This piece says a lot more than I suspect its author thinks it does (Boston Herald, 12/19/10).
It’s one of the countless advice columns that can be seen in every newspaper in the country and many blogs. This one’s a legal advice column. The writer is Gerald Nissenbaum; I’ve read his column before and generally find it sound, if unspectacular.
The piece linked to is about that age-old burr under the blanket of divorced fathers in this and, as far as I can tell every other country – enforcement of visitation rights. Here’s how the dad puts his question:
I”ve regularly paid child support for our 5-year-old daughter.
My ex-girlfriend told the judge she didn”t want me in our daughter”s life. She”s refused to comply with orders giving me parenting time.
Why don”t courts force mothers to provide parenting time when they”re so quick to call a man a deadbeat dad?
That’s a good question that many have asked before. Tellingly, Nissenbaum doesn’t even try to answer it; he just goes into what the guy needs to do to try to coax the judge into enforcing what’s left of his parental rights.
And what he needs to do is – well – a lot. But before I get into that, let’s not forget what the man actually said in his letter: “My ex-girlfriend told the judge she didn’t want me in our daughter’s life.”
Consider the implications of that. First, the mother apparently felt that it was perfectly acceptable to say that to the judge in open court. You could almost conclude that she feared no adverse consequences for making such a declaration.
And of course such a conclusion would be well warranted. After all, readers of this blog are scarcely the only people who know that courts routinely ignore their own orders of visitation. I’ve written several times about cases in which that’s happened and reported on the long essay on the matter by Australian historian, John Hirst entitled “Kangaroo Court.” There he traced the history of the family court’s antipathy for fathers and their quite conscious decision to treat orders of visitation differently from all other court orders, i.e. not enforce them via their contempt power.
I doubt that the man’s ex has read that essay, but why should she bother? She probably has at least one girlfriend who can tell her the same thing. Still, it’s a bit brazen on her part to tell the judge that she intends to ignore his order.
But reading further in Nissenbaum’s piece, keep in mind that what he’s describing are all the things a father must do to try to get some time with his child in a case in which the mother has admitted before the fact that she intended to deny him access. Wouldn’t you think that a judge who’d been told that would be a bit more ready to find her in contempt than one who hadn’t? I would.
It would seem that the dad could walk into court with his motion for contempt based on just one or two violations by the mother and all he’d have to do is remind the judge “Oh, by the way, my ex is the one who said in public, on the record, that she was going to violate your order and sure enough, she’s doing just that.”
But apparently even that doesn’t carry much weight. “D.C.” from Tryingham has to jump through the same hoops as any other dad. In the first place, she gets several free passes. Nissenbaum specifically instructs the man that she’s got to violate the court’s order “four or five times” before he can even ask for a contempt order.
So once again, the court isn’t much interested in the visitation side of things. Let a dad miss that many child support payments and he can easily be looking at jail time, to say nothing of penalties and interest tacked on. But this man’s ex gets at least a handful of violations.
After she’s racked up that many, he can go to court. And if he wins, if he convinces the judge that, as the man says in his letter, “She’s refused to comply with orders giving me parenting time,” she’s in trouble, right? Wrong.
The first time, mom will probably get a lecture by the judge, who should also order her to pay your out-of-pocket expenses, and continue the case for six months.
A lecture! Well, that’ll set her straight. Actually, it’ll just give her six more months to do more of the same if she chooses.
Let’s do a little simple math. If Dad has visitation every other weekend as is so often the case, five violations would occur over 10 weeks. How long does it take to get a hearing? I have no idea, but let’s be optimistic and say it takes six weeks. That’s a total of 16 weeks before Dad even gets to tell his story to the judge. Then he gets no satisfaction whatsoever and has to wait another six months.
That’s a total of 10 months during which, if the mother does what she told the judge she was going to do, this father will not see his daughter a single time. That’s 10 months in the life of a five-year-old child, which is to say, close to an eternity. That’s also 10 months before the court will even consider actually doing anything to make sure the little girl gets to see her father.
But from the looks of things, those 10 months are the bare minimum the dad can expect the court to take before lifting a finger. If he wants a change in custody, that’ll require a guardian ad litem, an investigation by a social worker, etc. and much, much more time.
And all of this is in a state whose laws require each parent to “foster a good relationship between the child” and the other parent. Clearly, the legislature of Massachussetts has adopted that as the state’s public policy on child custody post-divorce. And just as clearly, family courts, because of their unwillingness to vigorously and timely enforce their visitation orders, routinely ignore that public policy.
These family courts continue to just not get it. “It” is the fact that children need fathers in their lives. By their behavior, we see that family courts believe that money, i.e. child support, is important. But a real relationship with Dad is, if not totally unimportant, then rarely worth the time and effort required to ensure that it happens and remains viable. If they got that simple basic concept, Gerald Nissenbaum’s advice would be entirely different.