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Hampshire Shared Parenting Initative |
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In
his March 13th article in the Nashua
Telegraph titled "Divorce laws
get second look", Andrew Wolfe
quotes a few people who oppose HB529
and the presumption of equal parenting
rights and responsibilities. I would
like to take this opportunity to respond
to each point made by those Mr. Wolfe
interviewed for the article. I strongly
believe that the Children and Family
Law committee members are familiar
with these individuals Mr. Wolfe sought
out as the voice of those opposed
to reform, and I urge the committee
to inquire further of their viewpoints
in light of my rebuttal positions.
Here is a link that will take you
to the article:
http://www.nashuatelegraph.com/apps/pbcs.dll/article?AID=/20050313/NEWS01/103130101
The WMUR link to the same story,
'If Passed, New Divorce Bills Could
Focus On Children' can be found here:
http://www.thewmurchannel.com/news/4281549/detail.html
"We
do not believe in the strict legal
presumption of joint custody,"
Gardner said. "We believe each
family is unique and you have to look
at the needs of the children in each
family. It's not always appropriate.
It's not always in the best interests
of the children."
[MY
REBUTTAL]
Of
course it is true that 'each family
is unique and you have to look at
the needs of the children in each
family'. However, Ms. Gardner does
not acknowledge the overwhelming amount
of well understood and well accepted
research and study data showing the
single strongest indicator associated
statistically with the dysfunctional
development of children is that of
being fatherless. Children with significant
access to BOTH parents fare significantly
better developmentally.
There is no better place to start
than with the presumption of equal
parenting when discussing the best
interest of children. And if the presumption
of shared equal parenting is indeed
not appropriate for the best interests
of the children in any given case,
there is nothing that stops the court
from determining as much. As a matter
of fact, HB529 provides that the court
may consider an additional list of
13 separate factors potentially affecting
the best interest of the child. Notably,
this list of 13 factors is exactly
the same list provided for in HB640,
requested by the Family Law Task Force.
Indeed, HB529 provides for the 'best
interest of the child' just as HB640
does. What it does much better than
HB640, though, is to start the court's
inevitable deliberation over the child's
best interest at a point that is overwhelmingly
shown to benefit children. That starting
point is the presumption that both
parents will be equally involved.
There is nothing 'strict' about a
presumption, notwithstanding Ms. Gardner's
strange assertion to the contrary.
A presumption is a beginning point,
no more and no less. There is ample
opportunity and latitude provided
by HB529 to the court to deviate from
such a presumption where the true
best interests of the child are benefitted.
Ms. Gardner's point would be more
easily understood if she were to argue
what she really means... what she
really means is that she doesn't like
the 'strict legal presumption' (as
she calls it) because she doesn't
think the court should have to be
accountable for writing down just
why it has deviated when it elects
to do so.
I was surprised to hear Ms. Gardner
state, by the way, 'We do not believe
in the strict legal presumption of
joint
custody', as it was not my understanding
the Family Law Task Force actually
took such a position in its November
2004 Final Report. If she is speaking
for the Task Force when she says 'We'
then it appears to me she may be taking
liberties with the findings of the
Task Force Final Report and its stated
position (or lack thereof)...
"The
biggest thing is getting rid of the
words 'custody' and 'custodial rights,"'
said Amherst divorce lawyer Honey
Hastings, who wrote the second measure.
"That's the most significant
change [in HB640]. It's gotten to
have the sense of ownership, or winning,"
she said. "This is not good for
kids."
[MY
REBUTTAL]
Honey
Hastings' comments about the change
in terminology being the 'most significant
change' in HB640 should send shivers
down your spine. There is NO way that
changing terminology is going to reconcile
the gigantic problems that exist in
the family courts. She talks further
about the problem of custody cases
having 'the sense of ownership, or
winning'. Does Ms. Hastings actually
believe that changing a handful of
words in the current law is going
to resolve this massive problem regarding
the winner/loser mentality of the
family courts? Do you actually believe
this?
I would like to make an analogy between
a child custody case in the NH family
court and a Las Vegas Poker table
where there are only 2 players participating
(this table is the unequal table):
The dealer at the unequal poker table
(the judge) is consistently dealing
a joker from the deck to one of the
players at the table (the custodial
parent, or CP). The other player at
the table (the non-custodial parent,
or NCP) wants to go play at the next
table over where there is an objective
dealer who only uses fresh decks of
cards and deals fairly to both players
(this fair-handed table signifies
mediation). The fair-handed dealer
signifies a judge who would be operating
under law providing for a presumption
of equal parenting. The NCP asks the
CP repeatedly to move to the fair-handed
table next to them (he asks for mediation),
but the CP refuses because she knows
she is likely to get a joker if she
remains at the unequal table. The
NCP asks repeatedly for them to move
to the fair-handed table, but repeatedly
is rebuffed. The NCP doesn't want
to play at the unequal table, perhaps,
and gets up to leave... but, then,
a large bailiff blocks his exit path
and tells him to sit back down. Now,
the dealing begins at the unequal
table and the CP gets a joker, true
to form. She ends up with the winning
hand and gets what is in the pot.
Add the NCP's child to whatever is
in the pot financially and you have
what NH fathers are losing at the
unequal table of NH's family courts
every day.
How would you feel if your child were
literally taken from you at this unequal
table, after you had shown no disincentive
to be a parent and had provided for,
nurtured, and protected your child
for many years? And all this after
you had been begging only to play
at the fair-handed table... Did I
mention the part where the parties'
lawyers are standing behind them all
throughout the hand and instructing
both of them that the CP is, indeed,
very likely to get a joker...? It's
true. Ms. Hastings is absolutely right
about one thing, and that is the winner/loser
sense of a custody battle. She is
right because that is EXACTLY how
the procedure works in the NH family
courts today. Now the question is
how to resolve this...
Ms. Hastings would have you believe
that changing the word for what the
parties sit on at the unequal table
from 'chairs' to the word 'seats'
will make a difference for the parties.
She couldn't be more wrong. Those
who sat on 'chairs' and got a joker
will now sit on 'seats' and receive
the same joker. As long as a presumption
of equality is not the starting point,
there will never be any more than
a miniscule number of cases that are
settled through mediation.
I tell you point blank that the fair-handed
table of mediation and negotiation
will forever be empty in NH's halls
of justice as long as the unequal
table is allowed to remain intact.
The line waiting for its turn at the
unequal table will continue to be
huge, though, just as the current
months long backlog is today in NH's
family courts. It is up to you, the
committee members, to demand that
the dealers in NH's family courts
begin dealing fairly to both parents,
and for the sake of the children.
[Ms.
Gardner said] “We’re looking for parents
to make their own decisions regarding
what’s best for their kids . . . and
that flies in the face of a presumption.”
[MY
REBUTTAL]
This
commentary is so hypocritical on its
very face that I feel little rebuttal
is necessary. She is looking for parents
to make their own decisions about
what's best for the children, but
then she refuses to presume that the
parents should have an equal say???
I think what she really must mean
is that she's looking for ONE of the
parents to make the decisions for
both the child and the other parent.
"There
are a lot of lawyers who do divorce
work who are very skeptical about
the idea," Wise said. "They
think that's sort of a parents' rights
view of the situation," rather
than being focused on what's best
for children.
[MY
REBUTTAL]
Mr.
Wise doesn't go into enough detail,
but he is at least half right when
he speaks about parents' rights. It
is also about children's rights, though.
When all statistical data shows that
children do significantly better with
equal access to both parents then
how can it NOT be about the best interest
of the children. Parents' rights,
when parents are fit, are directly
synonymous with children's rights,
by the way. Where does Mr. Wise get
the idea that a judge, or himself,
or a GAL (likely another attorney,
like Mr. Wise) is in a better position
to decide what's best for a child
than that child's own parent? And
shouldn't each parent retain a presumption
of equality in order to exercise those
things that are in their child's best
interests? What is best for children
is equal access to BOTH parents, unless
there are other circumstances that
warrant reconsideration (which HB529
unequivocally provides for). Again,
Mr. Wise appears, in reality, to be
skeptical of the requirement that
HB529 provides whereby the court must
articulate the reasons for abrogating
a parent's equality.
Forgive me, if you will, for discounting
where Mr. Wise says 'There are a lot
of lawyers who do divorce work who
are very skeptical about the idea'.
In every other facet of government
and throughout the entirety of the
private sector there are rules about
conflict of interest. Two examples
of this are the rules against politicians
taking gifts of high value from lobbyists,
and the rule whereby a stockholder
cannot publicly pump up the value
of his/her stock using inaccurate
data. These rules are to prevent conflicts
of interest so that the tenets of
justice and fairness are not undermined.
I suggest to you that if ever there
was a group of individuals with a
conflict of interest it is lawyers
who speak in opposition to statutory
equality protections in NH family
court. They are making a profitable
living off of the litigation that
is directly caused by the inequality
in NH's courts. The amount of litigation
would drop precipitously if HB529
were to pass.
"I
think they are trying to tip the scales
in terms of this perceived power imbalance,
which I frankly don't see," Hastings
said. "I don't think there is
a bias (against men). . . . I haven't
seen it."
[MY
REBUTTAL]
I'd
like to specifically counter this
point about there not being a bias
against fathers as parents in the
courts. If, in fact, there is no bias,
and the courts are indeed dealing
in parental equality (for the sake
of the children as well as the parents)
then what harm does it do to protect
equal parenting rights and responsibilities
by requiring the court to write down
just why it has denied one of the
parents equal access to the child?
The subjective opinion that there
is no inequity at present is a specious
one. If she is accurate in that view
(which she is not), then what is the
purpose of arguing against the presumption
of equality and the subsequent documention
requirement when that presumption
of equality is denied by the court?
If fairness and equality prevail today
in the courts then why do she and
others opposed to the reform argue
so vigorously against an explicit
statutory protection? Is she arguing
that even though the courts are fair
and equal right now, they don't actually
have the time to write down why they
take a child from a parent?
The subjective opinion of many (which
I share) that there *is* parental
bias in the courts can never be termed
a specious one, even if you don't
believe it, because those of this
viewpoint argue that the presumption
of equal parenting rights (for both
mother and father) should be protected
through statutory language. Such statutory
protection of parenting equality would
be merely a direct extension of the
14th amendment equal protections clause,
which has, by the way, been upheld
on more than one occasion historically
by the U.S. Supreme Court with respect
to parenting rights.
Honey Hastings and those who share
her opinion (mostly attorneys and
entrenched divorce industry profiteers,
frankly) argue vehemently for the
continued latitude that current law
gives the NH family courts to abrogate
the 14th amendment provided equal
rights of parents (and the rights
of their children to retain equal
access to BOTH parents) without even
requiring the courts to make a record
of why this has been done. I hope
you see through the transparency of
the 'I just don't think it's a problem'
viewpoint...
"The
more the parents themselves can work
these things out, the more long-lasting
the agreements are going to be, rather
than something that's imposed on them
by professionals from the outside,"
Wise said.
[MY
REBUTTAL]
I
shuddered when I read this, to be
honest. If 'imposing' equality through
a presumption (a starting point of
statutory equality) of equal parenting
rights is wrong then we must be living
in the old Soviet Union. There can
never be an 'imposition' of presumed
equality by the legislature. There
can only be the necessity of these
statutory protections of equality
on behalf of the citizenship to explicitly
preclude those citizens from falling
prey to those who would undermine
the 14th amendment to the constitution
and its equal protection clause. The
'imposition' that Ms. Wise refers
to, instead, must certainly be the
existing unequal disbursement of children
to one parent or the other, thus making
huge numbers of children largely fatherless
and then again huge numbers of fathers
largely childless.
That 'something that's imposed on
them by professionals from the outside'
is happening right now every day in
NH's family courts, and it is being
imposed unequally and unjustly. It
is also generating generations of
singly parented and dysfunctional
children. Those 'long-lasting agreements'
Ms. Wise alludes to will never be
forged through negotiation of divorcing
or separating parties as long as one
of the parties gains an advantage
through the purposeful manufacture
of animosity...
When
Chief Justice Broderick addressed
the legislature in late February he
told the legislators that the courts
needed
'strong
legislative support'.
If HB529 isn't a perfect example of
that strong legislative support requested
by Judge Broderick then I am at a
personal loss to conceive of what
strong legislative support is...
I
urge to you visit the 'Benefits of
Joint Custody' page at
http://www.nhcustody.org/My_Homepage_Files/Page1.html
to learn about the study and research
data showing children who retain access
to BOTH parents do far better than
those who are singly parented. There
is a wealth of information there.
And there is much additional information
at www.nhcustody.org
Sincerely,
Marc Snider
Merrimack, NH
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