Just Whose Side Are You On Anyway?
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I have to get something off my chest. Maybe it’s not even anything I have to worry about, but it’s bugging me. It may seem like we are taking sides on this blog. It may seem we believe all mother’s are psycho. While I’m sure I have my moments, ahem, I do believe that most mothers are sane. While they may mess up from time to time during a divorce, for the most part mothers do believe their children’s father is an important person. I am no different. I am not anti-mother. What I am, is pro-parent. That means both parents.
I believe the default custody agreement in divorce should be 50/50 unless there is a preponderence of evidence that shows one parent is mentally unstable and incapable of raising children physically, mentally AND emotionally. The only other exception would be if it were logistically not possible. In our case we have this evidence, but custody evaluators are not interested in reading it all. During our last evaluation the counselor simply said, “No, I didn’t read any of it, it was too much.” For that, she was paid several thousand dollars - to not do her job. Then she was paid again, to testify in court that she didn’t do her job. That is what is wrong with the court system. People get paid while having to take zero responsibility for their actions. Court-appointed evaluators in our county aren’t even legally required to testify! Yes, you pay for an evaluation and sign a release indicating that you accept and understand that you are not permitted to call the evaluator to court to testify as to how they reached their conclusion! They can write whatever they want and never have to answer to anyone. It’s sick and should be illegal. No person should have such unchallengeable power to make a life-affecting decision about a family without having to legally justify their opinion under oath.
So what is the answer? I like the idea that all cases would be presented without mentioning gender or financials, however I don’t believe that is possible. I also don’t believe a counselor interviewing you for 3-hours and seeing how you interact with your children for less than 10-minutes can make a decision, either. We all know judges will never take the time to learn for themselves, they very often don’t have the time. So honestly, I don’t know the answer.
What I wish would happen is each child would spend a month with each parent while everything is being recorded. Everything. There are videotapes running all day long everywhere. Neighbors and teachers should also be interviewed. I can almost guarantee that if there is a mental issue, parental alienation, or other important issues, it would show itself during that month. The evaluator would REALLY be able to see how the kids interact with each parent in a real setting, not an office. Each parent should have to take a psychological exam, with different psychologists, that way there is no bias on the scoring because the psychologist has been influenced by one of the parents. Any therapist that has seen the parents as clients should HAVE to testify, nothing should be able to be hidden. Each evaluator should have to legally tell you the percentage of clients (by gender) they have ruled in favor of before you commit to using them.
Lastly, there should be severe consequences for any parent withholding custody time, in line with the consequences for not paying child support. Until then, the custodial parent holds all the power.
January 14th, 2008 at 1:13 am
I realize that CS and custody/visitation are currently viewed as completely separate, but I have to agree that they should at the very least have the same consequences for non compliance. In our case, if visitation were affected by payment or non payment of CS, you can be sure, she’d find a way to come up with the money. But, then again, if she ends up losing most of her visitation (and possibly any unsupervised time) due to her recent behaviors, she’s going to be even more reluctant to make any effort to pay a single dime.
January 14th, 2008 at 7:53 am
You mention “50/50 unless there is evidence …”. What constituents evidence? The legal standard is defined in the code of “Rules of evidence” which is enforced by the judge and recorded by a court reporter.
THIS DOES NOT OCCUR IN DIVORCE COURT!
In our jurisdiction we have something called a shadow trial which is forced negotiation without a judge present. Lawyers are free to exercise their thespian talents to entertain the judge when he shows up every few hours and unduly influence him.
I have visitation restrictions based on a sleep apnea condition that has been intensely monitored and successfully treated by the best specialist in the state for 6 years. I will need to spend another $10K and two years just for a chance to undo this.
During one phase, erroneous “evidence” was orally presented to the judge. I found out later, contacted my doctors who refuted it, I challenged my own lawyer on it and insisted it be tracked down.
Opps wrong case file used when discussing visitation restrictions with the judge. OK, get it retracted, inform the judge. No, it doesn’t matter. Translation, “We lawyers don’t admit our fuckups to the judge it makes us look like the assholes we are”.
So when you say based on preponderance of evidence, be damn sure you know the definition of evidence and know that it does not apply in many jurisdictions.
I live in the biggest metropolitan area in my state, over 1 million in population. And that’s how we do it.
The Divorce Industry is one of the few places you get paid not to do your job and get to keep it. This applies to all members of the industry, judges, lawyers, gaurdians, evaluators, psy, et al.
My custody evaluator was intimidated by the opposition and reversed his decision after an aggressive letter from the opposition and then never submitted a written report or testified. SOP.
I’m sure more intrusion is not the answer. If the goal is 50/50, let it be unless there is a significant issue to dictate otherwise.
I have always been current and ahead in child support and the enforcement agency has always listed me as a dead beat due to the opposition bypassing the enforcement agency over my objection (as Pro Se) with the judge supporting it. This caused constant harassment as a deadbeat while being current. Meanwhile my ex who constantly violates the visitation order does so without any consequence.
January 14th, 2008 at 12:29 pm
jq75,
I assure you, we know exactly what does and doesn’t happen in divorce court.
The point was “pipe-dreaming” of sorts. Seriously, absent true evidence of child abuse or some other compelling parental fitness issue (or logistical impossibility) - a default presumption of equal custody should reign supreme.
Unfortunately, the divorce machine won’t let their mantra “the child’s best interests” stand in the way of their federal incentives.
I’m a “deadbeat,” too - constant in a perpetual state of arrears because while my wages are automatically garnished (state law, not because I’ve ever been behind) - the state law recently changed to billing CS for the full month in advance so I start every single month showing a deficit until I get my paychecks which whittle away at the “arrearage.”
Then the cycle begins all over again the following month. I guess that helps keep their “deadbeat dad” statistics overinflated and then they can continue to publicize such mythological hysteria.
January 14th, 2008 at 1:38 pm
Thank you WC and Mr. M for clarifying your stance. To be honest, yes, it did seem like you were “taking sides”.
I have to say that I have been approached by many “mom’s rights” folks as my court order is wacked and asked to participate in their cause.
My reply is always the same–I am not for “mom’s rights” or “dad’s rights” I am for what is in the best interests of the children.
I agree whole heartedly with you–50/50 unless preponderence of evidence.
I also agree that sadly, the professionals in the system are not interested in the families that they are supposed to be serving, but in making money and processing cases. To actually sit down and look at the evidence…well…that would cost time and money and who has that. Instead, the gloss over things and you have someone who doesn’t know or care to know you from adam making decisions about your life and the lives of your kids based upon a several hour evaluation in their office!
I am very happy that you both are taking the time to keep this blog going. Blogs like this are what is going to, I believe, show people what is really happening in family court, and over time, change the system.
January 14th, 2008 at 4:15 pm
I guess I’d have to say that ‘my side’ is contingent on the situation but leans towards father’s rights only because there seems to be inequity withing the system in that area. So my bias toward that side is only in an effort to equalize the playing field, so to speak. In reality I would have to say that my position is 50/50 in a normal, sane divorce and on the side of the sane parent in a non-normal situation with a focus on the SAFETY of the children as well as their best interests.
My son operated on a 50/50 relatively successfully for the first 11 months after the divorce when she ‘lost it’ and he had to suspend that order and go for full to protect his son. It has remained that way for the last 11 months throughout the evaluation and it looks like most of the exparte order will now become ‘the order’ as she ‘lost it’ again.
January 16th, 2008 at 4:01 am
Mister-M, I’m sure you’ve spent far too much time in the courtroom. My point was the word “evidence” has no place in the divorce court. Because that word has a definition and assumptions that are irrelevant in that court.
Until the divorce court actually follows the Rules of Evidence, rather than entertaining lawyers theatrics then many of these issues will remain unsolvable and justice will be impossible to attain.
Good point on the deadbeat timing problem. There are a few variations. If the number of pays doesn’t match the payment schedule you have the same problem of being in continual arrearage. That is so ridiculous that they expect every employer to pay you on their schedule.
But the deadbeat game I’m talking about is when lawyers and judges force you to pay support outside of the enforcement agency and then opposition turns around and asks the prosecutor to run an audit that they already know will fail because the enforcement agency was never informed of the bypassed payments.
This one was played on me a few times and that caused escalated enforcement where I almost lost my drivers license while still being current.
January 16th, 2008 at 4:06 am
BTW, if you they think you are 60-90 days behind the escalated enforcement will kick in and you will be reported to the credit reporting agency so anyone who pulls a report on you will see your slow pay to the enforcement agency and think you a deadbeat.
That should work wonders for major loans or a prospective employer review.
January 16th, 2008 at 4:42 am
jq… couple of applicable notes:
1 - I actually was schedule for credit bureau reporting. Due to a continued hearing, there was some adjustment due to my new job that kicked in a few months earlier. Prepared to pay in one lump sum the “catch-up” to rid myself of the accrued, back-dated arrearage, they “had to put it in the agreement.” When enforcement looks at my file and sees a $1,600 add-on, which was, by agreement, to be paid in 15-days - they automatically ratched-it up to the credit reporting.
A quick and emphatic fax to domestic relations resulted in my quick removal from enforcement… and yes, I count myself luckier than most. They just looked at the number, did the basic division, and said, “Gee, he’s 4-months behind” without ever looking at the language of the agreement.
2 - When I spoke to enforcement about removing the “$20 add-on for arrearages” I explained that I was not behind on support, I was up to date. Due to my state’s laws changing to automatic wage garnishment regardless of whether or not you are behind in support in 2007, I asked for a new wage garnishment order removing the extra $20/month.
They called me back to explain that they “couldn’t.” They further explained that while the law change has caused immeasurable problem in the system, there was nothing they could do about it.
What’s the problem?
Well, because they bill the whole month on the first of the month, you’re automatically in arrears. This triggers an automatic wage garnishment order adding $20/month to be applied for arrears. Well, as you get paid during the month, you pay down your “arrearage.” Every month, before the end of the month, you’re caught up, which triggers a new automatic order removing the arrearage. Days later, when you are billed for your new month, you’re automatically behind and guess what??? It triggers another wage garnishment order adding the $20 back.
Employers all over my state are up in arms (including mine). They get 2 orders for adjusted wage garnishment orders every month because of the auto-trigger and the fact that they bill you the full month at the beginning of the month.
It used to be that you would be billed based upon your pay-periods (weekly, bi-weekly, or monthly). My guess is in an effort to streamline things, they made it uniform… bill full month on the first and now caused themselves and all employers in the state more problems than they solved in doing so.
Further, I now have to be technically paid TWO FULL MONTHS IN ADVANCE in order to not have that bullshit happen.
Assholes.