May 26, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Time and again we see family lawyers opposing a proposed improvement to children’s legal right to time with their fathers. Essentially every legislative move toward insuring that children can spend more time with their fathers is met with impassioned and often illegal resistance from family lawyers. Such was the case in North Dakota in 2014 and again in Florida in 2015, to take just two recent examples.
Well the family law Section of the Florida State Bar is at it again and this time we can see the depths to which they’ll sink. Put simply, Florida SB 590 would, if it becomes law, have little-to-no impact on the time kids spend with their fathers. It’s as toothless a bill as we’re likely to see, but that doesn’t stop the Family Law Section from opposing it. Even the hint of the possibility that fathers may improve their access to their kids is too much for the family lawyers to tolerate and so they oppose it.
To put the most positive spin possible on SB 590, I can say that it’s an effort to give poor fathers some minimal amount of time with their kids. Specifically, the bill addresses cases that fall under Title IV-D of the Social Security Act. Those are the ones in which a custodial parent has received benefits under federal welfare laws like Temporary Assistance to Needy Families (TANF). In those cases of course, the appropriate state agency is charged with recovering from the non-custodial parent the money paid to the custodial parent. That process often involves establishing paternity and an order of child support.
What it doesn’t do is also establish a parenting time order for the non-custodial parent. Dad’s made to pay, but Mom’s not made to provide him access to the child. For that, he’s on his own. If he happens to have the money to pay a lawyer, he can go to court and get an order. But of course, how many Title IV-D dads have the money to do that? The reality is that Title IV-D is a one-way street and is 100% about money. As I’ve written before, the federal budget for child support enforcement is $5 billion per annum. The budget for visitation enforcement? $10 million, or 1/500th of the child support budget.
So SB 590 sets out a very minimal parenting time schedule for non-custodial parents in Title IV-D cases. Very minimal. It gives kids just a smidgen over 20% of their time with their non-custodial parent, i.e. about 77 days per year.
But there’s a catch. SB 590 doesn’t give either kids or dads a thing. That’s because, as the bill makes abundantly clear, for the parenting time plan to come into effect, it has to be agreed to by both parents. In other words, if Mom doesn’t want Dad to have that much time with the child, or indeed any time at all, she need only withhold her consent to the plan and the plan doesn’t exist.
As a sop to fathers, SB 590 tells Title IV-D administrators that, if both parents don’t agree to the parenting time plan laid out, they must inform the non-custodial parent of his right to go to court to get an order. In other words, he can do what he can do now, if he can afford it.
In short, SB 590 may be well-intended, but it’s about as ineffective as a bill can be. It in fact places fathers’ rights to their kids and kids’ rights to their fathers entirely under the thumb of mothers. Remember, these people are poor; few of them have the money to pay a lawyer, so the reality under SB 590 is that Mom can veto Dad’s access to little Andy or Jenny if she so desires.
But, vanishingly small as its impact would be, the Family Law Section of the Florida State Bar opposes it anyway. In a letter to Family Law Section members, Chairwoman Laura Davis Smith wrote,
In response to this legislation, in February our Section adopted a formal standing position to oppose “any legislation that permits the administrative establishment of a timesharing schedule or parenting plan.”
Should SB 590 be signed into law by Governor Scott, it would introduce into Chapter 409 a requirement that the DOR, and the Administrative Law Judges (ALJs) handling these cases, encourage parents to enter into agreed timesharing plans.
Of course not one word of SB 590 “encourage[s] parents to enter into agreed timesharing plans.” The bill merely requires that the standard timesharing order be given to the parents. But apart from that misrepresentation on Smith’s part, what stands out is the concern of family lawyers that someone in the family court system might be able to do something without them. The concern about non-existent “encouragement” and the establishment of a timesharing plan, not in a court of law, but by administrative personnel is about nothing but the lawyers’ fear of being removed from the process.
How much money do family lawyers earn off of Title IV-D parents? Not much, but apparently even that loss of income is too much for them to contemplate. More important is the tacit threat that the public may increasingly become aware that they don’t need lawyers to conduct their business in divorce and custody cases. As it is, the overwhelming majority of cases go forward without a lawyer or with only one. The lawyers are rightly afraid that what’s already happening may be expanded to further marginalize them in the system of divorce and child custody.
Of course, I’ve often argued that child custody isn’t the appropriate purview of lawyers anyway. After all, what is it about child custody that is or should be legal in nature? Such a concept assumes that judges are in some way uniquely positioned or qualified to determine what benefits kids. They aren’t and prove the matter every day.
A smarter system would remove child custody and parenting time decisions from the legal system altogether. Until that happens, family lawyers will do what they can to protect their incomes, which is what the Florida lawyers are doing now.
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Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.
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