Author: Super User

December 4, 2019 by Patrick Fraley

The Law of Inertia states that an object at rest tends to stay at rest, whereas an object in motion tends to stay in motion. Few things have more inertia than family courts, standing still for decades despite major changes in the world around them. Like most states, Arkansas has been working toward laws and practices that support joint custody, equal parental rights, and best outcomes for children. Since the 1970’s, laws have been passed to correct outdated theories and practices to bring family courts in line with public opinion and “best interest of the child.” Why is it taking so long? With each push the legislature has made to bring family law into the modern era, there has been an opposing reaction by the family law industry to keep the status quo.

Arkansas, like other states, used to include maternal preference in its custody laws. This was based on misguided theories like the Tender Years doctrine, alleging that young children needed to be raised by their mothers. As society changed, anti-discrimination ideas advanced, and Tender Years was dismissed, maternal preference was replaced with gender-neutral laws and the “best interest of the child” principle. In Arkansas, this occurred in 1979 with the passage of Act 278, stating the award of custody “be made without regard to the sex of the parent” but solely in the “best interest of the children.” However, the family law industry looked the other way and failed to change its practices. Custody continued to be almost universally given to mothers while fathers were turned into visitors paying child support. Joint custody  – what we now know to be the best outcome for children – was almost nonexistent.

It wasn’t until over 20 years later that the Arkansas legislature stepped in to direct the courts toward joint custody. Act 92 of 2003 stated “In making an order for custody, the court may consider awarding joint custody of a child to the parents.” The goal was to have judges start treating joint custody as a viable option. How did they respond? The courts negated the new law with their own appellate case law. In 2006, Bailey v Bailey reversed a lower court order for joint custody on the grounds that joint custody was “disfavored” in the state, giving primary custody to the parent who didn’t want joint custody. Once again, the lawyers and judges held their ground despite the new law allowing joint custody and the mounting evidence behind it.

2013 proved to be a pivotal year for shared parenting in Arkansas when the state legislature passed Act 1156. This law stated “In an action for divorce, an award of joint custody is favored” and defined joint custody as the “approximate and reasonably equal division of time” between parents. The law passed by a margin of 113-9. Unsurprisingly, 6 of the 9 “no” votes were from attorneys. The law was definitely a step in the right direction and has made a difference, but the family law machine still found a way to resist change (and by this point, the known best outcome for children). The courts interpreted the word “favored” to simply mean “not disfavored.” While this allowed judges to order joint custody, it removed any outright preference over sole or primary custody. To drive the point home, the Arkansas Administrative Office of the Courts published a benchbook on family law acknowledging joint custody is favored, but then stated twice that case law continues to indicate joint custody is “not favored in Arkansas unless circumstances clearly warrant such action.”

Another attempt was made in 2019 to bring Arkansas law in line with modern psychology, public opinion, and proven best outcomes for children. HB1325 was introduced to make joint custody a presumption – a defined legal term with less room for re-interpretation. The only spoken opposition came from attorneys inside and outside the legislature. In addition to the common arguments seen elsewhere, they stated that since joint custody was “favored” in Arkansas, a presumption wasn’t necessary – not being clear as to what “favored” actually meant. As a result, the bill did not make it out of committee.

The history of joint custody in Arkansas should provide some insight on the challenges facing shared parenting across the country. The inertia of family courts is a powerful thing and the system is designed to keep the status quo. However, it’s not all bad news. There are 2 sides to inertia. The shared parenting movement has gained significant momentum in the last few years. Changes in one state, like Kentucky or Missouri, are helping spur changes in others. This year’s bill in Arkansas helped us make connections with people in key positions to create change. There is now real movement – and an object in motion tends to stay in motion. If the law of inertia continues to hold true, as long as we push harder and keep going, the change our children and families need is going to come.

Patrick Fraley is an Ear, Nose, and Throat surgeon from Conway, Arkansas. He and his wife, Gina, helped found Arkansas Advocates for Parental Equality (AAPE) in 2015 following our own difficult experiences with custody and family court. AAPE’s goals are to establish a presumption of joint custody, eliminate discriminatory laws and practices toward unmarried fathers, and reform the adversarial approach of family courts in Arkansas.

Ginger brings a broad range of talents, skills, and knowledge as well as a deep understanding of the problems that NPO is addressing. Her personal experience and her work as a film director and documentary maker, not only of Erasing Family but also of the earlier film Erasing Dad (Borrando a Papá), have given Ginger a deep and personal understanding of the trauma many children face when one of their parents is erased from their lives–trauma that often follows them far into adulthood.

In her brief time working with NPO so far, Ginger has helped establish new NPO affiliate chapters in Florida, Minnesota, Rhode Island, Alabama, Colorado and Texas. She created a series of webcasts to educate both advocates and the general public and she oversaw the rollout of the 2019 NPO Shared Parenting Report Card, including organizing a press conference at Rockefeller Center announcing it which was covered by US News & World Report, Fox News, and Yahoo!

Welcome aboard as our Executive Director, Ginger. We look forward to working with you to change laws, practices, and, perhaps most importantly, attitudes and expectations so that children won’t be deprived of a loving parent just because the parents are living apart.

Don Hubin

Chair, National Board, NPO

I can’t believe it is less than six months since I came on board the National Parents Organization! Working with Chair Don Hubin, the board and our wonderful affiliates has invigorated my commitment to making divorce and separation healthier for children. I have worked with advocates who drive across states to attend meetings and who give up time with their own families to ensure that all children have access to both parents. Together, we will work to ensure that laws are updated to follow what people desire and research shows is best: true shared parenting. 

Already, affiliates have given new life to my documentary, Erasing Family, by showing it to state legislators and family court professionals. Inspired by the film, we have been working to create new, modern messaging that puts the needs of children at the center, which was evidenced by our successful Shared Parenting Report Card release. 

I look forward to reaching out not only to members and supporters, but to different groups that are working on aligned issues. Most inspiring, three of our new affiliates are woman-led and we have been welcoming more social workers, lawyers and mediators into the NPO family. Together, we can raise a generation of children who will never be forced to choose, or have the choice made for them, which parent gets to be a parent and which gets to be at best a visitor or, worse, completely erased. 

Ginger Gentile

Executive Director, NPO

December 2, 2019 by Robert Franklin, JD, Member, National Board of Directors

The problem of domestic violence allegations has bedeviled family courts for decades.  Family lawyers have long said that those allegations are often made to gain an advantage in child custody matters.  Judges have to figure out if the claims have merit and, if so, what to do about them.  Often they’re trained to err on the side of believing the complainant, i.e. to issue restraining orders in the absence of much real evidence for the claim.  That of course means the targeted parent, usually the father, can be removed from his place of residence and denied contact with his children, among other restrictions.

I’ve written about this a good bit lately regarding Australian family courts.  There, accused parents may wait for many months before they even get a hearing on a DV claim, all the while being subjected to a restraining order that was granted in a matter of days or even hours.

What’s given rise to my posts about the situation in Australia is the welter of articles defending the status quo.  Those pieces typically assume that only men commit DV and only women are its victims while going on to claim that women never lie about in their complaints.

U.S. courts aren’t quite as extreme as Australian ones, but the fact remains that claims of DV continue to be used as a tactic for gaining custody of children.

So it’s useful to know the facts about DV, facts that many who oppose shared parenting are happy to keep under wraps.

Enter, stage center, this article (Omaha World Herald, 11/22/19).

It’s by Shawna Thompson, who, in the past, has proven herself a true champion of equality in family courts and a fighter for the truth about DV.  Interestingly, her piece comes in response to one written by one Christon MacTaggart that hilariously called for “awareness” about DV while spreading disinformation.

For example, she mentions only female victims of domestic violence even though hundreds of studies over the last 40 years show that men and women are victimized by domestic violence at comparable rates.

MacTaggart’s piece sounds very much like the ones in Australian I excoriated for their astonishing lack of basic honesty about DV.

Meanwhile, Thompson rebuts MacTaggart with long-known and well established facts:

According to a recent article, the 2010 National Intimate Partner and Sexual Violence Survey, which was published by the U.S. Centers for Disease Control and Prevention, found 5.4 million men had been victims of physical violence by intimate partners in the previous year compared with 4.7 million women.

“By the study’s definition, physical violence includes slapping, pushing, and shoving. More severe threats like being beaten, burned, choked, kicked, slammed with a heavy object or hit with a fist were also tracked. Roughly 40% of the victims of severe physical violence were men,” the article said.

This survey also found sexual assaults were comparable, with about 1.3 million women and 1.3 million men being victims of nonconsensual sexual contact in the previous 12 months.

More recent studies, including studies published by the American Medical Association, American Psychological Association, American Journal of Public Health and an Archives of Sexual Behavior article that used data from the U.S. Census Bureau, show similar results.

A U.S. Department of Justice report also shows domestic violence victimization is comparable between men and women across almost all categories tracked, including rates of simple assault, serious violence, use of weapons and need for medical treatment.

Of particular concern, more recent studies show that while domestic violence against women has declined over the last 30 years, domestic violence against men may be increasing.

The most recent National Intimate Partner and Sexual Violence Survey found men were 30% more likely than women to be victimized by physical domestic violence over the previous 12 months and more likely to be victimized by “severe physical violence.”

Little of this is new, but much of it is unknown to the judges who decide child custody cases.  Despite knowing the reality of domestic violence for some 45 years, people like those I mentioned in Australia and like MacTaggart here in the U.S. continue to peddle the false narrative that only women are victims and only men are abusers.  And despite those hundreds of studies (with more arriving yearly) that false narrative is still the popular one.

That would all be bad enough if it were just adults who suffered the consequences of disinformation about DV.  But they’re not.  False claims of DV flourish in courtrooms with judges who’ve embraced that narrative and know no other.  In the process, children often lose a meaningful relationship with one of their parents, usually their father. 

And that, as we know, is bad for all concerned.

November 25, 2019 by Robert Franklin, JD, Member, National Board of Directors

It’s a victory for Johnson who can now breathe a sigh of relief knowing she fought the system and finally, won.

But is it a victory?  Did Jean Johnson “win?”  If so, it’s a Pyrrhic one.

Jean Johnson’ son Lance was married to a woman who goes unnamed by this article (News4, 11/13/19).  They had two children, but Lance’s wife had an affair with another man and gave birth to his child.  She and Lance divorced and he was ordered to pay child support for his two children.  DNA evidence cited by the court proved Lance to be the father of only those two. 

Documents obtained by News 4 show the courts have confirmed the child in question was fathered through a relationship the child’s mother had with another man years ago, while she was married to Johnson’s son.

Lance seems to have paid the support he owed for his two kids, but the state child support enforcement agency, the Child Support Enforcement Division, decided he owed for all three children.  It therefore began calculating arrears based on his non-payment for the child who’s not his.  Lance moved out of state, but his mother, Jean, began a fight with the CSED to rectify its mistake and stop dunning Lance for money he didn’t owe.

That fight took 12 years.  Yes, 12 years.

Now, exactly where the agency got the idea that Lance had been ordered to pay for three children is a mystery. 

[T]hat decree, the Order for Child Support dated 2004, clearly states that Jean’s son Lance was to pay child support for two children, not three.

Jean brought all that to the attention of CSED officials, but they ignored her.  She persisted, but got nowhere.  Eventually, the television station whose article is linked to got involved and received the same treatment.

First we were told, the agency “can’t disclose personal information.” Then we received an explanation that “the Division operates from the documents provided.”

Finally, the state told us they “do not have the authority to change an order.”

Of course the agency can’t unilaterally change an order, but in this case, it didn’t need to.  It just needed to “operate from the documents provided,” i.e. the court’s order.  But it didn’t.  Over many years, it continued trying to collect money from Lance that he didn’t owe and that court documents showed he didn’t owe.  Eventually that all added up to a hefty $60,000.

Finally, fed up, Jean Johnson went to court.  The hearing took “only minutes” before Family Court Master Greg Shannon who ruled that the original order says what it says and ordered the state to recalculate Lance’s continuing child support obligation, if any.

Is that a “victory?”  In the sense that the judge did the right thing and the state was found to have wrongly charged Lance child support, interest and fees, yes it’s win.  But in the sense that Jean Johnson spent 12 years of her life fighting a completely unnecessary fight, it’s not.  How much time did she spend?  How much money?  And why did she have to do any of it?

It’s tempting to chalk this one up to standard, off-the-shelf bureaucratic inertia and that probably played a role.  But more likely, it’s a child support system that pays states for all the “support” they collect.  The more they collect, the more they get paid.  Lance Johnson was in their crosshairs, so, despite the fact that he didn’t owe for the third child, they didn’t go to the trouble of locating the actual dad, going to court, getting an order against him and adding another case to their stack of files.

Instead of simply admitting their error, they just kept on doing what they did, i.e. that which was legally and morally wrong.

And what was the child’s mother doing all this time?  Did she explain matters to the state?  Did she assist in righting an obvious wrong?

And what about the third child’s actual father?  He seems to have gone all this time without paying a penny to support it.  Does he even know about his child?  Who does the child (now an adult) believe to be its father?

The state’s recalcitrance is bad enough by itself, but if it had done the right thing, the right man would have paid, Lance would have been let off the hook and Jean would have spent her time in better ways.  But more importantly, responsibility for supporting the child would have fallen where it belonged and a child would have known its true father.  Who knows, maybe he’d have gone to court to secure his parental rights and the two would have formed a real and meaningful relationship.

November 22, 2019 by Robert Franklin, JD, Member, National Board of Directors

Well, that didn’t take long.  I’ve been writing about the reaction, by those who apparently want fathers marginalized in their children’s lives, to the latest review of family law in Australia.  Their claims have little basis in fact and are best viewed as efforts to maintain the status quo in family courts.

Their main point is that judges routinely ignore mother’s claims of domestic violence and child abuse in order to hand over child custody to abusive fathers.  Of course, in many cases judges rule against mothers who claim abuse because there’s insufficient evidence of it or, sometimes, the claims are deliberately fabricated.  But according to the likes of Zoe Rathus and Jess Hill, mothers apparently never lie about abuse.  If Mom says it happened, it happened.  Such seems to be their basic assumption.

Indeed, the headline to the Rathus article was “Parental Alienation: the debunked theory that mothers lie about violence is still used in court.”  Never mind that that’s not what PA is and never mind that PA has never been “debunked” and in fact is coming to be more and more understood by legal and mental health practitioners.  The key to the Rathus piece (and others) is the assumption that mothers don’t lie about violence or abuse.  It’s patent nonsense, but that’s their claim.

Now, hard on the heels of those scurrilous claims, comes a case out of Nebraska that demands an answer from those who claim that, when a mother claims abuse, it’s always the truth.  What do they say to every judge in the case and every witness, expert and non-expert alike, who testified under oath that the mother in the case was not only wrong in her claims of abuse, but obviously so?  What do they say to the clear evidence that what Mom did in the case was itself abusive of her daughter?  Facts are stubborn things, so I’d be interested in their response.

Eric and Kelly Manka were married and, in 2009, had a daughter, Bailey.  They soon divorced and Kelly began claiming that Eric was physically and sexually abusing the little girl.  Kelly levelled numerous such allegations at Eric, calling the child abuse hotline so often that, eventually, its operators told her that they would accept no more claims from her about Eric.

Kelly took Bailey to hospital emergency rooms claiming abuse, but her claims were never substantiated.  She reported her claims to the police who duly investigated, but found no evidence of abuse.  Soon enough, the Department of Health and Human Services, the state’s child welfare agency, took Kelly to juvenile court, in part due to her shocking exposure of Bailey to unnecessary medical examinations.  In the two years following the divorce, Kelly took Bailey to doctors and hospitals an astonishing 117 times.  Many of those involved examinations for rape and other forms of sexual abuse.  Understandably Bailey came to fear doctors and strongly resist even when their attention was necessary.

Meanwhile, Eric had been contacted so often by the police, doctors, DHHS caseworkers, lawyers, etc. about Kelly’s allegations that he and his new wife turned their lives upside down in the hope of avoiding future claims.  Eric no longer bathed his daughter and was never alone with her.  His teenage son by a previous marriage was likewise prohibited from being alone with Bailey.  They all were “walking on eggshells,” fearing another claim by Kelly.

For her part, when it was time for her to go back to her mother’s house following visitation with her father, Bailey strenuously resisted.

So, in 2016, Eric asked the court to modify the custody order to give him half of the parenting time and the final say as regards Bailey’s education, religious upbringing and medical care.  Prior to that time, he’d had only every-other-weekend parenting time plus a few hours on Wednesday nights, some holidays and time during the summers.

The court agreed with him that Kelly’s behavior was clearly deleterious to Bailey’s well-being and that her continued insistence, against all the findings and evidence, that Eric was abusing his daughter constituted a change in circumstances requiring a change in custody.  The Court of Appeals affirmed the decision.

So what about it Ms. Rathus, Ms. Hill?  How does this case square with your claims that mothers never lie about abuse?  Would you, if you had been the judge, have left Bailey in her mother’s sole care because of your theory that, against all the evidence and common sense, mothers never lie?  If so, wouldn’t you have been abetting the mental and emotional abuse of a little girl? 

Writers like Rathus and Hill are free to peddle their bankrupt ideology all they want.  But judges ruling in child custody matters must look at the evidence.  And the facts are that parental alienation is real and parents, including mothers, do sometimes lie in order to gain an advantage in court and marginalize the other parent in the lives of their children.  They do that in part because the system all too often rewards that behavior.  And it’s that system that needs to change.  For the sake of children, for the sake of parents and for the sake of fairness and justice, that system needs to change.

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 1: Pledging to Co-Parent

I’m sure you and your spouse never thought divorce would be in your future. While your lives will significantly change, your child’s life doesn’t have to be significantly impacted. The holiday season is full of excitement, magic, and wonder. You and your spouse must come to agreement that you both don’t want your divorce to change your child’s perception of Thanksgiving, Hanukah, Christmas, or New Year’s celebrations. 

As a Collaborative Law divorce attorney, I believe in co-parenting and shared parenting agreements rather than court ordered custody agreements. If you’ve never heard of it, the Collaborative process is a legal alternative to court proceedings for couples facing divorce. This type of divorce is similar, yet different from mediation. During a Collaborative Law divorce, you have an attorney who can give legal advice. Each spouse must have their own attorney as they are separately represented. In mediation, a third-party is tasked with negotiating settlements with neutrality. This third-party cannot offer legal advice and represents neither of the spouses during the process.

When children are involved, a Collaborative process if often favored by most parents because child custody agreements are handled out of the court system. Children are not meant for the environment of a volatile and traumatic courtroom. There are dozens of studies that show the lasting impact a traditional divorce proceeding can have on children. As researched and cited in my recently published book, The Cure for Divorce Culture, children of the traditional litigation divorce model commit suicide 30% more, are addicted to substances and alcohol 18% more, and divorce at an alarming rate or do not get married at all. A 35-year longitudinal study shows children are broken from the conflict of divorce. I believe this conflict begins in a large part with primary and secondary parental titles.

Legal separation and filing for divorce are most common after the holiday season. If you and your spouse are considering divorce, I encourage you to consider Collaborative Law. The basis of this practice is dedicated to prioritizing families and ensuring the best interest of children. Through this concept, shared parenting is at the utmost importance. You and your spouse will meet with your Collaborative Law attorneys and come to an agreement on the best way to share your children. In my professional and personal experience, children are healthier and happier when they grow up with divorced parents who are equally present, even in separate homes. In addition to the shared parenting priority, Collaborative proceedings are much cheaper than a traditional divorce. When a divorce option is more affordable, without losing quality of care, this helps to eliminate unnecessary stress from each spouse and the impact it could have on their children.

If you’re currently experiencing the process of divorce or are already divorced, it’s not too late to choose shared parenting. In Part Two of this series, I’ll explain how communication methods between parents can make the holiday less stressful and more enjoyable for all parties involved, despite divorce and custody arrangements.