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Messages - socrateaser

#5781
...that people post different versions of their case in different places. Then, when they post to me, they seem to think that I'm following everything that they say everywhere else.

You (and everyone else) need to make certain that you're not leaving anything out when you post to me or you will get confusing and probably incorrect advice.

Anyway, you're lucky I read this thread -- hopefully, you will come back to my board and read my response there, because I will not come back here to read anything written by anyone.

Buh Bye now.
#5782
Custody Issues / RE: I disagree
Oct 29, 2004, 04:23:25 PM
>That is not entirely accurate.

Oy vey.

>In most of the states that include a presumption for joint
>custody, each custodial determination (legal and physical)
>must be supported by Findings of Facts.  

Dreamer.

>
>
>A Court cannot simply award joint legal custody and sole
>physical custody and state it complied with the presumption
>for joint custody.  It must address each type of custody
>separately.

Trial courts routinely order what they want and then challenge parties to overturn the orders. Most people simply cannot afford to appeal a judgment or even move for reconsideration, and most attorneys will not challenge a judge's decision, when they must appear before that same judge over and over again in order to earn a living.

>
>That does not mean there cannot be bias in the application by
>the courts. However, the statutes as enacted provide a fair
>amount of protection and also support an appellate challenge
>if the presumption is not appropriately apply or a determination that rebuts the presumption is unsupported by the available evidence in the case.  

Get real.

In many jurisdictions, such as CA, final orders are reviewed by an appellate court for abuse of discretion. In order to overcome the judge's discretion on a fact, you must show that the trial court could not "have reasonably concluded that the order in question advanced the `best interest' of the child." In re LaMusga, 32 Cal.4th 1072, 88 P.3d 81 (Cal. 04/29/2004).

A judge can decide that a rebuttable presumption stands or falls by only a preponderance of the evidence. So, an appeal based on defeating the trial court judge's decision on the presumption is, at best, an razor-thin  risky proposition. If you put your clients' money up to that razor long enough, you may make lots of money appealing, but you're gonna lose lots of cases while doing it.

In other jurisdictions, such as Iowa, final orders for custody are reviewed de novo, and that certainly provides a better opportunity to win on appeal. Nevertheless, for every appellate case reviewed, there are HUNDREDS of cases that are not reviewed, for all sorts of reasons, and a trial court judge can almost always find some fact to support the reasonableness of a decision, one way or the other.

You can talk all day about how a statute provides this or that fairness, but the bottom line is that State trial court judges, can and do, whatever the hell they want most of every court day, and half of them wouldn't know the law if it shit in their laps.

I'll go even further. In less populated states and counties, removing an incumbent judge is roughly equivalent to removing Alan Greenspan as Fed Chairman -- it ain't gonna happen. In the county where I live, only one judge has lost his seat after being elected since the Civil War, so don't tell me what the law says, cause when you get into that courtroom, the judge IS the law, and he/she ain't at all afraid of being removed for a weakly reasoned decision, and unless the law is so expressed that there is no friggin' way around it, that judge is gonna do as he/she sees fit.

Which is WHY, I stand by what I say. Until such time as the presumption of EQUAL custody becomes the norm, absent a showing of parental unfitness, winning the bulk of custody/parenting time is 99.9999999% of the time, just a matter of being lucky enough to represent the party who is the child(ren)'s primary caretaker at the time that the matter is placed before the court.

The judge will listen to all the experts and argument, and then order the status quo.
#5783
Custody Issues / Permission Granted (nm)
Oct 28, 2004, 06:57:53 PM
...
#5784
Custody Issues / RE: But Kitty...
Oct 28, 2004, 11:05:49 AM
I think that you are misinterpreting the power of the statute, but we shall see when the first appellate case relying on the new statutory language is issued.

The definition of "best interests" in Iowa has an escape route via the text "direct emotional harm..." to the child. All a judge needs is a social worker/mediator/shrink to testify that, in his/her expert opinion, constantly shifting residential environments creates emotional uncertainty and harm to the child, and the judge can grant a traditional custody order.

There is no onus on a judge proving anything. The judge merely needs to find "direct emotional harm" and state that it appeared in the facts presented to the court. Moreover, until and unless an appellate court rules otherwise, a judge could take judicial notice of the fact that shifting residences on a regular basis is emotionally harmful to the child, and that would provide the necessary proof.

Judicial notice is the act of a court admitting a fact into evidence that is easily verifiable and not subject to dispute. And, there are loads of judges who will immediately conclude that this is the case, whether it is or not.

So, time will tell, but I suggest that education will not make a difference to the judges. An Iowa appellate court will need to rule expressly on how the new statute affects the trial courts' discretion and authority.

If you have any attorneys who have written on the subject, or related trial court findings and conclusions, I'd like to read them.
#5785
Custody Issues / You did good!...
Oct 28, 2004, 10:49:19 AM
I was just trying to explain the law behind the words.
#5786
I find that the Iowa courts have managed to entirely circumvent the statute. I don't know the exact legisative history of Iowa Code Section 598.41, but, if the objective was to mandate substantially equal parenting time, then the statute, is frankly, in my humble opinion, a terrific example of how not to write a law.

In short, section 598.41 achieves little change in the current state of child custody law. To quote from an extremely recent Iowa appellate case, Robertson v. Cannon, No. 4-466 / 03-1978 (Iowa App. 09/09/2004):
:

"In determining which parent should be granted physical care, our overriding consideration is the child's best interests. In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997). We consider a number of factors, including the child's needs and characteristics, the parents' abilities to meet those needs, the child's relationship with the parents and any siblings, the nature of each proposed home environment, and the effect of continuing or disrupting the child's current status. See In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974); see also Iowa Code § 598.41. Our goal is to select the environment most likely to cultivate a physically, mentally and socially healthy child. See Murphy, 592 N.W.2d at 683. While the child's physical and financial stability are important considerations, great emphasis is placed on achieving emotional stability for the child. See In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct. App. 1998)."

In the above-cited case, the appellate court awarded substantially all of the parenting time to the FATHER, which is ironic, to say the least. But the basis of the award, nevertheless, was that the court must act in the "child's best interests," and if those interests are found to favor something less than the "maximum" possible contact with both of the parents, because the result will promote greater "emotional stability for the child," then that's tough beans for the parent deprived of contact on those grounds.

Anyway, I appreciate your desire for a different solution, but, from what I can see, Iowa courts are not materially different from any other jurisdiction in the making of child custody awards. The law is vague and ambiguous and open to great interpretation, and when courts are asked to interpret law, they are forced to rely on prior precedent, and the history of custody in the U.S. is that one parent will get the bulk of physical custody in most disputed cases.

If I were you, I'd be looking for the legislative reps who sponsored and amended the bill producing 598.41, and I'd tell them that if they don't fix the law once and for all to create a rebuttable presumption of EQUAL custody, absent clear and convincing evidence of parental unfitness, then you will vote them all out of office, until someone is elected who WILL effect the will of the electorate.
#5787
I think it worth discussing what a legal presumption is, and how it relates to the joint presumption of custody.

There are two types of legal presumptions, conclusive and rebuttable. A conclusive presumption is a forced ruling in favor of a particular fact, that, once proven, completely prohibits any contrary evidence. One of the most common conclusive presumptions exists in contract law, i.e., if the parties to a contract agree to a fact (called a recital), and then build the contract on that fact, the recital is considered conclusive, and neither party can later challenge that presumed fact as false in court. Example: Joe and Jane agree to a recital that states "Whereas, the parties agree that the subject vehicle is owned jointly, and...", then neither party can later argue that legal title to the vehicle exhibits a different distribution of ownership of the vehicle, for the purposes of interpreting the contract. The contract recital is conclusively presumed as true.

A rebuttable presumption is a ruling in favor of a particular fact that places the burden of proving otherwise on the party against whom the presumption works. It permits the favored party the luxury of offering no evidence and still winning on the issue, unless the adverse party produces sufficient evidence to "rebut" the presumption, such that the favored party must produce more evidence.

What does this mean for the "presumption" of joint custody with regard to minor children in custody disputes? First, joint custody is a rebuttable presumption, meaning that a party who wishes to obtain sole custody, must produce sufficient evidence to demonstrate why sole custody is "in the best interests of the child." Otherwise joint custody will be ordered by the court.

Sounds good doesn't it. You may believe that the presumption of joint custody somehow means "equal" custody. Well, forgetaboutit! I'm here to tell you that it's a trick -- fostered by legislatures and attorneys and social workers, and it's designed to fool the layperson into reading more into the presumption than what actually exists, so that the court system can maintain complete control over the determination of custody, while the legislators and attorneys and social workers can feel good that they, at least, have paid some lip service to the electorate, by passing a law that "appears" to do something that it doesn't actually do.

The presumption of joint custody, has little practical effect over the outcome of a custody dispute. There are two reasons for this: (1) There are two types of custody (a) Legal, and (b) Physical. Thus, a judge can award joint legal custody and sole phyiscal, and completely avoid having to deal with the presumption contained in the statutes. (2) A judge can also state in the custody orders that the parties have joint legal and physical custody, and simultaneously order that one party have parenting time for 364 out of 365 days of the year, and, once again, completely avoid the requirements of the joint custody presumption statute.

My examples above are deliberately extreme, however it's quite routine, for example, in CA, to order joint legal and physical custody, and then award 80-90% of the parenting time to one parent.

So, before you get all excited and jump on this bandwagon, consider well what wagon you've jumped on. At present, NO state has a presumption of "EQUAL" custody, and there isn't a bill in any legislature that I know that's even close to passing such a law.

Nevertheless (and this is my opinion), until such time as a presumption of equal, and not joint, custody becomes the norm in family law, anyone facing a custody dispute will still be subjected to the same old crap that parents have been facing since the "maternal preference" (rebuttable presumption strongly favorng custody to the mother) became the standard of law, around 1914. To be fair, prior to 1914, the preference was "paternal" (strongly favoring the father), so, for all practical purposes, the system of resolving custody disputes has never been fair since the original dispute was first resolved by King Soloman about 3,000 years ago, when, faced with two women who claimed that a baby was theirs, he determined to slice the child in half, at which point the real mother immediately gave up the child, and the King immediately awarded sole custody to the real mother.

#5788
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