Author: Super User

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

Should states be required to provide children lawyers in dependency hearings?  That’s the question presented by an Indiana case brought on behalf of 10 children against Marion, Lake and Scott counties (Chronicle of Social Change, 2/6/19).  The children’s lawyers are attempting to, for the first time in U.S. history, establish a constitutional right to counsel for kids in non-criminal cases.  The federal Department of Health and Human Services has recently made money available to states to pay counsel for kids in those cases.

Dependency cases seek to decide whether parents should have their parental rights terminated due to alleged abuse, neglect or unfitness.

Since children are considered to be unable to act for themselves in countless situations, adults act for them.  Those adults are usually their parents.  We rely on them to make decisions about everything related to the care, feeding, education, health, etc. of their children.  As such, the legal relationship between parents and their children is akin to that of a guardian and a ward or a trustee who’s charged with acting for another person.  Usually, parents act for their kids as a matter of course without anyone noticing.  We trust parents to act in their children’s interests.

But all that can change when parents are alleged to have acted at odds with their children’s interests, as in the case of abuse, neglect or unfitness.  Those bring into question parents’ ability to do what’s best for their kids.  And that’s the issue in dependency hearings.  So, instead of giving parents the power to act for their children, we say that their interest and that of their children are opposed.  The parents have an interest in retaining care of their kids, but the children may need better caregivers.  Legally, those interests are opposed and opposing interests in the legal system can’t have the same lawyer.  It’s a clear conflict of interest.

So clearly, children should have the right to a lawyer.  Or should they?  After all, in dependency court, it’s the state that has the burden of proof.  The parents are presumed to be fit and to have committed no acts of abuse or neglect until Child Protective Services produces evidence to the contrary. 

That presumption in favor of the parents then means that the interests of the child and the parents are, at the outset of the case, not opposed.  Until sufficient evidence is admitted to prove abuse, neglect or unfitness, then, the child should be presumed to be sufficiently protected by its parents as in any other matter.  Only when that evidence is produced in admissible form should the child’s right to an attorney come into being.

Such, at any rate, is my position on the matter.

But once that evidence has been admitted by the court, it becomes hard to argue that the child shouldn’t have an attorney to represent his/her interests.  Those may lie with keeping the family intact or they may not.  That would be the lawyer’s call and we hope that call would be informed by mental health experts.

“Without an attorney, a child in a dependency proceeding risks losing his or her liberty interests, as other parties present evidence, offer witnesses and make decisions about the child’s future that the child is not permitted to discredit, challenge or even address,” said the complaint, which was filed today. “Such an omission is fundamentally unfair and contrary to the due process and equal protection clauses of the Fourteenth Amendment.”

Essentially no states currently grant to a child in dependency court an unfettered right to a lawyer.  The attorneys who brought the Indiana lawsuit hope to establish, via a Supreme Court ruling, a child’s right to counsel in dependency cases.

I can’t disagree, but must issue a warning.  Children’s rights, independently asserted by them and against those of their parents if necessary, are a slippery legal slope.  They should be granted by statute or case precedent only if the parents have been proven by competent evidence to be either unable to promote their children’s interests or abusive or neglectful to such an extent as to render their interests adverse to those of their children.  Only when there has been proven to be true legal opposition between parents and children should the kids have independently assertible rights.

The reason I say that is that, in Canada, we’ve seen instances in which courts frankly undermine the rights of parents in bizarre and destructive ways.  Nine years ago, for example, a custodial father “grounded” his 12-year-old daughter for spending too much time on social media, despite repeated warnings.  That meant she couldn’t go on a school field trip.  She sued him and prevailed, the judge stating that, in his opinion, the father’s punishment was too harsh.  The reason she could sue her father is that Canada signed the U.N. Convention on the Rights of the Child, giving children legally enforceable rights independent of parental desires or decision-making.  The state then, in the form of a judge, is set up as super-parent.

That’s exactly what happened in the Canadian case.  The judge merely substituted his own parenting ideas for those of the girl’s father.  He did so despite the fact that (a) he’s not her parent and (b) his ruling is a one-off affair.  Will the judge be there to decide the matter when Dad insists his daughter study more or go to the library instead of a rock and roll concert?  What about when she has the flu?  Will the judge be there to advise the girl about boys and dating? 

The point being that parenting isn’t simply a series of decisions, it’s a relationship of trust between parent and child.  That relationship can be seriously undermined or destroyed by the presence of a court to which a child can turn every time he/she doesn’t like a parent’s decision.

September 10, 2019 by Ginger Gentile, Deputy Executive Director of the National Parents Organization

In 2014, the National Parents Organization created a report card grading each state on their shared parenting guidelines. Most states got a C or below. The report card looked at statutes- not outcomes. It was also rated on whether or not the guidelines encouraged or enforced shared parenting (when the courts assume that both parents have equal rights and responsibilities after divorce or separation). This report card was not only a useful tool for activists, it also generated national media coverage. On September 18th, 2019, we will be announcing our new report card in a press conference in New York City.

Some states have improved. Most notably, Kentucky, who under the leadership of Matt Hale and the local NPO chapter passed the ONLY default shared parenting law in the US. Yes, you read that correctly! As late as 2018, no states had a law that said 50/50 was the starting point. And this is crazy considering that support for shared parenting polls as high as 87%. Also, Kentucky courts released finding that the nation’s first true shared parenting law worked! Domestic violence claims dropped. Divorce filings dropped by 11%.

As quoted in the Kentucky Courier Journal, Alexandra Beckman said, “It’s common sense that shared parenting laws lessen parental conflict. As a domestic violence survivor who speaks with alienated mothers every day, I can personally state that Kentucky’s Shared Parenting Law is lessening domestic violence.” Family court judge and Child Support Commission Chair Lucinda Masterton stated a similar opinion about parental fighting in general. “We’ve had a lot fewer — since the (shared parenting) statute, we’ve had a lot fewer disagreements about parenting time.”

The National Parents Organization is soon going to announce new state affiliates as well as a modern, efficient strategy to ensure that the majority of states have shared parenting passed within the next five years. Our children are being traumatized by emotionally and financially costly custody battles. Shared parenting not only reduces stress but also reduces violence and should be the cornerstone of all child welfare programs. If you are interested in being part of the solution, please reach out to us if you are a researcher who wants to share studies or data,  join an affiliate, or start a new one. Together, we can end custody battles once and for all!

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

Japan has long been a haven for parents who kidnap their children.  I’ve written numerous times about that fact, but always in the context of international kidnapping.  So, for example, a Japanese mother married to an American father and living in the U.S. can simply pack up the kids, move back to Japan and, effectively, Dad has no recourse.  Yes, Japan signed the Hague Convention on the Civil Aspects of International Child Abduction, but, like so many other countries, refuses to enforce its terms.

This fine article not only supplies the reason Japanese courts do so, it lets us know that the same thing is happening to Japanese parents in Japan (Washington Post, 8/22/19).

The concept behind Japanese child custody law is this:

Traditionally, children are not viewed as individuals with rights, or as belonging to their parents, but as the “property of the household” where they live. As soon as children move to a new household, the estranged parent becomes an outsider, with no right to disturb the new one. 

That tradition of course is entirely at odds with the biology of parent-child attachment.  As Dr. Anna Machin has told us in her book The Life of Dad, pregnancy and affectionate care by Mom and physical interaction such as play (often rough and tumble play) produce increases in oxytocin in both parent and baby.  Those are then reinforced with dopamine that gives a pleasurable sensation associated with the particular parenting behavior.  Again, both adult and child get both the oxytocin and the dopamine.  That’s part of the neurochemistry of parent-child attachment.

But Japanese tradition isn’t based on parent-child attachment; indeed, it runs afoul of it.  If one parent takes the child from the other, then all of a sudden, one of the two most vital relationships in the child’s life is severed.  It’s traumatic for the child, but Japanese law abets doing so and, unsurprisingly, many parents use it to their (if not the child’s) advantage.

Lawyer Akira Ueno says tens of thousands of Japanese children a year are effectively kidnapped by one parent, who then cuts off contact with the other parent. The second parent — often but not always the father — has no recourse to the authorities for help seeing their children, he says.

Japan’s Justice Ministry says its rules are designed to work in the best interests of children, and that when marriages end badly, it is more practical to give one parent the sole authority to raise their children. But studies show that depriving children of access to one of their parents can be traumatic and psychologically damaging, says Noriko Odagiri, a professor of clinical psychology at Tokyo International University.

“Children feel like their father abandoned them, that he doesn’t love them anymore,” she said. 

Young children suffer behavioral problems and from a feeling of hopelessness, she said. Teenagers often drop out of school, and many have low self-esteem.

In short, Japanese law, tradition and courts effectively endorse kidnapping by one parent even though it’s detrimental to the child.

The same thing happens to non-Japanese parents, but they’re not burdened by the sense of stigma Japanese parent feel in trying to fight the legal system.  The Post article reports on one French and one Italian father who are trying to change the system after their children were kidnapped.

A year ago, Vincent Fichot came home to an empty house in the Tokyo suburb of Setagaya. The Frenchman’s wife, 3-year-old son and 11-month-old daughter had vanished. All he had done, he said, was suggest that he might want a divorce. 

He hasn’t seen or heard from his family since, and every effort to contact his children has been blocked by his wife, the courts and Japanese police. 

“Abduction is child abuse,” he said in the course of several interviews about his case.

Tommaso Perina, an Italian resident of Tokyo, said his wife took their two children for a break at her parents’ house and a few days later decided she wanted a divorce. 

Perina hasn’t seen his son and daughter since August 2017. Although a Japanese court granted him visitation rights, his wife has refused to accept the order, and has moved. The police will not tell him where she now lives, he said, or even talk to Italian Embassy officials.

Another dad, Jeffrey Morehouse found that the Japanese consulate in Portland had actively assisted his wife in abducting their children.

Jeffery Morehouse was living in Washington state, where he had won permanent custody of his son, Mochi. In June 2010, he dropped the 6-year-old off with his Japanese mother for a visit; she promptly took him to Tokyo.

Japan’s government refuses to help, even though its consulate in Portland, Ore., played a key role in the kidnapping by issuing the boy a passport in just one day.

That brings to mind our old friend Tommaso Vincente, whose Australian wife abducted their children to Australia with the knowing help of the Australian Embassy in Rome.

Fortunately, Fichot’s and Perina’s cases have become something of an international cause célèbre.

In June, French President Emmanuel Macron met with Fichot and other French fathers and raised their cases with Japanese Prime Minister Shinzo Abe, describing their situation as “unacceptable.”

Italian Prime Minister Giuseppe Conte also spoke with Abe about Italian parents’ rights at the Group of 20 meeting in the Japanese city of Osaka in June. Now, with French and Italian media outlets taking up the issue, the two European leaders are under pressure to speak up again when Group of Seven leaders meet in Biarritz, France, starting Aug. 24.

Japan is among the worst countries in the world for winking at child abduction.  What much of the world understands to be child abuse, Japan actively promotes in its laws, customs and policies.  It signed the Hague Convention in 2014, but has a poor-to-non-existent record of enforcement.

That needs to change.  Here’s hoping international pressure will speed the process.

September 6, 2019 by Ginger Gentile, Deputy Executive Director of the National Parents Organization

Philadelphia will host the Parental Alienation Study Group Conference September 12th-14th. This will feature leading experts on the worst side-effect of divorce: when a loving, fit parent is cut out of their child’s life by the other parent, often aided by the court system. For the first time, the conference will offer a track just for targeted parents, in addition to tracks for the legal system and researchers. I will be there to talk on a panel about how the media covers Parental Alienation, as well as to show my film, Erasing Family. If you are attending, please make sure to say hello!

There is a lot of overlap between the Parental Alienation advocacy community and Shared Parenting activism. Researchers have found that shared parenting reduces conflict and the need for parents to “win” custody. Equal contact with both parents allows children to develop relationships with each parent, and also allows them to see that what one parent says about the other is not always true.

Shared parenting is indicated even in high-conflict divorce cases, where “parallel parenting” (where parents each raise the child with separate rules in each house and minimum communication), can be effective if combined with coaching, parenting classes, and even new apps that will have mediators jump in if they see angry text messages. That isn’t to say that it is easy! Just that IS possible with the correct support for the entire family.

We need to keep educating parents that badmouthing the other parent wounds the child. Courts need to view this behavior as abusive and take firm steps to stop it and provide tools to re-educate the parent who is doing it.

These cycles of abuse are passed on to younger generations. I have met many parents who tell me they were alienated from a parent when they were a young child. I’ve also been told the parent who is alienating their child had a similar experience from their own parents. The cycle of alienation has been passed down through generations.

For more information on the conference (which can be attended on-line) please visit: https://events.eventzilla.net/e/pasg-2019-conference-2138724768

September 5, 2019 by Robert Franklin, JD, National Board of Directors

The Nebraska Supreme Court has taken a giant step toward shared parenting in the state.  It expressly overruled existing Supreme Court precedent in Trimble v. Trimble that stated that shared parenting was disfavored and should only be granted in rare instances.  Those were instances in which the divorcing parents got along well, communicated well and exhibited a high degree of maturity.  The Court strongly suggests that the Trimble holding, that’s governed parenting time cases since 1984, is “clearly incorrect.”

In State of Nebraska on behalf of Kaaden S. vs. Jeffery T., et al, the high court ruled that, in child custody cases, there is no blanket presumption about what parenting arrangement is in the child’s interests, but that each case is to be decided on its own merits.  The best interests of the child will be the trial court’s sole guide in deciding parenting time.

We can conceive of no principled justification for continuing to apply a blanket rule that disfavors joint legal or physical custody, especially when the rule is based on generalized concerns regarding parental maturity and possible behavioral consequences to a child from spending substantial amounts of time with each parent. Such concerns may well be valid in any given case and in that event should be considered in light of all the other factors and circumstances in arriving at a custody and parenting time arrangement that serves the best interests of the child at issue. But a blanket rule disfavoring joint legal or physical custody is difficult to reconcile with the Parenting Act, under which the best interests of the child are the polestar of all child custody and parenting time determinations.

What Kaaden S. does is sweep away a pernicious and ill-considered precedent that, for decades has hamstrung trial courts that may have wanted to order equal parenting time.  What Kaaden S. does not do is require or even encourage trial courts to order shared parenting.

Therefore, in Nebraska, the ball is now squarely in the legislature’s court.  The state’s Parenting Act should be amended to presume that equal parenting is in the child’s best interests.  That’s what the overwhelming weight of social science and neurobiology dictate and that’s what lawmakers should enact.

Kaaden S. was a bit of a remarkable case factually for the justices to take their stand against Trimble and its progeny.  Jeffery T. and Mandy S. apparently had a one-night stand.  They had no relationship before or after.  But Mandy became pregnant and Jeffery was shown to be the child’s father.  The trial court gave Jeffery limited but increasing parenting time under its temporary order.  As his parenting time increased, so did Mandy’s resistance to it.  That included things like screaming at Jeffery during a handover of Kaaden, pepper-spraying him and then calling the police to claim that he’d attacked her.

A Guardian ad Litem and a therapist for Kaaden both indicated that Mandy was alienating the boy from his father and would likely continue to do so.  The GAL recommended sole legal custody for Jeffery and that’s what the court ordered.  It also ordered equal parenting time on a week-on/week-off basis.  Jeffery appealed based on Trimble, since, clearly, this couple wasn’t the type of mature and easily-communicating pair conceived of by that case.

But the Supreme Court upheld the trial court’s order.

In short, the Supreme Court chose a case involving highly contentious interaction between two otherwise fit parents with which to overturn prior case law.  No future Nebraska court will be able to say that parental conflict trumps equal parenting.

That, clearly, is a step in the right direction, but it’s only one.  The Nebraska unicameral legislature must now acknowledge the science on shared parenting and enact a presumption thereof into state statute law.

September 4, 2019 by Ginger Gentile, Deputy Executive Director of the National Parents Organization

When parents who have limited or no contact with their children after divorce or separation become advocates for family court reform their emotions can influence their actions and messaging. Their motivation is to save their relationships with their own children and this blossoms into activism for all children. But this desperation can turn into frustration with society that turns a blind eye to the over 22 million adults in the US who report being alienated from their kids. That is why the entry of the ACODs (Adult Children of Divorce) into advocacy for shared parenting is so exciting; their trauma has passed and they are infusing new energy into the movement. 

Having grown up with a parent erased from their lives or the stress of a high conflict custody battle clouding their childhood, ACODs have a visceral reaction to this issue. Instead of wanting to change a law or a statute, they want systemic change. Their focus is making sure parents reduce conflict and have the tools to do so–not through court orders but through mediation that works, collaborative law, mental health services, and a system that doesn’t pit parents against each other. Default Shared Parenting, which assumes that both parents will have equal access to their kids if both parents are fit, is a big part of this solution, but ACODs view it as part of a holistic approach. 

The ACODs, who grew up immersed in the Silicon Valley ethos of disruption, want to move quickly. As one activist told me, “I want to solve this problem in five years so I can do something else with my life!”

Remember, millenials are older than you think, as the top age bracket was born in 1980. They are forming families of their own and overwhelmingly support shared parenting. Here are some key phrases to use when talking with them:

Justice – equality -fairness – modern – trauma prevention – both genders are equal – moms and dads should have equal responsibility –  kids need to know their family heritage and cultural history – justice should be restorative and helpful, not punitive – access to justice should not depend on income. 

ACODs can be turned off when parents focus on their own trauma. They want to be part of a movement that is focused on change and has clear goals. We at National Parents Organization are excited to welcome this group into our ranks and as allies to work together to ensure that kids have the right to love both parents equally.

August 30, 2019 by Robert Franklin, JD, Member, National Board of Directors

Gabe Batstone pleaded with the court to transfer custody of his eight-year-old daughter Teagan to him.  His ex-wife, Lisa, had been acting erratically and had been involuntarily hospitalized as an acute risk for suicide.  That all came within the context of Gabe’s concern about Teagan’s safety with her mother.  His efforts to gain custody seemed to exacerbate Lisa’s emotional problems, making her behavior even more problematical.  But the judge refused Gabe’s request and maintained Lisa’s primary custody.

That was true despite the fact that neighbors had long feared for Teagan’s safety in her mother’s custody.  Church members too were concerned.  Apparently due to Lisa’s behavior toward Teagan, there was a breach in the relationship between the congregation and Lisa.

Not long after the judge’s refusal of a modification of custody, Lisa and Teagan had a “camp out” in their living room.  As Teagan slept, Lisa first considered stabbing her to death, but instead put a plastic bag over the little girl’s head and smothered her. 

She then loaded Teagan’s body into the trunk of her car and got stuck in ditch.  Police discovered the body and arrested her.

A mental health professional who interviewed Lisa immediately after her arrest recounted that Lisa had told her that she’d killed their daughter “to spite Gabe.”

This past March, Lisa Batstone was convicted of second-degree murder in Teagan’s death.  Sentencing will take place in September.

I write this to demonstrate a few things.  First, I did so because a similar incident leads off this article (Washington Post, 7/29/19).  One difference between the two crimes is that the sexes are reversed.  In the Batstone case, a mother is the murderer, in the WaPo article, the father is.   The point being that, whatever the Post wants readers to believe, neither sex has a monopoly on injuring children.

The main difference though is how the Post article treats the tragic killing of a child and how I do.  The Post piece leads with a horrifying crime in order to encourage its readers to accept what’s to come, i.e. the notion that family courts routinely ignore mothers’ truthful claims of abuse in order to give custody to violent fathers who then harm the kids.  That idea is dubious on its face, but is more easily swallowed when there’s a heart-rending incident to ease down the pill.

By contrast, I in no way want readers to believe that family courts commonly ignore claims of abuse.  Indeed, they’re fairly often confronted with those claims and have to make a call one way or another.  Do they sometimes err in making those calls?  Of course they do.  Judges are human and don’t always get matters right.  Clearly they didn’t in the Batstone case or the one cited by the Post.  But the idea that they cavalierly ignore mothers’ claims of abuse is absurd.

But there’s another difference between my piece and the article in the Post.  The latter swallows hook, line and sinker claims made by law professor Joan Meier and a study she’s conducted of outcomes in family court cases.  Post writer Samantha Schmidt quotes just one person, law professor Nicholas Bala, who criticizes Meier’s work and he does so only mildly.

Bala said the study, while important and credible, does not distinguish between different severities of physical abuse, such as the difference between a shove and a brutal beating. He added that the most severe cases of child abuse don’t even make it to family court — they are handled by the police or child protective services. So the cases in Meier’s study are “already in a gray area” and are a “very skewed kind of sample.”

Hmm.  It’s hard to say how the study can be both “credible” and one that relies on a “very skewed kind of sample.”  After all, the latter tends strongly to belie the former.  But I won’t quibble with Bala when it’s Meier’s work that’s questionable.

I’ll have more to say about that later, but for now, it’s worth remembering that Meier’s work is at least in part an attack on the very concept of parental alienation.  As such, it and the Post article come to us in the context of other work that try and fail to cast doubt on a fact that’s all too well known in family courts.  I refer of course to the phenomenon of one parent’s trying to turn the child against the other parent.

Meier’s work and the Post piece are also contradicted by a welter of known facts about family courts.  To the extent they urge us to believe that fathers are favored over mothers in custody cases, too much data refute the claim to list.  Certainly the fact that over 81% of custodial parents are mothers is important as is the fact that researchers like Margaret Brinig and Douglas Allen have found that mothers tend to file divorce matters far more than do fathers because they know they won’t lose their kids.  Dataset after dataset show mothers getting custody far more readily than fathers.  And that’s not because dads don’t ask courts for custody.  They do, but, as Maccoby and Mnookin showed long ago, courts are much more likely to grant mothers’ requests than they are fathers’.  And then of course there are the surveys of family court judges and lawyers who say quite candidly that there’s a heavy pro-mother bias in family courts.

Against all that and more, the assertion that family courts routinely dismiss mothers’ concerns in order to deprive them of child custody can only be doubted.  I do, for reasons I’ll detail next time.

Read part two here.