Mothers Of Lost Children – Indiana

Support for Noncustodial Indiana Moms

Archive for November 2008

Dumb Mistakes Mothers Sometimes Make

with 2 comments

This article is from Custody Prep for Moms, a very good site.  Check it out for other great advice and information.

DUMB MISTAKES MOTHERS SOMETIMES MAKE
-DON’T EVEN THINK ABOUT THESE UNLESS YOU WANT TO RISK LOSING YOUR CHILDREN:

1) Do not withhold visitation unless the children have physical injuries or strong indications of sexual abuse. If this is the case, consult an attorney immediately and consider filing a motion requesting an emergency hearing if you do withhold visitation. With all other concerns, you’ve got to work w/the court and hope for the best. Sometimes even with injuries and sexual abuse, women can be accused of making false allegations. This is a serious problem in today’s family court rooms. You are going to need legal advice.

2) Drop the hostility about other women – the one your ex had an affair with, the one he left you for, the current girlfriend, the new wife, whatever the case may be–if you are in a custody battle, that will be used to make you look vindictive, hateful, and unable to put aside marital issues for parenting issues. The courts generally do not consider men’s indiscretion as having any bearing on custody. Occasionally, if there are sleep-overs or cohabitation when the kids are in the home with the ex, this may carry some weight. Otherwise, there are far bigger fish to fry than the ex’s sexual indiscretions.

3) It is not advisable to call the police on your ex over things that occur during visitation, vile or not. It will get you in custody hot water. The exception is physical violence against you or the children. Obviously, safety is paramount.

4) Do not isolate yourself – You are going to need family and friends to support you through this and be witnesses for you in court. However, choose your confidantes extremely carefully and watch what you say. Sometimes even well-meaning family and friends can disclose things you said that can reflect negatively upon you.  Many victims of abuse have had abusive childhoods.  If this is the case for you, be mentally prepared that your ex will likely attempt to use the history of abuse in your family against you.  If you have made a choice to distance yourself from abusive family members, be prepared that your ex will likely try to paint that as your inability to maintain familial relationships.  

5) Do not remain unemployed –You must establish that you can support your children and not expect to live off alimony or child support. If child care is a problem, look into having family and friends help care for the kids so you can work and show stability. Check around town for resources–women’s advocacy centers, etc. There may be some sort of daycare assistance programs that subsidize day care so low income women can work. Try not to take on too many hours–some women have been penalized for being working mothers–so try to demonstrate that you have flexibility to be available for your children’s needs as much as possible. This is a double-edged sword for women in today’s court climate.

6) Do not become depressed. See our articles on “Mental Preparation”. Although situational depression is extremely common for women experiencing divorce and custody litigation, you must do everything in your power to fight it off. If you have been unsuccessful at keep depression at bay by the methods we recommend in our articles, and it is becoming incapacitating, please seek help from a reputable professional.

7) Do not even jokingly consider suicide. Killing yourself is a cruddy answer to your kids problems. Do you really think your children will be better off with a life with one abusive parent and no influence from their mother? Also, consider that if it becomes known to court personnel that you are considering or have considered suicide, you will likely be viewed as the less stable parent, which could jeopardize your chances to remain the primary parent for your children.

8) Don’t show up for court looking like anything less than June Cleaver. If you think you are not going to be judged by your appearance, think again. If you have tattoos, multiple body piercings, purple hair and a penchant for leather and short skirts, save your individuality for days when yours and your children’s future doesn’t depend on it. Dress conservatively for all court appearances, evaluator and therapy appointments. Again, think June Cleaver–June was certainly a capable woman–she didn’t take any guff from Ward or The Beav, but she always looked soft, feminine, conservative and maternal.  Anyone who will appear in court in court with you–relatives, friends, co-workers, significant others–should also dress appropriately.

9) Do not bad-mouth your ex-husband to your children. If you have not heard of Parental Alienation Syndrome or PAS, you may be in for a shock. Start reading at our “links” page and the article titled “Parental Alienation and Other Misogynistic “Syndromes””. Even though this “syndrome” is a bogus one, court personnel across the nation have applied it or its spin-offs as a reason to remove custody from fit mothers. A fit mother can lose custody under allegations of this syndrome whether or not they have denigrated the father to their children. It is that dangerous.  It is an abuser’s attorney’s dream defense strategy.  Do not hand them your head on a platter and actually do this. Keep your thoughts to yourself. Your children will eventually establish their own relationship with their father, for better or for worse. Allow them to navigate their own way. Besides, bad-mouthing only cheapens you and mires you in unhealthy negative energy.

10) Do not lose control with the ex. You should assume that every exchange you have with your ex–in person, by telephone, by fax, by mail, by e-mail–is being documented or recorded in some way. It is not uncommon for some fathers to harass or goad the mothers of their children during custody litigation–be aware. Should you lose it with your ex, you may find it used as ammunition against you in court to paint you as “unstable”. It is simply not worth the catharsis. If he loses control with you, disengage–calmly hang up the phone after stating your intention to do so, leave the room, think through the written word carefully.

11) Be very wary of efforts to reconcile during custody litigation. One mother we know met her ex for dinner to discuss reconciliation. She had a couple of glasses of wine with dinner at his urging. As soon as she left the restaurant, he called in a police report and she was arrested for DUI which he then used against her in the custody case.

12) Do not turn to crutches to get you through the pain and grief. There is no faster way to lose custody than to start using alcohol, drugs, gambling and men as such. There is no faster way to deteriorate your health than to turn to alcohol, drugs, late-nights, junk food, caffeine and cigarettes either. We are aware of cases in which the pivotal reason a parent lost custody was because they smoked. Be the healthy parent.

13) Do not cohabitate. No men should be staying overnight at your house with your children present during custody litigation. Yeah, sure, this is the 2000’s…don’t fool yourself. Judges typically do not like children to be exposed to these adult issues. For that matter–if you are a lesbian mother, these same rules regarding over-nighting and cohabitation apply.

14) Do not associate with men that a judge or evaluator may look unfavorably upon. If your new boyfriend or significant other has a terrible or inappropriate relationship with your children, you are not doing yourself any favors. If they have substance abuse problems, anger-management problems, arrest records, etc. your ex will find out and use this against you. We strongly recommend waiting to resume your dating life until you are officially divorced at the very least, and being exceptionally cautious from there forward. Judges may view your dating/sex life as a sign of your immaturity, instability and inability to put your children first. Think twice.

15) Don’t automatically assume that you can move with your children. Judges are considering more and more the father’s role in children’s life, sometimes to the detriment of the child in situations of domestic violence, child abuse and neglect, a strong maternal bond, etc. Judges tend to favor the parent that is staying in the child’s home environment unless there are strong reasons for the move. If you are just trying to get a fresh start and get away from the children’s father, you may have an extreme uphill battle to convince the court that this move is in the children’s best interests. Some states and courtrooms apply relocation restrictions.

16) Do not deprive the children’s father of information. Unless there is a specific court order, even if you have sole custody, the father is entitled to receive information about schooling, extra-curricular activities, health care. Some women that have withheld such information or directed others to withhold it have had custody reversed based on “alienation” theories. It isn’t worth the risk.

17) Do not withhold visitation due to non-payment of child support. The two issues are not linked. The children are not a financial pawn. You must use your legal and state child support enforcement agency remedies to collect unpaid child support. Child support is not meant to mean that the father gets to visit on a pay-as-you-go basis. These are separate orders.

18) Don’t leave the marital home. The instant you leave the house, you yield a major advantage when it comes to gaining custody. The court may look at your decision to leave as a sign that your ex is the real custodial parent, that you are abandoning your children, or that you are flighty and unstable. Some judges actually view the house and the kids as one entity that is transferred together. If your spouse is abusive or the situation has become so volatile that it is harmful to the children, you may be able to file a motion to have your ex leave the marital home.  If you feel you have no choice but to leave, take the children with you.

19) Beware of temporary separation agreements. Often the terms of a temporary written or verbal separation agreement become the final terms of divorce. Judges often look at the “status quo”–if a temporary arrangement has been agreed to and appears to have been working between the parties and the children, judges may be reluctant to change it.

21) Even if paternity has not yet been legally established, treat the prospective Fathers in the same way you would be required to if it had already been established.  Courts are affording non-married fathers the same rights as married fathers.  Do not assume that just because you were not married that the child is under your sole authority.

20) Don’t sign a deal believing that you can easily renegotiate the custody arrangements later. It is very difficult to modify a final custody order, as the burden of proof is on the filing parent to show a substantial change of circumstances. Many mothers have trusted their former mates when they were told that they could leave the kids with him temporarily until they got “on their feet”. Upon leaving the home, even possibly moving out of state to be where support systems are, they find their ex’s have filed for full custody and received it.

IF SOME OF THESE “DON’TS” SOUND LIKE THEY’RE DOUBLE STANDARDS FOR WOMEN, YOU ARE RIGHT. NO ONE EVER SAID THAT LIFE WAS FAIR, AND EACH TIME YOU WALK INTO A COURTROOM, YOU ARE ROLLING THE DICE. THE PLAYING FIELD IS NOT LEVEL FOR WOMEN AT PRESENT.  CONSULT AN ATTORNEY EXPERIENCED IN FAMILY LAW AND CHILD CUSTODY.  NOTHING CONTAINED HEREIN SHOULD BE CONSTRUED AS LEGAL ADVICE.

Advertisements

Written by mothersoflostchildren

November 3, 2008 at 4:07 am

Posted in Uncategorized

The Friendly Parent Concept: Anything But Friendly

with 2 comments

An older article, but very applicable to the current situation of the court decisions in Marion County.

by Margaret K. Dore, Esq., 2001©

[Published: Washington State Bar Association, Family Law Section Newsletter, Fall 2001].

Different versions of this article have previously run in the following publications: Domestic Violence Report (August/September 2001); Washington State Bar News (May 2001 and March 1999); Snohomish County Bar News (2001); Clark County Bar News (June 1999); and the Washington State Bar Association Family Law Section Newsletter (Spring 1999).

SSB 5511 died in the House. It was opposed by the Washington State Coalition Against Domestic Violence, the Northwest Women’s Law Center, other similar groups and various individuals, both Republican and Democrat. One representative’s staff told the author that constituent contacts were 95 percent against passage. The friendly parent issue is likely to resurface in the upcoming legislative session.

Substitute Senate Bill 5511 would have added a “friendly parent” provision to Washington’s criteria for establishing permanent parenting plans, RCW 26.09.187. If enacted, trial courts would have been required to consider the following phrase as a factor for custody:

which parent is more likely to allow and encourage the child frequent and continuing contact with the other parent.

SSB 5511, §3.

The bill’s backers promoted it as encouraging parents to work together. 1Unfortunately, enactment would have the opposite effect. Litigation and conflict between parents will increase. There will also be reduced access to the courts, justice and equal application of the law.

Under the friendly parent concept, primary custody is awarded to the parent most likely to foster the child’s relationship with the other parent, i.e., the “friendly parent.” The parent not awarded custody is thereby determined to be less friendly or “unfriendly.”

In practice, trial courts use friendly parent provisions to punish parents for perceived “bad behavior,” e.g., making allegations about the other parent, withholding access to the child or being uncooperative. Parents who engage in such conduct are in effect punished with loss of custody. The interests of the child are rendered secondary. Commentator Mary Ann Mason states:

The transfer of custody to the “friendly parent” more often is done to punish the other parent rather than to meet the needs of the child. 2

The friendly parent concept is therefore contrary to current law that custody be determined via the “best interests of the child.” RCW 26.09.002.

Washington’s Rejection of the “Friendly Parent” Concept.

Bills similar to SSB 5511 have been rejected by the Legislature nearly every legislative session since 1982. 3For this reason, Lawrence v. Lawrence, ___ Wn. App. ___ (Div. I 2001), holds that “use of the friendly parent concept in a custody determination would be improper and an abuse of discretion.” (Slip Opinion, p. 3). Lawrence also states:

The Legislature’s rejection of this rule is consistent with our state’s policy that “custody and visitation privileges are not to be used to penalize or reward parents for their conduct.”

Id., p. 4.

Similar holdings are found in: Schuster v. Schuster, 90 Wn.2d 626, 630, 585 P.2d 130 (1978)(“custody of a child is not to be used as a reward or punishment for the conduct of the parents”); and Custody of Nunn, 103 Wn. App. 871, 887-88, ___ P.3d ___ (2000) (reversible error to find the mother unfit due to her failure to foster a good relationship between the child and the deceased father’s family).

Current Use of the Friendly Parent Concept.

Despite rejection by both the Legislature and the appellate courts, the friendly parent concept is used in a significant minority of child custody cases. 4From the author’s view point, this failure to follow the law is due to the influence of certain parenting evaluators and attorneys.

With use of the friendly parent concept, the trials in these cases are rendered longer and are more emotionally charged. [They are characterized by aggressive litigation tactics.]

Subjective and Speculative Proof.

Under the current statute, the factors for custody are for the most part objective based on existing facts, e.g., which parent has taken greater responsibility for the child’s daily needs, each parents’ past parenting and the child’s existing relationship with siblings. RCW 26.09.187(3)(a).

Proof of the friendly parent concept is more subjective, as it is based on a future projection that one parent will more likely support the other’s relationship with the child. Supporting evidence can thus be more loosely based. For example, a parenting evaluation reviewed by this author cited “vibes” reported by a third party (the third party didn’t “get any vibes” that the mother would support the father’s relationship with the child).

In this same case, the trial judge adopted the evaluator’s opinion that the father would be the friendlier parent. Custody was transferred to the father who lived in another state. The child, who was two years old, had always lived with the mother. He was traumatized by the sudden move. Previously described as open and adventurous, he became insecure and “clingy.” Such was the result of the friendly parent rule.

Under SSB 5511, the friendly parent rule will become the norm. Children and their families will more likely be subject to custody determinations via speculative evidence (the “vibes” test and more). The best interests of the child as the standard for custody will be displaced.

Increased Litigation and Conflict.

The easiest way to prove that a parent is friendly is to prove that the other parent is unfriendly. Parents are therefore encouraged to create situations, which induce the other parent to refuse visitation, be uncooperative or otherwise look unfriendly. The following example may seem extreme, but it is from an actual case:

The child lives with the mother in the family home. He has recently had open heart surgery and is extremely ill. The father, seeking to show that the mother is unfriendly, moves for immediate visitation in the father’s apartment on an alternating, every other day basis.

The mother, of course, objects.

Through her objection, the father obtains his proof. She has demonstrated her intent to restrict his access to the child, to be “unfriendly.”

In this case, the father repeatedly utilized such tactics. He was thereby awarded custody, the family home and child support.

More Tactics.

For those with a lower budget, aggressively worded letters that the other parent is being uncooperative can be effective. The matters presented in such letters can be trivial. But if the other parent does not respond, his or her failure to do so can be seen as an admission to the letter’s content, that he or she is in fact uncooperative and “unfriendly”.

For the receiving parent, the prudent course is to respond, and perhaps to respond with equal aggression, i.e., that it is the initial parent who is being uncooperative. In the year or so pending trial, this “dance” can then be repeated with the next issue over and over again.

Another ploy is for a parent to allow the other parent to have the child, but then claim that the time was unauthorized; that visitation was in fact denied and the other parent is “unfriendly.”

All such games and posturing, and defense against such games and posturing, cost money. The combined fees for parents soar. The author has seen combined fees in excess of $200,000.00. There is also the emotional toll on the parents, the children and the family unit as a whole. There is the waste of judicial resources to resolve manufactured disputes. Should SSB 5511, the proposed friendly parent bill, be enacted, game-based custody determinations will become more prevalent.

The Friendly Parent Concept puts Children at Risk.

The friendly parent concept puts children at increased risk of abuse, violence and neglect at the hands of a parent. This is because a parent who raises these concerns can be perceived as “unfriendly” to justify a change in custody, i.e., to the abusive, violent or neglectful parent. 5With such high stakes, parents with these concerns may choose to forgo disclosing them. Mary Ann Mason states:

[M]others who fear abuse are better off keeping it to themselves, or they risk losing custody of the children they are trying to protect. 6

The friendly parent concept thus has a chilling effect regarding matters that put children at risk. 7It obstructs the protection of children.

Uniformity of Decision Making; Bias.

With the subjectivity of the friendly parent determination, trial judges have more discretion. If SSB 5511 is enacted, custody decisions will be more heavily based on the values of individual judges. There will be less, if any, uniformity of decision making. This will contribute to a perception of unfairness by the public.

There is also evidence that the friendly parent rule is applied disproportionately against women. 8Indeed, this author has met but one father who lost custody under a friendly parent analysis. Such disproportionate application will also contribute to a perception of unfairness.

No Access to Justice.

Justice requires that persons in like situations be treated the same regardless of individual attributes. It requires that both sides be heard. Only in this way can there be a perception of fairness and legitimacy for the rule of law.

The opportunity for justice is reduced with the friendly parent rule. Its reliance on trial court discretion works against uniformity and equal application of the law. Its chilling effect reduces the flow of information so that one side or the other is not heard. And then there is the reward for manufactured disputes. The best interests of the child are lost in the shuffle. In fact, children are placed at increased risk of abuse, violence and neglect.

Washington should hold its course of nearly twenty years. SSB 5511 should be firmly and flatly rejected. Only then can the friendly parent concept be eliminated from use and children protected.

1 House Bill Report, SSB 5511, March 30, 2001.
2 Mary Ann Mason, PhD, JD, The Custody Wars: Why Children are Losing the Legal Battle and What We can Do About It, NY, Basic Books, 1999, p. 169.
3 Lawrence v. Lawrence, ___ Wn. App. ___ (Div. I 2001), Slip Opinion, p. 4.
4 Margaret K. Dore, The “Friendly Parent” Concept: At Odds With the Parenting Act, Washington State Bar Association Family Law Section Newsletter, Spring 1999 (the friendly parent concept is a “troubling trend”).
5 Mary Ann Mason, Ph.D., J.D., The Custody Wars: Why Children Are Losing the Legal Battle and What We can Do About It, New York, Basic Books, 1999, p. 169.
6 Id., p. 164.
7 Accord. Joan Zorza, “Friendly Parent Provisions in Custody Determinations”, Clearinghouse Review, Vol. 26, No. 8, December 1992, p. 923, right hand column, 2nd ¶, last line (“these provisions effectively chill the right of any parent to raise even the most meritorious claim”).
8 Joan Zorza, Friendly Parent Provisions in Custody Determinations, Clearinghouse Review, Vol. 26, No. 8, December 1992, p. 924. .

Margaret K. Dore is an appellate lawyer in Seattle. She is counsel of record for the appellant in Lawrence, supra. Her other published decisions include issues regarding local improvement districts, insurance law and bankruptcy. She is a guardian ad litem for King County (guardianship and probate panel). http://www.MargaretDore.com.

Written by mothersoflostchildren

November 3, 2008 at 1:21 am

Beware of Family Court: What Women Should Know

leave a comment »

This is a really good article that may be able to help moms.  Read it at the Women’s Justice Center.   Here is a synopsis of the information presented on the website:

Despite some new protections patched into family law for victims of violence against women, the family law and family court system remain a flawed and risky venue for victims of family violence. It’s especially risky for victims who present claims of violence and abuse in family court without any criminal case documents to back up those claims.  The structure and powers of the family court system are radically different from the criminal system. By understanding these differences, victims and advocates can minimize the risks of family court, and get the best of each system to work for them.

Part I of this text describes some of the key differences between the family and criminal court systems. It explains why family court is so prone to fail victims of family violence.

Part II provides some strategies for avoiding family court when possible, or for protecting against the risks when a family court case is opened.

Parts III & IV provide some general tips for handling your family court case.

Part V offers some tips on what to do if you lose in family court, particularly if you lose child custody. And

Part VI tells a story of how one domestic violence victim who had become badly trapped in family court hell, ultimately managed to get free.

 
Copyright © Marie De Santis,
Women’s Justice Center,
www.justicewomen.com
rdjustice@monitor.net

Written by mothersoflostchildren

November 1, 2008 at 4:03 pm