Musings and Sometimes Rants about the non-equal status of Fathers in Family Law and Parenting. Additionally periodic comparisons to the treatment of men compared to women in other areas including health care.
You have courage Judge Hanschen. Give them hell.MJM
May 25, 1:11 PM ·
Judge David Hanschen Photo: Mark Graham/Dallas Observer
Ginger Weatherspoon, a former Assistant Attorney General in Texas, has filed a lawsuit in Dallas County District Court claiming that she was fired for refusing to sign a false affidavit accusing Judge David Hanschen of wrongdoing.
Judge Hanschen has been at odds with the Texas Attorney General's office for several years over what he claims are unfair and deceptive practices used to award and collect child support. Some staff in the Attorney General's office had been collecting affidavits accusing Judge Hanschen of threatening the AG's office or issuing prejudicial rulings against AAGs. Presumably their intent was to file a complaint of judicial misconduct against Hanschen.
Several lawyers in the AG's office claim that they were encouraged or coerced into signing the affidavit's against their will, but Weatherspoon says that she was fired for refusing to cooperate.
Ongoing conflict between Judge Hanschen and the Texas Attorney General's Office
The Texas Attorney General's office prides itself on its relentless pursuit of deadbeat parents and portrays itself as an advocate for children. The office's Child Support Division has been nationally recognized for leading the country in child support collections. Critics point out that since the office receives federal funds based on the amount of child support it collects, there is a financial incentive to close as many cases as possible without regard for the rights of the parties involved.
Since 2007, Judge Hanschen and other family court judges have been questioning some of the tactics employed by the AG's office. They claim that the office often railroads poor uneducated men into giving up their rights and traps them into paying child support for children that are not even theirs.
Judge Hanschen has butted heads with the AG's office on numerous issues. At one time, the office had men without lawyers "sign in" upon arrival at the courthouse. What the men didn't know was that the form they signed waived their right to contest the court's jurisdiction. Thanks to Judge Hanschen, these forms are no longer used in Dallas County but they are still used in other parts of the state. There is also the question of how men are notified about child support proceedings. Rather than serving the men in person, the AG's office can send a letter via regular mail. If then men don't receive the letter or don't understand it and don't show up, child support can be awarded, wages garnished, or a warrant issued for their arrest without their knowledge. The latest issue has been the question of DNA testing to determine paternity.
In Texas, if a mother is married when she gives birth, her husband is legally the father. If she is not married, the presumed father is encouraged to sign an Acknowledgement of Paternity when the baby is born. Once a man is established as the legal father, he has 4 years to dispute his paternity and request DNA testing. After the 4 year statute of limitations has passed, even if a DNA test proves that the man is not the father, he is still responsible for child support.
Judge Hanschen doesn't agree with the 4 year statute of limitations and has repeatedly ordered DNA testing in cases that are beyond that timeframe. According to blood banks, in about 25% of cases where DNA testing is performed, the man in question is not the father. The AG's office has repeatedly appealed cases where Judge Hanschen ordered DNA testing and so far, the Court of Appeals has sided with the AG. Critics of Hanschen and others like him say that these judges are placing themselves above the law and attempting to legislate from the bench. Hanschen argues that if the judges never point out the flaws in the current legislation, then the problems can never be fixed.
The AG's office stands by the statute of limitations on disputing paternity claiming that after 4 years, the presumed father has established himself in a paternal role and it is in the child's best interest to maintain that role. Indeed, the Dallas Observer reports the heartwrenching story of a man who (thanks to DNA testing ordered by Judge Hanschen) discovered that his 7 year old and 5 year old daughters were not biologically his. He is now contesting the child support he has been ordered to pay which he says is excessive and would not leave him enough money to live on. His lawyer has advised him not to visit the girls because renewing his relationship with them will hurt his child support case. So the man has weekly visits with his son but no contact with the girls.
In the past 10 years, 30 states have passed legislation regarding DNA testing and child support. Nine more states will consider legislation this year. Texas at one time considered a law where a man who is determined not to be the biological father would not be required to pay more than $100/month child support but would still be allowed visitation with the children. The bill did not pass.
Lawsuit against the Attorney General's office
In her lawsuit, Weatherspoon is asking for reinstatement to her position as an Assistant Attorney General, lost wages, and punitive damages for whistleblower violations. The Attorney General's Office has not commented on the case at this time.
I have updated my world wide search for information on various custody regimes.
Within this information are excerpts from a presentation by Peter Tromp, PhD, child and educational psychologist, President of the Father Knowledge Centre Europe, and Chair of the Dutch Foundation for Children, on Access and Equal Parenting at the International Conference on Family and Equality “Justice and Father’s & Men’s Dignity” on 2-4 January 2009 in Drama, Greece. If you want an update on the current European movement toward custody arrangements and insights into the current consequences of the adversarial process this is a worthwhile read. I would recommend studying it if you are currently before the courts as it might have information to bolster your affidavits with respect to sole custody negative outcomes or step parent involvement in sole custody mother situations. Although the negatives parallel our own it is interesting to hear it from a psychologist deeply immersed in the dysfunction.
His comments on the Belgium situation are also up-to-date and he gives a preliminary look at the new Dutch Law implemented on January 1, 2009. He is Dutch and gives candid comments on the "legislating from the bench" judiciary of his homeland. He also gives a more detailed analysis of the Dutch law in Appendix "A" at the end of the presentation. The PDF is a worthwhile addition to CEPC's library.
The presentation is quite long but also detailed and one of the best overviews I have seen recently. You can visit the web site here http://fkce.wordpress.com/2009/01/03/13/ and download the PDF of the presentation on site.MJM
First though a short video to offer thoughts on why its best for children to have two parents in their lives. As the video states its the best child support out there.
USA State Department
Sweden
DISCLAIMER: The information in this flyer relating to the legal requirements of specific foreign countries is provided for general information only. Questions involving interpretation of specific foreign laws should be addressed to foreign legal counsel.
GENERAL INFORMATION: Sweden is a civil-law country. Judicial proceedings in a civil-law country generally differ from those in the United States, a common-law country, in several significant ways. For example, juries are not used. Legal cases are heard and decided by a judge or panel of judges that can include lay judges. Evidence can be presented and arguments can be made in oral hearings, but such hearings tend to play a secondary role, supplementing extensive written submissions to the judge. The judge normally can play a more active role in proceedings than is common in U.S. courts. Whereas a U.S. judge may be limited to serving, in effect, as a referee between two adversaries, judges in a civil law country might, for example, seek evidence independently of what either side presents. In Sweden, the civil courts handle divorce and custody cases, while Hague cases are heard in Stockholm City Court. Swedish courts do not generally recognize, register, or enforce foreign court orders regarding custody, although a U.S. statute or court order may be considered in adjudication of a Hague case to determine if a removal/retention was “wrongful.” The Swedish government provides Legal Aid for individuals involved in Swedish custody proceedings and in Hague cases, depending on the level of income, but regardless of nationality.
Custody: In Sweden, married parents have joint custody of a child from birth until the child reaches the age of 18. Under Swedish law, a mother who bears a child out of wedlock is automatically initially granted sole custody of the child. Upon the birth of such a child, the Swedish Tax Authority (responsible for birth registrations in Sweden) informs the social welfare board that a child has been born out of wedlock. The social welfare board, in turn, contacts the mother and requests that both parents appear and execute an acknowledgement of paternity. The parents are given the opportunity to decide if they will agree to joint custody. The documents are then approved by the social welfare board and forwarded to the Tax Authority. The Tax Authority maintains up-to-date records on the child’s custodial parent(s), known in Sweden as “vardnadshavare.” Swedish authorities report that out-of-wedlock fathers have the same custody/access rights as every other father. The U.S. Embassy in Stockholm has found, in the cases known to it, that fathers of children born out of wedlock have rarely been able to obtain custody or visitation without the mother’s consent.
The Swedish Children and Parents Code prescribes that the “best interests of the child” are of paramount consideration for any orders and decisions regarding custody, residence and contact. The Code also states that when deciding what constitutes a child’s “best interests,” special consideration should be given to a child’s need for contact with both parents.
Access: Swedish courts have extremely wide latitude with respect to access orders. However, appeals may complicate a court’s ability to enforce access/visitation orders. A court may refuse to enforce an access order if the court is convinced that circumstances have manifestly changed since the order was made or that it is in the “best interests” of the child to revisit the order. It is important to note that Swedish courts do not have the equivalent of “contempt of court,” a strong enforcement tool used by U.S. courts. In the United States, a judge can order a party to comply with legal rulings or face arrest, imprisonment and/or a fine. In Sweden a parent who refuses to obey a Swedish court order may, if there are special reasons, risk penalty of a fine in order to secure that he or she will entrust the other parent with the child. The neglect to comply with the court order may also affect that parent’s future possibilities to maintain custody of the child.
Swedish authorities report that gender bias is prohibited by the Swedish constitution. The U.S. Embassy in Stockholm notes that in non-Hague Convention cases involving American fathers and Swedish mothers, the Swedish courts have more often given custody to the Swedish mother. The Embassy has also found that the Swedish courts tend to favor Swedish mothers in cases involving visitation and access conflicts. Swedish courts have enforced very few of the rulings favorable to American fathers.
Criminal aspects: It is a crime under Swedish penal law to abduct children.
From: Library of Congress:
Married couples have joint custody of a child from birth until the child reaches the age of 18. An unmarried mother is given sole custody of the child. If the parents marry later, both of them obtain custody of the child from that point in time, unless a court previously entrusted custody to one or two specially appointed custodians. If only one of the parents has custody of the child and the parents wish to have joint custody, the court will, on their application, make an order in accordance with their request, unless joint custody is manifestly incompatible with the best interest of the child. Alternatively, the parents may obtain joint custody by filing a request with the tax authority. If parents who share custody divorce, there is a presumption that they will continue to exercise joint custody of the child; however, the question of with whom the child will be living often gathers overriding attention. Moreover, joint custody entails that all major decisions regarding the child will be made collaboratively, for example, one parent needs the consent of the other parent to travel abroad with the child, and both parents will have access to information from schools and the authorities. Joint custody additionally entails that parents can decide, out-of-court, on visitation rights and where the child will be residing as long as the arrangements are compatible with the best interest of the child. In contrast, a parent granted sole custody independently decides on all matters regarding the child, including living arrangements.
If the parents do not agree, for instance on the issue of where the child will be living, or in case one parent wants to change the current accords on custody against the other parent’s will, he must file a judicial petition with a court of law, which must then decide whether the custody henceforth will be joint or solely granted to either party. Since 1998, it has been possible for the court to decide on joint custody against the wishes of one of the parents. Frequently the courts task the social authorities to conduct mediation talks between the parents before rendering a decision in cases in which the parents do not agree on custody, visitations rights, or the residence of the child.
With respect to access rights, a child is entitled to visitation with both parents.23 There is no contrasting right for parental access to a child. If the parents do not live together, the parent with whom the child is residing has a responsibility to facilitate access to both parents, including sharing costs that might arise in this connection. The willingness to facilitate access to both parents can be taken into account by a court of law when deciding the issue of custody. If there is an indication that a parent might abduct a child while exercising parental visitation, the court may proscribe that the parent is only allowed to meet with the child in the presence of another person or only in Sweden.24
In Sweden, contact operates with a graded mix of private ordering, social services and family courts. The presumption is for both parents to have automatic joint custody of (i.e. legal responsibility for) their child, if they are married, that remains so after separation when the child might live with one parent. Child contact is seen primarily as a child welfare issue, and there is no specialist family court within the Swedish legal system. Agreement and cooperation is encouraged between separated parents on custody, residence and access, supported and facilitated by local social services first, followed by court intervention afterwards if necessary. Law reform in 2006 was based on the two principles: the best interests of the child and the right of the child to be heard. There is a child-centred approach to contact decisions, and a presumption that a child needs a good and close relationship with both of its parents. Regard must be given to the risk of any harm to a child or another family member, and to the child's wishes.
Australia
DISCLAIMER: The information in this flyer relating to the legal requirements of specific foreign countries is provided for general information only. Questions involving interpretation of specific foreign laws should be addressed to foreign legal counsel.
GENERAL INFORMATION: Custody in Australia is referred to as "parental responsibility." Unless there is a court order to the contrary, the parents of a child are assumed to have "joint parental responsibility." A court-issued "residence" order specifies who will be the primary physical custodian of the child. A "contact" order is similar to a U.S. visitation or access order. Australian family courts adjudicate petitions on a case-by-case basis with the judge applying the "best interests of the child" standard. The amount of access allowed a non-custodial parent is also decided on a case-by-case basis, and may be denied under certain egregious circumstances. Legitimacy of the child is not a factor in a judge's determination.
Australia has a federal family law and family court system in which individual states comprise separate legal jurisdictions, with the common legal principles since 1996 of shared parental responsibility and the child's best interests to govern post-separation parenting and child contact. Recent major reforms introduced a highly integrated set of family and legal services, mainly through a network of community-based government funded Family Relationship Centres acting as a single entry point to the family law and family support system. The system also includes Early Intervention Services such as family relationship counselling, mediation, education and skills training, on-line information services for parents and family violence services and Post Separation Services, including contact centres, a Contact Orders Program, Children's Contact Services and Family Dispute Resolution Services. Lawyers and courts are intended as a last resort.
The 1998 report, For the Sake of the Children, rejected a formulaic approach to dealing with contact, recognizing the diversity of family life and arguing that individualized, informal agreements made by parents were more likely to be in the child's best interests. A 2002 study, of Canadian mechanisms for contact dispute prevention, resolution and enforcement, observes that 'most separating or divorcing couples appear to resolve their access arrangements without high conflict or extensive use of the courts'. Services to support separating and divorcing couples are delivered at provincial levels, although some receive federal support. There are different and wide mixes across provinces of counseling, mediation and information, parenting plans and parenting education services available. Dispute resolution services include counseling, mediation and arbitration for access enforcement. Contact centres offer supervised or supported access. Sanctions available to the courts for access enforcement also vary, and can include civil contempt, fines, imprisonment and compensatory access.
In Denmark, divorce is dealt with as an administrative matter and there are three types of measures that aim to support children and parents in relation to child custody and/or contact: 1) The Regional Government administration deals with decisions on child custody and contact and offers free, professional, voluntary and confidential counselling to parents who disagree over custody or contact; 2) Mediation is offered free of charge to parents who disagree about custody or contact. Both parents must agree to attend and there are two mediators, one lawyer and one person with experience in child cases; and 3) meetings for children whose parents live apart, so that they can meet with other children of the same age and with similar problems. Counsellors with experience in child cases attend these meetings.
Wednesday, 26 September 2007 01:00 administrator
Legal experts are concerned that new joint parenting laws could further complicate divorce
The legal system is preparing for a rush of fathers seeking joint custody of their children when revised parenting laws go into effect next week.
The new parental law, which becomes valid on 1 October, is designed to give additional rights - and responsibilities - to both fathers and mothers.
While current, decade-old legislation requires parents to reach an agreement before joint custody is granted, the new law establishes co-parenting as the norm - even after a divorce.
Under the new rules, joint custody can only be repealed if serious concerns for a child’s safety such as abuse come to light.
The law requires that after a divorce, parents share a range of responsibilities ranging from taking children to school to ensuring the former spouse has information about school activities. Children themselves will also have more say under the legislation, as child welfare authorities will interview them on parental custody matters.
Experts are concerned, however, that the revisions could result in a flood of new law suits. Anja Cordes, chairman of the national organisation of lawyers dealing with custody cases, was a member of the committee, which drew up the law’s proposals.
She stated that although the political will was in place to establish co-parenting after a failed marriage, feuding parents might lack the ability to put their differences behind them for the good of the child.
‘It will take time before parents learn to separate parenting with partnership and to stop seeking revenge through their child,’ she told Berlingske Tidende newspaper.
She also predicted longer processing times for child welfare authorities in future cases, as parents who had lost custody cases in the past seek the chance to have their case retried.
Anette Hummelshøj, the head of Department of Family Affairs, admitted the new law could place an additional strain on the legal system.
‘But our expectation is that when the courts have established a clear line for the legal area, a higher number of parents will be able to settle either inside or outside the courts.’
Benefits of post-divorce shared parenting and the situation in the Netherlands, Belgium and Germany
Presentation by Peter Tromp PhD, child and educational psychologist[1], President of the Father Knowledge Centre Europe, and Chair of the Dutch Foundation for Children, Access and Equal Parenting at the International Conference on Family and Equality “Justice and Father’s & Men’s Dignity” on 2-4 January 2009 in Drama, Greece
Let me give you some brief summaries by country on the present state of Shared Parenting Legislation in the countries of the European Union:
1. Italy now has a mix of joint legal custody and elements of joint physical custody since a law change that came into effect on 16th March 2006.
2. France has a mix of joint legal custody and elements of joint physical custody (Residence Alternee) that came into effect in 2002. An estimated 15% of French children of divorce are now growing up in shared parenting and alternating residence arrangements.
3. Belgium on the initiative of its Socialist Party now has implemented presumptive 50/50 joint physical custody legislation (effective bi-location of the children) after parental separation in both its House of Commons and Senate which came into effect when it was formally published by the Belgian Federal Government on the 4th of September 2006. The new Belgian federal law on bi-location will be discussed at more length in my presentation below.
4. In the Netherlandsjoint legal custody was implemented in family law by the Dutch Parliament in 1996 making joint legal custody the standard for post-divorce parental authority. And with the new Dutch Law on Continued Parenting after Separation (no. 30145), that went into effect on 1 January 2009, this was followed by the introduction in Dutch family law of the basic principle of the equality of both parents and the presumption of equal parenting (both before and after divorce or separation, and regardless of whether the parents were previously married or not). The new Dutch family law also introduces a strong incentive for separating parents to come up with a mutually agreed parenting plan during the separation and divorce proceedings.
The new Dutch law reform will be discussed at more length in my presentation below. Considering however the poor Dutch tradition on effective family law reform, the mainly decorative value of Dutch family court orders for fathers and the Dutch family court’s tradition of legislating from the bench, it still remains to be seen what this new Dutch law will bring in day-to-day family court practises for divorcing and separating parents and their children.
5. Norway still has sole physical custody but its Minister of Justice has already announced (in 2007) a complete family law review based on the principles of presumptive joint physical custody. Up until now, however, this has not yet materialized.
6. Ireland has, since the advent of Parental Equality (the Irish lobby group associated with Liam O’Gogain) circa. 1993, been considering the possibility of a change to laws of joint physical custody – which gives some gauge of the lack of seriousness with which such laws are being considered.
7. In Germany, a professional court intervention model called the Cochem model, based on principles of shared parenting, is gathering strength. This German Cochem court practice model will be discussed at more length in my presentation below. In this model parents are only allowed access to the family court for parental separation and divorce after they have themselves also filed a shared post-divorce parenting plan agreed by and between both of them. The German federal minister of Justice has previously (February 2006) announced future family law reform in which “elements of the Cochem model of multi-disciplinary court orchestrated intervention” are to be integrated into the German family law. Which elements, however, are as of yet unknown. This family law reform at the federal level has, therefore, not yet materialized.
8. Malta also has some form of shared parenting presumption according to Maltese family rights organizations. As of yet, however, it is unclear what is the exact nature of their shared parenting presumption.
9. Spain introduced a new shared parenting law in mid-2005 which is regarded as wholly inadequate by Spanish family rights lobbyists. Government officials and professionals on their own initiative are attempting to introduce policies reintegrating alienated children with their alienated parents and there is a vigorous movement for change.
10. The UK under the present Labour government has, as of yet, no effective shared parenting laws in existence. In his simultaneous presentation at the Drama Conference based on a study of the British Law Commission’s research papers Robert Whiston found that court-ordered shared parenting was commonly practiced in the south part of England in the second half of the last century until it was eliminated by the Children Act 1989 (Whiston, 2009a). At present, the oppositional Conservative Party – which is expected to win the next 2009 elections – has adopted Equal Parenting Family Law Reform as part of its election program. Also some judicially-motivated efforts to introduce norms of shared parenting do exist, in spite of the family-hostile parameters of the present law and fiscal framework.
11.Luxembourg is also said to have introduced post-divorce joint physical custody legislation.
Other jurisdictions
- Australia passed a Shared Parenting Bill in the Senate in 2006 of the window dressing sort. Australia in fact is a good example of the sort of jurisdiction that repeatedly passing pretend laws that are having no real effects on keeping both parents involved in children’s lives after parental separation. And each time it is claimed that the present law proposal will be better than the last, while children of separation continue to grow up in a family-hostile environment. The same pattern can be observed in EU-countries like the UK, the Netherlands and Spain.
- In the USA several states have implemented shared parenting legislation.
6. Recent developments in family law and family courts in Belgium, the Netherlands and Germany
Family law reform in Belgium
Belgium already had a presumption of joint legal custody in its family law since the nineties of the last century.
Since September 2006 the Belgian federal law on “bi-location” or “alternating residence” also came into effect after having passed both houses in the Belgian federal parliament. This new law additionally introduced a presumption of joint physical custody, care and residency as the norm or preferred post-divorce parenting arrangement to be ordered by the Belgian family courts. Furthermoreimmediate unilateral court-access for either of the divorced or separated parents in requesting for additional reinforcement orders if needed was introduced.
Contrary to common belief the Belgian family law reform of September 2006 however did not introduce a 50/50 joint physical care and residency arrangement as the fixed end-result for all divorcing or separating Belgian parents. Instead it introduced a presumption of dual location or shared residency which by law should be taken into serious consideration and thorough investigation with priority in each individual case by the Belgian family courts and judges on the request of either one of the divorcing parents separately.
In the situation where both separating parents consensually forward shared residency, care and access proposals between the two of them in the divorce and separation proceedings, the law puts the Belgian family courts and judges under the obligation to accept those mutually consented proposals as leading in the court-orders to be subsequently imposed in the divorce and separation proceedings.
In effect the wishes with regard to the post-divorce residency, care and access arrangements of either parent parties involved were thus again acknowledged and reinstated at the core of Belgian family law and family court proceedings regarding physical custody, residency and care. By law Belgian family court judges were endowed with the obligation to explicitly specify in their court-orders their decisions and provisions with regard to the imposed post-divorce residence and care arrangements in writing if they were to deviate from the presumptive and preferred bi-location or shared parenting arrangement in their court-orders.
These new Belgian law provisions have put shared parenting at the forefront of the family courts decision-making regarding the care, access and residency of the children involved, while the need and obligation imposed by law on the Belgian family courts and judges to extensively specify in writing in their imposed court-orders as to why a shared parenting or bi-location order was not imposed, opens the possibility for appeal of the courts decisions and motivations.
A further additional but underestimated new element of the Belgian family law reform is the introduction of immediate or priority access to the courts and judges on the request of either one of the parties one-sidedly. This can be activated unilaterally and individually – without the need of being represented by a lawyer at the court-session requested for – for additional reinforcement orders of the court when the court-ordered parenting arrangements were not sufficiently complied with by the other parent and when there were complaints about the other parent with regard to abiding by the specific parenting arrangements laid down by the judge in the original case residency, care and access order(s) given.
Although the law, as a federal national framework, has been in effect for only 2,5 years – and so it is too early to evaluate its effects thoroughly – first impressions are that it has contributed strongly to the Kantian appeasement between divorcing and separating parents in Belgium. This contributes to both the leading civil and family law principle of appeasement between conflicting parties as well as to the best interest of the children involved who now flourish far better under the care of the appeased but separated parents.
Family law reform in the Netherlands
In 1996 joint legal custody (in Dutch: gezamenlijk gezag) was implemented by law by the Dutch Parliament making joint legal custody the standard for post-divorce parenting in the Netherlands to oblige with EVRM Article 8 on the Right to Family Life.
However, shortly after the introduction of the law, the family courts in conjunction with the Dutch High Court neutralised the Dutch Parliament’s specific intent for a law by to keep both parents involved in children’s lives.
Perversely, the judiciary undermined Parliament’s sovereignty by stating that joint legal custody could be awarded but that it did not automatically entitle fathers to contact and access arrangements.
Over the past few years the Dutch Parliament has taken several new initiatives to introduce joint physical custody and equal parenting as the legal presumption for post-divorce parenting arrangements.
The first attempt was the legal initiative on administrative divorce (divorce without the use of a court and representing lawyers) and continued parenting, No. 29676 by parliament in 2004 (Luchtenveld, 2004), better known as the Luchtenveld-proposal [5]. It passed the Dutch House of Commons in the winter of 2005 only to be left stranded in the Dutch Senate in the summer of 2006. This however was mainly caused by the “Administrative Divorce” part of the law being contradictory to lawyers’ interests, which hit on heavy resistance with the Dutch judiciary[6].
Another new attempt for family law reform, better known as the “Donner-proposal”, was then made on the initiative of the Ministry of Justice with the Law on Continued Parenting after Separation (No. 30145). This law while it passed in the Dutch House of Commons in June 2006, on the initiative of the Dutch Socialist Party was unexpectedly altered by a constitutional majority amendment introducing equal parenting as the presumption for post-divorce parenting. On November 25th 2008 this law passed the Dutch Senate. It went into effect two days ago on January 1st 2009.
This new law has the following main positive features with regard to shared parenting arrangements and the reinforcement of parenting orders by the Dutch family courts:
It introduces and aims to guarantee in Dutch family law the basic principle of equality for both parents and the presumption of equal parenting both before and after divorce or separation, and regardless of whether the parents were previously married or not.
It introduces a strong incentive for parents to come up with a mutually agreed parenting plan during the separation and divorce proceedings.
Adding new but complicated reinforcement possibilities to the toolbox of options available to judges to ensure compliance with court-ordered parenting arrangements.
However, the law also has some distinctly negative features for shared parenting as it once again re-opens the possibilities for the family courts to deviate from the Parliamentary default presumption of joint legal custody. This could give rise to new ways and new reasons for a court to exclude a father from parenting his children. For a more detailed account of the features in the new Dutch family law on parenting after divorce however I further refer to the Appendix A with this presentation.
Reforms in Germany – The Cochem court-practice model
Several years ago a family court judge Jurgen Rudolph – based in the German regional family court of Cochem was confronted time and again with two equally capable parents. Both were forced to fight each other – almost to the death – in adversarial court proceedings. His radical solution will be detailed later in this paper.
Also in Germany a post-divorce presumption of joint legal custody was already in effect in family law since 1998, when several years ago the family court judge Jurgen Rudolph (Rudolph, 2007) – residing at the German regional family court of the city and district of Cochem – in his courtroom bench was confronted with capable parents fighting each other with the help of their lawyers (and to the detriment of their children) over post-divorce arrangements concerning the residency, care and access over their children and demanding from him as the judge to decide in favour of either of them. Parents and lawyers from both sides seemed to be only involved in painting their adversarial ‘opponents’ as black and incapable as possible during the divorce proceedings in the family court.
The position family court Judge Jurgen Rudolph took in this was that he considered post-divorce physical custody arrangements between principally fit and capable parents not to be a standard-decision for the family court and himself as the family judge to make and decide on by default over the heads of either one of the parents. On the basis of the lawfully existing care-obligation in Germany for both parents to care for their children the making of physical custody arrangements over their children had by default to be considered primarily as a matter of responsibility for both the divorcing parents themselves to decide on in the first place.
Resulting from the in-fights between parents and their lawyers taking place in adversarial divorce proceedings, the regional family court of Cochem then experimented by changing its family court practises. In the new family court practice divorcing parents were strongly encouraged by the court to first come up themselves with a mutually and consensually agreed “parenting plan” for the residency, care and access to and over their children, as a mandatory precondition before being able to enter and finalise their divorce settlements in the Cochem family court.
As the parents now needed to come up with a mutually agreed parenting plan or parenting arrangement proposal, this mandatory demand of the court both not only resulted in a reinstatement of the equal level playing field and cooperation between the parents looking for divorce (instead of the previous court practises magnifying the differences and conflicts between the parents). But equally important, it also lead to a complete practise overhaul within the professions involved in the divorce proceedings in the family court.
Instead of aggravating the parents in their conflict, all professions, i.e. lawyers, social workers, youth welfare workers, etc., began cooperating with each other in order to offer mediatory and other support services and help to the divorcing parents who were in demand of support in making the parenting plan needed in order to finalise their divorce proceedings. In time, the cooperation between professionals evolved from cooperation on the individual case levels to a more structured network cooperation of the involved professions around the Cochem family court.
These changes in Cochem court practises and the resulting changes in practises by the surrounding professionals in the meantime have earned wide recognition in Germany and are nationally referred to in Germany as the Cochem court practises (in German: Cochemer Praxis) or the Cochem model (in German: Cochemer Modell). They are now also taken into evaluation and consideration in a future planned reform of family law by the German federal ministry of justice in Berlin.
Comparing Belgium, the Netherlands and Germany
The separate developments in these three European countries are interesting because of their convergence. In Belgium and the Netherlands developments have started top-down so to speak from the national or federal political-legislational level with the introduction of a new family law creating a national framework and new guidelines for the functioning of the family courts. While in Germany these same developments started not top-down but bottom-up from the family courts themselves experimenting with less adversarial proceedings and court practises regarding post-divorce residency, care and access arrangements and orders.
Of the law reforms in these three European countries the Belgian law reform on bi-location is to be regarded as the most clear-cut in its choice for shared parenting. The family law developments in the three European countries discussed however all share in their emphasis a distinctive shift towards implementing the concept of shared parenting and restoring an equal level playing field between both divorcing parents in family law and/or family court practises as opposed to the previous mother-only single parenting presumption that has dominated family law and family court practises in the countries of the European Union for so long.
Belgium - A 'template' for Shared Parenting - 'Dads on the Air' shows that the UK is not the only country where separated fathers experience problems. This Australian radio interview finds out how fathers in Belgium managed to overcome the obstacles to reform and implement the first laws in favour of shared parenting.
(a) The father and mother are the joint natural custodians of their minor child and are equally charged with the child’s support, care, nurture, welfare and education. Each has equal powers and duties with respect to such child, and neither has any right, or presumption of right or fitness, superior to the right of the other concerning such child’s custody or any other matter affecting the child. If either parent should die, or abandon his or her family, or is incapable, for any reason, to act as guardian of such child, then the custody or such child devolves upon the other parent. Where the parents live apart, the Court may award the custody of their minor child to either of them and neither shall benefit from any presumption of being better suited for such award.
… Unless the court determines that it is not in the best interest of the child, the court may issue an order that provides for frequent and continuing contact between each parent and the minor child or children and for the sharing of responsibilities of child-rearing and encouraging the love, affection, and contact between the minor child or children and the parents regardless of marital status. There shall be a rebuttable presumption that joint custody is in the best interest of the child or children, except in instances where a judicial officer has found by a preponderance of the evidence that an intrafamily offense as defined in D.C. Code section 16-1001(5), an instance of child abuse as defined in section 102 of the Prevention of Child Abuse and Neglect Act of 1977, effective September 23, 1977 (D.C. Law 2-22; D.C. Code 6 (2101), an instance of child neglect as defined in section 2 of the Child Abuse and Neglect Prevention Children’s Trust Fund Act of 1993, effective October 5, 1993 (D.C. Law 10-56; D.C. Code 6-2131), or where parental kidnapping as defined in D.C. Code section 16-1021 through section 16-1026 has occurred… To determine the best interest of the child, for the purpose of making a joint or sole custody determination, the court shall consider all relevant factors, including but not limited to:
the willingness of the parents to share custody;
the sincerity of each parent's request;
the parent's ability to financially support a custody arrangement;
the impact on Aid to Families with Dependent Children and medical assistance;
the benefit to the parents;
D.C. Code 16-911(2)(A) In any custody proceeding under this chapter, the court may order each parent to submit a detailed parenting plan which shall delineate each parent's position with respect to the scheduling and allocation of rights and responsibilities that will best serve the interest of the minor child or children....
(D) The court may also order either or both parents to attend parenting classes.
(3) Joint custody shall not eliminate the responsibility for child support in accordance with the applicable child support guideline as set forth in section 16-916.1.
5(2)(b)...It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities of childrearing....
2. The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child....
3.(3) For purposes of shared parental responsibility and primary residence, the best interests of the child shall include an evaluation of all factors affecting the welfare and interests of the child, including but not limited to:
(a) The parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent.
(c) The capacity and disposition of the parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
(j) The willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(4)(c) When a custodial parent refuses to honor a noncustodial parent's visitation rights without proper cause, the court may:
1. After calculating the amount of visitation improperly denied, award the noncustodial parent a sufficient amount of extra visitation to compensate the noncustodial parent, which visitation shall be taken as expeditiously as possible in a manner which does not interfere with the best interests of the child: or
2. Award the custody or primary residence to the noncustodial parent, upon the request of the noncustodial parent, if the award in the best interests of the child.
(1) "Joint custody" means an order awarding custody of the minor child or children to both parents and providing that physical custody shall be shared by the parents in such a way as to assure the child or children of frequent and continuing contact with both parents... If the court declines to enter an order awarding joint custody, the court shall state in its decision the reason for denial of an award of joint custody.
(2) "joint physical custody" means an order awarding each of the parents significant periods of time in which a child resides with or is under the care and supervision of each of the parents or parties.
(4) Except as provided in subsection (5), of the section, absent a preponderance of the evidence to the contrary, there shall be a presumption that joint custody is in the best interest of a minor child or children.
(5) There shall be a presumption that joint custody is not in the best interests of a minor child if one (1) of the parents is found by the court to be a habitual perpetrator of domestic violence as defined in section 39-6303, Idaho Code.
Section 1 of S.L. 1982. ch. 311 read: "Policy statement. It is the policy of this state that joint custody is a mechanism to assure children of continuing and frequent care and contact with both parents provided joint custody is in the best interest of said children."
Article 131. Court to determine custody. A. If there are children of the marriage whose provisional custody is claimed by both husband and wife, the suit being yet pending and undecided, custody shall be awarded in the following order of preference, according to the best interest of the children:
(1) To both parents jointly. The court shall, unless waived by the court for good cause shown, require the parents to submit a plan for implementation of the custody order, or the parents acting individually or in concert may submit a custody implementation plan to the court prior to issuance of a custody decree. A plan of implementation shall allocate the time periods each parent shall enjoy physical custody of the children and the legal authority, privileges and responsibilities of the parents....
(2) To either parent. In making an order for custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent, and shall not prefer a parent as custodian because of that parent's sex or race. The burden of proof that joint custody would not be in a child's best interest shall be upon the parent requesting sole custody.
D. For purposes of this Article, "joint custody" shall mean the parents shall, to the extent feasible, share the physical custody of children of the marriage... Physical care and custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact, with both parents. An award of joint custody obligates the parties to exchange information concerning the health, education, and welfare of the minor child; and, unless allocated, apportioned, or decreed, the parents or parties shall confer with one another in the exercise of decision- making rights, responsibilities, and authority.
E. ... The court shall state in its decision the reasons for modification or termination of the joint custody order if either parent opposes the modification or termination order.
ARTICLE 132. AWARD OF CUSTODY TO PARENTS
In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.
SUBPART B. JOINT CUSTODY
335 Joint custody decree and implementation order. A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
(2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally... B. (1) In a decree of joint custody the court shall designate a domiciliary parent....
(2) The domiciliary parent is the parent with whom the child shall primarily reside….
(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise....
C. If a domiciliary parent is not designated in the joint custody decree and an implementation order does not provide otherwise, joint custody confers upon the parents the same rights and responsibilities as are conferred on them by the provisions of Title VII of Book I of the Civil Code.
40-4-224. Joint custody -- modification -- consultation with professionals
(1) Upon application of either parent or both parents for joint custody, the court shall presume joint custody is in the best interest of a minor child unless the court finds, under the factors set forth in 40-4-212, that joint custody is not in the best interest of the minor child. If the court declines to enter an order awarding joint custody, the court shall state in its decision the reasons for denial of an award of joint custody. Objection to joint custody by a parent seeking sole custody is not a sufficient basis for a finding that joint custody is not in the best interest of a child, nor is a finding that the parents are hostile to each other. However, a finding that one parent physically abused the other parent or the child is a sufficient basis for finding that joint custody is not in the best interest of the child.
(2) For the purposes of this section, "joint custody" means an order awarding custody of the minor child to both parents and providing that the physical custody and residency of the child shall be allotted between the parents in such a way as to assure the child frequent and continuing contact with both parents. The allotment of time between the parents must be as equal as possible; however;
(a) each case shall be determined according to its own practicalities, with the best interest of the child as the primary consideration; and
(b) when allotting time between the parents, the court shall consider the effect of the time allotment on the stability and continuity of the child's education.
A. There shall be a presumption that joint custody is in the best interest of a child in an initial custody determination....
F. When joint custody is awarded, the court shall approve a parenting plan for the implementation of the prospective custody arrangement prior to the award of joint custody. The parenting plan shall include a division of a child's time and care into periods of responsibility for each parent....
G. Where custody is contested, the court shall refer that issue to mediation if feasible.
I. Whenever a request for joint custody is granted or denied, the court shall state in its decision its basis for granting or denying the request for joint custody. A statement that joint custody is or is not in the best interest of the child is not sufficient to meet the requirements of this subsection.
J. An award of joint custody means that:
(1) each parent shall have significant, well-defined periods of responsibility for the child;
(2) each parent shall have, and be allowed and expected to responsibility for the child's financial, physical, emotional and developmental needs during that parent's periods of responsibility;
(3) the parents shall consult with each other on major decisions involving the child before implementing those decisions; that is, neither parent shall make a decision or take an action which results in a major change in a child's life until the matter has been discussed with the other parent and the parents agree. If the parents, after discussion, cannot agree and if one parent wishes to effect a major change while the other does not wish the major change to occur, then no change shall occur until the issue has been resolved as provided in this subsection.
(a) Unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.
(b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child.
If a parent or the guardian ad litem requests shared custody of a child and the court denies the request, the reasons for the denial shall be stated on the record.
(a) Custody should be granted in the following order of preference according to the best interest of the child as provided in 3911: (1) To both parents jointly pursuant to Chapter 4 (commencing with 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, subject to 3011, and shall not prefer a parent as custodian because of that parent's sex.
3080. Presumption of joint custody.
There is a presumption, affecting the burden of proof, that joint custody is in the best interest of a minor child, subject to 3011, where the parents have agreed to joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child.
3082. Statement of reasons for grant or denial.
When a request for joint custody is granted or denied, the court, upon the request of any party, shall state in its decision the reasons for granting or denying the request. A statement that joint physical custody is, or is not, in the best interest of the child is not sufficient to satisfy the requirements of this section. IOWA: Title XV, Subtitle 1, Chapter 598
598.41 Custody of children
1.a. The court, insofar as is reasonable and in the best interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents after the parents have separated or dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.
c. The court shall consider the denial by one parent of the child's opportunity for maximum continuing contact with the other parent, without just cause, a significant factor in determining the proper custody arrangement.
2.b. If the court does not grant joint custody under this subsection, the court shall cite clear and convincing evidence, pursuant to the factors in subsection 3, that joint custody is unreasonable and not in the best interest of the child to the extent that the legal custodial relationship between the child and the parent should be severed.
60-1610. Decree; authorized orders. Neither parent shall be considered to have a vested interest in the custody or residency of any child as against the other parent, regardless of the age of the child, and there shall be no presumption that it is in the best interests of any infant or young child to give custody or residency to the mother.
(4) Types of custodial arrangements. Subject to the provisions of this article, the court may make any order relating to custodial arrangements which is in the best interests of the child. The order shall include but not be limited to, one of the following, in the order of preference:
(A) Joint custody. The court may place the custody of a child with both parties on a shared or joint-custody basis. In that event, the parties shall have equal rights to make decisions in the best interests of the child under their custody. When a child is placed in the joint custody of the child's parents, the court may further determine that the residency of the child shall be divided either in an equal manner with regard to time of residency or on the basis of a primary residency arrangement for the child. The court, in its discretion, may require the parents to submit a plan for implementation of a joint custody order upon finding that both parents are suitable parents or the parents, acting individually or in concert, may submit a custody implementation plan to the court prior to issuance of a custody decree. If the court does not order joint custody, it shall include in the record the specific findings of fact upon which the order for custody other than joint custody is based.
518.17 Custody and support of children on judgment
The court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of he child.
The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child.
II. Except as provided in subparagraph (c), in the making of any order relative to such custody there shall be a presumption, affecting the burden of proof, that joint legal custody is in the best interest of minor children:
(a) Where the parents have agreed.... If the court declines to enter an order awarding joint legal custody, the court shall state in its decision the reasons for denial of an award of joint legal custody.
In a unanimous opinion, presiding Judge Dorothy T. Beasley stated: Although the dispute is symbolized by a 'versus' which signifies two adverse parties at opposite poles of a line, there is in fact a third party whose interests and rights make of the line a triangle. That person, the child who is not an official party to the lawsuit but whose wellbeing is in the eye of the controversy, has a right to shared parenting when both are equally suited to provide it. Inherent in the express public policy is a recognition of the child's right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents' wisdom, judgment and experience. The child does not forfeit these rights when the parents divorce.
The A.R.B. case was subsequently heard by the Supreme Court of Georgia, which upheld the Court of Appeals' finding that, according to public policy of Georgia, joint custody was in the best interests of children when both parents are fit.
A divorce from a spouse is not a divorce from their children, nor should custody decisions be used as a punishment. Joint custody can benefit the children, the divorced parents, and society in general by having both parents involved in the children's upbringing.... The difficult and delicate nature of deciding what is in the best interest of the child leads this Court to interpret the child's best interest as requiring a trial court to consider joint custody first, before the more traumatic sole custody. In finding a preference for joint custody is in the best interest of the child, even in a bitter divorce, the court is encouraging the parents to cooperate with each other and to stay on their best behavior. Joint custody can be modified if a party is acting in bad faith or is uncooperative. The trial court at amy time can review joint custody and if a party is being unreasonable, modify the custody to sole custody in favor of the reasonable parent. Surely, with the stakes so high, there would be more cooperation which leads to the child's best interest, the parents' best interest, fewer court appearances and judicial economy. Starting out with sole custody would deprive one parent of the vital input.
Help for pro se users in Clark County, Indiana
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Commissioners OK legal help center for courthouse New appointment made to
fill a void in County Courts By BRADEN LAMMERS
Braden.Lammers@newsandtribune.com ...
Modern Feminism in Canada
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Feminists, male and female, try to disrupt a Canadian Association for
Equality meeting at the University of Toronto in 2013
I am Politically active and right of centre on most issues with the odd exception such as legalization of "Mary Jane".
I advocate on changes to Family Law - an incredibly dysfunctional arena where parents are pitted against one another and children are the victims.
My picture will sometimes show me as a younger man simply because I like them.
