when they’re performed under a bridge in February, it’s hard to argue that little Andy or Jenny is getting all the parenting they need.  The resources fathers provide include things like food, shelter, clothing, medical care, etc.  What child can do without those things?  Fathers providing for their families is parenting.  Period.

Weirder still is Ginsburg’s apparent unawareness of the consequences of what she said.  As a feminist, she often went to war to get more women into paid work.  Were those mothers who worked full time all of a sudden not parents?  According to Ginsburg’s theory, it seems they would not be.

Which brings us to family law.  The very notion perpetuated by Ginsburg – that fathers aren’t parents because they do more resource provision and less hands-on parenting than do mothers – is embraced daily by family court judges who then give primary custody to mothers.  With mothers given the lion’s share of parenting time, their ability to work and earn is significantly impaired, i.e. hardly the result Ginsburg wanted, but, ironically, the one her notion of fatherhood results in.

As to her idea that men who are “loving and caring” fathers not being perceived as “real men,” I can only say that, in my life, I have known countless men who are fathers.  Hundreds for sure and probably thousands.  I can’t name a one who wasn’t loving and caring toward his kids.  Nor can I name one who didn’t consider himself a real man or who wasn’t considered as one by his friends and neighbors.  The whole idea that loving one’s children is a threat to men’s self-concept is nothing but a straw man.  Men have loved and gloried in the children for eons and will continue to do so, Ruth Bader Ginsburg, notwithstanding.

Finally, Ginsburg’s final two sentences assume that men’s failure to do more hands-on parenting is what’s holding women back in the workplace.  It’s a common theme and commonly false.  What’s true is that women strongly tend to value motherhood over paid work.  We see it time and again throughout all sorts of datasets and studies as well as anecdotally.  Dr. Catherine Hakim, for example, has compiled figures on what women and men prefer to do with their time.  Overwhelmingly, women prefer childcare to paid work and men the converse.  Among women who work full-time, one study found over 60% of them saying they’d prefer to work less, while men wanted to work more.  Month in and month out for decades, the U.S. Department of Labor shows women doing less paid work than do men.  Women who work full-time work fewer hours per week than do men who work full-time.  The greatest predictor of divorce for a man is the loss of his job.

I could go on and on, but precisely none of that squares with Ginsburg’s view of women or men.  That’s because the evolved biology of men’s and women’s parenting behaviors is a far better guide to predicting those behaviors than any political ideology.  More importantly, mothers and fathers are both parents, regardless of how they choose to allocate their time.  Any suggestion to the contrary tends to deprive children of one of their parents, which is the exact opposite of what should be done.

Justice Ginsburg had many fine qualities and she will be missed.  Sadly, her understanding of what fathers do for their children was skewed by her embrace of political ideology instead of evolutionary biology.


Think You’re Not Married? In Ontario, Think Again

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September 18, 2020 by Robert Franklin, JD, Member, National Board of Directors

In Ontario, it’s officially open season on anyone earning a good income (National Post, 9/10/20).  Beware all those who do.  If you have a girl/boyfriend and endeavor to treat them well, you may find yourself married.  No, you didn’t walk down the aisle and no, you never lived together for any significant period of time.  No rings were exchanged nor vows taken, nor marriage license issued.  That’s all so passé, so totally yesterday.  In Ontario, it’s a whole new, brave new world, whose whole point is money, or, to be precise, alimony.

Michael Latner is apparently very well-off financially, so, when he met and fell in love with Lisa Climans back in 2000, he was lavish in his support of her.  She quit her job and he supported her and her three children in a style to which they’d theretofore never been accustomed.  They ate well, lived well, traveled extensively and all on his nickel.  What they didn’t do was marry, live together or have a joint bank account.

Clearly, that was Latner’s idea of self-protection.  If the relationship didn’t work out, he seems to have thought, the absence of a shared residence and comingled finances would ensure that he was not legally deemed to have married Climans and so wouldn’t be liable to her for alimony.  That’s made all the clearer by these facts: he proposed to her, she accepted, but refused to sign the marriage contract that was his condition for tying the knot.  In other words, he was happy to marry her, but only if she agreed to withhold any serious claims on his wealth.  And she was happy to marry him, but not if doing so would deprive her of a shot at his money.  Apparently, great minds think alike.

But Latner has now learned the hard way that Ontario law gives him and anyone else similarly situated not the least guidance about how to protect hard-earned wealth.

A wealthy businessman will have to pay more than $50,000 a month in spousal support for 10 years to a woman with whom he had a long-term romantic relationship even though they kept separate homes and had no children together, Ontario’s top court has ruled.

Yes, Latner and Climans were together just 14 years, during which time he paid for essentially everything, lifting her to a lifestyle she never would have reached on her own, and now he gets to fund that lifestyle for 10 more years.  For the mathematically disinclined, that’s about $6.3 million in addition to everything he paid her before.  Amazing, but true.

Several issues raise their ugly heads.

The first is what I referred to in my opening paragraph.  If a couple is unmarried, when will alimony be ordered and when will it not be?  If the higher-earning partner wants to protect his/her income, what needs to be done?  The answer is a roll of the dice.  There are no hard and fast rules.  Cohabitation and joint finances aren’t necessary for a relationship to be considered a common law marriage, but what is?  Apparently, anything a judge decides.  Latner clearly tried to follow the rules and failed.

Let’s be clear, while Latner is a wealthy man, most others aren’t, but this ruling doesn’t apply only to the wealthy.  It applies to every Tom, Dick and Mary who happens to earn more than their paramours.  As I said, it’s open season.

Plus, apart from this case and its impact on future ones, why have alimony at all?  Spousal support is an artifact of days long gone by when it was assumed, however erroneously, that a single woman couldn’t support herself.  Whatever the merits or demerits of that notion, it’s unquestionably no longer true, if it ever was.  Generally speaking, there is no reason why one adult should be legally required to support another adult to whom they’re no longer married.  Yes, there are exceptions to that rule, as when one ex is disabled in some way.  Likewise, if one ex needs a year or so to retrain for employment or to simply find a job that provides support, then the other ex may reasonably be required to chip in.

But ten years?  $52,000 per month?  For a healthy, competent woman?  It makes no sense.  Nothing that Lisa Climans did or didn’t do should merit that lavish support.  Nothing.  She led an opulent lifestyle during her time with Latner, entirely because of him and his wealth.  If she no longer wishes to be with him, fine, but she should not be able to import her lifestyle with him to her life without him.

Finally, as I’ve said before, alimony militates against marriage and marriage is an institution every healthy society wants to promote.  Laws establishing alimony do precisely the opposite of what we should be doing.  Spousal support encourages divorce, and, as of now, discourages even unmarried intimate relationships.  Everyone needs to understand that, in Ontario, pretty much any relationship can result in a long stretch in alimony prison.

The Latner/Climans decision makes a bad law so much worse.


The Coup de Grâce

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September 14,2020 by Robert Franklin, JD, Member, National Board of Directors

No effort to convince readers that, against all the evidence, family courts are biased against mothers would be complete without eliding the differences between Parental Alienation Syndrome and parental alienation.  And Natalie Pattillo’s piece in the New York Review of Books doesn’t disappoint. 

The reason for doing so is to tar the concept of PA with the name Richard Gardner.  He’s long dead and therefore presents no risk of a libel or defamation suit and so is fair game.  Pattillo introduces the term “parental alienation” and, just one sentence later pretends that it’s the same as PAS.

And no such article would be complete without misrepresenting what PA and PAS actually are.  Again, following the script closely, Pattillo does the same.

“Parental Alienation Syndrome,” a widely rejected theory coined by child psychiatrist Richard Gardner, asserts that a child who is traumatized by communication and/or visits with an abusive parent is only reacting that way because the other parent, who he claimed is often a vengeful mother, brainwashed or “alienated” the child to dislike the abusive parent.

No, actually the definition of either term, PA or PAS, has nothing to do with children responding appropriately to abuse by a parent.  On the contrary, both terms refer to children’s inappropriate rejection of a parent due to the alienating efforts by the other parent.  It’s a simple concept and one that’s observed fairly frequently, particularly in divorce cases or their aftermath.  The simple truth is that some parents use alienating tactics in an effort to marginalize the other parent in the life of the child.

The anti-Dad crowd, of which Pattillo appears to be a card-carrying member, hates the idea that courts and mental health professionals more and more acknowledge both the reality and the deleterious effects of PA on children.  Not only that, they increasingly take steps to rectify alienation of children.  The reason Pattillo and her fellow travelers hate the idea is that they see it as depriving mothers of power over children and fathers and, as far as that goes, they’re right.

But what they miss is that fathers can be alienators too.  If courts were to follow the dictates of those who oppose recognition of PA, fathers would be able to remove mothers from the lives of their kids as readily as vice versa.  Setting aside the fact that parental alienation is a clear form of child abuse, is that what they really want?  It seems unlikely, but the obvious result of their campaign would be exactly that.

Make no mistake about it, the opposition to recognition of PA wants no evidence thereof to be admissible in court.

Guidelines from the National Council of Juvenile and Family Court Judges (NCJFCJ), a judicial membership organization that aims to provide guidance to judges and court officials on cases involving domestic violence, advise that any “parental alienation” claims should be ruled inadmissible. 

I can’t imagine on what they base their claim that evidence of PA should be inadmissible in court.  After all, on one hand the anti-Dad crowd talks of little but domestic violence and child abuse, both of which are relevant to child custody issues, but then turns around and wants evidence of one particular (and particularly damaging) form of child abuse ignored altogether.  It doesn’t make sense, but there it is.

Finally, Pattillo stoops so low as to cite a laughably bad – what to call it?  Paper?  Assertion?  Myth? – by Joyanna Silberg.  She does so, as she does with essentially everything she cites or quotes, because Silberg agrees with her take on fathers, domestic violence and child custody.  Now, sensibly, Pattillo nowhere mentions Silberg’s name.  That’s sensible because Silberg is well known as an advocate for mothers who claim abuse or DV by fathers.  She’s a licensed psychologist, but neutral or balanced, she’s anything but.  Despite her paper credentials, Silberg’s opinions are routinely ignored by judges or ruled inadmissible due to her plain bias.  Here are a few words from a trial judge in the 2017 Maryland case of Holt v. Holt:

I need to say something about Dr. Silberg. I’m going to say not as much as I’d like to say. First, I don’t believe her. I disbelieve her testimony. She clearly came to this case with a view. She clearly, respectfully was wearing a jersey. She did not approach this case, in my judgment, scientifically or clinically. She presented, in my opinion, as a cheerleader. There were tremendous analytical gaps in her testimony. While she is certainly qualified on paper, in this case her opinion in my judgment lacks any credible or adequate factual basis…

She waved off anything that didn’t fit with her hypothesis. She disregarded facts that were clearly contrary to hypothesis. I don’t believe her to be blunt. I don’t believe her. She had no factual basis which I credit. She did not employ methodology which to my mind was sound. This was the case of Walt. She gave me a couple, three I told you so opinions, which as Judge Moylan said, are not worth anything. So I give her opinion zero weight. 

This is not atypical of Silberg’s reception in court.  She’s biased from start to finish, ignores facts that conflict with her pre-made opinion, does not approach the matter as a scientist and her opinion merits “zero weight.”

Not to Pattillo who cites a piece cobbled together by Silberg for the sole purpose to which Pattillo puts it.  The piece is, like Silberg’s courtroom testimony, asserted for a purpose – to convince the unwary or the credulous that there is an epidemic of judges giving primary custody to child abusers.  Specifically, Silberg purports to “find” that some 58,500 such children are delivered into the hands of their abusive parents by family courts every year.

That’s an impressive number, but is it valid?  Who knows?  Certainly Silberg’s “methodology” is so plainly shoddy, so obviously used only to arrive at the pre-conceived conclusion, that the piece is useless.  Put simply, no one – not me, not Joyanna Silberg, nor anyone else – knows how many allegations of DV or child abuse are made in family courts each year, how many of them are meritorious or how many of them result in the abuser receiving custody.  The reason we don’t know those things is that no one keeps records of them.  So Silberg’s conclusion is based entirely on supposition that, I hardly need add, is made for her own unscrupulous ends.

Pattillo’s article is a disgrace.  The New York Review of Books should have the self-respect, and the respect for its readers, to take it down.


Yes, Natalie Pattillo Cites Barry Goldstein

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September 10, 2020 by Robert Franklin, JD, Member, National Board of Directors

Nothing quite condemns any publication quite like citing Barry Goldstein as a reputable source.  But that’s exactly what Natalie Pattillo did in her article in the New York Review of Books about which I wrote last time.  Who is Barry Goldstein?  To begin with, he’s yet another of the true believers, like Pattillo herself, who never get around to admitting female violence against men or that many allegations of DV, when made during a divorce action are made to gain the upper hand therein.

But if that were all that Barry Goldstein is, he’d just be one of many.  In fact, he’s unique.  Barry Goldstein at one time was an attorney in New Jersey.  (The state’s bar association now lists him as “retired.”)  Back in 2008, Goldstein won the dubious distinction of being suspended by the bar grievance committee for a whopping five years due to an equally whopping 26 violations of the canons of legal ethics.  About half of those were for playing fast and loose with client funds, but the rest originated from his representation of Yevgenia Shockome whose case was a textbook example of the abuse of the legal system by those who want us to believe that only men abuse and only women and children are abused.

Suffice it now to say that Genia, abetted by her lawyer, Barry Goldstein, claimed that her husband Tim abused her and their children.  The trial judge and an appellate court found her claims to be false and changed child custody to Tim.  So what, apart from knowingly putting on false evidence, did Goldstein do that was so bad?  Here’s the appellate court’s decision in Goldstein’s disciplinary case.

The following is typical of Goldstein’s behavior in the Shockome case:

Charge 12 alleges that the respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Code of Professional Responsibility DR 1-102(a)(4) (22 NYCRR 1200.3[a][7] ).   On behalf of his client, he prepared and filed with this Court a petition for writ of habeas corpus and a petition in a proceeding pursuant to CPLR article 78.   These materials contained sworn statements which were dishonest, false, or misleading.

In other words, Goldstein lied to the court under oath.  There were 11 similar charges against him, all of which were deemed established by the grievance committee and the appellate court.

Tim Shockome who, throughout the circus trial put on by Goldstein and afterward, kept a low profile, hoping to shield his children from the publicity, eventually had this to say.

Here’s how Glenn Sacks described the case Goldstein put before the court:

The entire premise of the Genia Shockome story hinges on the notion that Tim battered Genia prior to 2000 and, in repeatedly violating court orders to allow her children access to their father, she was acting to protect them. However, Genia’s allegations of domestic violence and child sexual abuse have never been substantiated in any court proceeding, nor supported by any witnesses. Writing with admirable restraint, Judge Amodeo, whose decisions in the case have been repeatedly upheld by higher courts, noted:

“In [Genia’s] August 2000 complaint in the divorce action, no mention is made of the domestic violence which Genia later asserted. She claimed that she was unaware that she was the victim of domestic violence; however, such a lack of awareness would not have made her unable to recount historical facts, especially if the severity and frequency of the abuse she alleged were true. Why didn’t she mention the abuse earlier in the case?”

There were three independent custody evaluations in the case, none of which found anything negative of substance against Tim Shockome. The first one called him a good parent, and the other two went as far as to recommend he get custody because of his parenting and because of Genia’s relentless attempts to drive him out of his children’s lives.

The most recent of these evaluators, Dr. Meg Sussman, has a feminist background and worked for Pace University’s Battered Women’s Justice Center. Sussman, who specializes in domestic violence and child abuse cases, recommended that Genia have only supervised visitation until she could accept the children’s father’s role in their lives.

In two in camera (in chambers) interviews conducted with the Shockome children on May 27, 2003 and January 22, 2004, neither child recalled any physical altercations between their parents, despite Genia’s claims that her children had witnessed Tim’s alleged violence against her. Moreover, neither child expressed any fear of Tim.

Genia’s only support for her contention that she had previously been battered came from the FFLM domestic violence advocates who testified in her trial. Yet none of these “experts” had ever spoken with Tim Shockome, and had no evidence of Tim’s abuse except for Genia’s assertions.

That’s just a small part of Glenn’s takedown of the Shockome case.  The rest is here.

So yes, Barry Goldstein is a true believer.  He’s such a true believer that he’s willing to lie multiple times under oath and elsewhere to promote the notion that men are abusers, women aren’t and parental alienation is a fiction. 

Now, prior to his five-year suspension, Barry Goldstein had never been the subject of any discipline by the New Jersey Bar.  That he should have received a five-year suspension trumpets one thing loudly and clearly: the Bar wanted him out.  His behavior had been so egregious that the grievance committee and the appellate court were resolved to be rid of him.

Not so Natalie Pattillo.  Goldstein is the type of person Natalie Pattillo cites as an authority on domestic violence and PA.  And that, more than anything, says all we need to know about her article and her ethics.

More on this next time.


New York Review of Books Hits a New Low

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September 9, 2020 by Robert Franklin, JD, Member, National Board of Directors

Sigh.  Another month, another article that claims that, as a general rule, family courts favor fathers over mothers, and particularly so in matters of domestic violence (New York Review of Books, 9/2/20).  We see these with some frequency.  Law professor Joan Meier has made a career out of exactly that, done her best to prove her point and failed.  But the latest yellow journalism appears in what was once a respectable publication, the New York Review of Books.

The NYRB article runs to type, i.e. pure agitprop.  The writer, Natalie Pattillo, has written pretty extensively and always in the same vein.  She’s a true believer in the Church of Men are Abusers and Women Aren’t.  Predictably, her article, when it locates facts at all, cites only dodgy ones, artfully leads readers to believe that which isn’t true, quotes only those who belong to the same Church regardless of how factually compromised they are and of course manages no balance whatsoever.  The piece is about 3,500 words long and in all those words, Pattillo offers not a single quotation from anyone with an opinion different from her own.  Needless to say, as in all such articles, many pertinent facts go unmentioned

Now, the supposed raison d’être for the piece is the impact on family courts of the pandemic and lockdown in New York City.  By itself, that could have been a worthwhile article.  After all, those courts are never models of efficiency and have probably become less so given the difficulties of virtual hearings.  But Pattillo’s real aim is to convince readers that the restrictions on the courts due to COVID-19 all redound to the detriment of mothers and especially those claiming abuse.  Remarkably, she produces literally no evidence for the proposition.  Her article is a classic example of throwing mud at a wall to see if any sticks.  None does.

As is usual with articles like this one, actual facts are in short supply.  So, for example, Pattillo makes this naked assertion:

Abusers often use their children as pawns to control and punish their exes, especially if they have custodial rights, Ruth Glenn, the president and CEO of the National Coalition Against Domestic Violence, told me. 

Citation?  None.  Of course there are many pertinent facts which could have been mentioned.  For example, after decades of accumulating information about the value of fathers to children, nationally, 80% of sole/primary custody of children goes to mothers and about 12% to fathers.  Plus, over 50% of domestic violence is committed by women and about 70% is initiated by them.  More to the point, a child is twice as likely to be abused or neglected by their mother as by their father.  Those are all well-established facts that have appeared in national databases for many years.

But they obstruct the narrative Pattillo’s peddling and so receive no mention. 

What does make it into her piece are attempts to prejudice readers:

Family court has long left dangerous gaps in protection for survivors and children. In 2016, two-year-old Kyra Franchetti was killed by her biological father, Roy Eugene Rumsey, in a murder-suicide.

That is indeed an example of a heart-rending case.  But of course Pattillo was careful that the case she cited was one of a father as the wrongdoer.  There are plenty of similar cases in which a mother kills her children and sometimes herself in order to keep the kids from their father.  So why not mention one of those?  Because to do so would violate the catechism of the above-mentioned Church to which Pattillo and everyone she quotes is a devotee.

Then there’s the thoroughly outrageous claim that judges and pretty much everyone else in family courts expect more of mothers than of fathers.

These systemic flaws are intensified when judges, custody evaluators, and attorneys for the children bring their biases about what’s expected of a mother’s care, compared to a father’s, into custody cases involving domestic violence and child abuse.

Never mind the small avalanche of anecdotal evidence to the contrary.  Never mind the half-dozen or so studies finding anti-father bias on the part of judges.  If the above statement were at all valid, wouldn’t we be seeing fathers with the lion’s share of child custody?  Given how much parenting fathers now do, it’s simply not possible for everyone in family court to be biased in favor of fathers and against mothers and still, year in and year out for decades, give custody to mothers.  The basic facts of the matter scream that Pattillo’s claim is the fraud it is.

And what article of this ilk would be complete without a reverential reference to Joan Meier and her 2019 study of family court outcomes?  For that matter, would such an article let readers know the true findings of Meier’s study?

Mothers who raise claims of domestic or child abuse are twice as likely to lose custody when fathers respond by claiming “parental alienation” as when fathers don’t claim alienation, according to a study that examined close to 4,400 family court cases throughout the country from 2005 to 2015 by Joan Meier, a professor of clinical law at George Washington University, and others.

To the first clause of that statement, the appropriate rejoinder is “so what?”  After all, maybe it’s barely possible that, when fathers claim alienation, it’s actually happening and, if it is, the correct response by a judge is to remove the child from the alienator.  Amazingly, Pattillo is so devout in her belief that she never considers the possibility.  In her study, Meier nowhere claimed that the judges who did change custody based on a father’s claim of alienation did so wrongly.  She never even attempted to make those calls. 

Then there’s the merely misleading aspect of her Pattillo’s statement.  Yes, Meier did analyze a little under 4,400 family court cases, but Pattillo wants her readers to believe that all of those included dueling claims of abuse (by mothers) and parental alienation (by fathers).  Not so.  In fact, just 163 of those cases – 1.8% – contained those allegations and in just half of them was a change made to custody.

I’ll have more to say on this scurrilous article next time.


Sweetness and Light in Australia’s Adoption Industry?

dadand daughter

September 4, 2020 by Robert Franklin, JD, Member, National Board of Directors

The article dealing with the changes to adoption law in the Australian Capital Territory (ACT) that was the subject of my previous piece treads oh so lightly on the topic of the business of adoption.  As I said last time, the writer, Jasper Lindell, didn’t manage to pick up the phone and talk to a single person who questions adoption.  Not one person and not one parent’s organization.  After all, to do so might have interfered with his sunny, anodyne view of the matter. 


“Adoption is a service for a child to give them security and stability. It’s not about adults getting a child. It’s about providing a child with a home. Obviously, that works well for both sides, if that [process] works out well,” [Adopt Change Executive Director, Renee Carter] said.”

Well then, there’s nothing to worry about.  Since adoption is nothing but a benefit to kids, who could possibly complain?  But the speaker gives away the game in her very next sentence.  She tells readers that the new regime works well “for both sides.”  And who are those sides?  The child and the adoptive parents.

But wait.  Aren’t there more than just two sides?  What about the child’s biological parents?  What about adoption agencies?  What about child welfare agencies?  Yes, they’re all involved in the big business that is adoption, but the august Ms. Carter prefers not to mention them and Jasper Lidell happily follows suit.

The simple truth is far from anything hinted at in the article.  The whole purpose of the new law is to make adoptions quicker and easier.  As a practical matter, that means that more kids will be adopted, whether out of foster care or not, who don’t need to be adopted.  They don’t need adoption because they have fit parent who want them.  Is that really an issue?

Consider this quotation from this article (The Conversation, 4/5/18).

Adoptions are hard for good reasons. A sound, ethical process is necessary to ensure a child is legally and ethically available for adoption, consents are free from coercion, and parents are given adequate time to change their minds.

While Australia is bound by international conventions that protect human rights and those of children, there is no right to parent: 

And, as we know in the U.S. a “sound, ethical process” often is lacking in the adoption business.  Financial incentives urge adoption agencies to cut corners, to ignore fathers.  Those same incentives push child welfare agencies to force into care and then into adoption kids who need neither.  In Australia, as in the U.S. the adoption market is private and adoption agencies often for-profit concerns.

Plus, unlike in the U.S., and as the above quotation makes clear, “there is no right to parent.”  That’s true despite the fact that the all-important bond between biological parents and their children cannot be recreated by others.  Breaking that bond is invariably traumatic for children, so adoption must proceed, if at all, with the utmost care.  Yet that care has been lessened by the new law in the ACT.

Now, in Australia, no one tracks the welfare of adopted kids over a year past their adoption date.  Do they do well or ill?  How are their outcomes compared to kids who live with their biological parents?  No one knows.

Countries that report higher numbers of adoptions deal with countries that Australia does not – including countries that have not signed the Hague Convention. Among these, the US and Spain estimate high numbers of adoption breakdowns (“disruptions” are short term and “dissolutions” are complete breakdowns)…

Anecdotally, most adoptions in Australia are successful, but we do not know the true rate of breakdowns. Families are only followed up for one year after an adoption. But we do know there is insufficient support for families, foster families, adoptive families and adoptees. 

Every move to ease adoption places kids at risk.  It does so with the enthusiastic support of adults who have a pecuniary interest in the ease of adoption.  Jasper Lidell sees nothing amiss in that, and neither do his interviewees.  But ignoring the many darks sides of the adoption industry doesn’t mean all is sweetness and light.


Australia: Greenlighting Adoptions, Sidelining Parents

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September 2, 2020 by Robert Franklin, JD, Member, National Board of Directors

The more I see of Australian family law, the gladder I am that I live in the U.S.  Needless to say, U.S. family law and practices are woeful, often resulting in outcomes that are the very opposite of what public policy should be.  No country in the world, and certainly not the U.S., even comes close to sensible policies when it comes to children and parents.  Still, Australian kids in family courts fare worse than those in the U.S. and it’s not getting any better (Canberra Times, 8/30/20).

The laws governing adoptions in the Australian Capital Territory (ACT), i.e. Canberra and environs, will change on September 1.  From now on, the sole governing criterion for adoption is our old friend “the best interests of the child.”  Unlike in the U.S. where parental rights supersede even constitutional ones, if Australian parents have any rights to their children, it’s not apparent.  As of Sept. 1, a judge’s arbitrary, uninformed and free-floating notion of what’s good for a child is all it takes to terminate an adult’s parental rights.

Under amendments set to come into force on Tuesday, parental consent for adoption would no longer be required in circumstances where the adoption was set to benefit the child or young person.

A court will now consider the benefit a child or young person would have from having emotionally and physically stable living conditions and whether adoption would protect them from physical or psychological harm in deciding whether to dispense with consent.

A court will be able to dispense with the need for parental if the parent could not be identified or found, was unable to make an informed decision, or if adoption would protect the best interests of the child.

Now, the writer of the linked-to article, Jasper Lindell, didn’t manage to ask a single biological parent or organization supporting same their thoughts on the new law.  No, he interviewed and quotes only adoption advocates who are, understandably, thrilled with the new law.

Nor does he consider the whole gamut of adoption scenarios, instead dealing only with adoptions arising out of foster care.  Given that, let’s deal with those first.

Imagine a child I’ll call Jenny, taken from her mother who’s having a hard time raising her due to financial stress.  Mom’s situation may be temporary, but the daughter nevertheless goes into care.  And there she stays for, say, a year.  Along comes a married couple who are fairly affluent.  He’s a lawyer and she’s a nurse.  They earn good incomes and have a good house in a safe part of town.  They want to adopt the little girl.  No doubt about it, they can give her a good life, replete with good health care, education, etc.

Is it in Jenny’s best interests to live with them permanently as their adopted daughter?

Many would say it is.  But Jenny’s lived almost all her life with her mother.  The woman gave birth to her, nursed her and was there every time she cried.  She helped her learn to walk, responded to her first words, sat with her when she was sick.  Most importantly, Jenny bonded with her mother when she was barely weeks old and the destruction of that bond alone is one of the most traumatic things that can happen to a child.

So, what is in her best interests?  I of course say it’s being returned to her mother when she gets back on her feet, but many judges would disagree.  That’s partly because those judges have neither training in nor understanding of the way in which infants attach to their parents or the elemental importance of that attachment.  It’s far too easy to simply look at the circumstances of the two families and make the call adoption advocates hope for.

Speaking of which, another of Lidell’s elisions is the pecuniary interest many “adoption advocates” have in completed adoptions.  Here in the U.S. the pro-adoption lobby makes billions each year on adoptions that are completed, but not a cent on those that aren’t.  Is the same true in Australia?

Whatever the case, Adopt Change, that provides the bulk of the information in the linked-to piece, says nothing about biological parents on its website.  It’s a pro-adoption organization.  Period.  Presumably, its donors fund the organization because they value what it does.  In short, it’s not in its financial interest to give a balanced view of adoption, particularly its dark, dark side.

More on this next time.


Scottish Court Endorses Mom’s Abduction of Daughter

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August 31, 2020 by Robert Franklin, JD, Member, National Board of Directors

Yet another court has decided that a mother who abducts a child should be rewarded for doing so (Scottish Legal News, 8/26/20).

The child was born in 2010 in Poland.  Her mother and father lived together and raised her until she was seven, at which point they divorced.  The mother apparently had primary custody of the girl for the next two years and the father had regular contact with his daughter. 

Mom then asked a Polish court for permission to move with the girl to Scotland.  She did so because that was where her boyfriend was living.  Her boyfriend was on the run from Polish law enforcement authorities, having been released from prison temporarily and fled to Scotland.  The Polish court denied the mother’s request to take the child out of the country.

Prior to moving to Scotland, a Polish court had refused the mother’s application for permission to take the child to Scotland on the grounds that it provided no benefit to her and would destroy her relationship with her father.

But the mother ignored that order and left the country with the child anyway.

Dad petitioned the Scottish court for an order returning his daughter to Poland.  The first court to hear the case granted his petition, the only “issue” in the case being the daughter’s expressed preferences.

The Lord Ordinary who heard the petition at first instance granted the petition, stating that the child’s objections had to be considered against this background, and that it was clear she had no appreciation of the nature of and reasons for the Polish court’s decision. Her express views were “highly subjective”, expressed in childish and immature language, and failed to take into account material considerations in relation to her wellbeing and best interests.

In short, the girl was too young and immature to be able to understand the issues in the case and her own welfare and so her wishes should be given only slight weight in deciding the case.

The mother appealed the decision of the Lord Ordinary and prevailed.

“In this regard courts are increasingly giving weight to the views of the child. A child-centric approach is required, with her interests and general welfare at the forefront. The focus is not on the moral blameworthiness of the abducting parent, nor on notions of deterrence.” 

Evaluating the decision of the Lord Ordinary, he said: “In Re M (2008) Lady Hale referred to the ‘wider considerations of the child’s rights and welfare’, and it is evident that these must be assessed as matters stand at the date of the court’s decision. By contrast, the Lord Ordinary makes no reference to this, nor as to the implications of the child having been living, apparently happily and well-cared for, in Scotland for over a year, this being a lengthy period for a 10 year old. There is no indication that the potential for harm arising from a further disruption has been addressed.” 

So (a) courts now decide cases on a “child-centric” basis and (b) the Lord Ordinary didn’t do so.  Needless to say, there are a number of problems with both (a) and (b).  As to (b), in fact the Lord Ordinary paid considerable attention to the child’s wishes, but found her ability to form intelligent ideas on the subject to be lacking.

As to (a), the appellate court continued:

“Though not determinative, the court places considerable weight on the child’s views. It has no particular comments on the way in which they are expressed, nor as to her lack of understanding of certain matters.

Well, isn’t that special.  In the court’s own words, its decisions in such cases are to be substantially controlled, not by law and not by facts, not by legal experts or mental health professionals but by children.  And the court will not care whether the child is able to understand the matters at issue or not.  Seriously, re-read the above quotation and decide if that’s not what it says.  In this case, a 10-year-old, who was expressly found by the judge who interviewed her to be insufficiently mature to decide what was best for her, is allowed to do exactly that.  What if she’d been six?  Four?  After all, if the court means what it says, “lack of understanding” by a child is no bar to her making the decision about with whom she wishes to live.

Given that that’s the case, why have courts at all?  Why not just ask the child her wishes and do as she says?  The decision in the case claims to hinge on the “best interests of the child,” but, like so many children, this one is in no position to decide what’s best for her but the adults who are so situated have punted the ball to her.  Amazing, but true.

But it actually gets worse.  The appellate court judge explained,

“The focus is not on the moral blameworthiness of the abducting parent, nor on notions of deterrence.”

All law exists in large part to attempt to shape behavior.  Certain behaviors society finds inappropriate and the law seeks to discourage those behaviors.  That’s why we have laws and courts to enforce them.  But, according to the Scottish court of appeals, not in this case or regarding this law.  “The focus” of the law “is not… on notions of deterrence.”  So courts “applying” this law, will not take cognizance of how their decisions will affect future wrongdoers.  Those parents who would kidnap their children in order to destroy their relationship with the other parent will be happy to learn that, however morally wrong, illegal and injurious to a child their actions may be, the court will, like Sgt. Schultz in “Hogan’s Heroes,” “see nothing.”  The law exists to discourage parental kidnapping, but the courts have now expressly nullified that purpose.

Finally, we find the usual misunderstanding of the Hague Convention on the Civil Aspects of Parental Child Abduction.

The evidence establishes that her current circumstances are more than satisfactory in terms of her education, home environment, and general welfare and wellbeing.”  

He continued: “She has lived in Scotland for well over a year and has integrated well into her new community. A return to Poland pending a long term decision on her future would disrupt all of this for no obvious benefit, and in all probability she would again be in cramped and over-crowded living conditions.”

In other words, as long as an abducting parent can establish the child in reasonably good living conditions for a few months, the court will ignore her violations of law and court orders and give its blessing to the abduction.  That this is the precise opposite of the intention, and indeed the very reason for the existence, of the Hague Convention, to which both Poland and the U.K. are signatories, goes entirely unmentioned.  The purpose of the Convention is to deter and establish a remedy for international child abduction.  For a court to reward the wrongful conduct of abducting parents plainly thwarts that purpose.

And what of the words “no obvious benefit?”  The court has decided that having a relationship with her father, who helped raise her for seven years and then was her non-custodial parent for two, does not constitute a benefit to his daughter.  Once again, amazing, but true.  On what basis did the court make such a plainly false statement?  None whatever.  In fact, the Polish court said that removing the child from her father would destroy her relationship with him and therefore prohibited her from doing so.  That strongly suggests that the Polish court found the girl’s relationship with her father important and worth continuing.  The Scottish court ignored that completely.

I don’t know what it is about these international abduction cases that makes otherwise mentally competent judges lose their minds.  They routinely ignore facts, law and logic in order to endorse the destructive and abusive behavior of mothers who kidnap their children.