......from Mark Griebel of CNBP. This is EXTREMELY thought-provoking and should be used to push legislation for rebuttable presumption of JC:
Dear Members,
This is good!
Mark
> Attorney Tom James just posted this to a Minnesota political
> forum in response to the typical bs that we all hear. Since it's
> from an attorney who is on our side, which is an anamoly, I think
> you might find it to be valuable, as I do:
>
> I agree with Bob and Doug that equality of rights is at least as
> important a value as joint custody. At the same time, though,
> I don't think it is possible to sever the concept of joint custody
> from the concept of equality under the law. By operation of law,
> both members of a married couple have joint custody of their
> children; it is only when parties separate that the law assumes
> that one of the parties needs to keep that title and one party
> needs to be divested of it. Awards of sole custody therefore
> involve unequal treatment of the children of married parents
> vis-a-vis the children of divorced parents. They also entail
> discrimination between--i.e., unequal treatment of--the
> children of unwed parents and the children of married parents.
>
> In truth, there was never any logical basis for the assumption
> that only one parent should or must be awarded sole custody
> of children in the first place. Why was it ever considered
> necessary to call one parent a "custodian" and the other a
> "visitor"? The answer to this question has nothing to do with
> Anna Freud, et. al.'s book, Beyond the Best Interests of the
> Child, the book that is most often cited in support of the
> judicial preference for sole custody. That book was written
> well after courts had assumed that they must make an award
> of custody to one parent only. At best, the book's argument
> about stability is only a rationalization, not the source of the
> assumption. (And even the authors of that book changed their
> minds, pointing out in later editions that they are not, in fact,
> opposed to joint custody.)
>
> The truth is that presumptive sole custody developed early in
> our country's history at a time when children were regarded in
> law as chattel, i.e., property. Accordingly, it made sense then
> to allocate such "property" to one of the parents, just as the
> other items of property the parties owned were to be allocated
> to one or the other parent in a divorce.
>
> As our law has evolved, we no longer indulge the fiction of
> marital "unity" (the notion that wives are "part" of their husbands,
> so they don't need to vote, etc.) that was used to rationalize the
> subjugation of women for so long, but we have been very slow
> to evolve past the point of regarding children as chattel. We still
> seem to think that it makes sense to believe that the children,
> like the house, are items of property that need to be "awarded"
> to one parent or the other in a divorce. That is the assumption
> that the bill for presumptive joint custody seeks to challenge.
>
> Unlike laws that have been passed in other states, and bills that
> are pending in others, legislation being proposed in Minnesota
> is not about requiring absolute equality of time between parents.
> It simply requires recognition that both parents continue to be a
> child's parents even if they themselves become divorced. While
> maximum contact with both parents would undoubtedly be in a
> child's best interests in most cases, it is conceivable, under the
> legislation being proposed in Minnesota, that a joint custody
> arrangement could even involve a child being in one parent's
> custody 90% of the time, and in the other parent's custody
> only 10% of the time. (I'm not saying that would be a good
> idea, but only that it is theoretically conceivable.) There is
> no logical reason why this could not still be called joint custody.
> The fact that there can be no logical basis for any cut-off line
> beyond which time with one's child becomes "custodial" rather
> than "visitational" in nature is a good indication that there is
> something fundamentally wrong with the sole-custody-and-visitor
> conception itself.
>
> Fears about the impact on child support are also not justified.
> The legislation being proposed in Minnesota would not change
> the Hortis-Valento formula for calculating child support that
> is currently applied in joint custody cases. The difference
> would be that instead of denying folks who have the children
> a substantial portion of the time any child support at all (as
> the current system does if they do not have the title of "sole
> custodian"), child support would be allocated to each parent
> according to the amount of time the children spend in their
> care, rather than on the basis of who is in a better position--
> whether because of gender bias or simply by being in a better
> financial position to litigate--to persuade a court to "award"
> him/her the title of "sole custodian" and diminish the other
> parent to "visitor" status.
>
> In a recent case before the Minnesota Court of Appeals
> (Kammueller v. Kammueller), it was decided that even if
> a parent has a child 60% of the time~even if by court order--
> she nevertheless is not entitled to any child support at all
> from the other parent--and indeed must keep paying child
> support to the other parent--if the other parent possesses
> the title of "sole custodian." This is completely unfair and
> irrational. By requiring allocations of child support according
> to time rather than title, joint custody creates a better fit
> between the payment of child support and the need for it.
>
> As for the "stability" argument, again, that idea came out of
> Anna Freud, et. al.'s 1971 book, Beyond the Best Interests of
> the Child. A great deal of research has been done since then,
> and it shows that children benefit considerably more from
> other kinds of stability than they do from geographic stability.
> Specifically, they benefit more from the emotional stability that
> results from maintaining a meaningful and substantial
> relationship with both parents than they do from the geographic
> stability afforded by having only one physical home. (For
> citations to some of these studies, visit //www.jointcustodymn.org
> .)
>
> Ultimately, I think a day will come when our society will come to
> see that the term "child custody" itself needs to be relegated to
> the scrap-heap of history. Many psychologists, social workers,
> mediators and child development professionals are already of
> that opinion. For myself, I know that I will rejoice when that
> day comes, for I believe that it will mark a new era in which
> children will no longer be regarded as property over which
> parents fight for ownership, but as living, breathing human
> beings whose interests should be placed above all others,
> not subordinated to them.
>
> --Tom
>
>
This is of great interest.
Still waiting for something to kick off in Illinois...
Contact Mark Griebel at //www.cnbp.info/ - this site is dedicated to both Iowa and Illinois and I think they are taking aim at IL next..........