Sunday, June 21, 2009

Shared Parenting - My View and Another's

I had a hearing this month where the issue was to continue shared custody or not. The client and her spouse had agreed to shared custody. That is one week the children stayed at the home of one parent and the next week at the other parent's home. Problems arose and my client wanted a change. The other spouse did not.

The judge explained to both parties that he had never seen a shared custody arrangement that worked during his whole career. he explained that the issue was not what either parent wanted but what was best for the children. Shared custody did not really give the children stability. I think the judge made his point quite well with one question to the other party: what is the children's home. Other party said: when they are with me, my home.

If it sounds like the judge was especially solicitous to the other party, the other party was pro se (without an attorney).

The judge's ruling came down last week. He gave the parties joint custody with physical custody to my client. At this point, it is up to the parties to show that they can make this custodial arrangement work.

Today, I ran across Child-Custody – Putting Your Children First. I suggest reading the whole of the article, but I find this important:

When custodial decisions move into contention, creating a scenario where lawyers, legislation and courts determine the direction of your children's future, you not only lose power in your life, you lose harmony within your already fragile family structure.

There is another way. When you create a child-centered divorce, your children win - on every level. Parents who make a concerted effort to sit down with each other and discuss the future well-being of their kids together, keep their perspective where it really belongs - on the children. To do this, they must take into account and ask themselves some very serious questions:

" What's best for our children today, tomorrow and in the years to come?
" How can we minimize the physical, emotional and spiritual damage inflicted upon our children as a result of our pending divorce?
" How can we best support our children through this difficult time?
" How can we show your love and compassion for them as they move through challenges they did not ask for -- or create?
" What can we do to boost their sense of security, self-esteem and well-being during the transitions ahead?
" Who can provide the least traumatic home environment for the children - and for what percent of each day, week, month and year?
" How can each of us best contribute our assets - physical, emotional and spiritual - to create harmony, good will and peace within the changed family structure?
" How will our children look back at this divorce a year, five years, ten years and more from now? Will they understand?
" How can we make life better for our children after the divorce than it was before?

The answers to these questions are not simple, nor are they black and white. They require honest communication between two mature adults who have their children's best interest at heart. And yes, it may likely take more than the two of you to come to resolution on all the child-custody details. That's where you can enlist the aid of professionals -- mediators, therapists, counselors, life coaches and clergy. These experienced and knowledgeable experts will approach your divorce from a child-focused perspective. They have the tools and insight to help you reach agreement on issues that will affect the total well-being of your children in the least-derisive manner.

I disagree with shared custody as being a good idea but I cannot disagree that avoiding contention in custody issues is best.

13 comments:

C. Sean Stephens said...

Interesting post. We see so many in Oregon that want to fight for joint legal custody and shared custody, which is (1) missing the point and (2) a reason in itself why joint custody isn't a good idea for those particular parents.

Sam Hasler said...

Thank you quite concisely stating the problem. It would help if Indiana had defined joint custody but it has not and so we have a lot of people with a lot of misconceptions. Much of what I hear people wanting from joint custody they now get from our Parenting Time Guidelines and from making more of an effort to be in their children's lives.

Mike Doherty said...

Indeed, as Mr. Hasler points out, it is Indiana's Parenting Time Guidlelines that we are begging to be implemented here in Illinois. Without them, children's bonds with the non-custodial parents (almost always, the father) are being destroyed over time, by any custodial parent who's judgement may be off, who may be narcissist or a sociopath, may be angry, or who may be trying to replace the dad with a new boyfriend, or may feel insecure about her role, etc..

GOOGLE NEWS WITH KEYWORDS:
illinois fathers divorce

TITLE:
Forum: State must let divorced dads play a bigger role

ARTICLE:
As perennial as the traditional Fathers Day gifts, pronouncements on the virtues of fatherhood by elected officials such as President Barack Obama are made to reinforce it. When tied to proposed legislation, these statements have often included a suggestion that many fathers need to act more responsibly.

Likewise, the current presumptions of family courts with regards to fathers' parenting time influences our perceptions of the value of father engagement. The de facto minimum parenting schedule used by Illinois courts remains, as it has been for decades, "every other weekend" with a weekly non-overnight "visit." This number of overnights with their children is, according to at least one national child development specialist, a "child-unfriendly" schedule befitting only "disinterested" fathers. Illinois judges, family court protocols and many legislators have continued to acquiesce to this inadequate standard.

AUTHOR: Michael Doherty, Chair, the Children's Rights Council of Illinois

Sam Hasler said...

It is both interesting and surprising when we learn that Indiana is more progressive than other states. Some readers mind find it odd that I put the emphasis on visitation guidelines as I do but the mistake in that thinking is that the Parenting Time Guidelines are only about visitation. I started dissecting the Parenting Time Guidelines on the is blog. I suggest reading those articles to see what obligations and duties those Guidelines impose on both parents.

Mike Doherty said...

I will look through the Parenting Time Guideline commentary on this blog. I have a copy of the Indiana guidelines - very impressive and far more thorough than anything we have in Illinois. But bottom line is still - how much access is the child guaranteed to have with their non-custodial parent? Without a reasonable level of guaranteed (i.e., legally protected) parenting time (call it 'visitation' - matters not to the child), there is no way to protect the relationship between the non-custodial and the child. And the judgement and emotional state of custodials, especially in the 24 months following divorce, certainly is likely to be lacking in the balanced, reasonable, mature, sound qualities you'd be looking for in a parent, to place them in such a dominant position over the other parent.

Randy said...

Shared Parenting does not equal 50/50 time with both parents. The problems is that we fathers/parents are sick and tired of the disproportionate biased family law system that automatically favors mothers for primary custody.
I am NOT in favor of the Indiana Parenting Time Guidelines. On the weekend it's not my weekend it will be 7 days from Wednesday to Wednesday that I can't parent my daughter and she doesn't have her dad participating in her life. How can anyone agree to this? That's emotionally harming to the child in the long run. Girls will grow up thinking that men/dads/husbands have a secondary importance and their primary role is finances. 7 days is a very long time that dad doesn't play a role in something. I am my daughter's father... not the Judge nor the attorneys. Stop telling us what is best for our children in situations where the child's best interest isn't at risk. This should only be exercised in situations when the child's welfare is really at risk. Judges should order parents to sit down and come up with a parenting plan that works for both parents and allows the child to have access to both parents without interference from the other parent. Whether that is 50/50, 60/40 but never less than 70/30. There are far more implications when childrens access to a parent has been drastically reduced.

As far as I am concerned I believe children should not be denied access to either parent for more than two days outside of vacations/trips etc etc. I have had my daughter for the last 4 years Monday a few hours, Wednesday a few hours, when it's not my weekend 4 hours on Friday and a few hours on Sunday. My daughter loves the schedule and looks forward to it. If you don't agree or believe in that idea, it's none of your business. Now they are trying to reduce that time based on a signature 3 years ago. My daughter has adapted to the current schedule and I will not allow it change. It's the status quo now. The circumstances HAVE changed since the signature 3 years ago. By the way I was pro se and missed the part about changing the parenting schedule when my daughters reaches school age.

I totally disagree with this article on the bases that one parent should have primary custody simply because this ALWAYS leads to that parent having 95% authority of the child. This article speaks of extremes based on an already broken down system. The article states two sides with a misconception on what Shared Parenting means. The court can't award "custody" because God already awarded it to both parents when the child was born.

Sam Hasler said...

Well, Randy, I am sorry that you think I misstated what you think shared parenting is, but what I have here is how the courts define shared parenting.

More importantly, you miss the point that contentiousness between the parties ruins a shared custody relationship.

Like many people - including not a few lawyers - you are missing the point of the Parenting Time Guidelines: they contain quite a more than visitation and quite a few rights and responsibilities for both parents. More importantly, they are the minimum. If the parties agree to more, they are free to do so. If the parties cannot agree, then the parties know the least amount that the court will allow.

I think if read more of this blog rather than cherry-picking one article, you might learn that many lawyers - especially me - will tell you that the system is not perfect. What appears to be broken seems to me to have two causes: 1) the parents are ill-informed or ignore how the system works, or 2) the parents willfully ignore whatever in the family system that they do not like. As you wrote, you did not read The Parenting Time Guidelines. The Indiana Supreme Court wrote them with the idea that the parents could use the Guidelines without the need to hire legal counsel and also to lessen the need for court time. (Whether they succeeded in this is a point I have serious doubts about- there are more than a few places not very well written). What was not expected that the parties would not read them.

Randy said...

Sam thank you for your response. I have read the Indiana Parenting Time Guideline and everything else in the guide is common sense other than the part that discusses parenting time. That's the only part that matters to me because it suggests that, what ultimately ends up being dad, will be parenting his child 8 days a month. The only thing that gets enforced in the Indiana Parenting Guideline is "parenting time". It's a joke to be honest. It needs clean up with a better parenting plan that allows children equal access to both parents. *85% of the people I've talked to tell me that custodial parents (primarily mothers) use the Indiana Parenting Guideline like its a weapon against dad and how often he can participate in his children's life. The Indiana Parenting Guideline is broken. This is absurd. It's absurd that dad gets his constitutional rights for due process thrown out the window because a Judge favors federal incentives and mothers for primary custody. Honestly I don't care what the Judges reasoning is... law was never designed to supersede our inalienable rights. Children are NOT property nor are they wards of the state.

If the judge ordered shared parenting and then ordered both parents to come up with a parenting plan, 75% of wars would end there, and if parents do end up back in front of the judge, then the judge should review the material and find a happy medium that would enabled the child to have equal access to both parents. The problem is that attorneys and judges think they have a major in psychology and honestly believe they "know" whats best for the child without really having a clue. I've never seen a Judge or an attorney do follow visits to homes they rendered a decision to. Nor do they collect data on a scientific level on how their decisions have affected children. It's absurd that a Judge would think they know whats best for children in a situation where children's welfare isn't at any real risk. It's none of their business what they think unless a parent is unfit. I suggest you pause for a moment and stop reading case law and review what WE The People say about shared parenting. Read what psychologist are saying. It was already our (parents and children) constitutional and inalienable God given right. You nor a Judge have any right to lift a single decision/opinion towards it (only in your own case). This is America man... when you strip away all the mumbo jumbo, ordering shared parenting is the only option available. Anything else is an abuse of the American law system and direct violation on human rights.

Sam Hasler said...

Sorry about the delay in responding here. At some point, I do need to make a living.

First, I think you have missed the point of the original article and most of the comments but then you make the same point: if the parties agree then that is the end of the game. I really would have to see a judge who overrules what parties agree to regarding parenting time. That would be a true oddity.

On the other hand, you might just consider why parents do not, cannot agree on a custody/parenting issue. Frankly, I probably have more that do agree than do not. Those that do agree have cases that work.

As for what gets enforced, that really comes down to the parties. If they do not push for enforcement, there is no independent agency that will. I have had clients who have success in getting the other points of Parenting Time enforced.

I see a lot of comments like these: "It's absurd that dad gets his constitutional rights for due process thrown out the window because a Judge favors federal incentives and mothers for primary custody. Honestly I don't care what the Judges reasoning is... law was never designed to supersede our inalienable rights. Children are NOT property nor are they wards of the state." But never hear the details of what cases the fathers put on or how they used the proper process to protect their rights. The courts do not operate independently of the parties. That is, if the parents are not going to protect their rights no one is.

Actually, it is not that lawyers or judges think they are psychologists. No, you will not see a judge do follow up visits to a home - do you think they have the time for this? Do you think they have an agency for this? Would Hoosiers be willing to pay for this? (Actually this is possible for paternity cases but try to convince a juvenile judge that his probation staff has the time to handle these visits).

No, we rely on evidence to get at the psychological stuff that interests you so much. And some commons sense. Would you have paid for a psychological evaluation in your case or would you do so in the future? Again, this is not something that the court can just order without expense.

I read your comments about "we, the people" the following and wonder if you understand that we, the people have given powers to the government to pass laws. Reading back what you have written, I see this quite often. It is not that either the judges or the lawyers make this stuff up as we go along. The General Assembly has passed statutes and we have to implement them.

If you really want to change things, then you need to start with contacting your local State Representative and Senator. That there are problems with our family law system is not really that unknown. If you read this blog in any depth you will see plenty of gripes from me. But saying that we - lawyers and judges - need to do this and that fails to recognize the role of the legislature. Let them know what you think.

Randy said...

Sam

We are... we're trying to impact Indiana legislation and have been for several years now. I started a site called http://www.indianasharedparenting.org
and have been trying to educate people on shared parenting. People presume that it automatically means 50/50 time and that's not the case.
Senator Kruse mayor of Auburn Indiana wrote a brilliant HB 560 that the general assembly simply ignored. See http://www.in.gov/legislative/bills/2009/IN/IN0560.1.html The more they ignore us the more we grow stronger. We have activist all through Indiana. We are even working on becoming an ACFC affiliate here in Fort Wayne, IN. Gotta run... looks like your site is full of valuable information and the fact that you're thinking outside the box shows that you're the genuine article.

MikeD said...

Interesting debate going on here! ~ First of all, in Illinois and in other states that do NOT have statewide 'minimum guidelines', judges follow 'county protocols' that (ohh gee, who would've guessed?) just happen to be highly uniform across the entire state. So don't blame your Indiana guidelines as the culprit. It's their interpretation by judges that matters. Secondly, I've carefully read the Indiana Parenting Time Guidelines - they are progressive compared to what judges are following here in Illinois. If there is a valid criticism, it pertains to the specific wording within the Guidelines on school overnights (either a midweek visit or extended weekend). The wording appears weak. School overnights are critical to a parenting role for the Non-Custodial Parent. But at least the Indiana Guidelines (according to my sources) are being interpreted as suggesting to judges that children SHOULD have school overnights with their NCP. I believe the Guidelines are also specfic in recommending half of school summers (which is double that presumed in Illinois). If I am not correct on these, please inform me!

As for the complaint of going a full week without any visitation time with one's children - I do not believe that is the fault of the Indiana Guidelines - in fact, my reading of those Guidelines is that they serve to guard AGAINST that sort of child-unfriendly schedule (which, btw, would never be considered part of a "Shared Parenting" schedule unless the two parents were not located near each other).

Anonymous said...

The Supreme Court Committee that develops the various Guidelines is now (August 2009) finishing their federally-mandated review of the Ind Child Support Guidelines. They realize that the Ind Parenting Time Guidelines (IPTG) were a major step from the prior "visitation guidelines", and have received several suggestions on points to consider in a future revision. The problem is that you can't have one set of guidelines that really work for all situations. Families have different desires, different schedules, different dynamics. They also often live in different parts of the county, state, and country. Should 50/50 parenting apply to all of these folks? One set of rules? I am lobbying for a revised PROCESS that begins with stepping the parents though determining what role they want to take, and how they see that working: practically. It would be a process that steps them through creation of a parenting plan that works for them and their family. It is a major conceptual difference than legislation (God help us if this guideline-development process becomes political!!) or the present one-size-fits-all IPTG. The IPTG could serve as a fall-back for a judge, but would not be the initial go-to document. What we have to be very careful about here, though, is that we don't go back to the point of having no minimum guideline, or a county-by-county, court-by-court system like we did before the IPTG. I think it could take as much as a couple of years for the Committee (Domestic Relations Committee, Indiana Judicial Administration, if you want to have input) for this kind of a process to get defined, appropriate "guidance documents" (parenting plan preparation and development documents) to get created, and the appropriate input from and review by the necessary parties for it to happen. I know that our kids are growing up... now. We're not making the changes for our own kids as much as we are for our children't children. Yes, it takes that long when changing society's expectations, then the judges' and guidelines. Fortunately, it has begun. We just have to move the concept forward via opportunities created, opportunities presented.

Bob M

Sam Hasler said...

I may feel like I have actually accomplished something with this blog, if people start getting involved in processes like this. I like the idea you outlined above - even if I think it is what is supposed to already exist under the IPTG.

Yes, I know it is hard for regular people to get involved - it is hard also for solo and small firm lawyers to get involved. We are trying to survive just like everyone else is trying right now.