Sunday, December 13, 2009

Collecting Child Custody Posts - Best Interests of The Child

I almost overlooked The New Hampshire Family Law Blog's New Hampshire court's decision regarding home schooling grabs national attention as a curiosity but glad I read it all the way through. It actually covers a lot of ground - as a description of what goes on in a custody dispute, how a joint custody arrangement can go off the rails, the role of the courts in a custody dispute. I emboldened two sentences that were not in bold in the original.

...Although the parents disagreed about whether Amanda should be home schooled, Amanda was home schooled by her mother. The parties continued to disagree on the issue, and because they could not agree, it went to the court. A Guardian ad Litem was appointed to investigate and make recommendations to the Court. After completing her investigation, the Guardian ad Litem recommended that Amanda's best interests were served by her attendance at public school. After a evidentiary hearing, in which both parties testified and submitted evidence, the court agreed with the Guardian ad Litem, and ordered that Amanda be enrolled in public school. The court, in the lengthy decision, states:
The Court is extremely reluctant to impose on parents a decision about a child's education, which commonly emerges after sincere and thorough discussion between parents who are both committed to the child's growth and development. In the absence of effective communication between the parents whose case reflects a history of opposing opinions on a variety of issues, the Court is guided by the premises that education is by its nature an exploration and examination of new things, and by the premise that a child requires academic, social, cultural, and physical interaction with a variety of experiences, people, concepts and surroundings in order to grow to an adult who can make intelligent decisions about how to achieve a productive and satisfying life.
The parties do not debate the relative academic merits of home schooling and public school: it is clear that the home schooling Ms. Voydatch has provided has more than kept up with the academic requirements of the Meredith public school system. Instead, the debate centers on whether enrollment in public school will provide Amanda with an increased opportunity for group learning, group interaction, social problem solving, and exposure to a variety of points of view. Considering the testimony of both parties and the Guardian ad Litem, and by the standard of a preponderance of the evidence, the Court concludes that it would be in Amanda's best interests to attend public school.
"Parents have the fundamental rights to raise their children to the dictates of their conscience," stated the mother's attorney, John Simmons. And this is true, to a certain extent. As recently discussed on this blog, the United States Supreme Court has ruled that parents have a constitutional right to rear their children as they see fit. The court also affirmed that there is “a presumption that fit parents act in the best interests of their children.” The key word here is parents. The state may not intrude on two fit parents who jointly decide what is best for their child. That is not the case here.
Here, two fit parents did not agree on what was best for their child. Attorney Simmons argues that the court has taken away Voydatch's right, as the girl's primary-custody parent, to make decisions regarding her future. Attorney Simmons argument falls short however, as being the parent assigned primary residential responsibility has no bearing on whether that parent has the right to make unilateral decisions about the child. New Hampshire, as with most states, breaks "custody' into two categories: 1) residential and 2) decision-making. A parent could have the majority of the parenting time, called residential responsibility, but still be required to share decision-making responsibility. In this case, Martin Kurowski and Brenda Voydatch had joint-decision making responsibility. They could not agree on whether Amanda should be home schooled, and in the absence of agreement, the court decided the issue. The father's attorney, Elizabeth Donovan, has it right when she explains: "When two parents with joint decision-making responsibility disagree and they cannot come to any common ground, we submit it to the court. The court takes all the testimony and the court renders a decision. Mrs. Voydatch didn't like the decision."

In Working Parent’s Work Used Against them in Custody Trial, Upstate Family Law Blog comments on one of the articles I mentioned in my More Dads Getting Child Custody. Quite interesting how Mr. Atkins works through and explains how this applies to the best interests standard:
...Your job is not going to be the be-all, end-all, but it is a factor that will be considered. In my experience, most judges are not going to be swayed in one direction just due to a job because a judge is going to expect the parents to work to be able to provide for their family. Where the rubber meets the road is whether the job materially impairs your parenting. Are you constantly late getting your children to school or picking them up from day care, are your children doing poorly in school because you are working so much that you do not have time to assist them with their studies, are they acting out because they are spending more time with a baby sitter than with you because you work until after they have gone to bed for the night?....

Let us not forget about the judges applying the law. Judith Middleton makes a truly great point about criticizing trial judges in her IN THEIR BEST INTERESTS:
One has to wonder, when you see criticism levelled at the courts about decisions of this kind, why they are always expected to get it right when parents, who are also entrusted with the best care of their children, don’t.
It may not be much consolation but the truth is that all do the best we can with what we have to work with. I mentioned to one of our local judges last month that custody cases are about the hardest things we do and he quite heartily agreed with me. He went onto say that something to the effect that the stakes are higher in a custody case than any other type he handles. They make us all work to our hardest.

John Bolch over at Family Lore reports on one of the cases noted in IN THEIR BEST INTERESTS. See his Re B: Why a grandmother was preferred to a father. From his description this same result would occur in Indiana - but the grandmother would also need to overcome the presumption favoring the natural parents. Which is precisely the opposite of the point being made above by the The New Hampshire Family Law Blog. When the third party rebuts the presumption favoring the natural parent, the best interests kicks in and must also be proven by the third party.

Vermont Judge Orders Transfer of Custody to Non-Bio Mom of Isabella Miller-Jenkins gives us a slant from another angle on best interests. This article from Connecticut Lesbian and Gay Law is just too long for easy compression. I suggest reading the whole post and pay close attention to how the birth mother managed to greatly annoy the trial court. I refuse representing those who cannot seem to obey court orders for this very reason.

Those interested in shared parenting should give a look at this post from Musings, Legal Ease and other stuff on Family Law. This may be even more interesting to those Hoosiers wanting a presumption of joint custody instead of the current presumption against either party having a presumption favoring custody. The post details the Ohio statute on shared parenting - something lacking in Indiana.

I would note two other things from this article. First, the judge must review the plan on terms of best interests of the child. Second, notice the emphasis on the parties agreeing:
Shared parenting (in Ohio) is basically an agreement between the parents to write their own rules for how parenting time (often referred to as visitation) will be handled, but it can include so much more, including agreements on how to deal with the most fundamental decisions that go into raising a child....

Nothing prevents an Indiana couple from agreeing to anything. Think about that - and remember that an agreement generally requires a compromise.

Before we get too excited about Ohio, take a look at The two ways to settle children's disputes: Family Court case from Australian Divorce Blog. First, because the writer reproduces the operative statute. Secondly, for a reminder that this type of legislation does not end all litigation. A point also found in the Ohio post.

I do not know that there is a bottom line here but more of an insight of how hard it is to quantify the best interests standard. It all depends on the specific facts of each case. The easy cases are where there is a truly black and white division between the parents. (Black and white cases tend to have headlines like this: Dad doing errand locked kids in trunk.)

Or maybe there is one overarching theme: fighting over one's children for the sake of fighting is not in their best interests or your own.

For more articles on Indiana child custody, go here.


MikeD said...

Middleton appears to be the one who 'cant get it right' when she writes "One has to wonder, when you see criticism levelled at the courts about decisions of this kind, why they are always expected to get it right when parents, who are also entrusted with the best care of their children, don’t." - Judges ROUTINELY subscribe to de facto 'standards' that have been shown to NOT be in the best interest of children. Look how long it took for Indiana to admit this and for their Supreme Court to issue Parenting Time guidelines? And look over at Illinois, in which nearly all judges still presume an "every other weekend" overnight schedule for non-resident parents that (apparently)'fits' almost any children of a contested parenting-time hearing, unless the non-resident parent is willing to litigate against the other parent AND can PROVE they have been 'exceptionally involved' with their child.

Sam Hasler said...

Sorry, I think you misread Judith's quote and her blog post. I stand by what I wrote - the judge's job is not easy apply the best interests standard.