Thursday, March 5, 2009

Thoughts on Presuming Joint Custody Part 3 (Problems and Solutions)

You will find Thoughts on Presuming Joint Custody Part 1 (Introduction) here and Thoughts on Presuming Joint Custody Part 2 (Mothers and Fathers) here.

I have gone on at this length because I think this issue over a presumption of evidence (and that is what is at issue with the proposed change in the law) actually signals bigger problems. Consider this from Sometimes the Deadbeat Dad is a Mom:

How can we use this information to help reduce the “deadbeat” category altogether? The answer may lie in the concept of joint custody and visitation. Statistics show that when non-custodial parents are more involved in their children’s lives through joint custody and visitation arrangements, they pay all or some of their support obligation nearly 85% of the time. Non-custodial parents who do not share custody or visitation pay support less than 62% of the time. Absent circumstances of actual domestic violence, drug abuse or other such “red flags” where joint custody and visitation may not be appropriate, the custodial parent would be well-advised to encourage the non-custodial parent to be as involved with the children as possible. In such a scenario, the custodial parent would benefit, the non-custodial parent would benefit, and most importantly, the children will benefit. Where else in this economy will you be offered the opportunity to engage in a win-win-win situation?
Notice the "and visitation" used above. In response to a comment to a related article, I mentioned that non-custodial parents need to use and to enforce their rights and that included visitation/parenting time. That includes not only the actual visitation rights such as the right of first refusal but also the more informational rules of parenting time.

What we need in Indiana is more information. It may surprise some that our courts do not have records telling us how many joint custody orders get modified to sole custody, or sole custody modified to joint custody, or why those changes are made, or the relationship between those paying support and type of custody order or their visitation habits. Frankly, I could add a lot more to that list but it is enough of a run on sentence as is. This article helped take away the bias my experience has given me towards joint custody.

Interesting Article on Joint Custody - Ottawa Divorce .com Forums gives us arguments for joint custody but it did a bit more for me, too. This article comes from an online forum. For some reason known only to computers the text is too bad for quoting intelligibly. From what I can tell the Canadian proposal did not pass - even though the proponent made the same arguments we are seeing in Indiana. Here is where my inchoate thoughts about the problems being cultural started to take shape. I suggest reading the whole thread on this topic.

I mentioned in Part 1 The Women’s Law Project's testimony at a Hearing Before the Pennsylvania House Judiciary Committee (pdf format) on August 24, 2004 (a copy of the proposed Pennsylvania law is here). The Law Project opposed the change in Pennsylvania law to a presumption of joint custody. Here is the argument that took me away from any leaning to a change in Indiana:
Proponents of joint custody presumptions assert that joint custody benefits both the children and the parents by increasing contact with both parents. While this argument is appealing on the surface and may prove correct in a situation where both parents voluntarily and wholeheartedly commit to a joint custody arrangement, it fails to take into account the all too common post-separation parental relationship that is characterized by acrimony and/or minimal communication. In his essay on the subject of joint custody, Judge Hardcastle, a Nevada Family Court Judge, expressed concern that the presumption of joint custody deters judges from their fundamental obligation to determine the “best interests of the child.”1 He believes that such presumptions pressure judges to order joint custody without carefully and thoroughly examining and considering the facts of the cases before them, increasing the likelihood that joint custody will be ordered in inappropriate cases involving hostile and conflicted parties. (footnote: Gerald W. Hardcastle, Joint Custody: A Family Court Judge’s Perspective, 32 Fam. L.Q. 201, 206 (1998).)

Joint custody requires an enormous amount of effort and determination on the part of parents. When joint legal and physical custody is involved, parents must create two homes fully equipped for themselves and their children, coordinate complicated schedules, and work with each other to make both short-term and long-term decisions involving the children. Significant effort must be made so that children who shift back and forth between two parental residences are not unduly stressed by the arrangement. This is not easy for parents who are not living together and especially for parents who have never lived and parented together. Cooperation and communication are essential to the success of a joint custody arrangement; such an arrangement is incompatible with parents in conflict.
I cannot disagree with either paragraph. I think the idea that we can force people into a joint custody situation that will work to benefit the children is foolish at best. At worst, it has the only benefit of fomenting more acrimonious litigation.

Which brings me to point another topic that I discuss fairly often - collaborative divorce. I do not maintain a separate archive for these articles but they can be found by using the search engines on this blog. The concept takes out the adversarial from a divorce proceeding. I would love to see how many collaborative divorces with children have joint custody and how successful are those joint custody arrangements. I have a sneaky suspicion that joint custody is preferred by people using collaborative divorce methods and their joint custody arrangements are successful.

I think the greatest hurdle for collaborative divorce remains the clients. If clients understand that turning every divorce into a no-holds barred fight to the finish is not always in their best interests, then the lawyers will follow suit. As a lawyer, I can say that most of us will work to settle a case. Others will not return a call or speak to opposing counsel outside of the courtroom. Clients get impressed with the second type of lawyer so long as they realize that their legal fees go up with courtroom appearances and their success rate goes down. After all, aren't lawyers supposed to go to court? No. We are supposed to go to court only if it serves our client's best interests and there can be no compromise. For an example: there can be no compromise if it means sending a child to live with a drug addled mother but figuring out child support arrears ought to be one the parties can settle. Another example: if the parents could agree on a custody arrangement that does benefit all, then the lawyers need to not get in the way of the agreement. They should do so even if it means a loss of fees.

The Law Project testimony pointed out to me that this type of legislation does nothing to deter those wanting to litigate for the sake of litigating:
A presumption of joint custody is simply inappropriate in a custody case. A presumption is not probative; rather, it merely supplies the fact-finder with a conclusion when there is no proof to the contrary.28 Thus, a presumption of joint custody automatically establishes a conclusion that joint custody is appropriate without any information that supports that conclusion and shifts the burden of proof to the party seeking to prove that joint custody is inappropriate.

Presumptions and the resulting shift in burdens are generally created for four principal reasons. First, some presumptions are created because of a natural tendency to burden the party desiring change and/or to correct any imbalance created by one party having better access to the proof. Second, special economic or social policies, more often implicit than outspoken, incline courts to favor one premise by assigning it the advantage of a presumption. Third, out of convenience, a presumption may be created to avoid animpasse or standstill and reach a result regardless of whether or not the result is arbitrary or capricious. Fourth, a presumption may be based on a judicial estimate of the probabilities – that proof of one fact makes the inference of the existence of another fact so probable that it saves time and makes more sense to assume the truth of the second fact until the adversary disproves it.29
26 Barry, supra note 22, at 769-71.
27 Id. at 771-72.
28 See 9 J. Wigmore, Evidence § 2491 (Chadbourn rev. 1981); see also Turner v. Turner, 455 So. 2d 1374, 1379 (La. 1984).
29 John W. Strong et al., McCormick on Evidence § 337 at 415, § 343 at 437-38 (5th ed. 1999); C. McCormick, Handbook of the Law of Evidence 806-07 (2d ed. 1972); see also Bazemore v. Davis, 394 A. 2d 1377, 1381 (D.C. 1978) (citing McCormick)

Sorry about keeping the footnotes but I think they are necessary. Yes, I added the emphasis. Those who think joint custody should be presumed need to explain how this presumption fits into any of these four categories. If it does not, then why are they wanting the presumption? Unless the presumption fits into one our categories of evidentiary law, it will be either unused or misused by the courts. (Which depends on one's perspective to the case in question).

I emphasized part of that quote as it was that sentence where I saw the potential for litigation. Bringing this back to examples: mother is a drug addict but has no convictions and proof is elusive (one of those we know but just cannot prove it), she should be presumed to have joint custody? Therein lies one truth I wish more people would get through their heads: the law can cut both ways. A person may have had a bad divorce, did not get custody of their children and may think a change in the law would have benefited his case. That person may be correct but he does not know of the case where the change benefits a person who does not deserve the benefit.

The Women's Law Project makes another point that applies directly to the proposed changes in Indiana law:
In practice, joint custody can refer to several different types of arrangements. It can include both legal custody (decision-making) and physical custody (living arrangements, daily care and supervision) or it can include only joint legal custody with the child living with one parent. In reality, the latter situation is more typical. In those cases, one parent has primary physical custody but is severely restricted in making significant decisions by the requirement of collaboration. The parent with only shared legal custody retains privileges without the responsibility of day-to-day care. The fallout from such an arrangement is complex and burdensome. Basic decisions, such as selection of the child’s physician or therapist, become the subject of extensive wrangling and manipulation between the noncooperative parents. Even medical emergencies become traumatic, with horror stories of surgeons unable to operate without the consent of both parents.
I omitted the footnotes here. The point is that joint custody means different things to different people. The statute provides no definition of what is joint custody: joint custody but one parent has physical custody or does it mean sharing the children on an equal time share basis?

I apologize for the extreme length but I think we need to take a look at what is going on here. I do not think changing our law to presume joint custody as being in the best interests of the children is a good thing. I do have some suggestions that might be better - at least for a discussion.

Here are the things I think need changing:
  1. Stop presuming the adversarial system is the best solution for child custody matters. It works for civil cases involving money, but money does not face the same post-judgment issues as do children. This will require involvement from the Bar, the Bench, the public and some from the legislature for any change. Yes, it means giving collaborative law a boost in this state.
  2. Provide alternative means to litigation. Not just mediation, but give to the party with the lesser income the ability to forego the upfront costs of mediation. When each party must bear the costs of mediation equally, this creates a hardship for the spouse with lesser income and an advantage to the other spouse.
  3. Provide adequate funding for guardians ad litem. Better yet, give the counties money for expanding the GAL program and give the GAL the ability to get psychological and custodial evaluations, to get the kind of evidence that might actually help the court to make a decision.
  4. Require parenting classes. Not just the seminars required by some courts but actual classes with actual tests. Do not pass, no custody.
  5. Attorney fees for custody cases. Madison County courts rarely award fees in custody cases. I suspect this is true in most counties. Perhaps more importantly, do not award them if the case is frivolous. I have in mind a case pending where the opposing party has no income and their case is weak at best.
  6. Educate the public on their rights. Probably the hardest thing but the most important. The general public needs to want to learn. Too many think there are generic answers when there is no such thing. (On the other hand, I will admit lawyers exist who mystify the simple). The Indiana Supreme Court has made a great effort to provide information to the general public online. It would be a good thing if the general public read what is freely available to them. Statutes, Parenting Time Guidelines, Child Support Guidelines are like instructions for handling your case. Of course, if you are a person who puts together Christmas toys without reading the instructions first then this may be a good suggestion.

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