Category: Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Indeed, I think we can count on it.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In Mexico, as elsewhere, the struggle continues.

December 4, 2019 by Patrick Fraley

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

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

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

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

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

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

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

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

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

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

Don Hubin

Chair, National Board, NPO

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

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

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

Ginger Gentile

Executive Director, NPO

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That fight took 12 years.  Yes, 12 years.

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

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

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

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

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

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

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

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

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

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

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

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

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