Category: Blog

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.                                        

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

Karen Woodall is a British psychotherapist who blogs extensively about parental alienation.  She’s one of the clearest, strongest voices in the fight to make family courts more equitable for parents and healthier for children.  Her views deserve respect. 

That makes her opinion about the recent case, Re S, cause for some celebration.  Woodall calls the case in the UK Court of Appeal, “highly significant” and “exceptionally clear commentary on the Court’s view of the problem of a child’s unjustified rejection of a parent after divorce or separation.”  Finally, it may be that British courts have had enough of parents who alienate their children.

In the past, one of the most important problems encountered by alienated parents has been the scandalous amount of time and money it cost to litigate issues of parental alienation.  The Re S judges cite a few cases to illustrate.

Unhappily, reported decisions in this area tend to take the form of a post mortem examination of a lost parental relationship.  Re A (above): 12 years of proceedings, 82 court orders, 7 judges, 10 CAFCASS officers, no contact.  Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam); [2004] 1 FLR 1226 (Munby J): 5 years of proceedings, 43 hearings, 16 judges, no contact.  Re A (Children) (Parental Alienation) [2019] EWFC B56 (HHJ Wildblood QC): 8 years of proceedings, 36 hearings, 10 professionals, no contact despite an attempted change of residence. In some cases (e.g. Re A) a formal finding of a breach of the state’s procedural obligation under Article 8 was made. Another recent example is Pisica v Moldova (Application No 23641/17) 29 October 2019, where a mother was deprived of contact despite five years of proceedings during which she had obtained orders for the children to live with her.

Needless to say, those cases are outrageous.  They not only deny justice to alienated parents, they deny healthy parental relationships to alienated children.  Plus, they’re proof positive of a dysfunctional family court system, a system that routinely fails to enforce the orders it makes.  It is almost beyond belief that any court would endure, in a single case, “12 years of proceedings, 82 court orders, 7 judges, 10 CAFCASS officers.”  Why not haul the parents and the kids into court, transfer custody from the alienating parent to the targeted one and effectuate the order then and there?  Courts have great power.  Why not use it?

And, more or less, that’s the main point made by the justices in Re S.  They’re telling lower courts to take action, decisively and quickly, to not allow alienation to get out of hand, to treat cases of PA with “exceptional diligence.”

In summary, in a situation of parental alienation the obligation on the court is to respond with exceptional diligence and take whatever effective measures are available. The situation calls for judicial resolve because the line of least resistance is likely to be less stressful for the child and for the court in the short term. But it does not represent a solution to the problem. Inaction will probably reinforce the position of the stronger party at the expense of the weaker party and the bar will be raised for the next attempt at intervention. Above all, the obligation on the court is to keep the child’s medium to long term welfare at the forefront of its mind and wherever possible to uphold the child and parent’s right to respect for family life before it is breached. In making its overall welfare decision the court must therefore be alert to early signs of alienation. What will amount to effective action will be a matter of judgement, but it is emphatically not necessary to wait for serious, worse still irreparable, harm to be done before appropriate action is taken.

That’s good advice that lower courts need to take and act on.

July 9, 2020 by Robert Franklin, JD, Member, National Board of Directors

Bad facts make bad law, at least Australian Labor MP Graham Perrett hopes they do.

Perrett has seized on a single horrible incident that took place in February of this year to attempt to (a) change Australian family law to marginalize fathers in the lives of their children even more than they already are and (b) short circuit the inquiry into family law now in progress.

On February 19^th, Rowan Baxter poured gasoline on his three children and their mother, Hannah Clarke, and set it alight, killing all four.  He then stabbed himself to death.  Baxter and Clarke had been embroiled in a child custody case prior to their deaths.

A family tragedy doesn’t get much more shocking and appalling than that and Perrett was johnny on the spot, ready to make whatever legislative hay he could from the deaths.  Strangely, he’s put forward a bill that would do away with the presumption of parental responsibility that’s the last vestige of fathers’ rights in Australian family law.  “Parental responsibility” is what we in the U.S. call “legal custody,” i.e. the right to have a say in children’s schooling, medical care, etc.  How removing that presumption would have changed the Baxter/Clarke tragedy, I can’t understand and Perrett hasn’t explained.  It seems that, in the Land Down Under, it’s always open season on dads and their access to their kids.

Now, regular readers of this page know that there’s yet another inquiry into Australian family law underway.  The Joint Select Committee on Australia’s Family Law System 2020, charged with conducting same, has finished collecting comments and will produce its report sometime in October.  That of course places Perrett’s effort in an unflattering context.  It’s as if he doesn’t trust the Committee to do its job the way he wants and is trying to make statutory changes ahead of its report, the better to neuter its recommendations.  Whatever the case, his timing is suspicious to say the least.  After all, family violence is not unusual, so why didn’t he seize on a previous case to make his bid?

That question may be answered by the fact that, in Australia as elsewhere, mothers commit more child abuse and neglect than do fathers and some of that is lethal to the kids.  So yes, Perrett could have raised the issue earlier, but doing so might have required him to choose an incident involving Mom as the perpetrator to use as his stalking horse.  But that wouldn’t have suited Perrett’s narrative that is the same as that of the Australian domestic violence establishment and divers feminist organizations.  For many years now they’ve been intent on marginalizing fathers in children’s lives and what could better fit their purpose than something dreadful like the slaying of Clarke and her children?

Indeed, back in 2006, the Australian Parliament reformed family law to provide a presumption of shared parenting.  The ink was barely dry on the new law when radical feminist organizations and their comrades in arms, the DV industry, went to work.  In short order, they had the presumption of shared parenting provision scuttled along with the “friendly parent” part of the law that requires each parent to promote the child’s relationship with the other parent.  Those were replaced with a requirement that judges “consider” shared parenting that, much to the delight of those organizations, resulted in a drop in shared parenting orders of a whopping 42%.  Plus, the new law elevated in importance child safety above the child’s relationship with both parents.

Unsurprisingly, following those changes, Australia saw claims of domestic violence increase sharply.  According to barristers practicing family law, it is now accepted practice for mothers to assert claims that fathers have committed DV.  It is also now accepted that the overwhelming majority of those claims are false and made solely to gain an advantage in the custody litigation.  At least one judge has said so in so many words in open court.

And why not?  Doing so works like a charm.  As the redoubtable Sue Price of Australia’s Men’s Rights Agency has recounted to the Committee, mothers can make an endless string of DV allegations, all of which can be proven to be false and have no fear of any form of punishment.  One judge, Price recalled, when confronted by a father with the fact that his ex had levelled 11 false claims of abuse against him, announced that she didn’t care if Mom brought in 90 such complaints; each would be considered as if the others never existed.  Meanwhile of course, temporary orders keep the children from seeing their father until whatever current allegation is litigated.  Needless to say, this can take months or years and cost astonishing sums of money for Dad to defend, which is the point of the exercise.  Mom doesn’t have to be right or even honest to effortlessly turn Dad out of his children’s lives.  In vain do fathers’ lawyers point out that years of delay damage, sometimes irreparably, the father-child bond.

And, again as we’ve heard from Australian lawyers before, the term domestic violence can mean just about anything.  What we know it means, because it’s written in the statute in black and white, is that denying the “financial autonomy” of a family member constitutes DV as does preventing a family member from associating with their friends.  So does committing any act that causes a family member to be afraid.

Needless to say, that law casts an astonishingly wide net.  If Dad tries to trim Mom’s spending on shoes, he’s committed domestic violence.  Does he urge her to stop seeing her heroin-addicted friends?  He’s a violent abuser.  For that matter, if he dives into a lake to save a drowning child and his wife fears for his safety, he’s caused her to be afraid, so he’s committed DV.

Nowhere does the statute require Mom’s fear to be a reasonable response to the circumstances.  If she says she was afraid, Dad’s an abuser, and – whoosh! – there go the kids.

Australian family law is deeply in need of reform.  It needs to include a presumption of equal parenting for fit parents.  It needs to take seriously actual domestic violence and child abuse, while punishing false swearing.  Until parents learn that family court is not a free-for-all in which anything goes, including perjury for the sake of marginalizing a parent in the lives of his children, the best interests of those kids cannot and will not be served.  They are not being served now.

The current family law inquiry came so soon after the last one that I dare to believe that the result may improve on the status quo.  The last inquiry recommended against shared parenting and used some very dodgy tactics to do so.  Most importantly, those included utterly misrepresenting the science on shared parenting.  That there came yet another inquiry so hard on the heels of that one, to me, bodes well.  It’s as if the powers that be realized their mistake and are trying to improve matters.

Such, at any rate, is my hope.  In October, we’ll know.  Until then, Graham Perrett will do his best to ignore both facts and common sense to push his bill into the statute books.  I doubt he’ll succeed, but in this climate of fear and loathing of fathers, who can be sure?

A million thanks to Sue Price and the Men’s Rights Agency for the excellent work they do every day.

July 9, 2020 by Indiana Lee

No one enters into a marriage expecting it to end in divorce. No parent wants their child to have to face the separation of her parents. But not even a divorce can change the fact that you, your former spouse, and the children you made together are, and always, will be a family, 

If parental separation is handled well, a child of divorce doesn’t come from a “broken home”. She has two fixed homes. Together, you and your former spouse can shepherd your child through this transition. No, it won’t always be easy. No, you won’t always have all the answers and you may sometimes feel as if you simply don’t know what you’re doing. And yes, you will make mistakes.

But that’s okay. Because you’re human and humans make mistakes. And when your child sees you and your former spouse facing adversity together as a whole family, even in the face of divorce, then they’re going to learn resilience.

You’re going to show your child how to build a happy, peaceful, and productive life, how to overcome challenges and rise above conflict and pain.

A United Front

A divorce doesn’t just happen. There’s always history behind it. It doesn’t matter whether the precipitating event was some painful trauma, such as an extramarital affair, or just unhappiness on one or both sides.

When there is a painful past history, the temptation is for parents to lash out against each other. You might not even be conscious of the fact that you’re holding onto resentments or that, without even realizing it, you’re using your child to hurt the other parent.

But helping your child through a divorce means taking care to maintain a positive attitude regarding the other parent. Encourage your child to grow her relationship with your former spouse.

This will mean taking particular note of the things you might say or do regarding the other parent in front of your child. Being mindful in this way will help ensure you’re not consciously or unconsciously doing anything that might compromise your child’s relationship with the other parent.

Take care not only to avoid speaking negatively about your former spouse in front of your child but even to compliment or praise the other parent in front of them. Likewise, being proactive in planning special activities for your child and the other parent, or for all of you together, will show them that it’s okay for them to look forward to time spent with the other parent.

Encourage your child to talk about the fun times they have with the other parent will reassure them that loving and bonding with the other parent is not being disloyal to you. Showing them that you are happy when they are happy with the other parent will be incredibly freeing for your child, who may worry that they need to “pick a side” in the divorce.

On the other hand, bad-mouthing the other parent in front of your child or limiting your child’s access to the other parent is depriving them of an essential emotional bond. It is a form of alienation that can have severe and long-term mental health consequences for your child.

On the other hand, supporting and facilitating your child’s relationship with the other parent teaches them to embrace all of who they are because your child is a perfect combination of the two of you. Cultivating a strong relationship with both mom and dad means helping your child cultivate her own strong sense of self-worth and self-acceptance.

A Safe Space

When you’re learning to co-parent your teen after a divorce, one of the most important things you can do is to stick as close to the normal routine as possible. Have a clearly defined custody schedule and honor it.

And when your child is with you, make sure that your child understands that your home is, and always will be, their home as well. One of the best ways to do this is to trick out your child’s bedroom. Fill the space with things they love, things that make them feel happy and comforted.

When your child begins to see your home as a safe and welcoming space, a place where they belong, then they’re going to feel more confident, secure, and certain. They will have the stable home life they need, even if that means two homes for the price of one!

Teen Talk

Because your child is a teenager, you might feel like you’re getting off relatively easy. It can be tempting to think that older children adapt more easily to parental divorce than younger ones do.

But that’s simply not the case. Adolescence is a turbulent time in and of itself. Add to that the experience of parental divorce and your teen might become overwhelmed, angry, and depressed.

No matter how committed you and your ex may be to ensuring that the divorce is as positive and healthy as it can possibly be for your family, and especially for your child, you still must expect a period of adjustment.

Your teen may be just as upset as a younger child would be — perhaps even more so because they have a clearer understanding of the changes that are occurring. They just may be better at hiding their emotions.

That’s why the importance of communication truly can’t be overestimated. Unfortunately, though, communication isn’t exactly something at which most teens excel, even in the best of circumstances.

So you’re probably going to need to get creative. Autism researchers have found that alternative forms of communication, such as using images or electronic communication devices, can be incredibly helpful for children who have difficulty with traditional verbal expression.

The same principle can apply for children without autism as well: when one form of communication isn’t working, look for another. As in the example above, if your child has trouble speaking about his feelings, encourage him to use images — from painting to photography. If your child needs a diversion before she can open up, plan a fishing trip or a nature hike, something to get her talking while her mind is focused elsewhere.

The Takeaway

Divorce is difficult, but it doesn’t have to be devastating. In fact, it can be a period of positive, constructive change for your family, as you and your former spouse model for your child resiliency, overcoming, and the enduring strength of family, the reality that a divorce does not mean the dissolution of the bonds you, your ex, and your children share.  What it requires, though, is selflessness and strategy. To see your child through, you’re going to need a strong, clear, and thoughtful co-parenting, and the will and integrity to honor it.

Indiana Lee lives in the Northwest and has a passion for the environment and healthy lifestyles. She draws her inspiration from nature and makes sure to explore the outdoors regularly with her two dogs. Indiana enjoys mountain bicycling and hiking on her off time and has experience in owning and operating her own business. Feel free to contact her at indianaleewrites@gmail.com or follow her on twitter @indianalee3  

July 8, 2020 by Robert Franklin, JD, Member, National Board of Directors

Amazing but true, The Guardian has a positive article about fathers, and a reasonably accurate one too (The Guardian, 6/30/20).  Of course the article is well behind the research it deals with and barely scratches the surface, but, within those limitations, it gives its readers valuable information.

It seems there’s some recent research out of Cambridge University on fathers playing with their children and how that influences children’s behavior, both immediately and in the years to come.

Research carried out by Cambridge University’s faculty of education and the LEGO Foundation looked at how mothers and fathers play with children aged 0 to 3 years and how it affects child development.

While there are many similarities, it found that fathers tend to engage in more physical play like tickling, chasing, and piggy-back rides, which researchers claim appears to help children to learn to control their feelings.

The research is based on a review of data from 78 studies, carried out mainly in Europe or the US between 1977 and 2017, which found a consistent correlation between father-child play and a child’s ability later to control their feelings.

Researchers found that on average most fathers play with their child every day, but even with the youngest children play tends to be more physical, with fathers enjoying boisterous rough-and-tumble play with toddlers.

Those children who benefited from “high-quality” playtime with their fathers were, according to the study, less likely to display hyperactivity, emotional or behavioural difficulties. They also appeared to be able to control their aggression, and were less likely to lash out at other children during disagreements at school.

To those of us who follow the science on parenting, this is not news.  A year ago I wrote here about Dr. Anna Machin’s book The Life of Dad that is far more detailed, complete and informative than either The Guardian’s article or the survey of studies it reports on.  The fact is that children who grow up with their father and are exposed to the type of play referred to aren’t simply able to control the expression of their emotions.  Far from it. 

Play between fathers and children produces what Machin calls bio-behavioral synchronicity.  That is, play behavior stimulates certain bonding chemicals in Dad’s brain that are then mirrored in the child’s.  So play produces in the father beta-endorphins, that Machin calls the “king of the bonding chemicals.”  His playmate’s body produces the same in turn.  Likewise, play produces a spike in Dad’s oxytocin level that’s again mirrored by the child.  Oxytocin is associated with feelings of love and the ability to empathize.

In short, father-child play is the primary way in which the two form the bond that’s indispensable to child well-being throughout childhood and well into the adult years.  It also contributes to fathers’ role in preparing children to deal with the world outside their immediate (mostly familial) environment.

Moreover, while mothers’ parenting mostly occurs as a result of activity in the limbic system, including the amygdala, fathers’ stems from activity in the neo-cortex.  That means mothers’ parenting behavior tends to be more emotional, nurturing and attuned to risk, while fathers’ is more a matter of social cognition, handling complex thoughts and making plans.  As such, Machin calls fathers’ parenting behavior more flexible than mothers’.  In fact, a study of gay male fathers, conducted at Bar Ilan University in Tel Aviv has demonstrated that fathers’ brains can adapt to the lack of a mother by building neural pathways between the amygdala and the neo-cortex in ways mothers’ brains do not.  In our evolutionary past, fathers have been biologically primed to step in when mothers can’t or won’t do the job of parenting and that’s reflected in their brain activity.

The Guardian knows none of this.  Indeed, its author says,

Children who only live with their mother need not be at a disadvantage, the authors point out.  

Yes, we won’t find The Guardian criticizing single mothers any time soon.  But what the study’s authors are saying is that, if a single mother plays with their children the way fathers do, then the child will get the same benefit.  The unspoken problem is that few mothers do.  That’s not what evolution has primed them to do; their biochemistry urges protection and nurturance, while Dad’s recognizes that the child won’t live protected by his/her mother forever and must learn to successfully inhabit the outside world.

Still it’s refreshing to see The Guardian informing its readers about the value of fathers’ play with their children.  With any luck, mothers and child protective agencies will cease to see “rough and tumble” play as dangerous to kids or of no value.  It is, after all, necessary to children’s well-being, and emotional stability and competence throughout their lives.

July 3, 2020 by Robert Franklin, JD, Member, National Board of Directors

Is Greece poised to make a great leap forward toward parental equality in family courts?  This article says it may be; I’m less confident (Open Democracy, 6/29/20).

It seems the current government has put forward a bill that would significantly overhaul current law relating to child custody, child support and parenting time.  That may be a good thing.  The linked-to article’s writer, Vassillis K. Fouskas, is a professor of international politics and economics at the University of East London.  He identifies three major defects in current Greek family law.

“First, middle and lower-middle class fathers who dared to enter litigation demanding shared parenting/joint custody risked losing their child(ren) at the same time that they were asked to pay enormous amounts of money in child maintenance.”

As I understand it, Greece has no clear system for ordering child support, such as the guidelines that govern in most parts of this country, so each judge simply makes it up as he/she sees fit.  That can mean lower-earning fathers can end up with ruinous support orders.

The second observable flaw of the current family law system is the social practice of residential/non-residential parenthood and its detrimental side-effects on children and fathers.

Apparently, some 98% of custodial parents are mothers.  Non-resident fathers have almost no time with their kids.  Why?

“[A] “judges code” was created assigning custody to mothers only and visitation rights to fathers – usually once or twice a week for 3-4 hours and only during the day. Overnight stay with the father once a week was and remains exceptional.”

Plus, high levels of child support urge mothers to “weaponize” children against fathers.  In what will be familiar to fathers everywhere, Greek law supplies stringent enforcement mechanisms for child support obligations and none whatever for access orders.  Even the meager time accorded fathers isn’t backed up by any enforcement power, leaving mothers free to ignore those orders as they choose.

Finally, move-away orders seem to be handed out by judges like candy on Halloween.  Mothers who wish to vacate the jurisdiction in which the father lives are seldom prevented from doing so.  That’s true despite the fact that many mothers aren’t Greeks.  They’ve travelled there from foreign countries, married Greek men, had children, divorced and then decided they need to return to their former country.  And of course take the kids with them.

Family lawyers love problem Number 3 because the proceedings in those cases are long and drawn out and therefore generate hefty legal fees.

This is one of the most costly and protracted legal processes that induce couples to litigate endlessly over the custody of the children, in addition to the allocation of assets, child maintenance and so on. It can last for many months and even years.

But however much money Dad spends on trying to keep his children near enough so that he can see them regularly, he seldom prevails.

The residential parent usually wins, and the winner gets it all, whereas the non-residential parent becomes a “skype parent”, entitled to some obscure visitation rights…  [T]he Court Order assumes that the father, after this protracted battle, has funds to spend on visiting his children during Christmas, Easter and Summer holidays: to pay hotels and other costs, and to entertain the children.

In short, the status quo in Greece is only somewhat different from that in every English-speaking country.  It’s a difference of degree, not of kind. 

Fouskas likes the government’s new bill, but tells precious little about it.

The new family law bill that the Greek right is poised to institute this coming autumn will eradicate all three major pathologies analysed above, benefiting, first and foremost, children. In particular, it has the potential to fight the commodification of family relations and extravagances of the legal profession, especially if welfare support in poor families strengthens.

It relieves both parents financially from very large (and onerous) legal fees and avoids a practice that tends to alienate children further, especially from the non-residential parent.

I’m glad he’s optimistic, but I wonder if it’s warranted.  After all, a law is just a law and, as we’ve seen before, laws often fail to alter judges’ behavior.  And given the well-established pro-mother bias of family court judges, why should we expect a new law in Greece to fare any better than they do elsewhere.  Indeed, Fouskas points out that much the same thing occurred previously in Greece.

[Panhellenic Socialist Movement’s] courageous reform of 1982-83, established gender equality and threw into the dustbin of history women’s discrimination at all levels. However, with the passage of time, problems cropped up with the implementation of the law, as judges, influenced by the dominant sexist culture – according to which fathers were seen as unfit to look after their children – were overwhelmingly assigning custody to mothers only. For a mother to lose custody in Greek Courts meant that she had either to be proved to be a “sex worker” or a “drug addict”.

Fouskas may or may not be aware of it, but the above quotation describes exactly the concern I have.  Greek law changed in 1982-83 and “established gender equality.”  But biased judges ignored gender equality in parenting to give primary custody to mothers 98% of the time.

It happened then, it can happen now.  I suppose we’ll see.

July 3, 2020 by Robert Franklin, JD, Member, National Board of Directors

Psychologist Jennifer Harman and Nebraska attorney Nancy Shannon have an excellent op-ed here (Omaha World Herald, 6/27/20).  It’s nominally about maternal gatekeeping, but spills over into parental alienation as well.  Now, maternal gatekeeping and parental alienation are two different things, but the former can be the latter and gatekeeping behavior could easily become a precursor to alienation.

That said, Harman and Shannon pull no punches.

“Extensive research shows the importance of fathers to their children’s well-being. These studies show children in father-limited environments are almost four times more likely to live in poverty, more likely to use drugs and alcohol, and twice as likely to commit suicide. They also have significantly lower educational attainment, are more likely to engage in juvenile delinquency, have higher risk of being victimized by crime, have higher risk of physical and mental health issues, and have lower life expectancies.”

Given that, we should of course bend heaven and earth to keep fathers involved in their children’s lives.  But gatekeeping and alienation by mothers often interfere with our attempts to do so.  Indeed, Harman and Shannon alert their readers to a 2015 report by the U.S. Administration for Children and Families on maternal gatekeeping.  Its findings are remarkable.

“According to this report, “more than half of nonresident fathers offered accounts of gatekeeping behavior, ranging from refusing to grant physical access to making frequent last-minute schedule changes. Gatekeeping also came in more indirect forms, such as refusal to communicate in person or by phone, withholding information from the father about the child or berating the father.” 

In short, more than half of fathers, at least in some groups, have to battle either their wives or exes just to be able to take a full role in their children’s lives.  By any measure, that’s astonishing.  It’s a fact that needs to be remembered every time we read one of the ubiquitous articles condemning fathers for not doing more childcare.  To the extent that’s an actual phenomenon, it’s brought about at least in part by mothers.

And, according to Harman and Shannon, Nebraska family courts have become none too pleased with gatekeeping/alienating parents.  They cite five recent cases in which judges showed little or no tolerance for mothers who behaved as if the child was theirs to do with what they liked.

“Nebraska judges are increasingly losing patience with gatekeeping behavior. Our Court of Appeals recently affirmed an equal parenting time schedule that required a mother to return an infant to Nebraska after she secretly moved away and stopped communicating with the father.”

Other cases involved mothers who withheld parenting time (one did so on the advice of her lawyer!), moved outside the state, engaged in alienating behavior and ignored the father’s sole legal custody.  Orders punishing those mothers by courts included changing custody, finding the mother in contempt of court and awards of attorney’s fees to the father of $15,000 and $25,000 in the same case.

The two authors rightly point out that gatekeeping and alienation constitute child abuse.

“Everyone needs to understand that parents who engage in these behaviors, regardless of their gender, are harming their children…

What they’re doing isn’t appropriate or justifiable. It’s child abuse. It’s also domestic violence. According to a recent Nebraska ruling in district court, “Domestic intimate partner abuse includes using a child to establish or maintain power and control over any current or past intimate partner.” The Nebraska State Patrol, in a policy statement, also recognizes that domestic violence occurs when an intimate partner tries to control the other partner by “damaging [that partner’s] relationship with his or her children.”

Harman and Shannon’s message is crystal clear.  No one who reads their piece can be confused.  Gatekeeping and alienation harm children, should not be engaged in by anyone and courts are on the lookout for those behaviors and stand ready to punish parents who engage them. 

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

In a much anticipated and long-awaited ruling, the Texas Supreme Court has done the right thing, albeit the obvious thing as well.  The case is entitled In re C.J.C., Relator. 

C.J.C. had a six-year relationship with an unnamed mother.  They had a daughter, Abigail in 2014.  In 2016, C.J.C. and Abigail’s mother split up and he went to court to request custody.  The trial court ordered a roughly equal temporary parenting time schedule, but, before the case could be concluded, the mother was killed in an auto accident.

Abigail’s maternal grandparents and the mother’s boyfriend, Jason, petitioned the court for custody of the little girl.  C.J.C. resisted, but, in the end, the trial court awarded Jason some limited visitation that increased with time.

C.J.C. complained to the Court of Appeals and then to the state Supreme Court.  The lower courts based their rulings on two Texas statutes, one that, in proceedings to modify custody orders, grants standing (i.e. the legal power to bring suit) to non-parents and the other regarding proceedings to modify existing orders (as opposed to establish those orders originally).  Texas statute law has long made clear that, like the U.S. Supreme Court case of Troxel v. Granville, there exists a presumption that fit parents act in the best interests of their children.  But in the two statutes mentioned above, that presumption is not expressly stated.  Therefore, said the lower court, the presumption didn’t apply in C.J.C.’s case and Jason is entitled to some form of court-ordered custody, parenting time and other parental rights.

Such a contention of course directly contradicts Troxel and other U.S. Supreme Court authority.  The Texas court briefly summarized that jurisprudence thus:

The United States Supreme Court has long held that the Constitution “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” This recognition stems from “a strong tradition of parental concern for the nurture and upbringing of their children.” The Supreme Court’s jurisprudence rejects “any notion that a child is ‘the mere creature of the State,’” but instead holds “that parents generally ‘have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.’”  Accordingly, “the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”

A majority of the Troxel Court found protection for this fundamental right—“perhaps the oldest of the fundamental liberty interests recognized by this Court”—within the Fourteenth Amendment.

In short, if a parent is fit to care for his/her child, the state has no interest in how a child is raised.  It may not intervene in the family’s life just because a judge or other official believes parents could do a better job of caring for the child.  A parent’s fitness is the key to Troxel and no one in In re C.J.C. contended that Abigail’s father was anything but fit.

Now, from my perspective, that should have been the end of it.  Troxel prevented the lower court from intervening in Abigail’s upbringing in the absence of a showing of unfitness on C.J.C.’s part.  But the lower court did so anyway when it assigned rights to Jason.  Therefore, the lower court ruled wrongly and its order should be overturned.  Period.

And that’s what the Supreme Court did.  But it did more too.  It went into the issue of the two statutes mentioned previously.  But as I see it, the Court didn’t need to address them apart from two simple references.  As to standing, the issue has no bearing on the case.  Whether Jason does or does not have standing to move the lower court for an order needn’t have been discussed.  He appears to have standing under the statute, so he can sue, but he just can’t win.  His chances of doing so are obviated by C.J.C.’s parental fitness and Troxel.

As to the second statute that has no express “fit parent presumption,” it’s either unconstitutional under Troxel or, more likely, is to be interpreted as constitutional and therefore read in the light of Troxel which mandates a fit parent presumption and prior Texas cases and statutes that evidence a legislative intention to include the fit parent presumption.  In either case, the Texas statutes in no way allow Jason any form of parental rights.  They’re governed by U.S. constitutional precedent.

All’s well that ends well.  Troxel is a good case and the Texas Supreme Court decided this case on the basis of it and previous parental rights cases.  The case should never have taken so long nor reached the highest court in the state.  The trial court should have read Troxel and known that it more than covered the facts of In re C.J.C., Relator.

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