October 20, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
This follows up on Monday’s post on a Kansas man’s child custody battle
Then came the Temporary Orders for Paul Schwennesen.
I was desperate to see my children, but the Temporary Orders explicitly gave my ex-spouse residential custody and allowed her to grant me “reasonable visitation.” Yes…“visitation.”… My ex-spouse felt it unreasonable that I should “visit” our children any more than once every couple of weeks.
That’s why the National Parents Organization’s bill last year in the Kentucky Legislature is so important. It establishes a presumption of equal parenting during the pendency of the divorce. Schwennesen’s wife went to court and got temporary orders, apparently without notice to him, that allowed her to dictate when he could and could not see his children. In Kentucky now, that doesn’t happen. It’s one of the keys to winning this fight for equal treatment of mothers and fathers by family courts. If Mom and Dad have equal or nearly equal parenting time during the divorce process, it’ll be natural to simply continue that arrangement permanently.
But there’s another reason as well.
Judges, understandably enough, don’t like to make alterations to Temporary Orders before a final trial, and this points to another ugly element in the vicious cycle: an expeditious trial is not in the interests of the party that is sitting on advantageous “temporary” orders. My ex-spouse’s attorneys have delayed a final trial for well over two years on technicalities that postpone my opportunity to present compelling evidence for equal parenting.
Right. With temporary orders in hand that bestow a huge tactical advantage on mothers, why not drag out the process as long as possible? Schwennesen and his ex aren’t poor, but they’re not wealthy either. The simple fact is that their divorce, child custody and property division could have been decided in six months, but it’s now been two years and they’re nowhere near the finish line. Unequal temporary orders are a huge part of the reason. The longer the unequal parenting time persists, the more likely a judge is to simply make the status quo permanent.
Then there’s the matter of child support.
A month in, the other shoe dropped: a worksheet at the end of the Temporary Orders, calculated by the court using input only from my estranged wife, notified me that I was required to send her a child support payment each month for $1,720. This is not a small number, and represents over a third of my income—an immense burden for someone attempting to regain their bearings after a bolt from the blue.
First, notice how quickly some things happen in family court and how slowly others do. Did she want a restraining order against him? Bingo! She got one immediately. Temporary orders without his input? The court gave her that in a month. But when it comes to his rights, well, there’s no emergency there. It took Schwennesen and his lawyer a year to get a hearing challenging parenting time. Why? Like I said, some things seem more urgent than others.
Did it occur to the judge that allowing Schwennesen’s ex to provide all the information on earnings might possibly open the door to some self-interested dealing by her? I suppose it didn’t. But that’s not all. Eventually, he got a hearing and the judge amended the temporary orders to give Schwennesen 35% of the parenting time. But…
In my case, despite the change in parenting time, the support payments went unchanged (“pending final orders” was the explanation).
Many states’ child support guidelines assume that the parent paying child support incurs none of the expense of raising the child and that the primary parent incurs 100% of those expenses. That’s palpable nonsense, of course, but it’s what the guidelines assume. So, 0% parenting time or 50%, it’s all the same when it comes to calculating child support. That’s yet another rule of family courts that fairly screams for reform. Plus,
My flexible schedule allowed me to be the primary caregiver to my kids, especially after school, yet the court insisted that I contribute to daycare expenses incurred because my ex-spouse was unwilling to allow me to watch the children after school. Though the mother could not be present during her parenting time, and I was willing to step in, the court found that there was no “cause” to adjust my crushing support payments.
That’s right, even his wife’s intentionally depriving the child of time with its father and running up daycare costs in the process wasn’t enough for this court to change what he has to pay or, more sensibly, give him custody. No, pretty much any behavior on her part gets a pass.
But that’s still not all.
My ex-wife now makes over $100,000 a year, while I make roughly half that managing my own business and teaching. The Temporary Order, though, still requires me to pay nearly $2,000 a month (equivalent to a mortgage payment on a quarter-million dollar home) directly into her bank account. I will have paid over $51,000 by the time we get to final trial, assuming no more “delays.” This sum, which is probably not going to backpacks and notebooks, let alone a college savings account, is almost certainly being funneled toward legal fees.
The court and the system, not content with privileging Schwennesen’s wife in every way also requires him to in fact subsidize her lawyers who are abusing the legal process using a variety of false allegations against him. This is true despite the fact that she earns twice what he does. In a sane system, she’d be paying him child support, given his 35% parenting time. But, as his narrative amply demonstrates, the system isn’t sane.
Schwennesen’s piece has it all. The cash incentives to mothers, the lack of any accountability for wrongful behavior, the denial of due process of law, the outrageous child support calculations, the absolute requirement that the two fight like caged dogs over that most modest of aspirations – to care for their kids.
From Schwennesen’s narrative, I can see what should be done in the end. Schwennesen should get primary custody and his ex should pay child support. Her parenting time should be supervised until she can demonstrate to a qualified mental health professional that she’s capable of behaving in a non-abusive manner. According to his story, she’s done much to keep the children from their loving father, including abusing the legal process. She’s apparently made countless false allegations, all of which were aimed at limiting his time with his children. That animus against the children having meaningful relationships with their dad is a form of child abuse and should be treated as such by the court.
Hopefully, we’ll soon know what actually happens.
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