How courts disenfranchise fathers

This is a must read article for fathers about to enter the Family Court (by Barbara Kay writing in Canada’s National Post).

Some highlights:

“…justice and judgments are two separate animals — is that although a judge must be knowledgeable in the law, he may also be a social idiot, with zero interest or ability in reading human behaviour, as well as blind to his own bias”

“In 90% of disputed custody cases mothers walk away with “primary care” (in effect sole custody) of their children because, deservedly or not, judges feel sorry for them and find a technical or legal opening to issue the judgment they have already made in their hearts.”

“…judges who aren’t up to date on the facts of domestic violence, and so base rulings on myths and stereotypes; a “disconcerting proportion” of judges who don’t know the law they are supposed to be applying or don’t care to apply it when they do know; judges who ignore evidence, affidavits and expert testimony that favour the father; judges who defer “difficult” (i.e., mother-unfriendly) decisions until it is too late; judges swift to punish fathers for support payment lapses, but loath to impose consequences on mothers who flout access orders.”

Proposed Congressional Resolution on Joint Custody

I thought I would post the full text of a recent House of Representatives bill intended to show support for joint custody. One of the interesting aspects of the bill is that it collects a bunch of statistics on the effects of fatherless households (and the benefits of joint custody) in one place.

(HT:Kelly Mac)

H. Con. Res. 241: Expressing the support for the enacting of joint custody laws for fit parents, so that more…
Bill Status
Introduced: Oct 25, 2007
Sponsor: Rep. Roscoe Bartlett [R-MD]
Status: Introduced

You are viewing the following version of this bill:

Introduced in House: This is the original text of the bill as it was written by its sponsor and submitted to the House for consideration.

Text of Legislation
HCON 241 IH

110th CONGRESS

1st Session

H. CON. RES. 241
Expressing the support for the enacting of joint custody laws for fit parents, so that more children are raised with the benefits of having a father and a mother in their lives.

IN THE HOUSE OF REPRESENTATIVES

October 25, 2007

Mr. BARTLETT of Maryland (for himself and Mr. ABERCROMBIE) submitted the following concurrent resolution; which was referred to the Committee on the Judiciary

——————————————————————————–

CONCURRENT RESOLUTION
Expressing the support for the enacting of joint custody laws for fit parents, so that more children are raised with the benefits of having a father and a mother in their lives.

Whereas, in approximately 84 percent of the cases where a parent is absent, that parent is the father;

Whereas if current trends continue, half of all children born today will live apart from one of their parents, usually their father, at some point before they turn 18 years old;

Whereas when families (whether intact or with a parent absent) are living in poverty, a significant factor is the father’s lack of job skills;

Whereas committed and responsible fathering during infancy and early childhood contributes to the development of emotional security, curiosity, and math and verbal skills;

Whereas an estimated 19,400,000 children (27 percent) live apart from their biological fathers;

Whereas 40 percent of the children under age 18 not living with their biological fathers had not seen their fathers even once in the past 12 months, according to national survey data;

Whereas single parents are to be commended for the tremendous job that they do with their children;

Whereas the United States needs to encourage responsible parenting, by both fathers and mothers whenever possible;

Whereas the United States needs to encourage both parents (and extended families) to be actively involved in children’s lives;

Whereas a way to do that is to encourage joint custody so that parents share children;

Whereas the American Bar Association found in 1997 that 19 States plus the District of Columbia had some form of presumption for joint custody, either legal, physical, or both, and since then, 13 additional States have added some form of presumption, bringing the current total to 32 States plus the District of Columbia;

Whereas Census Bureau data shows a correlation between joint custody and a higher payment of financial child support;

Whereas social science literature shows that children are generally well adjusted in an intact family with 2 parents in the home, and research also shows that for children of divorced, separated, and never-married parents, joint custody is strongly associated with positive outcomes for children on important measures of adjustment and well-being;

Whereas research by the Department of Health and Human Services shows that the States with the highest amount of joint custody subsequently had the lowest divorce rate; and

Whereas parents with joint custody pay 50 percent more in child support than parents with visitation only or no contact with the child: Now, therefore, be it

Resolved by the House of Representatives (the Senate concurring), That Congress expresses support of the States passing joint custody laws for fit parents, so that more children are raised with the benefit of having a father and a mother in their lives, careful to protect victims of domestic violence, abuse, neglect, children from potential kidnapping by a parent.

Leaving Las Vegas: Relocation or Move-Away Issues

Can a custodial parent leave the state of Nevada after divorce?

In theory, the answer is “not without the consent of the noncustodial parent or permission of the court”. In reality, the court rarely denies permission.

The relevant statute is:

NRS 125C.200  Consent required from noncustodial parent to remove child from State; permission from court; change of custody.  If custody has been established and the custodial parent intends to move his residence to a place outside of this State and to take the child with him, he must, as soon as possible and before the planned move, attempt to obtain the written consent of the noncustodial parent to move the child from this State. If the noncustodial parent refuses to give that consent, the custodial parent shall, before he leaves this State with the child, petition the court for permission to move the child. The failure of a parent to comply with the provisions of this section may be considered as a factor if a change of custody is requested by the noncustodial parent.

Courts in Nevada claim to rely on the “Schwartz factors” outlined in a 1991 Nevada Supreme Court case:

1. the extent to which the move is likely to improve the quality of life for both the children and the custodial parent;
2. whether the custodial parent’s motives are honorable, and not designed to frustrate or defeat visitation rights accorded to the non-custodial parent;
3. whether, if permission to remove is granted, the custodial parent will comply with any substitute visitation orders issued by the court;
4. whether the non-custodian’s motives are honorable in resisting the motion for permission to remove, or to what extent, if any, the opposition is intended to secure a financial advantage in the form of ongoing support obligations or otherwise;
5. whether, if removal is allowed, there will be a realistic opportunity for the non-custodial parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship with the non-custodial parent.

The court also listed six sub-factors for deciding factor (1) “the extent to which the move is likely to improve the quality of life for both the children and the custodial parent.” These are:

1. whether positive family care and support, including that of the extended family, will be enhanced;
2. whether housing and environmental living conditions will be improved;
3. whether educational advantages for the children will result;
4. whether the custodial parent’s employment and income will improve;
5. whether special needs of a child, medical or otherwise, will be better served; and
6. whether, in the child’s opinion, circumstances and relationships will be improved

Increasingly, though, the best interest of the child has become synonymous with the best interest of the custodial parent (usually the mother). In Trent v Trent (1995), the Nevada Supreme Court warned District Courts against using the relocation statute “as a means to chain custodial parents, most often women, to the state of Nevada”.  Since Trent, proposed moves have almost always been approved when the primary custodian is seeking to relocate and has a “good faith” reason (other than seeking to remove the non-custodial parent from the child’s life). McGuiness v McGuiness [1998] even goes so far as to venture that alternate methods of maintaining a meaningful relationship include “telephone calls, email messages, letters, and frequent visitation”.

The Case of Joint Custody

In cases of shared or joint physical custody the court has a little bit of a problem because the relocation would essentially sever any joint custody arrangements.   In Hayes v Gallacher (1999) the Nevada Supreme court holds that “even if a relocating parent is moving for illegitimate reasons or to an unreasonable location, that parent should retain primary custody and be allowed to relocate with the child if he or she shows that the relocation would be better for the child than a transfer of primary custody to the other parent.” So basically a full custody hearing is held to award primary custody to one of the parents. In this case, the father had a finding of domestic violence that created a presumption against custody even when the mother’s foreshadowed move to Japan was seen as unreasonable.

In the same decision, the court also advocated the American Law Institute’s view on primary physical custodty, namely that: “A parent who has been exercising primary residential responsibility for the child should be allowed to relocate with the child so long as it is for a legitimate purpose and to a location that is reasonable in light of the purpose. A relocation is for a legitimate purpose if:

• it is to be close to family or other support networks,
• for significant health reasons,
• to protect the safety of the child or another member of the child’s household,
• to pursue an employment or educational opportunity, or
• to be with one’s spouse [or spouse equivalent, if such is defined in Chapter 6] who is established, or who is pursuing an employment or educational opportunity, in another location.
• The relocating parent has the burden of proving the legitimacy of any other purpose.

A move with a legitimate purpose is reasonable unless its purpose is shown to be substantially achievable without moving, or by moving to a location that is substantially less disruptive of the other parent’s relationship to the child.”

Finally, in Potter v Potter (2005), the Supreme court held that a parent with joint physical custody is not eligible to relocate with a minor child but must first gain primary physical custody. The moving parent has the burden of establishing that it is in the child’s best interest to relocate outside of the state with the moving parent as the primary physical custodian.

No statistics are kept on the proportion of mothers obtaining primary physical custody in Nevada. One famous Massachusetts study found mothers received primary physical custody in 93% of cases (despite distorting the figures to claim men obtained custody in 70% of cases “when they wanted it”). 

Bottom line: If you are a non-custodial parent you have very little chance of fighting a relocation. If you are joint custodial parent you will need to fight like hell to prove its in your child’s best interests to stay in Nevada. 

How to not lose your house in a divorce

(See also Negative Equity and Divorce)

The court has the ability to grant “exclusive possession” of the marital residence to one of the parties while the divorce proceedings are still in progress. This means that the evicted party cannot enter the house without the permission of the occupant and can literally be arrested for trespassing. That also means you cannot enter and take any of your possessions from the house.

According to this article  in the Las Vegas Review Journal, fewer than 20% of motions for exclusive possession are denied. Meaning you have an 80%+ chance of being evicted from your own home should a motion for exclusive possession be filed against you. 

One of the judges in the article cites three grounds for allowing divorcing couples to stay in the marital home: 1) lack of financial resources to establish two separate households 2) the best interests of the children and 3) no history of domestic violence. 

So the judge has given clear guidance on how to stay in your home:

1) demonstrate a lack of resources to establish a second household (which is why lawyers tell you NOT to move out of the home - I guess this would even extend to staying temporarily at a family or friend’s home),  

2) demonstrate it is in the best interest of your kids to stay home (can be tough to prove - expect her to argue that the tension you both living under the same roof is psychologically damaging the children)

3) avoid a domestic violence charge (another tough one - there are numerous cases of false domestic violence charges AND judges erring on the side of caution even without physical evidence of any abuse - see this link for a wake up call).

(Of course, when the divorce is finalized you will need to give half of your equity in the house to your ex-spouse - this might entail selling the house or, if you are very lucky, you might be able to re-finance the house and buy out her equity - if you ever agree on what the equity is worth).

In my case, I had moved out of the house to escape constant verbal abuse and had rented a single room in a friend’s house. Not only did the judge award exclusive possession to my soon to be ex-wife but also ordered me to continue paying all mortgage and utility payments as well as child support. The judge also refused to order my ex to get a job - despite the fact that the children were teenagers and she had a teaching license. My ex ended up living in the house for almost 3 years rent free without any bills while collecting child support and taking up to 90% of my net income every month. Welcome to the “justice” system. (BTW, she also made it difficult for realtors to show the house to potential buyers - even when the court ordered that the house be placed on the market).

Preference Theory

I just finished reading a fascinating article on gender inequality by Catherine Hakim of the London School of Economics. The bottom line is that:

“Preference theory predicts that men will retain their dominance in the labor market, politics, and other competitive activities, because only a minority of women are prepared to prioritize their jobs (or other competitive activities) in the same way as men. In the long run, it is work-centered people who are most likely to become high achievers in demanding occupations (Hakim 2006).”

It seems that sociology is picking up on Warren Farrell’s message on why men earn more.

Hakim goes on to write: “It is time to accept that the equal opportunities revolution has served its purpose, and the feminist goal of 50/50 sex ratios in all occupations and jobs is unrealistic, given the diversity of tastes, values, and preferences among men and women. Social engineering attempts to impose identical outcomes and eliminate occupational segregation completely cannot succeed, being based on selective research evidence and incorrect assumptions.”

Alimony in Nevada

Alimony (often known as spousal support or spousal maintenance) is alive and well in Nevada. Unlike other states, there is no statutory formula for calculating alimony in Nevada - meaning its all up to the discretion of the judge and represents a huge fee generating opportunity for lawyers.

There was an attempt to devise a alimony formula in 1997 (known as the Tonopah formula). The formula takes into account the marriage duration and lower earning spouse’s education, disability status, and age.  The calcuation can range from 0% to 50% of the difference in incomes (after deducting child support), increasing with a longer marriage, older spouse, more disability, and less education. In their wisdom, however, the Nevada Supreme Court has banned family court judges from using the formula to determine alimony.

The result is a list of “factors” to be weighted. The factors vary from case to case and even the same factors have been given more or less weight in different cases. Thus, the judge must weigh each of the relevant factors in determining an alimony award and duration.  These factors include:

• age and health of the weaker party (usually the wife)
• property/assets of the wife
• whether wife contributed to the development of the husband’s career
• husband’s income
• wife’s premarital job training
• wife’s job and income potential
• kids
• marriage duration

The wife can also be awarded “rehabilitative” alimony to enable her to train to re-enter the workforce. Alimony can also be awarded indefinitely (although this seems to be getting rarer).  Alimony is also taxable to the recipient and tax deductible by the payer (actually lowering your adjustable gross income).  

In my experience, much money can be saved by agreeing to use the Tonopah formula and moving on. Litigation over alimony is costly (to gather evidence on all the factors) and the outcome is extremely uncertain because the judge can rule in almost completely arbitrary manner (and doesn’t have to justify his or her decision). Unfortunately, many lawyers like to tell their clients they can get a much better deal than the formula (my ex was given a number almost double that of the formula and eventually received about 50% more at great cost to us both). My advice go with the formula or something close and get a stipulation (agreement) in writing filed with the court ASAP.

Personally, I believe that alimony is simply “child support for adults” and, except for a few extreme cases, has outlived its used-by date.  

The Dissident Feminist

An interesting discussion over on Glenn Sacks’ blog where two pro-feminist males have agreed to a civilized debate with men’s rights activists.

Emergency motions

Any time during the divorce proceedings, either party may file a motion with a request for an order shortening time (OST).  This basically requests the judge to sign an order that allows the motion to be placed on the judge’s calendar as soon as possible.

Obviously, an OST is very important if some issue is time sensitive and requires the court to make a quick decision. Normally, a delay of 4-6 weeks can be expected after filing a motion - whereas 1-7 days might be more common for a motion with an approved OST.

In my experience, my ex has filed three OSTs that the judge has granted - one claiming the children needed “urgent” psychological treatment because I cut off their cable, and the other because my ex needed a ruling to meet a college application deadline. In my opinion, the OSTs were both bogus and used to get other issues in front of the judge while citing an ”emergency” involving the children.  

My sole request for an OST to order production of discovery documents immediately before trial was denied - in this case her lawyer had provided zero responses to my discovery requests just two weeks before trial and had not submitted a pre-trial memorandum as required by court rules. My request was denied despite the fact that I had no information to make a case.   Her counsel then filed a motion under OST claiming that he had not received certain discovery documents (from the hundreds of pages I had submitted) and the judge not only granted the OST but postponed the trial for six months after the hearing!

LESSONS LEARNED 

What can I conclude from this? OSTs are solely at the discretion of the judge. Any OST that screams about an emergency (physical or financial) for a wife or children will likely be granted. I tend to imagine that judges use the “headline test”, thinking, “would I like to see this story on the front page on the newspaper in the morning?”.

Procedural motions are unlikely to be granted (unless you are a lawyer who has donated to a judge’s election campaign).

 Just my $0.02 worth - comments always welcome.

Sad but true…

A reality check from Lisa Scott’s Real Family Law website:

WHAT TO DO BEFORE THE RESTRAINING ORDER COMES

Adapted from Presentation Given by Lisa Scott at the Father’s Rights Seminar, Sponsored by FR Investigations, August 4, 2004, Auburn, WashingtonEven though this talk is directed mostly at men, everything that can happen to a man in this system can happen to a woman. Women should not be complacent, or even gleeful, when these things happen to men, because they could be the next to be falsely accused, suffering criminal arrest, incarceration, removal from home and denial of access to children.

Women should not make men the enemy, any more than men should make women the enemy. Women should stop and think, how would I react if I was taken away from my children and told I should be happy to get to be with them every other weekend?

Repeated studies show that children of divorce are most damaged by high conflict between their parents. If parents would just call a truce and agree to do what’s best for their children, there would be a lot less fighting. Unfortunately, the system tends to encourage custody battles, because the winner not only gets the kids, but usually the house, and of course child support. Plus, the parent who has the children most of the time has the most control over what happens to them. As long as the winner is rewarded with the goodies, there will continue to be wars fought over the children.

Protection order against domestic violence

Even a casual search of the internet will reveal much about the misuse of temporary restraining orders (TRO) in divorce court. Judges tend to “err on the side of caution” when a claim of domestic violence is made and tend to issue more temporary protection orders than they reject (TPO). Given there are no consequences for making false reports then it should come as no surprise that filing for an order of protection for domestic violence or OPDV (as it is known in Nevada) is a common tactic for female litigants. Maybe she also gains some sort of sick satisfaction knowing that a deputy has served him the notice of a hearing for a protection order at his place of employment.