Tuesday, August 18, 2009

More Thoughts on Shared Custody

Those who read my Shared Parenting - My View and Another's, should check out Illinois Divorce Lawyer Blog's Illinois Divorce and Changes in our Antiquated Laws?:

I'd certainly like to see the concept of "custody" relegated to the dustbin of history. Mom and Dad are parents...why not enact legislation that defines parenting as a shared relationship? Isn't it almost always true that the non-custodial parent hates to have what is called "visitation?" When does a parent become a visitor? How many custody wars have been fought over who would be relegated to "visitor" status?
I see an interesting premise in that paragraph. What I cannot see the practical application of the idea - especially in light of this paragraph:
Minnesota attorney and mediator Molly Millet discusses below changes that Minnesota made in 2007: "The biggest change in Minnesota that has been helpful is the perception of "custody." Before, parents would fight over the custody label — who got custody and how that related to child support. Now, it's "parenting time." Now, parents are focusing on time with their kids, rather than a legal label.It also takes both spouses' incomes into account. If you earn twice as much, you will pay more. It didn't make any sense before. Let's say Mom worked and Dad lost his job. He was paying child support, and the calculation didn't in any way take into account Mom had always earned more than Dad. Also before, expenses were split 50-50 regardless of who made what income. Now, in most cases, it's split proportionally."
See, Indiana has been taking into account both parent's income for most of the past twenty years. Still, we have custody fights in court and outside of the courtrooms we still have parents sniping at one another. For those dissatisfied with the current system, I continue to maintain that merely changing legislation is not enough. Attitudes between divorced parents need to be changed or some means needs to be added to the court system for dealing with the emotional and psychological issues remaining after a divorce.

I was reading David Hume's essay Of Commerce when I ran across these sentences which - for me - hit home with the problem facing family law:
...Sovereigns must take mankind as they find them, and cannot pretend to introduce any violent change in their principles and ways of thinking. A long course of time, with a variety of accidents and circumstances, are requisite to produce those great revolutions, which so much diversify the face of human affairs. And the less natural any set of principles are, which support a particular society, the more difficulty will a legislator meet with in raising and cultivating them. It is his best policy to comply with the common bent of mankind, and give it all the improvements of which it is susceptible....
What we might like to see in a system (the ideal) is opposed by human nature (the real).

Yet, it is worthwhile to see what is going on in other jurisdictions. Sometimes it is good to know that while Indiana may seem to be driving a second-hand Ford, others are driving Yugos.


7 comments:

Robert said...

It is a plain, undebatable scientific fact that children do enormously better with as close to 50-50 time with each parent. There are over 225 scientific research studies that support this conclusion. There is not a single study that shows sole custody is good for children and most psychologists consider it to be a form of child abuse. The incidence of over a dozen pathologies goes up from 6 to 24 times as often including: mental health, teen pregnancy, drug usage, gangs, crime and school drop out rate. This has been known for about 15 years now. The only two possible explanations why equal parenting has not become law are a) the system is completely incompetent or b) the system is corrupt and wants to maintain $50 billion per year in custody battles legal fees. You decide which factor is most likely.
See: www.FathersUnite.org and www.BestInterestOfChildren.org for the real facts.
Courts should be ORDERING both parents to take care of their children as close to 50-50 as is practical, not ordering child support as if money is all children need. What most people don't know is the the states get BILLIONS annually in federal incentives for child support collected. Therefore every judge, politician and state worker in this system has a conflict of interest in wanting to maintain the status quo in spite of the fact that this is destroying America's children. The divorce rate for children brought up in sole custody homes is 92% as they never learn to deal with the opposite sex.

Sam Hasler said...

Robert:

That children spending time with both parents is a god thing has been recognized by Indiana in its Parenting Time Guidelines.

However, you are confusing shared parenting with shared custody. Practicalities make shared custody very difficult. Consider this: child goes to school in school district A with father and mother lives in school district B that is 40 miles away.

Shared custody changes a child support order but shared parenting does not.

Not all the courts and not all the cases receive federal incentive monies. All welfare cases do involve federal incentive monies.

You are overlooking a large - if not huge category of cases - that being paternity, unmarried parents. One thing I see are more of these cases where the parents had a relationship. Another category of cases are divorce cases where the non-custodial parent declines to have a relationship with their children.

About the conflict of interest, I know of no judge who looks forward to hearing a custody case.

It would do well for everyone to get better educated on the law and their rights. I commend you on your efforts.

Sam Hasler said...

Also, take a look a post I have scheduled to post later today on shared parenting.

Robert said...

I am not confusing the legal issues but talking about the practical ones. The ultimate legal authority on an fundamental civil right like parenting is the U.S. Supreme Court in spite of the domestic relations exception due to the law of supremecy. All the states ignore these SCOTUS rulings left, right and sideways.

You are also only partially right when you say that not all cases get Title 4d monies (kickbacks for child support collections). It matters not that the family has nothing to do with welfare the states file paperwork on every dollar of CS collected to get these funds. You are mistaken if you think that $140 million (Massachusetts alone) does not incentivize a state to have a policy to order sole custody. It is irrelevant if judges like to hear cases. That is their job and most are incompetent by design. They are trained to order sole custody due to these financial incentives and archaic traditions that have become obsolete in recent decades. Men are also genetically programmed to protect women and that is a factor too.
The main reason states order child support and want it to be higer every year is because they get a percentage of every dollar paid. BTW this is a clear violation of the judcial canons as it creates a conflict of interest for judges. It is also a violation of the U.S. Constitution due to the three branches of goverenment essentially coluding on this matter. Bit I want to stick to the practical issues here, not the legal ones. Your anecdotal cases show an often used decision which I call "unweighted thinking". It take the minor issue of logistics and a few toys and pretends that this minor inconvience overrides the big picture and science of having two parents and a balanced upbringing. It is like arguing the tail should wag the dog. I would debate anyone on this matter as the research is literally 100% on the side of this argument. In fact even when one parent is subpar it is still better to have 50-50 time with both parents. It gives the child perspective and insight into their own DNA and behaviors. Dr. Warren Farrell spent 13 years collecting all the best studies from around the world and concluded this was a scientific fact (a 95% standard equal to beyond reasonable doubt) not an expert opinion. Kids need both parents and the current legal system is literally destroying America by destroying its children. We can trace $1 TRILLION in extra social services to this interference by goverenment in the family. The hudical doctrine of Parens Patrie was created to handle the case of abandonment of children then leveraged to take rights from one parent by default. This is a case of systemic darwinism and/or corruption. This evolved due to one main reason - the generation of money for the system that makes the rules. The U.S. divorce indutry is systemically broken and systemically corrupt. Even good judges and good lawyers can not fix a systemic problem like this. Either a) massive reform will happen internall (not likely by the judical system), b) there will be a big scandal to drive legislative change or c) the United States will go down the tubes becuase we are destroying our children with what now is about 70% fatherlessness. The #1 cause of fatherlessness is not divorce. It is divorce judges. THis is now a crisi and a holocast that is vert predictable based on teh 60% birth rate to unwed mothers. Add to this the 50% divorce rate and you have 70% plus fatherless children. We are driving off a cliff and the divorce judges have no clue or desire to fix this problem. I look forward to a lively dabate on this on our 8/30/09 radio show on www.GetYourJusticeLive.com. BTW I am an expert on management, leadership and business models so my well studied opinions on the business of divorce are expert opinions, not the ranting of a "mad dad" - though I am that too.

Sam Hasler said...

You put a lot into your comment and rather quickly.

Would you mind pointing to SCOTUS rulings that are ignored?

I do not think I even implied that IV-D child support did not incentivize the States. That is exactly what it is called - incentive money. Certainly no one who has been in a IV-D court proceeding likes what incentive money has done - except for the prosecutors.

I do not know how you know that the states want child support to increase each year. Indiana law does not support an automatic increase and I assume no other state does. I know

As for my "unweighted thinking", you again are mixing shared parenting with shared custody. Two different concepts. Yes, the mechanics of where the child resides is very important for the stability of the child and the stability of the child is the focus of child custody law. Shared parenting can be easily accomplished regardless of distance.

I keep promising myself to write a piece on the overall design of Indiana's legal system. Comments such as yours have inspired it. Judges and lawyers have little to say about the systemic problems we are too busy trying to cope with the system as it is. A systemic overhaul requires legislative action. You do understand that lawyers and judges only have the area in which the Indiana General Assembly has given us?

If the people want a change, they need to speak with their legislators.

I wish that the real problem with the system was child support money. The real problem is much different and really is a conceptual one about what a court can and should do.

Considering your professional credentials, they may be the source of some of your problems. You think there is a rationally created system. What I know about the history of Indiana's court system is that much of it is a series of ad hoc additions to a pre-existing system by the General Assembly.

We do need to make it clear that I am only licensed to practice in Indiana. You tend to conflate all the states (it is easy to do - it is usually a surprise to me to find out that Indiana is not as backwards as we think we are) and I do not want to confuse anyone about the law.

Now, I need to get some work done.

Anonymous said...

My children’s mother and I share joint legal custody in Indiana and for 7 years we have done a wonderful job of mutually caring and communicating. My children are 9 and 11. I remarried recently and we live only 15 minutes from their mother. My wife has a 14 son and all 3 children have a love for each other. My 11 yo daughter and 9 yo son wish to leave the school system they have been in and attend where their brother attends. As for the benefits their school has the largest high school in the state and the school system they wish to attend is much smaller. Both are rated 1 and 2 in the state educationally for public schools. With all things being equal their mother will be having for the first time to do some shuttling. This seems to be the sticking point. For 7 years I have handled this during my weeks and often have assisted her during her weeks. We share them one week on one week off. I have offered to make this convenient as possible for her and of course my weeks would be nicer that way for the first time in these 7 years of divorce. At the end of the day the children, particularly our 11 yo daughter are determined about attending the new schools. We have discussed all sides and the children and I have toured both the middle and high schools. What rights do the children have and do I have as their father to open this door for them.
I would appreciate any thoughts or direction.

Sam Hasler said...

Even if I understand the last question, I cannot answer specific legal questions here.

My suggestion is getting a lawyer.