Rethinking the System

[POC]

Child Custody: Rethinking the System
By Jim Johnston

Todays family law system frustrates maximum dual-parent involvement with children of divorce. The three main elements of the decision-making that is necessary when couples separate and divorce compare to the legs on a three-legged stool. These three legs are:

Initial allocation of parenting roles and responsibilities at the time divorce/custody orders are filed;
Visitation time allocated and enforcement applied; and
Financial child support applied to include needs that children have at both households
Most of the problems with todays approach result from making a decision in each of these areas that is independent rather than interdependent on the others.

Children of divorce suffer a significantly higher risk of childhood pathologies ranging from teen suicide and substance abuse to teen pregnancy and violence. A divorce does not automatically damn a child to these or other disorders, but they are indeed real, and an absent parent is the predicting factor.

Society is at a threshold for dealing with such problems. Divorce is now a common and often expected result of marriage. No-fault divorce makes splitting up much easier, and we are now in at least the third generation of children impacted by it. Change is possible, however, if we have the will and the fortitude.

Change begins with changing expectations. Both the legal system and society must expect parents to continue to be responsible for raising their children in spite of a divorce, including determining themselves how they will co-parent. What they brought into the world together, they should expect to complete together. There simply is no logic to accepting anything else. Society is starting to come around to the idea that both parents are indeed important to these children. Much of this attitudinal change is probably due to the raw numbers of people directly impacted by divorce today. Chances are that if you werent a child of divorce, you are divorced yourself or have family or friends that have been. The expectation that both parents will continue their involvement is slowly becoming evident through changes in custody laws and practices, but much more of needs to happen.

Society now has enough experience to justify such changes. There are increasing resources available to facilitate educating parents to the fact that children to both of them. There are numerous publications that can be used to help parents establish parenting plans. A good parenting plan is the backbone of any meaningful co-parenting arrangement.

The end result of completing a parenting plan is important, but even more so is the process of getting there. An outline of parenting items to be considered by both parents enables each of them to share a collective wisdom gained from those who put it together. Both can make better-informed decisions rather than simply relying on their attorneys and a judge to do so for them.

Outside of the adversarial system itself, the biggest enemy of divorcing parents is emotional strain and an ignorance of the parenting challenges they will both face. An expectation by society that both should continue to parent their children, supported by parenting plan outlines and a requirement for them to work towards its completion, opens up thinking to the ways both can remain involved. This stands in contrast to the situation today, where we usually expect one to carry the burden of parenting, while making the other parent simply a visitor to their children.

The adversarial process is a disastrous impediment towards maximizing dual-parent involvement. Efforts must be made to reduce the practice of automatically litigating custody. Once attorneys are brought in as representatives, the parents are immediately discouraged from trying to work through details together on how they can co-parent the children. This is especially harmful as they are essentially pushed towards opposite camps, fighting for custody and the rewards that come with todays system. Laws and judicial practice should encourage alternative dispute-resolution processes that facilitate the parents working together towards parenting their children.

After all, who knows the children best? Certainly not a judge who has spent little time with the case. Incentives that encourage a parent who refuses to cooperate should be reduced, if not eliminated. Parenting plans offer up an excellent avenue of ensuring that this happens. A common provision in most is some description of an alternative approach to be agreed upon for problem or conflict resolution that would be used before going to court. This in and of itself could have the greatest impact on reducing conflict between parents as they raise their children in separate households.

A thorough review and change of all laws and practices dealing with determining custody and parental roles is necessary. The goal is to maintain and support the integrity of a childs relationship with both parents. This does not mean the automatic establishment of 50/50 parenting. What it should mean though is that whatever the maximum time-share arrangement can be with both parents depending on their unique family circumstances is reflected in the post-divorce legal agreements, nothing less. Todays system is incredibly skewed towards enforcement of financial child support, while giving little attention to the establishment of continued parental responsibilities of each parent, including the protection of the childs access to and involvement with both. The primary consideration that should drive all such decisions should be the recognition that children want and need both parents in their lives. Maximizing dual-parent involvement should drive custody, residency, parenting time, and financial child support decisions. We have started to turn the corner in fully appreciating that parents are more important to children than a garnished paycheck. Most critical is ensuring that their emotional child support needs are met and supported by each of the legs of our custody stool.

Websters Collegiate Dictionarys definition of the word system is A regularly interacting or interdependent group of items forming a unified whole. If we are truly interested in improving the lot of children of divorce, we need to look at our existing system holistically. The children of divorce do not come from just one parent. They are built from the genes, values, and beliefs of two parents. To minimize one parent following the typical divorce is to rip out a part of a childs identity. Divorce is an unfortunate reality, and is unlikely to go away as a societal norm. With that, we must do all that we can to ensure that children impacted by such decisions are protected both physically and emotionally. If both parents are fit and capable, both should be supported in their efforts at continuing to provide for their children. How wonderful it will be to hear one day that we truly have a system that protects the relationship children of divorce have with both parents.

On any quality stool, the legs must be balanced and work together to ensure the greatest degree of stability and safety for the person sitting on it. Should one leg be weaker and/or shorter than the others, the potential for the stool to tip over is great. When our government in our present system for instance spends in excess of $4 Billion/year on financial child support enforcement, yet hardly a pittance on programs keeping both parents involved, our stool is about to collapse, leaving our children at risk.

http://www.fathermag.com/003/child-custody/index.shtml

[Troubledmom]

Thank-you for sharing POC

TM

[Mediator]

Nothing requires an adversarial process.  The adversarial process is there for those who believe they need it.  Anyone can collaborate on a parenting plan that works for all.  They can create such a  plan directly or with a mediator.  Many parents do not even know what mediation is let alone use it when they have difficulties working it out themselves.

I believe the financial part of the legs should remain seperate since parenting time should not be contigent an someone's ability to pay. A low income parent can be a great parent and visa vera.  It is in everyone's interest that the child's financial well being is provided for.  Even the parent who does not care fo rtheir child financially due to their stinginess or pettiness may be a good parent in other areas.

The other reality is that not everyone is a good parent and many "parents" should not be involved with decision making.

In terms of collaborative decision making I agree that that would be preferable if the parents communicate reasonably well.  If they do not, I think it is disasterous.  I have had clients who had a joint decision making decree and for years they battled over every little thing so much that the child suffered for lack of decisions made and everyone was frustrated.

[POC]

The current process being imposed is one in which conflict is rewarded. There is nothing of substance to mediate in this high risk, high reward process. Whomever, believes they will end up with the "trophy" the kid rules the process from there on, once the trophy is rewarded. It is even doen retroactively. Otherwise cooperative parents are subject to an environment that it costs them big money if they were to cooperate and work towards true shared parenting.

How do you mediate in an environment where one parent holds the power, and one is forced into submission. Too many times mediators believe they are succesful in getting parents to "agree". In truth, it is normally one parent acquiescing. They can agree to become NCP, pay the guideline CS amount, blah, blah, blah, or they can go to court, and have it rammed down their throat.

To believe that anyone can collaborate on a parenting plan is short-sighted. By definition a collaborative effort requires more than one in the process. So, it is reliant on someone else. In this case, it is with the person who more than likely filed for the divorce and wants to suck money out of you, and is totally unwilling to share the financial costs of the child when in your care.

Equitable laws would promote mediation, and more fair results. It's kind of like carving meat at dinner time. The parent lets one sibling cut a piece of meat, and the other sibling gets to choose from the two pieces. Funny how the arguing ceases, and both siblings end up with equitable shares. The parent was the effective mediator, but only because he first imposed an equitable law. If the law had been to choose the sibling that he thought would be most fair in cutting the meat and then letting that asme sibling choose, the results would be very different. There would have been conflict before during and after the process.

Much like family court is now.

[Mediator]

As a mediator I am not responsible for "getting" the parents to agree.  I have many a creative agreement crafted to effectively address a good parenting plan that worked for both parents and the child.  colorado law is quite equitable.  Of course every judge handles their cases differently but there is not presumed better parent built into the law.  The fact that parents themselves can medatiate the issues avoids a judge's presumptions.  Mediation can get into the details that make for a workable agreement  

Mediation i snot for everyone nor for all cases.  I have met many a parent where no one wants to "suck" money from the other and both parents are very willing to share in the cost of providing for the child.  I'm sorry if you have had a different experience but it is not always that way.  I have witnessed great generousity from divorced and divorcing parents towards the other both in terms of parenting time and financial issues.  Of course I have also witnessed what you refer to.

the piont is there is no law that can make parents work well together whether the process is in the courts or with mediation.

[POC]

The sheer numbers involved, and what should be a natural inclination to work towards the betterment of children, ought to lead to many good, or atl least managable agreements.

While there may not be a presumed better parent, the disparity in custodial arrangements proves that it is far from impartial. Do you know of any other area of American Law where the final order of the court is to punish those who have been found of no wrongdoing?

If the best interests of children were truly being considered, then why do courts continue to grant primary custody, even though children who are allowed to grow up in joint physical custody fare much, much better than their counterparts in sole custody?

Just as an example that courts typically place greater weight on the desires of a primary parent (mother) than that of their children, consider the case of a friend of mine, which would be treatee similarily by other courts in similar situations. He was labeled as abusive, and his kids were taken away. Not to replay that drama, but if he were such a bad parent, then why does the same court allow him to adopt his new wife's son?

In both instances, the court acted upon the mother's desires. That is the only consistency. If he was fit to adopt, then he must be reformed, right? Children's best interests are not the primary consideration of courts, or else they would check to see if adoptive parents were fit to do so. In this case he is, but that doesn't get his own kids back for him.

The answer is better laws. The answer is in the absence of wrongdoing found by the court that ALL fit parents and their children be allowed to share a meaningful amount of time with each other. Also, BOTH parents should share the financial needs of the child, regardless of which parent the child happens to be with at any given time. At minimum, those needs should include food, shelter, and clothing - Agreed?

[Mediator]

what punishment are you refering to without a finding or wrongdoing?

Joint physical csutody is not for everyone since there is too often a relationship that does not work well enough betweeen the parents.  I have had many clients where it is difficult enough for them to communicate without joint physical custody.  The parents need to both want this arranglment and provide evidence that it is workable to the court.

I ncolorado both parents DO sahre in the financial needs of the children equally (as a proportion of their income regardless of the sex of the parent).  The difference in payment should differ depending upon the number of overnights because their is greater overhead being covered by that parent during that time.

[POC]

Fit parents and their children are being punished by being denied the ability to share meaningful time with each other. The arbitrary premise of best interests of the child is vague and smacks in the face of Due Process. Courts are not the proper venue for determing the best interests of a child. That authority is clearly best left to parents. Courts do not intervenve when married parents disagree. Are you telling me that divorced parents should have available to them a better parental decision making process than married parents have available? Or, should married parents be able to petition the court to settle their grievances too? Heck, if that was available there might be less divorces in the first place. It is ridiculous, courts are suited to determine whether a parent is fit, that is all. After that, it's up to the parents.  

As for what is a meaningful amount of time, Florida defines a "substantial" amount of time between a parent and child to be 146 or more overnights out of the year. Very clearly, 145 nights is not substantial or meaningful, but 146 nights is. When fit parents and their chidlren are allowed to share meaningful time with each other, the results are remarkably better than that of their counterparts in sole custody.

I agree that joint physical custody is not for everyone. But, it would be hard to attain worse results for chidlren than courts have achieved. The presumption must be changed. Why should a parent have to provide evidence of a workable arrangement to a court? It should be the court's responsibility to determine that the arrangement is unworkable.

Perhaps you could provide a link to Colorado's CS guidelines. It would be interesting to review, since it is the home of none other than Robert G. Williams.

My only question is what is the over/under on the number of posts it takes me to point out the absurdity of the apportionment of CS funds between divorced parents in Colorado? As a mediator, it should make you quiver at how easily the laws that govern hundreds of thousands of children in your state are proven to be grossly inequitable.

[Mediator]

>Fit parents and their children are being punished by being
>denied the ability to share meaningful time with each other.
>The arbitrary premise of best interests of the child is vague
>and smacks in the face of Due Process. Courts are not the
>proper venue for determing the best interests of a child. That
>authority is clearly best left to parents.

If only the "fit parents" would not petition the court to intervene and resolve it themseles or with a mediator than there would not be an issue.  The fact is that parents are the ones who are petitioning the court.  The court is certainly not seeking the parents.  The fact is the courts push mediation and would agree with you that they are not the best in determining the best interest.  They only do so when the parents can not do so and they request the court to intervene.  The court uses all available evidence and specialists available to determine best interest.  It is not perfect but it is better than a coin flip.


Courts do not
>intervenve when married parents disagree.

The married parents generally do not ask the court to do so.


Are you telling me
>that divorced parents should have available to them a better
>parental decision making process than married parents have
>available? Or, should married parents be able to petition the
>court to settle their grievances too?

Married parents already can petition the court on some issues of parenting and domestic violence.  Heck, children have petitioned the court to disown parents and parents have asked the court to intervene regarding paternity.


Heck, if that was
>available there might be less divorces in the first place. It
>is ridiculous, courts are suited to determine whether a parent
>is fit, that is all. After that, it's up to the parents.  
>
>As for what is a meaningful amount of time, Florida defines a
>"substantial" amount of time between a parent and child to be
>146 or more overnights out of the year. Very clearly, 145
>nights is not substantial or meaningful, but 146 nights is.
>When fit parents and their chidlren are allowed to share
>meaningful time with each other, the results are remarkably
>better than that of their counterparts in sole custody.


Some number had to be used as a cut off, afterall it is a court of law not the parents themselves deciding.  There is a rationale to the number although I'm sure it must seem arbitrary to many.  I often remind parents that a child is not to be cut in half.  The number of overnights is frequentlyused as a leverage for child support in both directions instead of what makes sense for the child given the resources of each parent (resources of all kinds including intellectual and emotional).

>
>I agree that joint physical custody is not for everyone. But,
>it would be hard to attain worse results for chidlren than
>courts have achieved. The presumption must be changed. Why
>should a parent have to provide evidence of a workable
>arrangement to a court? It should be the court's
>responsibility to determine that the arrangement is
>unworkable.


Once the parents have asked the court to intervene it is automatically an adversarial process.  Given that the parents already disagree with eachother and the court must make sense of it all.  You seem to speak as if the courts are forcing itself on both parents.  Each parent has their own perspective on what is best and they present it to the court.  The court does not know any more than what it is told by each parent.  A judge must sometimes order a neutral third party to investigate and offer recommendations since the parents are at odds as to what is in the best interest of the child.


>
>Perhaps you could provide a link to Colorado's CS guidelines.
>It would be interesting to review, since it is the home of
>none other than Robert G. Williams.

You can view a comprehensive pdf book on parenting time in colorado on my web site at //www.rockymountainmediation.com off a link on the front page.

>
>My only question is what is the over/under on the number of
>posts it takes me to point out the absurdity of the
>apportionment of CS funds between divorced parents in
>Colorado? As a mediator, it should make you quiver at how
>easily the laws that govern hundreds of thousands of children
>in your state are proven to be grossly inequitable.


Far from it.  While I would rather the parents #1 make more of an effort to not divorce, and #2 resolve issues themselves, I am glad the courts are avaialbe for those who ask for their assistance. I have dealt with parents who have multiple children form multiple relationships (sopmetimes married and often not).  Sometimes physical and or drug/alcohol abuse is involved.  I have also seen parents who simoply do not have a clue as to what it takes to be a parent.  they do not want to be involved with their children and meet with the teachers, doctors etc.  Often they simly want to fight the other parent.

On the flip side I have dealt with parents that have cooperated wonderfully and work well on their communication together as divorced parents.  They are accomodating in terms of parenting time and sharing expenses.  These types of parents file with the court but do not ask the court to make their decisions.

[POC]

For the convenience of your website visitors you may want to add:

http://198.187.128.12/colorado/lpext.dll?f=templates&fn=fs-main.htm&2.0

There you will find the following excerpts from the guidelines:

(4) The child support guideline does the following:

(a) Calculates child support based upon the parents' combined adjusted gross income estimated to have been allocated to the child if the parents and children were living in an intact household;

(Interesting since it will only be applied to households which are not intact. Perhaps they can find a cure for sickle-cell anemia by studying white Anglo-Saxons too.)

b) Adjusts the child support based upon the needs of the children for extraordinary medical expenses and work-related child care costs;

(How would anyone know what amount is extraordinary when ordinary is undefined? Perhaps a trip with Alice in Wonderland is what they had in mind.)

d) The amount of child support actually paid by a parent with an order for support of other children shall be deducted from that parent's gross income. For the purposes of this section, "other children" means children who are not the subject of this particular child support determination.

(Why wouldn't each child be afforded the same amount? Does the state of Colorado believe that its children are born to varying levels of Gods, dependent upon the sequence of their birth? What about subsequent chidlren of NCP's too, what God determined that their needs not be met equally?)

(14)

b) In cases of shared physical care, each parent's adjusted basic child support obligation obtained by application of paragraph (c) of subsection (10) of this section shall first be divided between the parents in proportion to their respective adjusted gross incomes. Each parent's share of the adjusted basic child support obligation shall then be multiplied by the percentage of time the children spend with the other parent to determine the theoretical basic child support obligation owed to the other parent. To these amounts shall be added each parent's proportionate share of work-related net child care costs, extraordinary medical expenses, and extraordinary adjustments to the schedule. The parent owing the greater amount of child support shall owe the difference between the two amounts as a child support order minus any ordered direct payments made on behalf of the children for work-related net child care costs, extraordinary medical expenses, or extraordinary adjustments to schedule. In no case, however, shall the amount of child support ordered to be paid exceed the amount of child support that would otherwise be ordered to be paid if the parents did not share physical custody.

(Long/short it is flawed math, albeit better than most states. Any mathematically valid formula can be tested for its validity at any point along the spectrum. The formula should be seamless. It should just as equitably provide for a child's needs at 25/340 time sharing as it does at 50/50 time sharing. At the same income level a difference of 5 days from 90 to 95 days should be the same dollar difference as from 160 to 165 days. There is no logical reason, other than that it is an arbitray threshold to provide for a child's needs at 92, but not 91. Obviously the child at 91 days is forced to suffer deprivations that the child at 92 does not. Any time you see a disclaimer like that of the last sentence in 14b, it is a tell-tale sign that you are working with a flawed formula. Again, valid mathematical formulas can be applied to all points. Valid formulas for varying scenarios such as time and incomes exist. The choice of the Colorado Legislature not to use them leaves chidlren in the lurch.)

Conspicuously absent from these guidelines are the basis from which they were comprised. Federal statutes require that there be a rebuttable presumption. But, they are impossible to rebutt, since it does not say what they are intended to provide for and in what amounts. How would you differentiate a 200 pound 17 year-old's dietary needs from a frail 5 year-old girl. These guidelines would have you believe that their needs are the same. The judge has nothing to go on to determine whether the amount of support being ordered is appropriate in any particular case.

If the table amounts were defined as 20% for housing, 22% for transportation, etc.. then a rebuttable presumption for the child's particular needs would exist. All you would have to do is look at the financial affidavits to determine if it were appopriate, or not. Instead, judges are left to arbitrarily ass-u-me.

I suggest that the Colorado Legislature take a remedial Pre-Algebra course. Next, they may want to rebuke parasytical child support collection companies, such as Policy Studies, Inc. And, at minimum they should state a public policy that "allows" for ALL fit parents and their children to share a meaningful amount of time with each other, whatever they determine that amount of time to be.

It seems kind of silly that there would even be much debate about that, doesn't it?