Non-Custodial Fathers Are Second — No, Make That Third — Class Citizens

September 10, 2014 by Robert Franklin, Esq.

In case we didn’t think non-custodial parents are marginalized enough in their children’s lives, this case makes the point even more clearly (New York Law Journal, 9/8/14). Stories of non-custodial fathers who supposedly have the right to see, be with, care for and talk to their children, but who find that right unilaterally denied by their ex-wives are all too common. Those stories often devolve into tales of trying time and again to get the judge to enforce the order of visitation he/she signed, only to see Mom’s open contempt of court ignored of winked at.

Then there are the cases in which third parties get in on the action. So we see schools refusing to provide non-custodial fathers information about their children’s school performance, school activities and the like. Schools often refuse to allow little Andy or Jenny to go home with Dad even though he has a court order allowing him to do so. Doctors’ offices are much the same — refusing to turn over medical information to Dad or let him know about doctor visits.

The list goes on from there, but the number of humiliations suffered by non-custodial parents at the hands of both the custodial parent but many others is remarkable.

And so it came to pass that Kenneth Decter of New York is learning the same lessons we’ve seen so many fathers learn. Decter has a son, Andrew, who was 16 at the time the whoop-di-do began.

Kenneth Decter and Ellyn Sosin divorced in 2002. Ellyn had sole legal and physical custody of Andrew. Kenneth was allowed visitation twice a week and daily telephone contact, but had no decision-making authority under the divorce terms.

Two years ago, Ellyn decided to send Andrew on one of those remote nature experiences called the Second Nature Therapeutic Program. Since Kenneth was prohibited from having any input into her parenting decisions, she didn’t tell him what she’d done or why. The first thing Andrew’s father knew about his absence was when he couldn’t get hold of him by phone as it was his right to do.

In the predawn hours of June 20, 2012, Andrew Decter, then 16, awoke to find three large men in his bedroom. Two stood over him and another blocked the door. They displayed handcuffs and told him they were taking him to Utah. Andrew made an unsuccessful attempt to escape, then asked to speak with his father or a friend or an attorney.

The men refused and took him to Utah and Second Nature…

At the program, Andrew Decter allegedly had to wear an orange jumpsuit and hike several miles daily through difficult terrain. He ate freeze-dried food, bathed using a bag of water and had his boots taken from him nightly. After about a month, he lost 25 pounds.

Though he repeatedly asked to speak with his father or an attorney, his requests were allegedly rebuffed.

Kenneth Decter became alarmed when he could not contact his son the day he was taken. Once he learned Andrew was at Second Nature, he called the program but a staff member would neither confirm or deny the son’s presence.

Kenneth Decter’s attorney made similar requests that were refused.

So Decter sued Skezics Corporation that does business under the name Right Direction Crisis Intervention. He sued on his own behalf and that of his son. But he’s a non-custodial parent, so his lawsuit has been dismissed by New York trial court judge, Joseph Bianco.

…Bianco said in Decter v. Second Nature Therapeutic Program, 13-cv-3519, that a "non-custodial parent has no cause of action against a third party where the custodial parent consented to the custody by the third party. To hold otherwise would create a novel claim under New York law that would potentially create liability to various institutions — such as schools, camps and day-care centers — who are caught in the middle of a marital dispute over visitation rights involving the child."

That’s fair enough as far as it goes. After all, we shouldn’t expect schools, doctors or organizations like Right Direction to referee disputes about what authority each parent has. But of course Bianco neglected to mention a legally salient point.

In all, Kenneth said Second Nature allegedly prevented him from speaking with his son despite their knowledge of his rights to visitation and telephone contact.

It’s one thing to side with Right Direction if it’s employees had no knowledge of Decter’s rights, but quite another to do so when they did. What Judge Bianco has done is to allow third parties like schools, doctors, hospitals, sports teams, etc., to simply ignore a father’s rights even when presented with clear proof of what they are. Right Directions knew he had the right to visit with his son twice a week and talk to him every day, intentionally prevented him from doing so and it’s all OK with the judge and apparently New York law.

As in other situations, a non-custodial parent finds his so-called parental rights subject to the whims of every person who comes into contact with his child. Does the school system choose to ignore his right to know about his child’s school performance? He has no recourse. Does the child’s doctor decide it’s too much trouble to keep Dad informed about his son’s health, treatment, etc. Dad remains in ignorance. If little Andy or Jenny is in a summer sports league that refuses to inform Dad of games, once again, he’s out in the cold. Yes, the judge signed an order saying he has the right to know those things, but, according to Judge Bianco, the words on that piece of paper are just that and nothing more. They have no practical effect and, if Bianco is right, no legal effect either. As with his power to enforce visitation against Mom, it’s all largely theoretical. So, for example, if Dad has six weeks of visitation with his child during the summer, Mom can just send him/her to camp somewhere far away, and that will be that. After all, in Decter’s case, Mom had sole legal custody which means her parental decisions may neither be questioned nor contributed to by Dad.

Now, Bianco did mention that Decter may have a cause of action against his ex-wife, but the idea that he can get damages from her for something done by Right Direction seems dubious at best. But more importantly, is that really the policy we want to set? Do we really want to encourage lawsuits for money damages by one parent against another? Why not just allow suits against third parties like Right Direction as long as they’ve been informed of the facts of the court order that’s in effect?

Anyway, my guess is that, if Decter did sue his ex, she’d respond by saying his sole remedy lies in the family court. She knowingly deprived him of his parental rights under the order by sending Andrew off to Utah, but she’ll tell the judge that the only thing anyone can do is for the family court to give him some makeup time, tax costs against her or whatever. And we know how reliable family courts are about enforcing visitation.

The upshot? Non-custodial fathers are second — no, make that third — class citizens. Mom holds all the power over parenting and even third parties don’t answer to them. In the end, this case is yet another good argument for doing away with the entire concept of custodial and non-custodial parents. The law should recognize the fact that so many have pointed out for so long — that parents’ inability to live with each other doesn’t mean they’re no longer parents. Indeed, the parent-child relationship lives on regardless of divorce or separation. Therefore, all parents should have the right to know what’s going on in their children’s lives and third parties should have the legal obligation to inform them. And one parent should not be able to unilaterally remove the child from the other parent’s life. Situations can always arise in which parents and those third parties may be at odds, but a system of equal parental rights and obligations can’t be more complicated than the one we have now. And, since the benefits of equal parenting are largely undeniable we’d do well to put things in their proper perspective. Keeping both parents involved in children’s lives and upbringing should be the goal, the talisman. Given that, many other questions are easily answered, and not the way Joseph Bianco did.

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