Author: Super User

August 11,2020 by Robert Franklin, JD, Member, National Board of Directors

Donald Williams, Jr. is suing the ironically named Arizona Department of Child Safety and several individual officers thereof for $25 million (AZ Central, 8/1/20).  I hope he gets every penny of it.  He won’t, but I still hope he does.  Williams’ case is a lesson for anyone who wants to learn about the depredations of child welfare agencies.  It provides a good look at what they do and the assumptions they make.

Williams lives in Sacramento, CA.  Back in 2014, he had a brief relationship with a woman who soon moved to Arizona.  She gave birth to their daughter, Melody, in 2014, but the child was taken from her at the hospital because she tested positive for illegal drugs.  She’s not been a part of the case since.

Somehow Williams learned about the child and contacted DCS telling them he thought he might be Melody’s dad.  That didn’t sit well with DCS officials who plainly thought they had (a) a child who should be in foster care and then adopted and (b) all the federal money that goes with both.  Williams was an obstacle they hadn’t counted on.

So DCS embarked on a four-year campaign of sidelining Williams in his daughter’s life.  First, she was placed in foster care and then the state began making it as difficult as it could for Williams to form a bond with his child.  Williams is poor, so travelling back and forth between Sacramento and Phoenix was difficult for him.  But he had regular phone and Skype calls with his little girl. 

Moreover, DCS asked California authorities to investigate Williams’ parenting abilities.  To their dismay, the investigation found him to be a devoted, loving and capable parent to his children.

Now, as DCS authorities well know, the U.S. Supreme Court case of Troxel v. Granville holds that the state has no interest in interfering in the parenting of children unless the parents have demonstrated unfitness.  Clearly, Williams had done the opposite, but Arizona DCS was determined.  They had a goal and they weren’t to be turned aside easily.

To complete Melody’s assignment to foster care and then her adoption, DCS had to somehow convince a juvenile court that Williams was unfit or had abandoned his child.  Given that it was hard for him to travel to Arizona very often, DCS set up a schedule of visitation that he couldn’t keep.  Then it went to court and told the judge he was unfit or had abandoned the child because he didn’t show up to visit with her often enough.  One DCS official also gilded the lily by lying about Williams’ phone calls with Melody.

All that took over four years, during which time Melody was growing up with a foster mother, the only parent she’d ever known. 

Four different juvenile court judges heard Williams’ case and eventually one of them granted a DCS motion to terminate his parental rights.  Williams appealed and has recently prevailed.  A unanimous state appeals panel ruled that, astonishingly enough, DCS had produced no evidence of parental unfitness and done everything in its power to deny Williams contact with his daughter.  His “failure” to do so was then presented as evidence of unfitness.

It’s not easy for the party with the burden of proof to prevail in a lawsuit when it produces no evidence.  So the fact that DCS did so in Williams’ case is remarkable.  It simply filed certain conclusory pleadings, i.e. that assert without factual support the necessary elements of the case.  DCS said Williams was unfit and that’s all it took for one juvenile court judge to rule in its favor.  Amazing, but true.

The appellate court ruling was issued early this year, at which point, Williams finally took custody of his little girl who doubtless was utterly bewildered about why she was no longer living with her foster mother.  He’s recently filed a lawsuit in federal court alleging deprivation of his constitutionally protected parental rights.  Again, I hope he wins and wins big.

His case once again demonstrates what we see all too often with CPS agencies – the willingness to aggressively pursue termination of parents’ rights even when there is clearly no reason to do so.  DCS knew that Williams was a good parent.  Officials there also knew that forcing adoption on Melody, who’s never needed it, would mean the loss of one good adoptive parent.  That in turn would mean another child who did need adoption might go without.  But still they bent heaven and earth to deny to Melody her loving father.  Truly a disgraceful chain of events and one that never should have taken place

August 6, 2020 by Robert Franklin, JD, Member, National Board of Directors

This article performs an excellent public service (Lincoln Journal Star, 7/27/20).  It once again informs us about the bankruptcy of the arguments made by anti-shared parenting activists, this time in Nebraska.  This is all they have to offer?  If so, there is in fact no argument of any substance against equal parenting.

Readers may recall that, not long ago, I posted a piece on the pro-shared parenting op-ed in the same publication by Ray Keiser.  Well, the linked-to piece is supposedly an answer to his.  It’s almost touchingly naïve.  From its ungrammatical headline to the final word, the article could have been written by a high school freshman.  And, tellingly, while it’s written by two lawyers, neither of them has any background in family law.  Is there really not one family lawyer in the state who can be convinced to trot out the usual nonsense that poses as reasoned opposition to shared parenting?  Apparently not.

The two authors, Pam Carrier and Deb Gilg offer three basic arguments: (1) Nebraska judges really sincerely try to do a good job, (2) the “best interests of the child” standard is an objective one and (3) courts are more and more ordering equal parenting time, so there’s no need for reform.

As to #1, I have no reason to believe that Nebraska judges are any more cynical or uncaring than judges of any other state.  I’m sure most of them do their best.  The question being, “is that good enough?”  And of course the answer is that, if they’re not ordering equal parenting in most cases, it’s not.  Seven years ago, when the state legislature ordered a review of family court cases, the data revealed that fewer than 6% of cases found any form of parental unfitness, child abuse or domestic violence.  In short, most parents who divorce are fit to care for their kids.  But time and again, one of them is prevented from doing so by a family court judge.

Second, the best interests standard is quite plainly anything but objective.  It is in fact the classic case of statutory language that most resembles a bucket into which a judge can dump his or her biases, prejudices, half-baked theories, etc. about what’s good for kids.  Given that few judges are educated in the literature on shared parenting – literature that strongly suggests that a child’s best interests and having as much time as possible with each parent are much the same – it’s inevitable that even the best-intended judges often get their parenting time orders wrong.

The matter actually gets laughable when we read the second comment to the linked-to piece.

Ms. Carrier and Ms. Gilg assert the “best interest of the child standard” is an objective standard. However, that’s simply not true. Numerous lawyers and legal scholars (including Hilary Clinton) have observed this standard provides no meaningful guidance to judges, which is why there often are very different outcomes in otherwise similar cases. The Nebraska Supreme Court also agrees. The Nebraska Supreme Court, in an opinion written by Ms. Carrier’s father, held the “best interests of the child” standard was unconstitutionally vague.

Yes, Pam Carrier’s own father served on the Nebraska Supreme Court and penned the opinion in the case calling the best interests standard – you guessed it – unconstitutionally vague.  But his daughter nowhere mentions that case in favor of blithely stating that, to the contrary, the standard is just fine, thank you.

The actual data on parenting time orders go a long way to rebutting Carrier’s and Gilg’s third claim.  What’s their evidence that courts are moving toward equal parenting?  None.  They surely know about the 2013 study performed in their own state, but nevertheless fail to mention it.  That may be because it rebuts their third point.  The Saini study revealed no trend toward equal parenting over the ten-year period studied, and, since there’ve been no subsequent studies performed, Carrier’s and Gilg’s assertion stands naked.

That’s even more clear when we see the figures on child custody in Nebraska.  Those show that over 70% of custody cases give primary custody to mothers and relegate fathers to the sidelines.  Fathers got primary custody in 13% of cases.  Most often, that means the standard every-other-weekend plus a couple of hours during the week visitation, i.e. not enough to maintain the father-child bonds that are so vital to the child’s well-being.

As with so many of its predecessors, the Carrier/Gilg piece has nothing to offer.  Kids everywhere, not just in Nebraska, need to maintain close relationships with both parents post-divorce.  Time and again, judges thwart that simplest and most vital of needs.  It’s time they stopped.  And it’s time anti-shared parenting advocates admit that they long ago stopped producing principled, fact-based arguments for their claims.

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

In Ireland, the frank discrimination against unmarried fathers and the children they seek to parent continues.  And it will do so into the foreseeable future (Irish Examiner, 7/28/20).  Amazingly, it’s all part of a public policy that pretends to further marriage.  The Irish might want to rethink that.

In the Emerald Isle, if a man who fathers a child isn’t married to the mother of that child, he has no parental rights.  She has full parental rights, he has none.  With luck and the goodwill of the child’s mother, he may be able to acquire those rights, but otherwise, he can’t.

Here’s how it works:  For the first three months after the child is born, the unmarried father has no parental rights.  Period.  It doesn’t matter how good a partner he’s been to the mother, how much he’s done to support and care for her or how much he wants and loves the child.  He has no parental rights.

After those first three months, he can set about seeking parental rights.

The unmarried father can only obtain guardianship rights after the birth of the child, and even then he can only do so if he is cohabiting with or on good terms with the child’s mother – otherwise he must apply to the court to be appointed a guardian of his child.

Clearly, an unmarried father must jump through many legal hoops if he wants to obtain his parental rights.  Unmarried mothers need do no such thing.  Worse, unmarried mothers have considerable power over the rights of the men who father their children.  If she doesn’t want to marry, she needn’t, and he’s relegated to second-class citizen, at least as far as his child is concerned.  If she doesn’t want to live with him, ditto.  If she doesn’t want to even live on “good terms” with him, the same holds true.

In those cases, he has to pay money to hire a lawyer and go to court.  Sound easy?  It’s not.  Read here and here about Roisin O’Shea’s study of Irish family courts and the judges who rule in them.  Needless to say, Irish judges tend strongly to be disposed against fathers, and I suspect they’re particularly so regarding unmarried ones.

For example,

The study, carried out by Roisín O’Shea and funded by the Irish Research Council, shows that the ‘standard access’ for married separated fathers is a few hours once or twice a week along with “a couple of hours” every fortnight.

And,

Family law researcher Roisin O’Shea observed 493 judicial separation and divorce cases in 2010 which are ordinarily held in private.

She didn’t find a single case where the wife was ordered to pay maintenance for children or a spouse and had only seen the courts order joint custody in two cases.

So it’s not as if Irish judges are even-handed when it comes to the rights of fathers and mothers.

Now, the linked-to particle points out that Irish statute law is supposedly aimed at promoting a provision of the Irish Constitution that expressly favors marriage.  The theory being, I suppose, that providing equal rights for mothers and fathers who aren’t married would encourage non-marital childbearing.  So it’s worth asking “how’s that working out?”

The answer: “It’s not.”

Ireland is a country of a little under five million people.  They have about 61,000 births there per year and a little over 40% of them are to unmarried women.  That’s right in line with the average for the rest of the countries of the Organization for Economic Cooperation and Development.  The percentage of non-marital births in Ireland has been rising for many years.  So the treatment of unmarried fathers is no small issue in Ireland.

Plus, the Irish marriage rate is 18^th in the European Union out of 29 countries and it decreases pretty much every year.

So the law doesn’t seem to be promoting marriage or marital childbearing very well.  Why would it?  By giving mothers such great power over fathers’ parental rights and access to their kids, the law encourages them to avoid marriage.  Giving unmarried fathers some realistic say in their children’s lives could only increase the chances that women would opt for marriage.  After all, if fathers’ rights were the same whether married or not, why not opt for the greater certainty, security and prosperity that married couples enjoy?

And of course there are always the children to consider.  Kids do better in households where the adults are married and, if they aren’t, they do better when they have equal access to each parent.  But Irish law does the opposite.  It bends heaven and earth to marginalize fathers in the lives of their children and probably does so in violation of a couple of European conventions.

We’re well into the twenty-first century.  The Irish should know better and do better.  But I see no indication that they’re even considering doing so.

July 30, 2020 by Robert Franklin, JD, Member, National Board of Directors

When it comes to suspected child abuse, teachers are among the many “mandated reporters.”  That is, if they have reason to believe a child is being abused or neglected, they’re required by law to report their suspicions to the nearest child welfare agency.  Failure to do so can result in the loss of a mandated reporter’s job.  As I’ve said before, that none-too-subtle threat is one of the major reasons for the vast over-reporting to CPS agencies.

So it’s interesting to read this article (We Are Teachers, 11/18/19).  It’s written by one Brette Sember, a teacher who’s instructing other teachers on what to do when they suspect abuse or neglect of a child.  Most of it is fairly sensible.  So, for example, readers are urged to not take the lead in investigating the case, but to simply report their suspicions to CPS or the CPS liaison at the school.

But then there’s the not-so-sensible about the piece.  For example,

“More than three million children in the US are abused each year.”

Uh, no there aren’t.  Not even close.  In fact, there are about 3.2 million reports made to CPS agencies of suspected abuse and/or neglect, but about 80% of those are determined to be unfounded without even an investigation being conducted.  That’s according to the U.S. Administration for Children and Families that collects data from state child welfare agencies nationwide.  And the great majority of reports that are founded are not of abuse, but neglect.  About 180,000 kids per year are found to have been abused.

So the linked-to article is written by a teacher who failed to educate herself about the most basic elements of her chosen topic.

The author’s first piece of advice is this:

“You don’t have to be absolutely certain that abuse is taking place.”

That’s of course true, but it also reflects an attitude of “err on the side of reporting.”  Such an attitude doesn’t come as a surprise, given the penalties faced by mandated reporters for failing to report suspected abuse or neglect.  What’s the problem?  One is that CPS agencies are chronically understaffed, so the more reports they receive, the more personnel are required to field the calls and the fewer there are to deal with kids who actually need their help.  The other is that more reports mean more state intervention into the lives of parents and families, whether or not it’s needed.  The state’s heavy hand is rarely welcomed by parents and the mere fact that the complaint turns out to be without merit hardly lightens the blow.  Even an unfounded report lets parents know that Big Brother is watching them.

It’s a problem of which the writer seems blissfully unaware.  Item #7 on her list tells teachers to

“Designate one staff member to communicate with the family.”

She adds that parents often aren’t happy to have been reported to CPS and that, when they telephone the school, they should be told that their communications aren’t confidential.  Fair enough.  But what Sember fails to mention is anything regarding parental rights.

Now, I don’t know the law on this subject, but I suspect that a “mandated reporter” who makes a report of suspected child abuse or neglect to a child welfare agency can legally be construed as an agent of that state entity.  That would be particularly true of a public school teacher who’s already employed by the state.  If so, all constitutional protections for individuals vis-à-vis the state are effective when the parent talks to the school about the report that implicates them.  Again if so, that means Miranda warnings should be given at the start of any conversation with the parent.  My guess is that they never are.

But in Sember’s article, there’s not a word about parental rights or the fact that the mandated reporter may be considered an agent of a state entity that may want to take the child from the parent.  Given that Sember is trying to educate teachers on their responsibilities in the child protection system, I call that a remarkably negligent omission.

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

This piece comes to us from the Sacramento County Department of Child Support Services (Spotlight, 7/2/20).  As such, its chirpy, “all is well” tone is only to be expected.  The countless problems of the child support system won’t get an airing on that site or any like it. 

Still, the article does offer an important tidbit.

For many years, I’ve wondered why so few custodial fathers have a child support order in effect.  The U.S. Census Bureau’s latest compilation of data says that just 41.4% of those fathers have such an order.  That’s compared with 51.4% of custodial mothers who do.  More telling is the fact that it’s the highest rate recorded by the Bureau in 26 years.  The low, 28.8% came in 2011.

So why do dads tend so strongly to not have a support order?

One answer I’ve come to is that, when fathers manage to wrest custody from intractable family court judges, it’s often because Mom is seriously deficient in some way as a parent.  She’s addicted to alcohol or illicit drugs, she’s in prison, she abuses the children, etc.  Needless to say, such people are unlikely to have much in the way of resources with which to pay support, so the dads don’t even try.  They raise the kids as best they can alone.

But the linked-to piece adds to our understanding.  It reports on a young man named Alec Poe, who became a custodial father at age 18.  At first, Mom didn’t have a job, so he didn’t seek a support order.  But once she got one, he did.  Still,

“The biggest obstacle in his path was the sense of shame he felt about pursuing a child support order.

“For men, there is a stigma that we shouldn’t take money from the mother,” Poe explains. “Pride is an issue and there is a stigma for men receiving child support from the mother. We have these assumptions that we won’t get anything. I never went and pursued it because I didn’t think that I would get anything.”

That makes sense.  Given that, I suspect that a good number of custodial fathers don’t seek support from the mother of their children because it’s not considered manly to accept support from a woman, even one who legally owes it.

And that matches nicely with a welter of other information that strongly suggests that our traditional sex roles are very much still with us, that men still act like men and women like women, despite decades of hectoring to do otherwise.

That’s nowhere more apparent than in men’s and women’s differing approaches to financial support for their families.  As many sources tell us, when a couple have children, men tend strongly to work and earn more than before and women tend to do the opposite.  That also appears in the data compiled by Dr. Catherine Hakim, who found women to be far more interested in family and children than in working and earning.  Men were the opposite.

So Alec Poe’s statement comes as no surprise.  Men, including fathers want to be self-sufficient financially and they want to be the resource providers for their families.  They want to bring home the bacon and perceive themselves as doing so.  And if that means not asking a judge to issue an order of child support, then so be it.

July 23, 2020 by Robert Franklin, JD, Member, National Board of Directors

Thanks to the ever-excellent Lenore Skenazy for this article (Magic Valley, 7/19/20).  Skenazy has long been one of the most effective advocates for parents in their conflicts with child-protective authorities.  Her article is one example.

Vancouver resident, Adrian Crook had custody of his four children who, at the time in question were aged 7 – 11.  Crook seems to have been an excellent and responsible father, because his kids were themselves responsible kids.  So he allowed them to ride public transportation to and from school.  Everything went off without a hitch.  Indeed, one bus patron once emailed Crook to tell him what well-behaved children he had.

But then an anonymous tip to the British Columbia Ministry of Child and Family Development complained that the kids were unsupervised.  Stated another way, they were behaving like the capable, responsible, autonomous individuals they were and are.

As such, and despite the fact that they weren’t being abused or neglected by Crook or anyone else, the MCFD swung into action.  But there was a problem.  They couldn’t figure out anything that Crook had done or not done that required their intervention.

[A]fter the MCFD was notified about the unsupervised kids and the authorities came to Crook’s home to investigate (he’s divorced), a supervisor on the case reported that Crook had gone “above and beyond” in training his kids to be responsible.

But a fine parent with fine kids, none of whom had been harmed in any way, didn’t deter the MCFD.

But, unable to believe their own eyes as to the kids’ competence — why wasn’t that enough? — the ministry officials started digging around for any guidelines as to whether children are officially allowed to be independent public transit riders. Finding no specific rules, it eventually deferred to a court decision from 2015, wherein British Columbia’s Supreme Court ruled that no child under 10 can stay home alone, even for a couple of hours after school with a latchkey.

Armed with that ruling and, I suspect, the Sword of Damocles wielded by every child welfare agency – the power to take away your kids – the MCFD forced Crook to sign a “safety plan” under whose terms, Crook’s kids had to be, at all times, in the presence of someone 12 years old or older.  It’s an interesting age, given that Crooks eldest at that time was 11.  Where’d the MCFD get that number?  Not from the case law they cited, so where?  I suspect they made it up strictly because none of Crook’s children had reached that age.  If his oldest child had been 12, I suspect they’d have chosen 13.  But that’s just a hunch on my part.

Whatever the case, Crook’s life as a single father changed radically.

Crook “had to return to taking the bus with them” — 45 minutes each way, twice a day. You can see how someone trying to work full time, or someone with a couple of babies at home, would be crippled by such a rule.

Crook didn’t have little ones at home, but still, with a job to do to put food on the table, taking time out twice a day to ride the bus with his kids, who can do so perfectly well on their own, didn’t make Crook’s life any easier.  But he did it.

He also contested the MCFD’s “safety plan” in court and, after three long years, prevailed.

Crook kept fighting, and finally, last week, he had his day in you know where. In writing the opinion of the court, Justice Barbara Fisher said that the MCFD and its social workers “had no authority to require the appellant to supervise his children on the bus (or elsewhere). It follows that this purported exercise of statutory power was unreasonable.”

Good for him.

But before we celebrate, let’s remember that he and his kids were under the thumb of MCFD for three years.  How much did it cost him in time, money and stress to fight the government for all that time?  Skenazy doesn’t say, but the simple fact remains that, however affluent, educated and dogged Crook was, not everyone is.  Most people have neither the time nor the money to fight a government agency through multiple courts over multiple years.  So a win for Crook is a fine thing, but readers of this blog know, as do caseworkers for the MCFD, that for every one of those the agency loses, there are countless others in which the parent simply doesn’t have the resources to fight.

Therefore, the heavy weight of child welfare agencies falls most on the poor and poorly educated.  That’s not the only problem with those agencies, but it’s certainly one of the worst.

July 23, 2020 by Robert Franklin, JD, Member, National Board of Directors

On one hand, this article is more of the same (The Marshall Project, 7/8/20).  It’s intended as a hatchet job on the idea of parental alienation.  We’ve seen the sort many times before and all run to type.  They take one or two cases the author hopes will cast the notion of PA in a bad light, quote Joan Meier, refer to her recent study, cast aspersions on Richard Gardner, state that the DSM-V doesn’t mention PA and portray fathers as abusive and mothers as protective.  Any nod they give to the extensive literature on PA is extremely limited, pejoratively phrased and, often as not absent altogether.  Their point is invariably that the idea of parental alienation is dubious and used only by fathers to illegitimately wrest custody from mothers.

The linked-to piece has all of that, but is a bit more scrupulous and balanced than the rest.  It even avoids quoting or referring to Joyanna Silberg, which alone must count as a major accomplishment.

The Marshall Project piece reports on a single family – that of Ed Cunningham, Tara Coronado and their kids.  The vast majority of the quite high wordcount is devoted to the allegations and counter-allegations between the spouses during their interminable court battle and the conclusions drawn by a battery of mental health professionals.

During the custody case, Coronado leveled several allegations of physical abuse at Cunningham.  None of them were verified, but she did present physical evidence, such as bruises, to back up her claims.  Cunningham adamantly denied all the allegations, but eventually signed an admission in exchange for the ADA’s agreement to discontinue the criminal DV case against him with no penalty and nothing on his record reflecting guilt.

Two mental health professionals found Coronado to have significant mental health issues including borderline personality disorder.  Each concluded that Cunningham should have primary custody of the children and, for two years, he did.  But there were serious problems with the way their conclusions had been arrived at.  For example, one of them never interviewed Coronado, only the father and the children.  Eventually, one of the two gave up her professional licenses in lieu of discipline by licensing authorities and the other vowed to take no new family law cases.

None of that of course establishes whether Coronado alienated the children or not.  Certainly, much of her behavior strongly indicated alienation and the very borderline behavior that was diagnosed.  But the shoddiness of the psychological work makes it impossible to know whether the kids were victims of that type of abuse.

Likewise, there’s nothing to definitively say whether Cunningham physically abused his wife or whether, if he did, he should have seen his parenting time limited because of it.  There were no claims of child abuse made against him.

Plus, in keeping with other articles of the genre, the Marshall Project one essentially never offers the point of view of the countless professionals who are expert in PA, it’s diagnosis and treatment.  Professor Richard Warshak is quoted in brief, but the article focusses mostly on his paper on false positive findings of PA.  Extremely short shrift is given to those who know all too well the realities of PA – that it’s all too common, that it’s child abuse, that it’s not a clever scheme on the part of fathers, that fathers and mothers alike commit PA and that articles that seek to prove otherwise inevitably encourage overlooking the child abuse that is PA.  In an article that verges on 10,000 words, it’s astounding that the writer never bothered to pick up her phone and call Warshak, Amy Baker, Linda Gottlieb, William Bernet or the countless other professionals who actually know a great deal about the subject of the piece.

But there’s one other thing the linked-to article has in common with all the others.  The writer couldn’t manage to find a case that proves the point.  The trope offered by those who seek to cast doubt on the actuality of PA is that every year there are thousands of cases in which protective mothers are denied custody by abusive fathers claiming PA.  Now, if that were the case, wouldn’t you think that finding one such case would be simplicity itself?

But they never do.  Having read the article, it’s simply impossible to say whether Coronado alienated her children.  Certainly the mental health professionals did an abysmal job of figuring that out, but just as certainly, their failure to behave professionally and fairly in no way means she didn’t.  The case is muddy in the extreme about both the allegations of PA and DV.

So the question arises “Is this the best they could come up with?”  It must be; otherwise they’d have used a case that more strongly made their point.

And so it goes.  It seems there’s always someone who’s dead set on casting doubt on the fact of PA despite the mountains of evidence supporting it.  But more and more, it seems that the parade is passing them by, that the science on PA and its regular appearance in family court ignores them and their threadbare claims.  So should we all.

July 20, 2020 by Robert Franklin, JD, Member, National Board of Directors

I’ve blogged about Ray Keiser before.  He’s a Nebraska advocate for shared parenting who knows the pertinent information on parenting time and child well-being and isn’t afraid to be blunt about it.  He does so here (Lincoln Journal Star 7/8/20).

Now, Keiser reprises the usual arguments in favor of shared parenting that are well known to readers of this blog, but he also produces two others that got my attention.  He compares family courts with juvenile courts, i.e. those in which cases of parental unfitness are heard.  When a Nebraska child welfare authority wants to take children from parents based on abuse or neglect, they do so in a juvenile court.  When parents divorce, they appear before a family court judge.

So what’s Keiser’s comparison?

“The system is also inconsistent. When custody issues arise in family court, trial judges apply the lowest evidentiary standard — preponderance of the evidence. However, when these same issues arise in juvenile court, trial judges use the higher “clear and convincing evidence” standard. Our judges have never explained why this inconsistency exists or why it should continue.

The appellate standard is also inconsistent. When decisions arise in family court, appellate judges review them using a very deferential “abuse of discretion” standard, where the appellate court upholds the trial decision, even if it disagrees with the outcome, unless the trial decision was “clearly untenable.” However, when these same issues arise in juvenile court, appellate judges apply a much stricter “de novo” standard, which gives no deference to the trial judge. Again, our judges have never explained why this inconsistency exists or why it should continue.”

Now, if one of those judges were to respond to Keiser’s points, he/she might say that juvenile courts and the courts that hear appeals therefrom are deciding whether parents should lose their children and children their parents, i.e. some of the weightiest matters on which any court can rule.  By contrast, family courts merely decide questions relating to divorce and child custody, i.e. less important considerations.  So naturally the standard of proof is higher and appellate courts have greater ability to overrule a trial judge in juvenile matters.

To that, Keiser has a rejoinder.

“Judges are the single biggest cause of fatherlessness.”

In other words, all too often, when child custody decisions are made, one parent in fact does lose a child and a child a parent, not unlike what occurs in juvenile court.  It’s sad, but true.

Keiser proposes that every child custody case should begin with the presumption of equal or near-equal parenting time for each parent, subject of course to rebuttal should one parent be demonstrably unfit, in prison, abusive, etc.

Not only that, but Keiser takes up the cause of holding unconstitutional any law that fails to begin with a presumption of equal parenting.

[T]he U.S. Supreme Court has held parents’ rights to make decisions concerning the care, custody and control of their children is a fundamental Constitutional right. This means judicial decisions that affect these rights are subject to the highest standard of review — “strict scrutiny” — and will be upheld only if there was no less restrictive way to resolve the issue. Our judges have never explained why their family law practices fail to comply with this constitutional requirement.

A group of lawyers recently described how our family law system could be brought into constitutional compliance. “Constitutional compliance requires trial courts to start every case from a position of joint legal custody and equal parenting time. Clear and convincing evidence must justify a departure from this equality. Decisions cannot rest on personal preferences of the judge or on gender stereotypes. Any deviations from joint legal custody and equal parenting time must be achieved by the least restrictive means available.”

The holding in Troxel like those in many previous cases, plus dicta in still other family law cases militate strongly in favor of the point Keiser, and the lawyers to whom he refers, make.  It’s time for some lawyer somewhere to make the case against the constitutionality of the current system.  Until then, though, judges need to start assuming that, unless a parent is unfit, children should have equal time with each parent when the adults split up.

July 15, 2020 by Robert Franklin, JD, Member, National Board of Directors

Once again, paternity fraud has taken up the time and resources of three litigants, at least three courts and their clerks, court reporters, bailiffs, etc., countless lawyers and their support personnel.  And once again a biological father has been removed from his child’s life.  And once again, it’s all because neither legislatures nor judges can find the good sense to pass laws and/or make rulings that accord with justice and fair play. 

In Nebraska, Tyler F. and Sara P had a love relationship that resulted in Sara’s becoming pregnant.  The two weren’t married.  Unknown to Tyler, Sara also had a sexual relationship with Geoffrey V. at or near the time she conceived.  That was in November, 2008.  In August, 2009, she gave birth to J.F.  At the hospital, Tyler signed an Acknowledgement of Paternity and was listed as the father on the birth certificate, because Sara had assured him he was J.F.’s father.

Soon enough, Tyler and Sara discontinued their affair and seem never to have lived together, but from the moment of the child’s birth, Tyler was an active, concerned, hands-on father to J.F.  In fact, when Sara decided to move to Oklahoma in 2013, the two agreed that J.F. would live with Tyler in Nebraska.  That continued until 2014 when Sara demanded that J.F. come to live with her, which prompted Tyler to file suit claiming paternity and custody.

During the course of those proceedings, DNA testing demonstrated that Tyler was not J.F.’s father, so, for the first time, Sara admitted that Geoffrey must be.  And sure enough, genetic testing showed him to be the biological father.

After a welter of filings and counter-filings, the trial court ruled that Tyler should have primary legal and physical custody of J.F. with Geoffrey and Sara having visitation times and being required to pay child support. 

The Court of Appeals overturned part of that decision and upheld other parts and the case proceeded to the state Supreme Court which published the final decision.  In a nutshell, the Court ruled that Geoffrey, although the child’s biological father, has no legal relationship to the child, i.e. he is not J.F.’s father in any legal sense of the word.  He may not seek or gain custody or parenting time and may not be required to pay child support.  As far as the law goes, Tyler is J.F.’s father and Geoffrey is a non-entity.  Period.

Why?  Because in Nebraska, a properly signed and notarized Acknowledgement of Paternity is determinative paternity for all time, with certain exceptions.  The first is that it may be rescinded within 60 days of signing, presumably to give the man time to have genetic testing done.  Plus, the acknowledgement may be rescinded if it were brought about by fraud, duress or mistake of fact.

Now, in the current case, the person seeking to rescind Tyler’s acknowledgement wasn’t Tyler who at all times wanted to remain a father to J.F.  The person seeking rescission was Sara.  So, weirdly, Sara claimed to the trial court that, in telling Tyler he was the father, was herself acting under a mistake of fact.  Needless to say, the trial court didn’t buy it.  There was no mistake about what she did.  She knew to a certainty that either Tyler or Geoffrey was the father.  It was her decision, not her mistake, to tell Tyler, and only Tyler, that he was the father.

And that highlights a serious problem with the Nebraska statute and its approach to deciding paternity via an Acknowledgement of Paternity when the putative father isn’t married to the mother.  The statute and its grounds for rescission assume that, when the man learns he’s not the father, he’ll want his acknowledgement rescinded and move to do so.  But clearly, that’s not always the case.

Here, Tyler had no intention of rescinding his acknowledgement; indeed, he sought and got primary custody.  In the process though, he exercised complete power over Geoffrey’s parental rights.  Sixty days after he signed the acknowledgement, he was home free as J.F.’s father and Geoffrey was permanently out of luck.  And all because Sara exercised power over both of them.

Now, my guess is that J.F. has come out of this case alright.  He clearly has a man who’s a good father to him and who he probably identifies as his dad and with whom he’s long since formed parent-child bonds.

But the fact remains that grave injustices have been done in this case.  The law and the courts empower the women of Nebraska to decide who will and who won’t be a child’s father, irrespective of biological paternity.  Sara lied to Tyler, Geoffrey and J.F. and in so doing created a mess for everyone, including the several courts referred to earlier.

There is simply no reason for approaching paternity the way Nebraska and many other states do.  We have the scientific no-how to establish at birth the paternity of every child, whether born to a married woman or a single one.  We should conduct DNA testing on every newborn along with the battery of other tests already performed on them.  Every man identified by that testing as the biological father should then be notified of his paternity and given the opportunity to form the father-child relationship that’s so vital to children’s well-being. 

In short, we can and should do away with paternity fraud once and for all.  In so doing, we’d avoid the traumas inflicted by paternity fraud, save courts time and expense and enormously benefit children who would never have to wonder who their father is and would know their genetics for medical purposes.

There is no excuse for treating paternity fraud the way we do.  We have the tools to easily fix a serious problem.  We should use them.