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