Category: Blog

January 24, 2020 by Robert Franklin, JD, Member, National Board of Directors

In Virginia, there’s a bill, HB 1500, that deserves support.  If enacted into law, the foundations of civilization won’t quake, but it will make a modest improvement to the status quo.

In 2018, Congress changed the Tax Code to make spousal support a nullity for tax purposes.  That is, spousal support is no longer income to the recipient and no longer deductible by the payor.  Each is a reversal of what had gone before.

How Congress came up with that brilliant idea, I assume I’ll never know.  After all, in most cases in which income is transferred from one entity to another, the recipient is required to report it as income.  And in some of those cases, the payor may deduct the amount transferred from his/her taxable income.

As to spousal support, that’s no longer the case.  That of course constitutes a significant windfall to recipients and a further blow to the pocketbooks of payors. 

So the Virginia bill seeks to ameliorate that situation, at least a bit.  It does so be simply reducing the amounts called for in the state’s guidelines for spousal support.  In so doing, it would decrease the amount paid and received in what approximates the increases caused by the new tax law.  In short, it tries to get Virginians back to where they were before Congress acted.

Unfortunately, it pertains only to orders that are effective during the pendency of the divorce case, i.e. temporary orders.  What its effect, if any, would be on permanent orders, I don’t know.  And of course existing orders for payment of spousal support would be entirely unchanged.

As I’ve said before, spousal support should be a thing of the past in almost all cases.  There is simply no reason why, in this society, in this economy, in 2020, an adult can’t support her/himself.  The principle of gender equality demands the abolition of spousal support in the great majority of divorces.  And, also as I’ve said before, there should be narrowly-tailored exceptions to the rule of no spousal support.  Those include disabled spouses and those who are too old to be expected to re-enter the job market.  Plus, I’d make an exception if one spouse stayed home with the kids for a significant period and needs some time to re-train for paid work.

But beyond those narrow exceptions, spouses need to be responsible for themselves and the choices they make.

So, as I said, Virginia House Bill 1500 isn’t earthshattering.  It’s a modest attempt to right a wrong.  As such, it should be supported.  Please do so if you can.

January 17, 2020 by Robert Franklin, JD, Member, National Board of Directors

A British Columbia psychologist has been disciplined (sort of) for her role in a contentious child custody case (CBC, 1/14/20).  Dr. Cindy Hardy committed multiple ethical violations that resulted in the child’s father being prohibited from seeing his son for over a year.

The origins of the case are obscure and none of the family members have been named either in the linked-to article or the findings of Dr. Lynn Zutter, panel chair of the Health Professions Review Board.  Suffice it to say however, that, from this far remove, it appears as if Hardy actively participated in a campaign of parental alienation on behalf of the mother against the father.  It further appears that, despite being found to have committed ethical violations, neither the College of Psychology of British Columbia nor the HPRB punished her behavior in any meaningful way.

In ways unexplained, the custody and parenting time matters were, in early 2016, being heard simultaneously in two courts, one in Alberta and the other in British Columbia.  The child’s mother retained Dr. Hardy to assess the child, informing her that he feared spending time with his father.  Hardy had little or no experience conducting forensic psychological evaluations, but did so anyway.  She did so without a word to the father and indeed, throughout the entire case made no effort to contact him.  Needless to say, she failed to obtain his informed consent to evaluate his son, a clear violation of professional ethics.

But it seems that Hardy was more interested in assisting the mother than in scrupulous compliance with ethics.  Her initial approach to assessing the child was to have him complete the Behavior Assessment System for Children, Third (BASC-3).  That’s a very standard way to begin, but, remarkably, she allowed the child to take the assessment tool home and complete it there under the watchful eye of his mother.

So situated, the child answered one question to the effect that he had contemplated self-harm.  Hardy interpreted that to mean that he did so because of his concern about going to spend time with his father.  There was nothing to make that connection but the mother’s say-so, but Hardy made it anyway.  Later, when the child re-took the BASC-3 and answered the same question the opposite way (i.e. that he didn’t contemplate self-harm), Hardy announced that the results of the tests were invalid and couldn’t be used to assess the child.

None of that stopped her from stating in writing to the Alberta court that the child did intend self-harm if he were required to spend time with his father.  She later claimed, this time to the B.C. court, that the self-harm she predicted would be a suicide attempt, an allegation for which there was literally no factual support.

Now, the judge in Alberta was so unimpressed with Hardy’s performance that, on reading her reports in court, she picked up the phone and called her.  Judge Karen Jordan demanded to know why Hardy had failed, over the course of at least two months, to contact the father and get (a) his informed consent and (b) his side of the story.  She had no satisfactory reply.  Judge Jordan wanted to know the nature of the risk Hardy predicted for the child and was told “Well, I’m not sure.”  Quoting Lynn Zutter,

The court held that [Hardy’s] conclusions and recommendations were “of no value to the Court because they predetermine the issue.  You cannot arrive at a valid finding about a child’s distress in the absence of half of the information.”

Judge Jordan went on to remark that she was considering reporting Hardy’s astonishing behavior to her professional organization, i.e. the College of Psychology of British Columbia.  Whether she did so remains unclear.

A matter of days later, Hardy appeared in court in the B.C. case, reiterating her opinions that had been so disdainfully rejected by the Alberta judge and upping the ante to include claims of possible suicide by the child.  Based on that, the judge issued an order that the child be kept in British Columbia and have no contact with his father.  That order, issued in April of 2016, remained in effect until July, 2017.

In case Hardy’s frank bias in the case wasn’t clear enough, she soon made it absolutely crystalline.  When the mother’s partner emailed Hardy to let her know about the B.C. judge’s order, she emailed back, “Hallelujah!  I’m very happy to hear this news.  Thank you for updating me.  Please convey my best wishes to [the child and mother].” An impartial observer, she was not.

But this appears to me to be more than simply another case of anti-father/pro-mother bias on the part of the mental health professionals who are so often involved in family court.  From the outside looking in, this seems like a case of parental alienation on the part of the mother, alienation that went entirely ignored by Hardy.

After all, Mom unilaterally decided to involve a mental health professional.  She told her that the child was extremely nervous about visiting his father.  Hardy was nothing if not agreeable to corroborating those claims and excluding the possibility of finding facts that contradicted Mom’s narrative.  She did so assiduously.

But what if Mom were alienating the child, as she appears to have been?  In that case, the boy’s trepidations about visiting Dad would have been perfectly natural.  At nine years of age, he surely understood that he was supposed to fear his father and that successful visits to his father would contradict his mother’s preferred narrative.  That would put him in the untenable position of deciding who to love and who was right, his mother or his own experiences of his father.

Indeed, it’s one of the worst aspects of parental alienation that the child is forced into a terribly confusing situation.  He’s required to choose between parents despite the fact that he loves both.  And he’s forced to believe a narrative (the targeted parent is uncaring/violent, etc.) that his own experience contradicts.

What child, placed in such a position, wouldn’t have been upset?

After over a year, father and son were finally reunited and now see each other free of the blandishments of Cindy Hardy.  Did the boy harm himself on returning to his father?  He did not.  Hardy’s claims turned out to be false.  Is anyone surprised?

But, as with so many of these cases, the fact that father and son are now permitted contact is hardly a happy ending.  Dad spent ruinous amounts of money attempting to defend the scurrilous allegations against him.  And of course he lost over a year of contact with his son.

And Hardy?  Yes, she was disciplined by her professional organization, but how?  She was forced to write a letter of apology to the father and is now prohibited from taking forensic family law cases, cases she’d all but never taken before.  In other words, her punishment is no punishment at all.  As the father pointed out,

“There are really no consequences for her actions. A limitation in regard to something she rarely practises does not affect her,” he said.

Very true.

In family courts, the anti-father/pro-mother bias that’s so often been noted and bemoaned by lawyers and litigants alike doesn’t stop with judges.  Too often, the mental health professionals on whom they rely exhibit bias that’s as bad or worse than anything judges have to offer.  And that goes to show that we’ll never improve children’s outcomes in divorce cases until we educate those in charge about the value to children of spending equal time with their fathers and their mothers.

January 17, 2020 by Robert Franklin, Member, National Board of Directors

In my last piece, I criticized Danish historian Mikael Jalving’s piece in Quillette entitled “Scandinavia: Can the New Parental Team Replace Marriage?” (Quillette, 1/2/20)  I did so because of his strange conclusion that shared parenting (and the scientific evidence supporting it) is dangerous because it encourages divorce.  Needless to say, he cited no evidence for the proposition.

Nor did he mention that, in the U.S. at least, we know from Margaret Brinig and Douglas Allen’s work that it’s precisely the prospect of sole parenting that encourages divorce.  The two researchers found that women tend strongly to file for divorce because they know that the sole-parenting custom by judges means they know they won’t lose their kids.  If anything, that suggests that equal parenting would tend to discourage divorce filings. 

As I said in my last piece, people divorce, whether Jalving likes it or not.  Given that, surely public policy should be informed by the science on children’s welfare when their parents split up.  And that science points directly to shared parenting.  It’s an obvious point that Jalving missed due to his antipathy for government interference in families.

I of course share that antipathy, at least to an extent, and Jalving makes some important points about the relationship between families and governments.  I’ve been studying and writing about families, children, parents and family law for over two decades now and my strong take on the subject Jalving raises is that governments are poor substitutes for parents.  They prove it every day.

For example, even a brief glance at state child protective authorities reveals time and again a preference for state interference in children’s lives, often despite the harm it does to those children.  The other side of the coin often reveals shocking negligence that often results in injury to kids.

Now, CPS officials will argue that, however badly they’re doing their job now, the state does better now than was ever done in the past before public authorities got involved in the business of trying to protect kids from harm.  That’s probably true for kids who truly are at risk.  The problem with state intervention though is that it often occurs when it need not.  Time and again we see parents, judges, lawyers, etc. complaining about state overreach, about families torn apart for no reason, about parents threatened and browbeaten by caseworkers.  And of course the depredations of CPS are visited overwhelmingly on the poor and poorly-educated.  CPS agencies doubtless came into being with the best of intentions, but, as seems to be invariably the case, when governments take a certain power, it tends to increase far, far beyond what was originally intended.

Jalving is likewise concerned about events in Sweden that tend to further establish the government as everyone’s surrogate family.  He’s right to be.

In Sweden, individuality springs from the state. Without it, emancipation is not possible. Equality and freedom of choice is in itself made possible by a form of social engineering that the authors describe as “statist individualism,” under which high levels of state support serve to enhance, rather than challenge, citizens’ personal autonomy. More broadly, this typically Swedish approach to policy, informed in equal measure by optimism and paternalism, is animated by an institutionalized sense of national confidence in experts who use scientific methodology to improve society from one generation to the next. The overall effect of these ideas has been a weakening of many of the institutions that once mediated relations between state and citizen—including churches, charities and even families—since they are seen as dispensable in a country where individuals interact directly and regularly with a benign state. 

Central to this “cradle-to-grave” arrangement are such initiatives as universal daycare, a comprehensive program of direct student loans to teenagers and young adults, and the creation of a special ombudsman to protect children’s rights. The very language of public discourse now reflects such expectations: When the current government recently introduced the idea of making it mandatory for parents to send their young children to daycare in order for immigrant children to learn Swedish early on, this was presented as vindication of “the right to compulsory pre-school.” Implicit in these projects is the idea that a reliance on traditional forms of community and upbringing sets one at risk of oppression and inequality, while the welfare state is idealized as a liberating agent that frees citizens from hidebound social norms.

Yes, it’s that concept of the state as a benign actor in relationship to individuals that’s at the heart of the Swedish approach to, apparently, pretty much everything.  It’s an assumption that’s dubious at best, so dubious in fact that the Founding Fathers of the United States made exactly the opposite assumption.  That’s why we have the Bill of Rights as part of our Constitution.  They well knew the tendency of governments to arrogate power to themselves, a process we see often.  Did the Patriot Act promise that the NSA would never, never acquire and analyze general information about Americans?  It did, but guess what happened.  It did just that, sucking up vast stores of data from telephone companies and elsewhere with neither the consent nor the knowledge of those surveilled.

Were we assured that FISA courts would protect individual Americans from surveillance by the state via scrupulous courts positioned as a check on investigative agencies?  We were, but now we know how easily those courts can become, not an obstacle to state intrusion, but a co-conspirator in it.

And, as I mentioned above, child protective agencies originated to keep kids from harm, but they’ve evolved to become the face of Big Brother to many, many parents.  The system of “mandatory reporters” means that 80% of reports of child abuse are unfounded, but can still involve investigations by agents of the state wielding the terrifying power to take away parents’ children.

This “benign” state acting for the “benefit” of the individual can lead to some truly Orwellian outcomes.  So the Swedish government’s notion that a “right” to pre-school education can also be “compulsory”  is both mind-bending and no surprise.  Orwell himself couldn’t have imagined a more perfect example of Orwellian language.

But perhaps the state is benign and if so, why not in the area of the family?  Perhaps it can be, but Jalving’s examples don’t encourage the conclusion.  After all, daycare may free parents for non-child-related pursuits, which of course is the point.  But much science on child well-being and daycare finds that, particularly for very young children, daycare can result in elevated levels of cortisol that can have deleterious effects long into adulthood. 

Direct loans to adolescents for school expenses tend to bypass parents as supporters of children.  And an ombudsman for children’s rights does the same.  We’ve seen the results of that in, for example, Canada, where a girl sued her father because he grounded her for disobeying his demand that she spend less time on social media and more on her studies.  She won.  The judge overruled the father, substituting his own ideas about appropriate parenting for the girl’s everyday dad. 

So Jalving’s right to be concerned about the rise of the state as a substitute for parents.  The hobbyhorse of shared parenting doesn’t take him there, but he’s right all the same.  History is devoid of evidence that governments can do a proper job of caring for kids.  And our knowledge of the biological connection between parents and their children militates strongly against the notion and in favor of parents being our best bet for promoting children’s welfare.

But the experiment in Sweden is well under way.  I suppose we’ll see how it turns out.

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

Shared parenting is once again under fire, this time from here (Quillette, 1/2/20).  It’s a curious piece, part inexcusable ignorance and part pithy questions about the uneasy interface between the state and the family.

Danish historian Mikael Jalving has read Malin Bergström’s book, Divorcing with Children: Parents in Two Homes.  The problem seems to be that, as to shared parenting, that’s all he’s read.

Bergström of course is one of the most important researchers into family structure and child well-being.  Her massive studies of Swedish families indicate that equal parenting is the second-best arrangement for kids, the first being intact biological families.  The good news is that, as other researchers have shown, Swedes are taking to equal parenting like no other parents in the world.

“In Sweden, [Joint-Parent Custody] has become as common as living mostly with the mother after parents separate. The proportion of Swedish children in JPC was about 1 percent of children with separated parents in the mid-1980s, but is now between 35 percent and 40 percent. Of all children between 12 and 15 years of age, 1 in 10 are in JPC…Indeed, for 3-year-old children, JPC is nearly twice as common as SPC [Single-Parent Custody], at least among Swedish-born and well-educated parents…”

I call that the good news because clearly Swedish parents, partly in the spirit of gender equality and partly for the good of the kids, have embraced equal parenting.  But it’s not good news to Jalving.  Why?  He’s suspicious of equal parenting arrangements because, according to him, they encourage divorce or what he calls “guilt-free” divorce.  He of course offers no support for his claim.  Has the divorce rate gone up after the inauguration of shared parenting legislation in Sweden?  If it has, he doesn’t mention it.

Memo to Jalving: Parents sometimes divorce.  And there’s nothing we can do about that if we want to live in a free society.

Given that fact, surely the best thing we can do is to find out what the best post-divorce arrangement is for the children and try to convince people to adopt it.  We’ve done the former.  Shared parenting is the best familial arrangement for kids.  And to their credit, Swedes are establishing shared care arrangements at rates unknown in the rest of the world.  For Jalving, that’s cause for despair.  Strange.

Worse, Jalving seems not to have a very firm grasp on what shared parenting is.

But what if there were a way around these negative outcomes [for the children of divorce]? Imagine some new, postmodern “parental team” that can take the place of a married couple when it comes to raising children.

That is the new concept emerging from Sweden…

No, no and no.  Shared parenting does not involve a “parental team” that takes the place of a married couple.  It’s parents caring for their children in separate households.  And it’s not a “new concept,” not just “emerging” and not “from Sweden.”

Actually, the idea of equal parenting has been around for decades, roughly as long as that of no-fault divorce.  Since no-fault divorce laws sent the divorce rate skyrocketing back in the 70s, people have been asking what is the best arrangement for children when their parents split up.  Goldstein, Solnit and Freud tried to convince us that sole maternal custody was sufficient, but, lacking the slightest empirical support for that theory, it soon was called into question.  That led to research like Bergström’s and that of countless others that’s found equal parenting to be far and away the preferable arrangement for children.

And it’s that huge body of research that, with the exception of Bergström’s, seems to have gone unnoticed by Jalving.  He never mentions it.  And that astonishing absence is what allows him to conclude that Bergstrom’s findings must be faulty.

[M]y larger critique is that while Bergström is concerned with the effects of state-mandated and -enabled JPC arrangements, the positive outcomes we are observing may simply be an artefact of the growing wealth and privilege of divorcing Swedish parents—especially since many poor households can’t afford to split up, one home being cheaper than two. 

In passing, allow me to point out that there is no “state-mandated” joint custody in Sweden or anywhere else.  No law requires JPC as the data cited by Jalving make clear.  After all, how can the government be requiring JPC arrangements when only 35% – 40% of kids of divorce have them?

But more importantly, Jalving can only make the claim that positive outcomes for kids in shared care are simply a matter of selection bias if he knows nothing about the wealth of research on shared care beyond that conducted by Bergström.  Far too much research has been done in various countries on shared vs. sole custody to pretend that the findings are simply a matter of who’s being studied.  If Jalving had read that work, he’d know that.  Apparently he hasn’t, but didn’t let the fact keep him from rendering his opinions.  

I’ll have more to say on Jalving’s piece next time.

January 13, 2020 by Robert Franklin, Member, National Board of Directors

An Idaho court has ordered a woman, Kaytlyn Ann Graefe, 21, to pay child support for two children who aren’t hers (Idaho Mountain Express, 12/27/19).  The reason?  She killed their mother.

It seems that Idaho has a statute requiring anyone who commits vehicular manslaughter of an adult with minor children to pay child support for those children until age 18.  And that’s what Graefe did.  Her story is particularly disgusting because she had a lengthy record of driving while intoxicated, together with lenient, non-custodial sentences by courts.  She’d been placed on probation several times conditioned on her not driving while intoxicated.  She did so anyway until finally she killed Georgina Ubence, 37.

During an emotional sentencing hearing in Blaine County Magistrate Court, Javier Ubence—the husband of Georgina Ubence, 37, who was killed in the accident—told the court during his victim’s impact statement that the judicial system had failed him and his dead wife by repeatedly giving Graefe suspended jail sentences and continuing to put her on supervised probation, which she regularly violated, for previous misdemeanor drug and driving offenses.

This time Graefe spent 348 days in jail awaiting trial, unable to afford bail.  But, as an aside, I can’t help but mention this:

Graefe, of Shoshone, pleaded guilty to the two misdemeanors on June 24 and was sentenced on July 10…

Upon her release, she will be on probation for a minimum of two years and will have a suspended driver’s license for one year.

So, for manslaughter and possession of a controlled substance, a multiple offender was charged with two misdemeanors and sentence to time served plus probation.  And this after the judge in her case called her actions “repulsive” and pointed out that Graefe had had no intention of remaining sober despite multiple criminal cases against her.  Amazing, but true.

But I digress.  Apart from the continued leniency demonstrated by the courts, the remarkable thing is that Graefe will have to pay to support Ubence’s children until they’re 18.  Now, the skeptical among us ask whether a woman who routinely ignores court orders and has a long and lengthening criminal record has any more intention of paying child support for a stranger’s children than she had of staying sober.

But the mere fact of the law is of interest.  In the first place, it officially decouples from the obligation of support any biological or psychological relationship between the payor and the child.  This is not a case of paternity fraud or mistaken identity.  We all know that Graefe is a stranger to these kids and they to her.  What other mischief might be invoked to require the support of children?  What if Mom and her boyfriend rob a liquor store, are caught and go to prison.  Should he become liable to Dad for support?  After all, his conspiracy deprived the children of their mother for the duration of their incarceration.

Second, tort law gives Mr. Ubence a cause of action against Graefe for his wife’s death and any damages caused thereby, including the loss of her future earnings.  If Graefe also has to pay child support, she’s clearly being made to pay twice.  Needless to say, beyond any liability insurance benefits, Graefe looks very much like the type of person who’ll never pay a dime of either child support or other damages.  She likely doesn’t have the money and never will.

By the same token, enforcement mechanisms available against child support debtors aren’t there for those seeking to enforce a tort judgment.  No civil court ever ordered a tort debtor to surrender his/her driver’s license or professional or other occupational licenses, but, to enforce an order of child support, another court can.

Whatever the case with Kaytlyn Graefe, this expansion of the obligation to pay child support is worth watching.  It looks like the beginning of a very slippery slope whose end is nowhere in sight.

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

This is that rarest of birds, an editorial that doesn’t take a stand (Japan Times, 12/21/19).  Generally speaking, editorials are supposed to argue in favor or against a particular issue.  That’s what sets them apart from news articles that, supposedly, present “both” sides of every story.  So it’s strange to see an editorial that reads like a news piece.  It’s even stranger that the editorial in question so carefully takes a “this, but also that” approach as to be close to meaningless.

Still, we can glean certain facts from it.

Japan is about to embark on a journey to decide whether to abandon sole custody of children in favor of shared custody.  Whether that means legal custody, physical custody or both, the article doesn’t say.  But what’s clear is that Japanese parents are not happy with the current status quo.  A group of them have sued the government for negligence in the way it handles child custody cases.  Such a suit would be legally impossible in this country, so it’ll be interesting to learn how this one turns out.

What the article also carefully ignores is the fact that, in Japan, an overwhelming percentage of custody cases result in sole maternal care of children.

Understandably, the sole-custody status quo has consequences that likely weren’t intended when the law mandating sole custody went into effect.

In a 2016 survey by the Health, Labor and Welfare Ministry on single-parent households, only 24.3 percent of mothers living with their children and 3.2 percent of such fathers polled said they continue to receive child support payments from their divorced spouses.

Some 22 years ago in this country, Braver, et al found that fathers who get to see their children frequently and have meaningful input into parenting decisions are far more likely than others to pay child support.  That of course makes perfect sense and seems to hold true in Japan.  We often read articles bemoaning the low level of child support being paid in this country, but, by comparison to Japanese parents, ours look like saints.  I strongly suspect that the reason that Japanese parents are such laggards about child support is that (a) the non-custodial parent has no say in the child’s upbringing and (b) he rarely gets to see his child.

The plaintiffs say that as a result of their divorce arrangements, they are allowed to see their child at most twice a month, each time for a mere two hours.

Unsurprisingly, few non-custodial parents in Japan see their kids at all.  After all, what’s the point of two hours per day twice per month?

Only 29.8 percent of the single mothers and 45.5 percent of the single fathers said their divorced spouses continue to regularly see their children.

Again, what’s the point?

Given all that, the Japanese government has appointed a commission to look into the matter of shared custody.  They should give us a call here at NPO.  If the linked-to article is any indication of the level of awareness of the value to kids of shared parenting, the commission needs an education.

Joint custody is based on the rationale that it is in the interest of the children for both parents to be responsible for raising them even after divorce. 

No, it’s not about parental responsibility, it’s about child well-being.  It’s about the fact that children attach to both of their parents early in life and the disruption of that bond via divorce can be devastating to them.  Children of divorce experience a range of emotional, behavioral and educational deficits far more often than kids in intact families.  That’s largely due to the loss of one of the most important people in their lives.  That loss has for decades been Japanese law and public policy.  It should be changed as soon as possible.

And what article on shared parenting that doesn’t give readers basic information about its importance would be complete without some misinformation about domestic violence?

There are also concerns, however, that … a requirement [of a parenting plan] would make it difficult for mothers suffering from domestic violence to escape from their abusive husbands.

Yes, it’s our old friend “only women are victims of DV and only men are perpetrators.”  We’ve known that to be false for about 45 years and suspected it to be so for 49, but still, supposedly reputable news outlets continue to mislead the public.  By now, it’s impossible to believe that the misinformation isn’t in fact disinformation, that the writers know the truth but intentionally publish a lie.  Far, far too much information exists that women are at least as likely as men to commit DV for anyone commenting on the matter to claim ignorance.

Whatever the case, it’s nice to see that Japan seems to be intent on dragging itself into, if not the 21^st century, then at least the 20^th.

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

Is the Texas state agency charged with protecting children – the Department of Family and Protective Services, that oversees CPS – in line for a shakeup?  This article strongly suggests that it may be (The Hill, 12/24/19).

Writer Andrew Brown of the Center for Families and Children at the Texas Public Policy Foundation argues for three initiatives to make the DFPS more accountable to parents, children and the law.

First, lawmakers must clarify statutory procedures and strengthen the evidentiary standards DFPS and the courts rely upon when making the decision to remove children [from their parents]. Under current law in Texas and several other states, all it takes to remove a child is evidence sufficient to believe that a child is in danger. This is an incredibly low standard.

That’s putting it mildly.  For the most part, children, like the rest of us, are in danger frequently.  Crossing a street can be dangerous as can sitting in a school classroom.  But parents allowing children to cross a street or attend school aren’t placing them in danger of imminent harm,which is more like what the standard should be.

But more importantly, the Texas Supreme Court has held that any action by state officials that interferes with the parent-child relationship “can never be justified without the most solid and substantial reasons.”  Needless to say, CPS caseworkers ignore that requirement as a matter of course.

Brown gives as an example of their doing so the case of Drake Pardo, age four.  Drake had difficulty getting enough nourishment, so his parents, Daniel and Ashley Pardo, took him to a doctor who said that a feeding tube inserted into his stomach might be required.  CPS caseworkers managed to distort the Pardo’s interest in such a feeding tube into a charge of medical abuse by them of their son.  Not content with that, they represented to a judge that the matter was an emergency that required Drake to be taken immediately from his parents.

We’ve seen the misuse by CPS of “emergency” hearings and orders before.  Several years ago, Houston District Judge Michael Schneider slammed CPS caseworkers for fraudulently claiming a case to be an emergency when it wasn’t.  Emergency cases of course allow CPS to appear in court and obtain orders without either the presence of the knowledge of the parents.  Doubtless they’re sometimes necessary, but when only CPS knows the situation and only CPS is in court, the encouragement to fudge the facts is great.

The Pardo case was no more an emergency than the man in the moon, but that didn’t stop caseworkers from telling the judge it was.

Brown also wants to see the role of so-called “child abuse pediatricians” sharply diminished.  Over the past few years, there’s been a significant increase in the use of those specialists by CPS to buttress their claims of abuse.  It hasn’t turned out well. 

In the first place, the very fact those doctors exist tends to increase the chances of their finding a child to have been abused.  After all, when your rather tenuous “specialization” depends on the presence of child abuse, you’re more inclined to find child abuse.  This is not to say that those doctors intentionally misdiagnose children, but only that they’re human and have a natural tendency to protect their own bailiwick.

Worse, child abuse doctors often don’t inform parents of exactly what their role is in an investigation of alleged maltreatment.  Parents understandably believe that a doctor is someone who wants to help their child, but unknown to them, he/she may be working, not for them, not for their child, but for the state.  As in the Pardo case, they may be simply working to build a case against the parents.  That’s an enormous ethical problem and one that doctors seldom disclose.

And sure enough, in the Pardo case, CPS based its claim of abuse solely on the say-so of one of those child abuse specialists.

Here’s Brown’s last recommendation:

A final recommendation, and perhaps the most important one, is to enact reforms to court processes that will provide real accountability for DFPS and better protect the fundamental rights of families.

That of course would include the greatly reduced use of emergency hearings.  It would also include reducing or eliminating the use of “voluntary” parenting plans.  That’s a pernicious process under which CPS caseworkers essentially browbeat parents into acceding to having their child taken from them and signing on to plan whereby they can get the child back after completing certain requirements outlined in the plan.

Caseworkers essentially threaten parents with lengthy court proceedings and the high probability of their losing their child for longer periods if they reject the “voluntary” plan and go before a judge.  Impecunious parents opt for the “voluntary” plan even though they may not pose a danger to the child.  Meanwhile, the existence of a plan agreed to by the parents obviates the need for CPS to go to court and undercuts any later claim by parents that CPS had no right to take their child.

Drake Pardo is back home with his parents after an almost six-month hiatus with CPS.  His case is much in the news just as the Texas Legislature is about to reconvene.  Legislators need to act to reform the behavior of CPS and its employees.

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

Back in October, the Australian Institute of Family Studies published its study of some 6,000 families who’d divorced.  Its focus was on the choices made by the parents during that process and the outcomes they achieved, mostly in custody and parenting time.  Nothing in the report is earth-shattering, but still it’s instructive.  One of the many problems with family laws and family courts is paucity of hard data we have on just what those outcomes are.  It takes money and time to go to courts and read, analyze and tabulate the information in the files.  Unsurprisingly, few people do it.

So those studies that do are to be valued, however limited they may be.  And make no mistake, the AIFS study is quite limited, but it still has a lot of interest and value.

Perhaps the most significant datum from the study is that 97% of divorcing couples avoid family courts altogether.  They decide between themselves what arrangement they want and either get a court to rubberstamp their agreement or simply proceed with no court order at all.

I’d love to have heard the reasons parents gave for detouring around courts and the family law process, but alas, the AIFS study didn’t ask.  My guess is that people have a variety of reasons for avoiding court.  One surely is that lawyers cost too much, so why involve them when the couple can sort things out for themselves free of charge?  Plus, at least some lawyers thrive by exacerbating the inter-parental conflict that already exists during divorce.  That makes feelings more conflicted and costs higher.

And that very chance of making a bad situation worse is likely another primary reason for parents not going to court.  There are far too many horror stories in the news about divorce and child custody to not frighten a large percentage of divorcing parents away from the court system.

Then there’s the time involved.  Many, many experts on the subject of family law in Australia have complained about the astonishing amounts of time required for courts to adjudicate even uncomplicated divorces.  By contrast, a man and a woman can sit down at the kitchen table and have a reasonably serviceable and amicable agreement in a matter of a couple of hours, or even less.  They can then take it to a lawyer to type up and present to a judge as an order that, unless it’s flagrantly defective in some way, the judge will probably be happy to sign off on.  Judges are overworked, so any agreement between parties just makes their lives easier.

One metaphor with which to understand the fact that 97% of divorcing couples choose to avoid the courts is that of electoral politics.  Put simply, family courts lost in a landslide.  Close to every divorcing couple opted for “not court” over “court.”  That’s not exactly a rousing endorsement of the family court process.  If I’m right, that time, money and the exacerbation of conflict are primary reasons for their vote, Australian family courts might want to think hard about that.

So, what are the results of those 6,000 cases?  Most importantly, 21% of all divorces end with shared parental care.  That means that one parent has at least 35% of the parenting time and the other the rest.  Only 9% of divorces result in equal parenting time, i.e. between 48% and 52% for each parent.

That compares with 27% in which kids end up in sole maternal care and 2% in the sole care of their father.

How do cases decided by a judge stack up against those in which the parents agree?  When judges decide,

Most children (64%) subject to orders were living mainly with their mother and spending less than 35% of nights with their father. Orders for shared care time were made for 17% of children.

In the adjudicated sample, 19% of children were to live with their father and spend less than 35% of nights with their mother.

When parents agree,

In cases where parents agreed without litigation, orders for children to spend most of their time with their mother applied to 64% of children. Orders for shared care time were more common in this group than in the other two, applying to 33% of children. Orders for children to live mainly with their father and spend less than 35% of their nights with their mother applied to 4% of children.

In short, parents are significantly more likely to agree to shared care arrangements than judges are to order them.  The percentage of sole maternal care was the same for judge-made orders as for those agreed to by the parents, but predominantly paternal care occurred much less in the consent group than in the adjudicated one.

Now, the cases heard by judges were probably different than those in which parents hammered out an agreement.

Among the 3% of parents who went to court for parenting arrangements, most reported in the Survey of Separated Parents that they experienced family violence (physical violence 54%, emotional abuse 85%). Nearly 50% reported concerns for safety (their own, their children’s or both; Kaspiew et al., 2015b).

Other problems reported by parents who used the courts included mental health issues (59%) and substance misuse (42%).

My guess is that those allegations are substantially different from those in the set of cases in which parents agree.  But I suspect we’ll never know.  That’s because the AIFS study reports nothing on the incidence of claims of DV in the agreed-to cases.  And I further suspect it doesn’t because, when parents agree, there’s no need to allege abuse whether it’s occurred or not.

The takeaway?  First, parents overwhelmingly are doing their divorce and custody cases on their own.  They’re avoiding courts and lawyers if at all possible.  In the process, they are reasonably likely to agree on a shared parenting arrangement.  But overall, mothers still end up with the lion’s share of custody and parenting time, leaving children with sharply diminished time with their fathers.

Thanks to George for the heads-up.

December 27, 2019 by Robert Franklin, JD, Member, National Board of Directors

My last two pieces have taken to task, first the New York Times and then National Public Radio for soft-peddling the ill effects of single-parenting on kids.  Those two articles are far from the first times those two media giants have done so and I’m sure they won’t be the last.

So it’s with considerable interest that Pew Research has published this piece on the children of single parents worldwide (Pew Research, 12/12/19).  Perhaps the most important fact is that, among all the countries in the world, the U.S. ranks No. 1 in the percentage of its kids who live with a single parent.  An astonishing 23% of our children under the age of 18 do.  The rest of the countries combined have only 7% – less than one-third the U.S. rate – of children living with a single parent.  Just four percent of China’s children, 5% of India’s and 7% of Japan’s live with a single parent.

Now, it must be said that many countries have low rates of single-parenthood in large part because the kids are living with extended families.  So Mom may not live with Dad for whatever reason, but she doesn’t live alone with the kids.  Instead, she lives with her mother and father, and/or her sister, her brother, their husbands, wives and children, etc.  Whatever the exact makeup of those families though, extended families are better for kids than are single-parent ones.  They tend to be better off financially and provide more social capital than a single adult can.  Plus of course, the children are familiar with their relatives, so making a home with them isn’t quite the strange and alienating experience living with a single parent can be.

The Pew data also give the lie to the claim, so often taken for granted in this country, that Dad’s absence is due to his callous disregard for his children’s welfare, a.k.a. his status as a “deadbeat.”  After all, how can it be that fathers in, say, India, are almost five times as “responsible” as are those in the U.S.?  It doesn’t make sense.

What does make sense is harder to determine.  Why should the U.S. have the highest percentage of single-parent kids in the world?  Certainly, the U.S. has “led the way” in making divorce simple and cheap.  We’ve pioneered the notion that fathers are just excess baggage in the lives of mothers and children.  We’ve bent over backwards to offer financial incentives in the form of half or more of the marital estate, child support and alimony to mothers who choose to leave the children’s father.  And we surely lead the world in extolling the virtues of single mothers despite a wealth of information demonstrating the harm to children occasioned by a single-parent upbringing.

But my reading of family courts and public discourse in other countries tells me that the U.S. is, if anything, less hostile to fathers than are other countries like Australia, Canada, Israel, New Zealand, etc.  Certainly the laws and cultures of all those countries play roles in separating children from their fathers.

Exactly why the U.S. is No. 1 in fatherless children, I can’t pin down.  What I can do is shout from the rooftops that it’s dangerous for us or any other society to have such a massive scale of fatherlessness.  (The term “single parent” is a stand-in for “single mother” almost invariably.) Children need both parents and we’re doing a terrible job of ensuring that each child grows up with a father and a mother present and active in his/her life.  We should consider that the most urgent task before us and set about doing it in countless different ways, from legal reform to educating teachers, judges and journalists.

But we don’t, in part because media powerhouses like the Times and NPR are too busy deflecting attention from the problem and dissembling about it.  They do so to their everlasting disgrace.  Their doing so promotes a dysfunctional status quo they ironically complain about.