(puedes dar a traducir al margen izquierdo)
Custody wars: 'Shared parenting' and divorce litigation across the 50 states
by Alexa Dankowski, Suzanne Goode, Philip Greenspun, Chaconne
Martin-Berkowicz and Tina Tonnu, Grand Forks Herald, CAMBRIDGE, Mass. USA.
Posted on Oct 18, 2014
We've interviewed nearly 100 divorce litigators in different U.S. and
international jurisdictions for a forthcoming book. We didn't do this to
educate ourselves about Measure 6, the Shared Parenting Initiative on the
North Dakota ballot; but inadvertently, we've become experts on the
practical effects of changes in divorce laws.
Broadly, states fall into three categories:
1. Preserve the status quo
2. Craft a new optimum
3. Don't take sides
North Dakota currently falls into the first category. The judge tries to
figure out who was the "primary parent" during the marriage, then extends
the financial terms of what had been a voluntary partnership out until the
children are adults.
The parent identified as more important pre-lawsuit is awarded custody, and
the parent who had been the breadwinner will be ordered to pay child
support.
This approach is consistent with the best published psychology research of
the 1950s. However, the academic psychologists have changed their minds. "A
psychologist can't walk into an intact family, do an assessment and
determine which parent is better for which child at which age in that
family," said Linda Nielsen, professor of psychology at Wake Forest
University.
"And it is the wrong question to ask, since the importance
or effectiveness of each parent will go up and down as the child ages."
In theory, the decision regarding which parent is to be primary is made
after a Perry Mason-style trial with witnesses testifying and being
cross-examined. In practice, as its typical nationwide, North Dakota judges
make an "interim" decision at a 60-minute hearing shortly after a divorce
lawsuit is filed - and that decision is likely to become permanent.
The second category includes states that recognize parenting is going to be
different following a divorce, so the court should "craft a new optimum."
The court may order the parents to assume unequal roles, but not because
roles were unequal during the marriage.
This approach, followed by states such as Michigan and Missouri, sounds
great in theory. But in practice, it leads to lots of arguments (at $1,000
per hour or more, considering everyone in the courtroom who is being paid)
about what the new optimum should be; and no two judges are likely to agree
on what is "optimum."
"I could take the same facts and argument to five judges and
get five different results," was a common refrain.
Alaska, Arizona, Colorado and Delaware are examples of the third approach:
"Don't take sides." Either the Legislature or the court will require or
strongly suggest that, absent an agreement between the parents, courts award
50/50 parenting.
Effects of Measure 6
Measure 6 would push North Dakota into the third category. Generally,
lawyers nationwide say they think that roughly 50/50 shared parenting is
best for children. They report that their clients with 50/50 parenting
experience less conflict than clients with an
every-other-weekend-and-Wednesday-night-dinner schedule.
Among other advantages, "you don't have a father who is
perpetually angry that he pays all of the bills and seldom sees the kids,"
as several attorneys observed.
Attorneys and psychologists also report much greater involvement by fathers
who had been awarded 50/50 parenting than ones who had been officially
deemed "secondary." "The best kind of parenting is called 'authoritative
parenting,' as distinct from 'permissive parenting,' which is the worst,"
Professor Nielsen noted.
"An authoritative parent sets rules and talks to children
about important things. He is a child's parent, not the child's uncle. For
this to be possible, the children must spend ample time with the father and
have a full range of activities with him.
"When you cut the parenting time down to every other
weekend, there's not an opportunity to be an authoritative parent. It is not
that the dad is a different person. He's the same person with the same
parenting skills, but in a restricted situation."
Despite saying that 50/50 parenting is better for most children, most
lawyers oppose a statutory 50/50 rule and prefer each child's schedule to be
a custom decision. One reason is that these attorneys don't factor in the
cost of legal fees. Maybe a 60/40 schedule is better for Johnny than a 50/50
schedule, but is he better off now that $200,000 has been drained from his
college fund to pay for that fight?
One warning, North Dakota: About a third of Measure 6 is given over to an
escape clause in the event of domestic violence. Alaska added such a clause
to what had been a strict 50/50 system. What happened? "Either there has
been an epidemic of abuse since this statute was amended, or a lot of women
are lying," said Pam Sullivan, a divorce litigator there.
"In about 25 percent of the cases now, the man is alleged to
be a physical or sexual abuser."
Lawyers all over the United States report that domestic violence allegations
now are standard in custody fights, with up to 75 percent of divorce cases
in some states now involving allegations of abuse.
Conclusions
To sum up what we learned from talking to attorneys: Uncertainty drives
litigation. Parents like children. Parents like to make money off children.
The typical U.S. state generates a maximum amount of custody litigation by
making it uncertain who will win a custody lawsuit and by awarding
substantial cash profits, in addition to the enjoyment of time with the
child, to the winner.
In Switzerland and Denmark, custody litigation is greatly reduced by a
presumption that "Mom wins." Legal fees in those countries tend to be less
than 10 percent of what Americans pay for a divorce. But note that 50/50
shared parenting is common in Denmark, despite the "Mom wins" rule. Why?
Child support awards in Denmark are limited to a range of $2,000 to $8,000
per year (compared to a maximum of $25,224 in North Dakota).
Jackie Stebbins, an attorney at Bliss & Stebbins in Bismarck, said "It's
hard for many of us [divorce litigators and judges] to admit that a lot of
these custody battles are really about money, but they are."
After a year of interviewing experts, what's our expert advice for North
Dakota voters? Don't listen to experts! They aren't the ones who have to
live with the consequences of the law. Talk to adults whose childhood was
the subject of custody litigation.
Among us five co-authors, it turns out that one is the child of divorced
parents. Here's her personal perspective: "I am a proponent of the 50/50
custody presumption. The current system forces the parent who does not
receive custody too far to the sidelines. Also, Measure 6 should reduce the
number of custody battles, which are always destructive."
We've prepared a free excerpt from our forthcoming book for Herald readers.
It includes our full North Dakota chapter.
Custody wars: 'Shared parenting' and divorce litigation across the 50 states
by Alexa Dankowski, Suzanne Goode, Philip Greenspun, Chaconne
Martin-Berkowicz and Tina Tonnu, Grand Forks Herald, CAMBRIDGE, Mass. USA.
Posted on Oct 18, 2014
We've interviewed nearly 100 divorce litigators in different U.S. and
international jurisdictions for a forthcoming book. We didn't do this to
educate ourselves about Measure 6, the Shared Parenting Initiative on the
North Dakota ballot; but inadvertently, we've become experts on the
practical effects of changes in divorce laws.
Broadly, states fall into three categories:
1. Preserve the status quo
2. Craft a new optimum
3. Don't take sides
North Dakota currently falls into the first category. The judge tries to
figure out who was the "primary parent" during the marriage, then extends
the financial terms of what had been a voluntary partnership out until the
children are adults.
The parent identified as more important pre-lawsuit is awarded custody, and
the parent who had been the breadwinner will be ordered to pay child
support.
This approach is consistent with the best published psychology research of
the 1950s. However, the academic psychologists have changed their minds. "A
psychologist can't walk into an intact family, do an assessment and
determine which parent is better for which child at which age in that
family," said Linda Nielsen, professor of psychology at Wake Forest
University.
"And it is the wrong question to ask, since the importance
or effectiveness of each parent will go up and down as the child ages."
In theory, the decision regarding which parent is to be primary is made
after a Perry Mason-style trial with witnesses testifying and being
cross-examined. In practice, as its typical nationwide, North Dakota judges
make an "interim" decision at a 60-minute hearing shortly after a divorce
lawsuit is filed - and that decision is likely to become permanent.
The second category includes states that recognize parenting is going to be
different following a divorce, so the court should "craft a new optimum."
The court may order the parents to assume unequal roles, but not because
roles were unequal during the marriage.
This approach, followed by states such as Michigan and Missouri, sounds
great in theory. But in practice, it leads to lots of arguments (at $1,000
per hour or more, considering everyone in the courtroom who is being paid)
about what the new optimum should be; and no two judges are likely to agree
on what is "optimum."
"I could take the same facts and argument to five judges and
get five different results," was a common refrain.
Alaska, Arizona, Colorado and Delaware are examples of the third approach:
"Don't take sides." Either the Legislature or the court will require or
strongly suggest that, absent an agreement between the parents, courts award
50/50 parenting.
Effects of Measure 6
Measure 6 would push North Dakota into the third category. Generally,
lawyers nationwide say they think that roughly 50/50 shared parenting is
best for children. They report that their clients with 50/50 parenting
experience less conflict than clients with an
every-other-weekend-and-Wednesday-night-dinner schedule.
Among other advantages, "you don't have a father who is
perpetually angry that he pays all of the bills and seldom sees the kids,"
as several attorneys observed.
Attorneys and psychologists also report much greater involvement by fathers
who had been awarded 50/50 parenting than ones who had been officially
deemed "secondary." "The best kind of parenting is called 'authoritative
parenting,' as distinct from 'permissive parenting,' which is the worst,"
Professor Nielsen noted.
"An authoritative parent sets rules and talks to children
about important things. He is a child's parent, not the child's uncle. For
this to be possible, the children must spend ample time with the father and
have a full range of activities with him.
"When you cut the parenting time down to every other
weekend, there's not an opportunity to be an authoritative parent. It is not
that the dad is a different person. He's the same person with the same
parenting skills, but in a restricted situation."
Despite saying that 50/50 parenting is better for most children, most
lawyers oppose a statutory 50/50 rule and prefer each child's schedule to be
a custom decision. One reason is that these attorneys don't factor in the
cost of legal fees. Maybe a 60/40 schedule is better for Johnny than a 50/50
schedule, but is he better off now that $200,000 has been drained from his
college fund to pay for that fight?
One warning, North Dakota: About a third of Measure 6 is given over to an
escape clause in the event of domestic violence. Alaska added such a clause
to what had been a strict 50/50 system. What happened? "Either there has
been an epidemic of abuse since this statute was amended, or a lot of women
are lying," said Pam Sullivan, a divorce litigator there.
"In about 25 percent of the cases now, the man is alleged to
be a physical or sexual abuser."
Lawyers all over the United States report that domestic violence allegations
now are standard in custody fights, with up to 75 percent of divorce cases
in some states now involving allegations of abuse.
Conclusions
To sum up what we learned from talking to attorneys: Uncertainty drives
litigation. Parents like children. Parents like to make money off children.
The typical U.S. state generates a maximum amount of custody litigation by
making it uncertain who will win a custody lawsuit and by awarding
substantial cash profits, in addition to the enjoyment of time with the
child, to the winner.
In Switzerland and Denmark, custody litigation is greatly reduced by a
presumption that "Mom wins." Legal fees in those countries tend to be less
than 10 percent of what Americans pay for a divorce. But note that 50/50
shared parenting is common in Denmark, despite the "Mom wins" rule. Why?
Child support awards in Denmark are limited to a range of $2,000 to $8,000
per year (compared to a maximum of $25,224 in North Dakota).
Jackie Stebbins, an attorney at Bliss & Stebbins in Bismarck, said "It's
hard for many of us [divorce litigators and judges] to admit that a lot of
these custody battles are really about money, but they are."
After a year of interviewing experts, what's our expert advice for North
Dakota voters? Don't listen to experts! They aren't the ones who have to
live with the consequences of the law. Talk to adults whose childhood was
the subject of custody litigation.
Among us five co-authors, it turns out that one is the child of divorced
parents. Here's her personal perspective: "I am a proponent of the 50/50
custody presumption. The current system forces the parent who does not
receive custody too far to the sidelines. Also, Measure 6 should reduce the
number of custody battles, which are always destructive."
We've prepared a free excerpt from our forthcoming book for Herald readers.
It includes our full North Dakota chapter.
No hay comentarios:
Publicar un comentario