Author: Super User

December 18, 2019 by Robert Franklin, JD, Member, National Board of Directors

Not long ago, I wrote about a case out of New Zealand in which a European mother had abducted her daughter.  It took Dad three years to locate her and file a suit for the child’s return. 

In that case, New Zealand courts did exactly what they’re not supposed to do under the applicable international law.  Instead of ascertaining the child’s country of habitual residence (in that case, it was clearly the European country in which the family had resided for years) and then returning the child to that country for disposition of whatever legal issues existed, the New Zealand courts decided to act as surrogate family courts.  They decided the issue that family courts decide – the child’s best interests – and kept her in New Zealand, giving a judicial stamp of approval for the mother’s wrongful action.  The remarkable thing about the case was that the appellate court admitted in no uncertain terms that its decision and that of the lower court were wrong under the Hague Convention to which New Zealand is a signatory, but did so anyway.

Now comes a case out of the U.S. that demonstrates how such a case should be handled (Cleveland.com, 12/10/19).

An American woman, Michelle Monasky, married an Italian anesthesiologist, Dr. Domenico Taglieri, in Italy.  Soon enough, they had a child, A.M.T.  But when the little girl was just eight weeks old, Monasky abducted her to Ohio near where her parents live.  Apparently Monasky had filed for divorce in Italy and claimed Taglieri was abusive.

Taglieri filed suit in Ohio for his daughter’s return pursuant to the terms of the Hague Convention on the Civil Aspects of International Child Abduction.  And, unlike in New Zealand, the federal court there did the right thing.  It decided the one issue before it – the child’s country of habitual residence.  Finding that to be Italy, it ordered the child returned there, which she was.  Monasky appealed the case and the Court of Appeals upheld the District Court’s decision.

Interestingly, the U.S. Supreme Court has agreed to review the case.

Meanwhile, the Italian court hearing the divorce and custody case seems to be none to pleased with Monasky’s abduction of A.M.T.  It’s given primary custody to Taglieri and only supervised visitation to Monasky.  Apparently, it considers her a further flight risk.

Remarkably, the lawyers in the case in Ohio illustrate the wrong and the right of cases brought under the Hague Convention.

“This woman was subjected to domestic violence,” said [Monasky’s attorney Andrew] Zashin. “There is no way to separate that when you consider shared parental intent. As soon as she was able to physically leave, she left with an 8-week-old and filed for divorce.”

That is precisely wrong.  What the Hague Convention foresees is that, as long as the courts of the country of the child’s habitual residence are capable of adjudicating the issues of custody, parenting time, domestic violence, etc., as Italy’s plainly are, the courts of the country to which the child was abducted must allow them to do so.  Otherwise, abducting parents could simply take the child to the country most likely to side with them and seek an order there.  Indeed, that’s exactly the point made by the father in the New Zealand case and one with which the Court of Appeal agreed.

Taglieri’s lawyers say the appeals decision should be left intact. They said that ordering the return of a child to his or her country of habitual residence does not determine the final custody arrangement for the child; it “allow[s] the courts of the home country to decide what is in the child’s best interests.”

That, by contrast, is exactly right.  The courts of Italy are fully capable of deciding the issues of custody, parenting time and the like.  They are also fully capable of deciding the impact on the child of her mother having abducted her, not only from Italy, but from her father and extended paternal family.

My guess is that, whatever the Supreme Court does, the outcome will remain intact.  I suspect that the court wants to flesh out what things courts need to consider when they decide the question of an abducted child’s country of habitual residence.  Of course that’s somewhat dicey when the child in question is only eight weeks old.  After all, she can’t yet talk, so language isn’t an issue, and she’s had no time in which to bond with relatives or others, get to know the culture of the country, establish friendships, etc.  So the Court may discuss what facts influence the decision on a child’s country of residence when the child is very young.

But what it absolutely should not do is rule that, when a child is so young, a parent is free to establish its country of residence anywhere he/she desires via the expedient of abduction.  To do so would be to blatantly thwart the very purpose of the Convention itself.

For now though, the case is instructive.  The Ohio courts both did what the Hague Convention conceives.  Courts elsewhere should take notice.

This three-part series is written by Ashley-Nicole Russell, an author, speaker, and attorney, who is a child of divorce and  a divorcee. She is an expert in divorce culture and shared parenting techniques. Through this series, she will explain what divorcing parents need to keep in mind during the holiday season as they work through separation, divorce, and/or life after divorce.

Part 2: Committing to Communication

Your ex may be the last person you want to talk to in the entire world… especially ahead of a holiday season.  

As a divorcee, I get it. As a Collaborative-focused divorce attorney, I want you to look past it. When your children are involved, you and your former spouse need to put them first and commit to a communication plan that is effective. If you choose a collaborative divorce attorney, they’ll help you stay focused with this communication goal and will even help outline plans for situations like holidays, birthdays, and vacations.

I tell my clients that they’ll be a better person and a better parent by the time they’re done with their Collaborative divorce. This can be achieved by learning conflict management types, understanding your co-parent and your children, and developing a new perspective.  Think about your communication plan as the game of chess. Instead of being a piece on the board, you want to place yourself above the board with an overview. With this perspective you will develop awareness of the circumstance of divorce and as a person in the divorce. 

In my book, The Cure for Divorce Culture, I go into detail on how this communication mindset can be achieved based on psychology and sociology. This book also explains how your communication plan can impact your children in the way that children mirror the behavior they grow up around and what they experience. That being said, a considerate communication plan is important not only for you and your co-parent, but also so your children can learn by example and treat others with respect. 

Developing awareness and mindfulness is especially important during holiday seasons. While you and your spouse were married, you may have already had a difficult time determining where you would spend your holidays and with which side of the family. Now that you’re separated, divorcing, or divorced, it’s even more difficult. 

In order to incite self-awareness and address potential conflict, here are three questions I encourage my clients to ask themselves before having a conversation with their co-parent.

1. What can I get out of this conversation?

          -Think about the purpose of the conversation in this circumstance.

          – Example: “Where should our children go for Christmas day?”

2. What is my desired outcome of this conversation?

           -Think about what you want to happen with this circumstance.

           -Example: “I want our children to spend Christmas day with my family.”

3. What am I willing to give up to get the desired outcome?

           -Think about compromise and put yourself in your co-parent’s position.

           -Example: “Your family has a bigger Christmas Eve celebration so they can spend Christmas Eve with your family and Christmas morning/day with my family. In addition, they should spend Thanksgiving Day with your family because your mom makes the best turkey and I’d hate for them to miss that. They can spend Black Friday and the weekend with me and my family because my sister is coming in from out of town.

During this process, you need to think about your children and their perspective. No matter whose family they are with on a specific holiday keep this in mind: they’re loved, they’re having fun, they’re participating in family tradition, and they’re at peace knowing their parents  have provided them  with stability. An important note: as parents, you and your co-parent need to make the decision of where your children will go for the holidays. You should not expect your children to make their own decision because that forces them to play favorites. That will destroy the communication plan that you’ve worked so hard to build.

Another aspect of communication during the holiday season is gift giving and how to split up your child’s wishlist. You and your co-parent need to decide who will purchase what, who will pay for what, and what list will go to Santa Claus to deliver on Christmas morning. Rather than having your children make separate lists for each co-parent, ask each child to make one list that you and your co-parent will discuss. While it may be difficult, think about your co-parent too. If your children are young, they probably can’t go to the store to buy their mom or dad a gift. That’s where you come in. Offer to take them to the store so they can pick out a gift for their mom or dad… your co-parent. Yes, that means you might also have to pay for it. This act will teach your child a valuable lesson of kindness, respect, and selflessness. After all, isn’t that the true meaning of the holiday season?

Ashley-Nicole Russell, Esq

@anrlaw

www.anrlaw.com

Media@anrlaw.com 

December 16, 2019 by Robert Franklin, JD, National Board of Directors

Here’s an interesting piece on parental alienation by psychologist Dr. Stanton Samenow (Psychology Today, 12/9/19).  It’s of course meant for clinicians, but presents an issue lawyers and judges will also want to consider.

That issue can be roughly stated as “Is an alienating parent being malicious or does she/he actually believe their allegations?”  Of course one answer is that the alienator may be doing both.  Mental illness doesn’t preclude malice.

Still, Samenow has a point; what motivates alienating behavior is all-important for understanding and changing it.

He refers pseudonymously to two former clients of his, “Marcia” and “Donald.”

Marcia contended that Donald, her husband, posed an extreme danger to her and their three children. She provided a vivid account of her husband’s emotionally and physically abusive behavior. Specifically, she alleged that Donald had thrown their five-year-old son down the stairs causing him to suffer head trauma.  She reported that her husband kicked open a basement window, entered the marital home, then terrorized her and the children with a knife.  Alleging that Donald had been attempting to poison her and the children, she continued to fear for their lives.

And there was more, much more.  Marcia reported all this to doctors and other emergency room personnel.  She went to the police.  She had her lawyer ask the court for sole custody of their children.

Meanwhile, Donald was baffled.

He knew that his wife tended to be “black and white” about people but he did not know what produced such a radical transformation in her view of their marriage. He witnessed her allegations changing from the “frivolous and untrue” to the “very serious and untrue.” At first, he thought Marcia was just being “super overprotective” toward the children. Then he thought that she was inventing allegations.  As Marcia became more accusatory, he feared that she wasn’t just manufacturing allegations but believed them. “She does think I’m a danger, a Satan,” he commented.

Marcia was a highly-functioning individual, both in her professional life and with her children.  But psychological assessments of the two found her to have symptoms consistent with a paranoid personality disorder.  Donald was found to be a “stable individual with no psychological disorder.”

Eventually, the judge presiding in their child custody case gave Donald primary custody of the children and Marcia supervised visitation periods.  That turned out to be the right thing to do because, whether she realized it or not, Marcia’s alienation of the children from their father was dangerous to their well-being.

Caught in the middle and not knowing whom to believe, the child adopts the view of the parent on whom he is more dependent.  The child is affected by doubts about her own judgment and thinks she must make a choice. She shuts off positive feelings toward a parent whom the child loved and opts to have little or nothing to do with the parent thereby complying with the wish of the other parent.

That confusion on the child’s part between the reality he/she perceives about the targeted parent and the story told by the alienating parent can have serious psychological consequences, particularly in very young children.  Samenow is right when he says that, at some point, figuring out whether the alienator is acting maliciously or as a result of some mental disorder becomes moot.

From the standpoint of the child’s welfare and the immediate task before a court, the etiology may not matter. Regardless of the alienating parent’s motivation, the child stands to lose his relationship with a parent who loved him.

Removing the child from the alienating environment is usually necessary as the judge in Marcia and Donald’s case did.  The alienator can get help any time, but the child’s welfare demands that he/she live in a healthy environment among honest adults.

Samenow’s a psychologist, not a lawyer, and his article is concerned with clinical issues, but allow me to add one thing.  The legal system is adversarial in nature.  The family law part of that system offers “rewards” in the form of parenting time and “punishments” in the form of parenting time lost.  Given that divorce and custody matters arise when parents are at their emotional worst, it is no surprise that the system of reward and punishment results in alienating behavior by one parent against the other.  Whatever the etiology of the behavior, the court system makes it both worse and more prevalent than it would otherwise be.

And one final note about what’s not in Samenow’s piece.  Those opposed to equal parenting often call parental alienation a “debunked theory.”  They do so not because that claim has any merit, but because they recognize that alienating mothers stand to lose custody if their behavior is understood for what it is – child abuse.  They therefore attack the very concept of parental alienation.  What’s nowhere in Samenow’s article is any hint that parental alienation is anything but the awful reality that it is.  He’s seen it in his practice as have so many other mental health professionals.  He rightly sees it as his job to understand PA, to deal with it appropriately and to let other professionals know what he knows.

The anti-shared parenting crowd can shout all they want, but the facts about parental alienation are against them, always have been and always will be.

Thanks to Don for the heads-up.

December 13, 2019 by Robert Franklin, JD, Member, National Board of Directors

Sigh.  What to make of this New York Times op-ed (New York Times, 12/9/19)?  Is it really as confusing and wrong-headed as it seems?  You decide.

First, the headline (and sub-headline) not only don’t accurately describe the article and they don’t get close to describing the underlying study on which the article is based.  Here they are:

The Myth of the Two-Parent Home

New research indicates that access to resources, more than family structure, matters for black kids’ success.

But of course the article says nothing about the two-parent home being a “myth.”  On the contrary, author Dr. Christina Cross is at pains to say this:

Let me be clear: I’m not suggesting that the two-parent family is bad for children of any race or ethnicity. Indeed, scholars have noted its wide array of benefits for children, parents and communities, especially those from middle-class backgrounds.

So, far from being a “myth,” Cross acknowledges the “wide array of benefits” for everyone that arises from two-parent households.

As to what “matters for black kids’ success,” Cross didn’t analyze that.  “Success,” after all is an astonishingly broad term and not something we’d expect to be examined by a single study.  No, what Cross looked at was first, kids’ likelihood of graduating from high school on time and, second, their likelihood of enrolling in college.  Those two specific considerations were all she studied.

In short, the article’s headline has little to do with the article.

If that’s not strange enough, what’s more so is the comparison between the article and the study on which it’s based.

The salient point Cross makes in the article is twofold.  First, she says, being raised by a single mother is less of a bad situation for black children than for white ones.  Second, what matters most for children in single-parent households are “socioeconomic factors” which, strangely, she nowhere defines.

She also takes a look at whether access to extended family members accounts for black kids’ being less adversely affected by single parenthood than are white kids.  It seems that black children are more likely to live with or near a member of their extended family than are white children, so perhaps that explains the difference in their response to being brought up by a single mother.

And that’s where it gets weird.  Here’s what she says in the article about access to extended family members:

[B]eing embedded in extended family explained roughly 15 percent to 20 percent (of the differences between white and black kids raised by single mothers).  

But here’s what she said in her study:

This suggests that indicators of extended family embeddedness explained little of the main interaction effects of family structure on high school graduation between blacks and whites.

Now, if Cross believes that a 20% effect “explained little,” she’s the only social scientist I’ve ever read who does.

Meanwhile, what exactly is the difference between “family structure” and “socioeconomic factors?”  After all, two-parent families tend strongly to have more financial resources than do single-parent families.  Indeed, over one-third households headed by a single mother exist in poverty.  That’s well over twice the national poverty rate for all households.  The only way to separate access to financial resources from family structure would have been to divide up single-parent households according to wealth and/or income and compare whites and blacks within each category.  But if Cross did that, she doesn’t let on about it in either her article or her study.

A further aspect of “socioeconomic factors” could be what McLanahan and Sandefur refer to as “human capital,” i.e. the parents and extended family, plus everyone they know who could play a significant role in a child’s life.  As with financial resources, a child with two parents has access to more human capital than does his/her peer in a single-parent home.  So again, what’s the difference between family structure and socioeconomic factors?  To me, the latter looks like a proxy for the former.

But it gets weirder still.  It’s no secret that, on average, whites in the U.S. are more affluent than blacks.  That’s true of white and black single-parent households as well.  So it’s extremely strange that, according to Cross’ claims, black kids in single-parent households do less badly than do their white counterparts.  We’d expect the opposite to be true.  And it’s downright illogical that they do so because, according to Cross, of the importance of “socioeconomic factors.”  If black kids have access to fewer resources than do white kids (and they do on average) then that would predict their performing less well than white kids.  But, according to Cross, they don’t.

Put simply, she appears to be contradicting herself.  She’s saying that lack of access to resources explains better black children’s response to single parenthood.  Apparently, as long as you’re a black child of a single mother, the poorer the better.  Make sense?

It makes about as much sense as “The Myth of the Two-Parent Home.”

December 12, 2019 by Robert Franklin, JD, Member, National Board of Directors

Children do well when both parents participate actively in their upbringing and work to provide consistent attention, affection, and discipline, as well as meeting their material needs. This is easiest to achieve when the parents are married and living together. 

That’s psychologist Nicholas Zill writing here (IFS, 12/4/19).  In my last piece, I summarized some of his findings.

So Zill clearly understands the fact that children do better with both parents in their lives than in any other situation.  But here too is Zill:

While married fathers of today are playing a more active role in their children’s lives than married fathers of yesteryear, many fathers who don’t live with their kids are doing little either to support their children or even interact with them. The trend data reviewed in this essay suggest that the situation is not improving.

That’s to be found under Zill’s heading “No Substitute for Responsible Fathers.”  As such, Zill suggests that the problem of fatherless or “under-fathered” kids stems from the failure on the part of the men to take up their responsibilities as dads.  It’s a common claim, particularly among those on the right of the political spectrum.  The theory seems to be that if men were somehow to become better people, the problem of fatherless kids would vanish.  The claim is terribly misguided.  Worse, it’s an excuse for failing to do the hard work of not only reforming laws, but changing the cultural narrative on fathers.  After all, if the problem is the fathers themselves, what can you or I do?

But for decades now we’ve known that the irresponsible dad trope is mostly nonsense.  Of course there are men who flee their parental responsibilities, as do some women.  But there’s plenty of social science that finds them to be in the minority.  Even the poorest and least educated men want to play a real role in their children’s lives, as the many, many studies conducted using the data produced by the Fragile Families and Child Well-being longitudinal survey demonstrate.  Two decades ago, Sanford Braver gave the lie to the claim that men don’t care about their kids.

Unfortunately for all of us though, this culture tells fathers, at every turn in the road of a child’s life, that they are unwanted and unneeded, that they’re at best superfluous and at worst a danger to children and mothers alike. 

That message begins actually even before a child is conceived.  We doggedly refuse to provide men sensible means with which to control their paternity.  Contraception for men consists of condoms which are notoriously ineffective and vasectomy that’s not cheap and reversing it is even less so.  Of course RISUG has been proven, in over 10 years of trials and use in India, to be safe and effective with no side effects, but here the FDA refused to accept the data compiled in India and demanded that trials be begun anew from scratch.  Currently, there’s no end date for approval of the U.S. version of RISUG.

Once a child is conceived, its father has no voice in whether it comes into the world or not.  People differ on the issue of abortion rights, but whatever one’s position, it can’t be denied that they carry a definite message for men: when it comes to this child, you’re not important.  Yes, whether it comes into the world or not will have a profound effect on you, but you, by law, have no say.

With the child brought into the world, we again tell the father that he’s a third wheel on a two-wheel cart.  Hospitals and doctors routinely forget that Dad exists, forget to involve him in pre-natal visits, let him see the ultrasound photos, etc.  That’s all true despite the fact that research demonstrates that mothers and babies alike do better if Dad is involved at every stage of Mom’s pregnancy.

And let’s not forget that no law anywhere requires Mom to let Dad know about his child or to tell the right man if she chooses to tell anyone.  We shout to the heavens that fathers have parental rights, but when it comes to being able to exercise those rights, well, that’s up to her, at least if the two aren’t married.  If Dad doesn’t know about his child, it’s hard for him to play a big role in his/her life.

And of course paternity fraud is everywhere perfectly legal.  No legal sanctions attach to a mother’s decision to tell the wrong man he’s the father of her child.

Maternal gatekeeping?  That’s a fairly common occurrence in which Mom sidelines Dad in childcare.  Gatekeeping can take many different forms from denigrating the fathers’ efforts at childcare all the way to international parental abduction of the child.  Anything that reserves the child solely for the mother can qualify and the law winks at just about all of it.  Just recently I wrote about a mother who abducted her daughter to New Zealand in violation of international law and court orders, but whose illegal action was endorsed by two New Zealand courts.  Meanwhile, she faces no legal detriment for her wrongful and abusive conduct.

Child custody practices by family courts likewise sideline fathers in the lives of their children.  About 82% of the children of divorce or separation are in the sole or primary custody of their mothers, a figure that’s barely budged in almost 30 years.  We know that kids do better in equal custody arrangements, but, throughout the English-speaking world, mothers routinely get 70% – 75% of the parenting time of children post-divorce.

Should Dad try to get a court to enforce his meager parenting time, he’ll often be thwarted by a range of discouraging practices.  For one thing, the federal budget includes $5 billion for child support enforcement but only $10 million for visitation enforcement, a 500:1 ratio.  The former of course overwhelmingly assists mothers and the latter can’t be used to help Dad hire a lawyer, the very thing he probably most needs.  Hiring a lawyer multiple times, making a motion and having a hearing are costly to Dad, but the result often is that the judge only verbally encourages Mom to abide by the order, but does little else.  The result is that custodial mothers have little concern for their ex’s rights under custody orders.

And, as the Office of Child Support Enforcement has repeatedly told us, child support guidelines and enforcement tend strongly to sideline fathers in the lives of their kids.  A man in fear of prison is not a man likely to try to enforce his right of access very strongly, if at all.

Then there are state-level child protective authorities.  When Mom proves to be unfit to care for little Andy or Jenny, or abusive or neglectful of them, CPS may take the children from her.  But when that happens, the chances that the agency will contact Dad as a placement – either temporary or permanent – for the kids are well below 50%.  That was the finding of the Urban Institute in a study called “What About the Dads?”  At least one federal circuit (the 9^th) has declared the practice to be a violation of fathers’ civil rights, but still it goes on, apparently unabated.

Adoption?  In two-thirds of the states, single fathers have no right to claim parentage of their child unless they’ve filled out the appropriate form with the state.  Tellingly, those putative father registries are closely guarded secrets.  Finding out (a) that they exist, (b) what they are, (c) what, how and where to file and (d) their legal impact on fathers’ rights can be fraught with difficulty.  Their entire purpose is to remove fathers from the adoption process despite the fact that doing so forces adoption on kids who don’t need it and deprives kids who do of good adoptive parents.

No discussion of fathers in law and society would be complete without commenting on the portrayal of fathers in every form of communications media.  The movies, television, advertising, newspapers, popular songs, etc. all traffic in the routine denigration of fathers.  Occasionally a Gillette ad or something similar may get called out, but those times amount to a tiny fraction of the whole assault on fathers in pop culture.  Homer Simpson hasn’t gotten smarter over the years.

All of that and more carries the unmistakable message that fathers have no value beyond the contents of their bank accounts, if that.  As long as we, in law and popular culture, continue to teach that lesson, we can scarcely blame dads for learning it.  The amazing thing is that so many fathers swim on against the tide of anti-father rhetoric and practice.

So Nicholas Zill needs to drop his idle chatter about responsible fathers.  Fathers everywhere fight an uphill and often ruinously expensive battle for that humblest of desires – to see and care for their children.  Until we as a society and culture start to treat fathers as the good and necessary parents they are, we have no business criticizing those few who can’t fight and win the fight we require of them every second of every day.

December 11, 2019 by Robert Franklin, JD, Member, National Board of Directors

Nicholas Zill has had a long and illustrious career as a research psychologist.  Anyone who’s studied issues related to families, fathers and children over the last 30 years or so has run into his work.  He’s now a senior fellow at the Institute for Family Studies.  Here’s his most recent article (IFS, 12/4/19).

There’s nothing earth-shaking in the piece.  He’s simply reporting on child support figures and raising issues about what they mean for kids.  He rightly points out for example that the child support enforcement system works just fine for parents who’d be paying anyway, but does a lousy job if the parents are poor.  We know this because the Office of Child Support Enforcement has been letting us know for well over a decade.

More importantly,

[M]y examination of child support data from the Census Bureau reveals that the new fatherhood (i.e. fathers spending more parenting time) is not benefiting the children who need it most. (parenthetical mine)

That is, whereas married and more affluent fathers are spending greater amounts of time with their kids than did fathers of past generations, poorer and less well-educated fathers aren’t.  Now, I’m not sure that, as Zill suggests, kids of poor parents need their fathers more than do those from more privileged backgrounds, but Zill has a point: there’s a divide in American society between those with actively engaged fathers and those without.  Those without tend to be poorer, not incidentally because they don’t have fathers in the home.

Further, a majority of divorced or separated parents now have no formal agreement for child support or visitation by the father.  That’s remarkable enough in itself, but even more so when we consider that the existence of such a formal agreement is associated with more child support and greater paternal involvement in child care. 

Plus,

Perhaps the most dismaying indicator of paternal non-involvement is the proportion of non-resident fathers who have had no contact with their offspring in the last year. Surprisingly, that proportion has not diminished in recent years, fluctuating around 35% between 2007 and 2015…

Needless to say, that’s disastrous for everyone, but particularly the children.

Much of the decrease in formal child support arrangements is due to the decline in divorce.  But before we celebrate that decline, we should realize that it’s mostly a result of a decline in marriage.  It’s impossible to divorce if you’re not married.  So non-marital childbearing is becoming more the norm and that’s a problem, because non-marital unions are notoriously less stable than marital ones.  They break up far earlier in the relationship, so the children cycle through more male father figures than do the kids whose parents are (or were once) married.

And of course the decline in active fatherhood among the less affluent means an increase in mothers’ reliance on public services.

While child support agreements and payments are declining, more children of unmarried parents are receiving assistance from government nutrition, health, and welfare programs, such as SNAP (food stamps), Medicaid, WIC, CHIP, public housing, TANF, and state-run family assistance programs. The proportion of fatherless families receiving one or more of these benefits increased dramatically, rising from 35% in 2007 to 49% in 2015. 

But governmental assistance can never do what full employment can.

The surest way out of destitution for fatherless families is not through government benefits, however, but through maternal employment. When custodial mothers worked full-time, all year, only 9% of their families are in poverty. By contrast, 41% of families are poor when mothers works (sic) only part time or for only part of the year, and 63% are poor when the mother does not work at all.

As we’ve long known, households headed by single mothers are the most likely to be poor.  Over 30% of single-mother households with children are poor versus about 18% of single-father households and about 15% overall.

All of this is worth knowing, but, for all his scrupulous accuracy about the data, Zill’s solution to the various problems he describes is seriously misguided and uninformed by the basics of what it means to be a father in this country at this time.

More on that later.

December 10, 2019 by Robert Franklin, JD, Member, National Board of Directors

Once again, a court has ignored the plain meaning of the Hague Convention on the Civil Aspects of International Child Abduction.  Once again, a child is left in the custody of an alienating mother.  Once again, a fit father is removed from his child’s life.  Once again, the very courts that are supposed to discourage international child kidnapping in fact endorse it.

This time the mother’s destination was New Zealand and the child’s country of habitual residence was somewhere in Europe (the article doesn’t say which country).  But, as in so many other cases, the result is the same – Mom managed to elude authorities long enough so the courts ruled that the child’s “best interests” can only be served by leaving her in the custody of an abuser and effectively removing the father from her life.

Such is the way of the Hague Convention that was written to prevent exactly that from happening.

This highly informative article tells the tale (New Zealand Herald, 12/2/19).

Five years ago, the mother abducted the child from Europe to New Zealand.  The girl’s father tried for three years to locate her and, only through dumb luck, eventually succeeded.  He immediately filed a suit under the Hague Convention for return of the girl to him and her home country. 

At that point, the Hague Convention intends that the court in the country to which the child is abducted ask the question, “What is the child’s country of habitual residence?”  In other words, was the child taken from her home by an abductor or to her home from an abductor?  Clearly, the European country in which she’d been born and lived all her life was her country of habitual residence.  Therefore, according to the Convention, the girl should be returned home and any legal proceedings occur there.

But the family court in New Zealand wrongly refused to issue an order requiring the girl’s return to her father in Europe.  I know that to be wrong because (a) the Convention is very clear on what a court is to do and (b) the New Zealand Court of Appeal said so.

The family court’s incorrect ruling was in 2017.  Now the Court of Appeal has endorsed that wrongful order, all the while stating that it was wrong.

Despite finding, the Family Court was wrong in the first place to refuse to grant an order in 2017 under the Hague Convention, and criticising the actions of the mother, the Court of Appeal said too much time had now passed to send the girl back to her homeland.

Stated another way, the precise wrong that the Convention seeks to right has been endorsed and abetted by both New Zealand courts.  For the umpteenth time, courts have sent the unambiguous message: “If an abducting parent successfully avoids the authorities long enough, her/his actions will go unpunished, regardless of how detrimental they’ve been to the child.  This we will call “acting in the best interests of the child.”

And, speaking of actions detrimental to the child, here’s how the European court described Mom’s behavior while she and the child were still there.

“The ingrained resentment the mother holds against the father, now significantly impairs the mother’s ability to raise her daughter … with her actions, the mother wilfully and significantly disregards the interests of her daughter,” the European court judgment said.

So the court gave custody of the child to her father.

The courts in their home country awarded sole custody to the father after the mother repeatedly refused to let him see their daughter.

But rather than changing her ways, rather than obeying the court’s order, Mom doubled down.  Not content with merely thwarting his visitation time, she secretly left the country, violating the court’s orders and national and international law.

Unfortunately, Dad made a mistake.  Following the flagrantly wrong decision by the New Zealand family court, he hired a couple of private investigators who helped him take his daughter from her school.  The article gives no hint of how long he had her, but clearly it wasn’t long.

The father said he took the extraordinary step to re-establish contact with his daughter, whom he had not seen in nearly five years, after his former partner secretly took her from their homeland in Europe…

“All I want is to be part of my daughter’s life and a child needs both parents,” he told the Herald.

But his action weighed against him in the Court of Appeal.  Exactly how he was supposed to see his daughter without the type of action he took, none of the judges, who refused to enforce the law, explained.

So let’s consider what was and wasn’t punished by New Zealand courts.  What wasn’t punished was five years of child abduction, plus refusal to grant access in Europe.  What wasn’t punished is what’s been accurately termed child abuse, i.e. the removal of a child from a parent and the only home she’s ever known to live a life in hiding, apart from extended family members and often changing schools and places of residence to avoid apprehension.  What wasn’t punished was the frank and malicious denial of a father’s parental rights and a child’s right to a relationship with her dad.

What was punished was a father’s desperate and admittedly unwise decision to get a bit of time with his child, time to which European courts have said he’s entitled, but which Mom and the New Zealand courts have denied. 

But Dad’s focus isn’t just on his own case, he sees the larger picture too.

If his daughter was not returned, the father said New Zealand would become the destination of choice for parents who choose to flout custody orders in their home country.

Indeed, I think we can count on it.

December 9, 2019 by Robert Franklin, JD, Member, National Board of Directors

Not long ago, KARE 11 in Minneapolis aired this panel discussion on shared parenting (KARE 11, 11/28/19).  It featured four pro-shared parenting advocates and four opposed.  Among the “pros” was NPO’s good friend and tireless fighter for equal parenting, Molly Olson.  The discussion was noteworthy mostly for being not noteworthy.  That is, the anti-shared parenting folks had no new arguments to make and the ones they did make were without merit.

For starters, they weren’t as truthful as we might have liked.  For starters, they tried convincing listeners that Minnesota law now requires “maximization” of parenting time for each parent based on several factors.  But as Olson pointed out, it does no such thing.  Much like current law in Australia, it only requires judges to “consider” maximizing parenting time.  Unsurprisingly, that does the cause of equality little good.

They also claimed that the bill currently before the legislature would remove the child’s age from the factors for consideration by the judge, but again, it does no such thing.  As Olson again said, under the bill, a judge would be able to take the child’s age into consideration, but it couldn’t be the only factor in his/her decision on custody or parenting time.

In short, it seeks to remove from judges’ tool box a de facto Tender Years Doctrine under which young children are automatically ordered to the sole custody of their mother.  And, speaking of that doctrine, it seems to be very much favored by the anti-shared parenting group.  At one point, their discussion seemed to take for granted that a child under the age of three should be with its mother.  Needless to say, the social science rebutting that didn’t enter into their remarks.

The Crowd of ‘No’ may like us to think that they’re not taking sides based on sex, i.e. they’re not pro-mother and anti-father, but sadly for them, their words betrayed their true position.  For example, they informed viewers that, often fathers’ desire for equal time with their kids is just domestic violence.  DV, you see, is a matter of power and control and, when fathers demand meaningful time with their kids, they’re being violent toward Mom.  Somehow the idea that Mom demanding sole or primary custody should be equally viewed that way found no voice among those opposed to shared parenting.  And of course the idea that wanting to continue spending time with your children might actually not constitute domestic violence never seemed to occur to them at all.

The main thrust of those opposed to shared parenting was that, in fact, times have changed and so has the system, so there’s no need for further change.  They offered no facts to support such a notion, and their pretense that current law requires judges to maximize parenting time for both parents strongly suggests that they had none.

But far worse for them was the presence of Scott, until the end, sat quietly off to the side.  Scott’s case trumped every word they uttered.

For example, one of their claims was that lawyers would never encourage a spouse to level false allegations of DV at the other in order to gain an advantage in a child custody case.  But Scott’s spouse did exactly that via her lawyer.  Her claim was, after three years of agony on Scott’s part, proven to be false, but it took him $170,000 in attorney’s and expert witness fees to do so.

That latter fact trumped yet another claim of the anti-shared parenting crowd.  One pro-shared parenting lawyer made the point that divorce is big business, that lawyers and expert witnesses take divorce conflict straight to the bank.  This was hotly contested by the anti group, but Scott’s experience proved them wrong.

Indeed, Scott made the salient point of the entire discussion.  If equal parenting had been the law when he and his ex split up, her lawyer would have told her that, barring unfitness by one or the other parent, each would get equal, or nearly equal, time with the kids.  And the entire process would have been relatively brief, simple and free of antagonism.  But under existing law, a false allegation was allowed to damage the lives of both parents, the children and Scott’s bank account.

To that, the anti-shared parenting folks had nothing meaningful to say.  In fact, the current system marginalizes fathers in the lives of their children, harms the kids in the process and can cost ruinous amounts of money, money that could go to giving the children a good home.

The only new argument produced against shared parenting by this panel was the patently loony notion that, fathers’ asking for meaningful time with their kids constitutes a bid for “power and control” and therefore is domestic violence.  If they can’t do better than that – and they can’t – they have nothing to say.  The lawyers and the DV advocates and the various experts who depend for their livelihoods on the current system of child custody are the ones who oppose shared parenting because they fear its impact on their pocketbooks.

By contrast, shared parenting is all about children’s well-being and fairness to parents.  For most of us, that’s an easy choice to make.   

The Supreme Court of Mexico has struck down as unconstitutional a provision in the capital’s law that has automatically given to mothers child custody of children under the age of 12 (KVOA, 11/21/19).  That is, up to now, every child under the age of 12 in the country’s federal district, risked losing its precious relationship with its father when the adults split up.  That was the district’s version of the Tender Years Doctrine that’s been abandoned by most countries in the Western world, Israel being one notable exception.

Mexico City, that makes up most of the federal district, has a population of almost 22 million people, so the change affects a large proportion of the country.

The Supreme Court found Thursday that the rule governing custody of kids under 12 years old is unconstitutional for making a distinction on gender.

The ruling is based on the principle of equality and the higher interest of minors. It says the unconstitutional language violates the latter by taking away judges’ discretion to consider the individual circumstances of each case to determine which parent is best equipped to care for a child’s needs.

Therefore, children’s best interests were deemed by the court to have been compromised by the previous law because, after all, in many instances, Mom’s not the better parent.  But up to now, judges had no discretion to give custody to Dad. 

Plus of course, the automatic award of child custody based solely on the sex of the parent presented obvious problems for the constitutional concept of gender equality.

So the law is now a dead letter and few will mourn its passing.

Should any of Mexico’s various states rely on the Tender Years Doctrine in child custody matters, they too would appear to violate the federal constitution.

Needless to say however, what exactly will change, apart from the wording of the statute, remains very much to be seen.  Fathers may now get custody and shared parenting of kids under 12 is now a possibility.  That’s all jolly good.  But, as we so often see, the plain import of a law or, in this case, the plain import of a Supreme Court ruling may turn out to be very different from what judges actually do.  Judges in Mexico, D.F. are still free to order sole custody to mothers in 100% of cases, just as they were required to do previously.  Will there be a dramatic change in the “facts on the ground” due to the high court’s ruling?  Or will it be business as usual under a different name?

Whatever the case, the Court’s ruling advances the cause of children’s well-being and fathers’ equality in child custody matters.  Yes, it does so mostly because the now-defunct law was so retrograde, but still, a win’s a win, whatever comes of it. 

In Mexico, as elsewhere, the struggle continues.