Germany and Children’s Right to Have a Father

I have said many times that our struggle is not a speed race that will be won in a sudden blow, but a marathon that will be won with endurance and patience.  I have said also that our struggle has to be counted as the sum of many battles that have been won before and that are being won right now.  I have to add now that there are no small battles, that there are no negligible victories.

A man in Germany had a son out of wedlock.  When he requested custody of his son, it was denied because the mother refused.  He challenged the decision and went to the Constitutional Court.  This, the country's highest court, just have ruled that mothers should not be allowed to veto an unmarried father's request for custody, stating that such a veto is unconstitutional and discriminates against his parental rights (“Children Need Both a Mother and a Father”).

Until this ruling, in the cases of separated couples that have never been married, a father could only apply for custody if the mother agreed to.  The court ruled that, while the mother can continue to be initially granted custody, the father should be allowed to request it.

This ruling followed another by the European Court of Human Rights in 2009, which stated that German laws violated anti-discrimination laws and contradicted the European directive on the right to sustain and respect family life.

The German press greeted this judgement as a step forward of German family law.  The article in Der Spiegel that I am quoting quotes several of these enthusiastic responses:

Süddeutsche Zeitung:

"The constitutional court's decision on custody rights has put an end to an older, insensitive period of family law.  More than 60 years after the German constitution came into effect, it has finally fulfilled its duty to put illegitimate children on an equal footing with other children.  The judgement is a good example of the court's power to make the law adapt to changed family structures.  Almost every third child (in Germany) is now born out of wedlock.  The country's highest court is now trying, with much juristic finesse, to give these children the right to a father as well as a mother."

Financial Times Deutschland:

"First of all, a change in the law is required…  Unmarried and married fathers should be automatically given custody rights to their children when they are born, rather than having to apply for it."

"The reality is that the mother has long ceased to be the only important attachment figure in a child's life."

Die Welt:

"The judgement is a step in the right direction.  Unmarried fathers will in future have a better chance of securing custody rights.  However, to get this chance they have to still drag their ex-partner to court.  This is not only an unnecessary burden on the courts, it is also a burden on the relationship between the parents, which provides the framework for any joint custody of a child."

"It would make sense to give both parents automatic custody rights when a child is born -- including if they are unmarried."

Frankfurter Allgemeine Zeitung:

"It cannot be the case that the mother can block a father's custody of his child, and in doing so interfere with their relationship.  The law cannot abet these kinds of power games that happen when relationships break down.  This is about the welfare of the child.  And family law is still infused with the spirit of the past, a different family reality.  The new ruling is only reflecting the deep changes in society."

"Children need both a mother and a father.  (…)  Those who bring a child into the world together should share responsibility for it."

Bild:

"Fathers are not per se the worst parent and mothers are not automatically the best.  Uncaring fathers and caring mothers -- these are clichés that since yesterday can be put where they belong: in the garbage can of prejudices."

"Of course the best thing is when a child lives with the father AND mother.  As a proper family.  But this ideal case is (unfortunately) not always reality."

"And if the parents split up, then there should be only one criteria for deciding who has custody: the wellbeing of the child."

For those who still had doubts about the power a lone man could have against the system: watch what just happened in Germany.

The Face of Melancholy

As everyone knows, I live in Montclair, New Jersey, a town that I have adopted and that have adopted me as my second home, after my hometown of Guaynabo.  Montclair is like a small Manhattan, refined, cosmopolitan, socially progressive, racially diverse and tolerant, very tolerant.

When summer arrives, those of us who have children strive to find fun things for them to do while they enjoy their summer vacations.  Since Montclair has three public swimming pools, two weeks ago I got the season pass for my daughter and me, and since then, whenever we can we go to "Essex Pool”, a public swimming pool we have just two blocks from where we live.

Adjacent to the pool is small park for children, where I take my daughter when she gets tired of being in the pool.  On Friday, while we were there, I saw a scene that brought me sad memories.  A young man, perhaps in his mid-thirties, played with a beautiful girl, no older than two years old.  Both showed the features that we usually associate with Slavic races, including light hair and very light blue eyes.  While talking to a friend of mine who at the time was also there, I could not help noticing that although the man could not stop smiling while playing with his daughter, behind his smile there was a clear hint of sadness, of ill-disguised melancholy.  Since I could not see a wedding ring on his hand, I concluded that this man was a divorced father, and I wondered if what I was seeing was just the little time that family courts award to the majority of divorced fathers to be with their children.

I could not help feeling sad myself.  This man, whose face mingled the joy of playing with his beautiful daughter and a painfully hidden sadness, reminded me that a year ago that man was I.  A year ago, before the court granted me a fairer schedule to be with my daughter, I used to feel that bitter joy, that sad aftertaste after each otherwise joyous moment.

I say that it is a tragedy that there are so many fathers suffering the slow hell to which the family courts subject them by excluding them from the lives of their children, and/or by subjecting them to the status of vassals of their former wives.  In most cases, divorced fathers are reduced to the humiliating category of second-class parents, parents of a second order.  The human need to feel worthy and valued prevents a father in this situation from enjoying the brief time that he shares with his children.

Earlier this week, talking about the social services that churches provide to their communities, I said that one of the tragedies of the human condition was that the only pain we can understand is our own pain.  Now I say that it is a tragedy that only the fathers who live these calvaries could understand the continuous and excruciating pain that feels to be in this situation.

To me, who have had the dubious privilege of having being there, those desolate faces of fathers bring me memories, and make me sad.

What Do Children Want?

In his article titled “Australian Study Asks Children Their Ideas About Custody”, Robert Franklin, one of the regular collaborators of the Fathers & Families website, reviews a study done by Dr. Alan Campbell of the University of South Australia (Child Care in Practice, 7/1/08).

Dr. Campbell and his team interviewed a group of Australian children between the ages of 7 and 17, all of them children of divorced or separated parents. The study wanted to answer three basic questions:

1. What are children’s views on their ability to participate in decisions that directly affect them following their parents’ separation?

2. To what extent do children’s interview texts reflect an adequate understanding of children’s rights?

3. How do children construct their understanding of the concept of their ‘‘best interests’’ in relation to post-separation decision-making about their futures?

Campbell questions come from previous studies that show that courts tend to ignore children’s views on divorce, separation, and custody, a behavior that is based on the dubious idea that courts know better than children what is in their “best interests.”

The study proved that children not only have very specific views on these issues, but that they also wanted to express them. For example, most of the interviewed children wanted to have some input in the decisions that were being made about their lives, they believed that this was their right; as Franklin writes, “they wanted their voices to be heard.” When discussing the topic of the so-called “best interests of the child,” they stated that being consulted should be part of the concept. They believed that when courts ignore their voices, they are ignoring one of the main things that would guarantee their best interests.

The children were also concerned about the lack of fairness that prevailing custody arrangements represented for their parents and for them. They considered the practice of awarding primary custody to one parent unfair to both the non-custodial parent and them.

Children wanted fair custody arrangements and considered the common practice of primary custody/visitation unfair. They believed that only fair custody arrangements could satisfy the law’s requirement that the courts act in their best interests.

The interviewed children tended to consider that experts appointed by courts (social workers, psychologists, etc.,) interfere rather than serve the process, and that family members, including members of extended family, should be the ones making decisions about custody. Any input from outside the family was considered less legitimate than the advice and counsel of family members. Although this idea would be almost impossible to put into practice, it shows that children understand family as a complete unit, a concept that family courts tend to ignore.

As Franklin writes, maybe it is time already to start listening to our kids.

The Langeac Declaration (2 of 2)

Last week I wrote about Declaration of Langeac. I consider it an important step towards an unified declaration of principles of our movement, towards an universal synthesis. Following is the full text of the Declaration:

Declaration of Langeac

Principles:

1. Fathers and mothers should be accorded equal status in a child’s life, and consequently should have equal rights and equal responsibilities.

2. Where the parents cannot agree, the children should spend equal time living with each parent.

3. Parenthood must be based only on the child-parent relationship, not that between parents. Children have the right to know both parents and vice versa.

1. The interests of the child:

a) The interests of the child will not be viewed as a pre-defined and separate entity from that of parents and family or as something to be defined by the public authorities or professionals. Parents will act as the medium for interpreting the interests of their children except in extreme cases of individual abuse or parental incapacity.

b) The public authorities and third parties can and should be encouraged to support families and individual family members when they need help and if necessary proactively. However in no case except that of severe abuse should they have the right to intervene where parents do not wish this.

c) The child has the right to communicate with his or her parents whatever the situation.

d) Biological parenthood should be established at birth by way of DNA testing. For any DNA test all material evidence and records should be destroyed immediately the conclusion of parenthood (or non-parenthood) is reached.

2. Elective contracts between parents:

a) Parents will be able to sign legally valid contracts which may vary their individual rights in regard to their children, eg: in the case of a family split they may agree to make a non-equal division of time and salaries if both so wish, or incorporate clauses involving spousal maintenance. The governments bureaucracies involved in these areas are charged with creating suitable blank contracts and formulae in order to simplify the choices involved and the cost of such procedures.

b) Parents will have access to advice and structured agreements (contracts) which will in all cases, be it via mediation or judicial intervention, stand as valid instruments permitting the formalization of such methods as division of residential time, etc.

3. Respect for the individual freedom of action of each parent:

a)… will not be modified, except by the minimum requirements of parental cooperation.

b) Geographical dislocation: where one or both parents wishes to move somewhere far away, leading to potential problems of contact, transport costs and disruption to children, may require outside authorities to make decisions affecting the quantities of time spent with each parent. This is because the free adult choice of where to live may be in conflict with the compromises necessary to ensure parental residence. Decisions thus arrived at must take into account all factors, including the need to find a job by moving for instance, and the need to respect adult choices and decisions. Assumptions based on the dogma of stable residence should not be made.

4. Adoptive parents, extended family and significant others:

Children should have the right of access to and information from members of the extended family on both sides and vice versa. The residential parent at any given time should have the right of final decision over children’s contact with other parties excepting extended family, parents and adoptive parents. The child retains the right to know both natural parents, of both receiving and sending communications to them, with proof that this has arrived.

5. The Politico-legal Context:

a) The politico-legal context within which family and gender issues are decided must be clear and fair between the sexes, with neither positive or negative discrimination. Relationships between men, women and children will be treated in such a way as to preclude the development of group competition and polarity between them. There should be no presumption that one group’s needs override the interests of others.

b) The interests of the child are defined by parents, together. In the case of separation they are to be defined by each parent in their residential time with the child. Only in the case where clear abuse against the child is established may other parties or public bodies acquire the right to override parental decisions in this respect In all other cases, their decision-making power should be limited to the ability to offer help and support to families in need.

6. Equality at work:

a) Both sexes should have equal right to parental leave from work.

b) Work structures should be planned so that both parents are able to participate as fully as possible in the life of their children.

c) This indisputably requires the restructuring of employment so that in many ways it reflects the work patterns of primary and secondary school teachers. This proposal is made, of course, within the context of a global reduction in the requirements for workers and in the light of general awareness of the need to enrich the emotional and functional links between the generations.

7. Mediation, Judicial Discretion and Involvement of Professional Third Parties:

a) Mediated cooperation through professional third parties may be preferable where children’s welfare requires it. Residence should not be dependent on the assessment by professionals of parental cooperation or non-cooperation.

b) Certain decisions require joint consent. Structures should be put in place to enable this, whether through third parties or directly. Examples of such decisions: vaccinations (medical care), choice of school, residence timetables, etc.

c) Only in the case that parents are not able to arrive at a mutual agreement will the intervention of mediators in the first instance and of the court as a final resort become necessary.

d) In cases where parents simply do not or cannot reach agreement, either directly or through mediation, judges will have to make the decisions for them. This does not imply that these outside authorities have the right to decide the quantities of parental time, but only the distribution of the quantities of time agreed by both parents or the default of 50 / 50.

e) Justice should not only be done but be seen to be done. In camara proceedings should be avoided wherever possible. Where it is deemed necessary or desirable to protect the identity / ies of the parties, records of the proceedings and justification for the decision should be made publicly available. In order to achieve this, proper stenographed records of all proceedings must be kept.

f) Mediation should be available before, during and after divorce / separation. Mediation must be independent from the courts. It must always be a free public service, optional and gender neutral. Courts should respect mediation agreements and mediation intervention.

8. Finances:

a) If parents are financially capable, each parent is to be held financially responsible for half the costs of childcare. This cost may be pre-determined on the basis of minimum child maintenance and childcare costs, which will be the responsibility of parents in the first instance, and of the state or other responsible bodies where parents do not or cannot fulfill their obligations.

b) Any other agreements or contracts between the parents regarding financial maintenance and other childcare issues may be freely entered into by mutual accord between both parents. That is to say, both parents can mutually sign legally valid contracts varying their basic rights, for example, by giving more or less rights to money or residential time to one or the other parent.

9. Child abuse:

i) cruelty;

ii) negligence;

iii) violence;

iv) sexual abuse

should be dealt with under the relevant criminal law, not the laws of residence and equal parenthood. The presumption of innocence until proven guilty should apply in all cases except those at b) below.

a) Evaluation of child abuse should be without prejudice. The four types of abuse will have no order of priority in judicial decisions. Unless accusations are of such gravity that they affect the immediate safety of the child, no decision to suspend residence with either parent should be made.

b) Where accusations exist and residence has been suspended, immediate provisional investigation to assess dangers of residence should take place, with a maximum of a two weeks’ delay permitted before 50 / 50 or other agreed double residence is restored. Separation should not be used as an opportunity for revising the residence rights to one of the parents.

c) False accusations or perjury should be severely dealt with under the criminal law.

d) As parental alienation damages the child-parent relationship, it is detrimental to the best interests of the child, and should be viewed as a form of child abuse. Actions by state authorities which damage child-parent relationships should also be viewed as a form of child abuse and carry corresponding penalties.

10. Cases which do not concern equal parenthood:

EP does not directly address cases where one or both parents refuse or cannot take up their parental responsibilities in respect of their children, to care for and maintain them. It only addresses those cases where both parents want to look after and be responsible for both of their children. Within EP it is recognised that to force a parent to look after their child physically when they state they do not wish to is probably inadvisable. However, given that financial obligations to care for the child exist, the need to provide care for the child are available, either through the parents or the state. Equally, child abuse is under EP, regarded as a distinct and separate question.

Definitions

Parents

… are defined as the biological parents or in the case of severe abuse by biological parents or where children are orphaned, the adoptive parents.

Child

… is taken to mean a human being from birth to the age of emancipation or majority, whichever is the lower.

Family

…is a child and it’s biological or adoptive parents.
Extended Family

… are the blood relatives of the child or his or her adoptive parents.

Clarification: Each part of this declaration is integral to the whole and cannot be applied outside the context of the other clauses.

The Langeac Declaration (1 of 2)

A couple of weeks ago, doing my research for this blog, I found the Declaration of Langeac.

In June 1999, in Langeac, a small town located in the South of France, fifteen individuals from seven different countries (Spain, Ireland, Chile, Germany, Holland, the United Kingdom, and France) met to discuss the state of children and family rights. The result of this meeting was the Langeac Declaration.

The Declaration is a succinct but comprehensive document intended to express a set of aspirations on family matters and to open an international discussion on the human rights of families and the role of government agencies in family matters. The writers of the Langeac Declaration do not consider it a finished document, but the foundation of an ever-changing document, always open to criticism and refinement.

Since its publication, the Declaration has influenced the discussion that these issues have had by parent support groups, professionals and social scientists in countries like Holland, Brazil, Argentina, New Zealand, Chile, Germany, Ireland, Spain, the United Kingdom, and the United States.

The Declaration, with versions in six different languages, can be signed online. For the next two weeks, I will be publishing its content.

Grandparents and Joint Custody

Recently I received news from Spain (“Los abuelos por la custodia compartida piden a la UE poder ver a sus nietos”) that reminded me of one of the many faces of the tragedy lived by many families after divorce.

Representatives of the Grandfathers and Grandmothers pro Joint Custody Association (ASACCO) of Catalonia will meet in Brussels with members of the directive board of the European Commission of Civil Justice, to whom they will expose their impossibility of seeing their grandchildren on a regular basis after the divorce of their children.

The Association considers that their right to have a relationship with their grandchildren is not respected, and that the Spanish courts allow “a biased juridical practice that hinder the consecution of authentic justice" in these cases. The Association believes that the current Spanish law against gender violence "causes damage” in the life of these families, depriving children of divorced parents of a healthy relationship with their extended families.

We should never forget that current family laws affect not only divorced parents, but the totality of the involved families, uncles, aunts, grandparents, cousins, who after divorce lose their loved ones too. It is for this reason, because we all have divorced couples in our families, that not only fathers, but also everyone should be committed with the fight for a reform of family courts and of the laws that rule them. Thank God for people like the member of ASACCO, who have realized that when a member of a family suffers, all the members of that family suffer too.

On “Divorced from Reality” by Baskerville (2 of 2)

This is the second and final article on Stephen Baskerville, “Divorced from Reality”.

Baskerville believes that the child abuse “epidemic” is almost entirely the creation of radical feminism and the welfare bureaucracies. He quotes evidence that proves that an intact family is the safest place for women and children, and that very little abuse takes place in married families. Child abuse and domestic violence overwhelmingly occurs in homes from which the father has been removed. According to the Department of Health and Human Services (HHS), children of single parents have a 77% greater risk of being harmed by physical abuse, an 87% greater risk of being harmed by physical neglect, and an 80% greater risk of suffering serious injury or harm from abuse or neglect than children living with both parents. And according to Britain ’s Family Education Trust, children are up to 33 times more likely to be abused in a single-parent home than in an intact family. Baskerville writes:

“The principal impediment to child abuse is thus precisely the figure whom the welfare and divorce bureaucracies are intent on removing: the father.”

It is not married fathers, but single mothers who are most likely to injure or kill their children. Research shows that the most likely physical abuser of a young child will be that child’s mother, not a male in the household. Mothers accounted for 55 percent of all child murders. Women ages 20 to 49 are almost twice as likely as men to be perpetrators of child maltreatment: and since male perpetrators are not usually fathers but boyfriends or stepfathers, fathers emerge as by far the least likely child abusers.

In family courts, false allegations of child abuse and domestic violence are routine, and used almost always for purposes of breaking up families, securing child custody, and eliminating fathers. These false accusations are virtually never punished, and as a result of them, protective orders separating parents from their children are issued without any evidence during divorce proceedings.

There is a cruel political rationale behind all this government family-destruction machinery. Bureaucracies expand by creating the very problem they exist to address. By eliminating the father, government officials can present themselves as the solution to the problem they have created. The more child abuse there is, the more justification the government has to expand the child abuse bureaucracy.

Judges create the most dangerous environment for children when they remove fathers in custody proceedings, and they do it because they know they will never be held accountable for any harm that may come to the children. As Baskerville writes:

“On the contrary, if they do not remove the fathers, they may be punished by the bar associations and social work bureaucracies whose funding depends on a constant supply of abused children.”

The figure of the “deadbeat dad” is another result of hysteria manufactured by the divorce machinery. Fathers are less likely to abandon offspring than to be involuntarily divorced fathers who have been “forced to finance the filching of his own children.” Originally a method of recovering welfare costs, child support is now a “massive federal subsidy on middle-class divorce.” If no-fault divorce allowed a mother to divorce her husband for no reason and to take the children with her, child support allows the divorcing mother to use the now-fatherless children to claim her ex-husband’s money, money that she may spend however she wishes with no accounting requirement, and if he refuses to pay, he could be incarcerated without trial.

Child support finances family dissolution by paying mothers to divorce: it’s “an incentive for divorce by the custodial mother.” Evidence shows that only one-fifth to one-third of child-support payments is actually used for the children, the rest is profit for the custodial parent. Furthermore, mothers are not the only ones who profit from child support. State governments receive federal funds for every child-support dollar collected, what gives states a financial incentive to create as many single-parent households as possible by encouraging divorce. Baskerville writes:

“This is why state governments set child support at onerous levels. Not only does it immediately maximize their own revenues; by encouraging middle-class women to divorce, governments increase the number of fathers sending dollars through their systems, thus generating more revenue.”

The logical conclusion of this draws a terrible picture of how the power structure works:

“All this marks a new stage in the evolution of the welfare state: from distributing largesse to raising revenue and, from there, to law enforcement. The result is a self-financing machine, generating profits and expanding the size and scope of government—all by generating single-parent homes and fatherless children. Government has created a perpetual growth machine for destroying families, seizing children from legally blameless parents, and incarcerating parents without trial.”

Finally, Baskerville, an Anglican, accuses the church of refusing to protect the marriages it has consecrated, leaving a vacuum that has been filled by the state. He believes that family structure will be restored when the church takes families out of the hands of the state, does what is supposed to do by helping them to survive, and protects them from government intervention.

Again, I insist the the readers should read the full article. Every father who has been a victim of the family court system should.

On Baskerville’s “Divorced from Reality” (1 of 2)

In the January/February of 2009 issue of the Christian magazine Touchstone, Stephen Baskerville published the article “Divorced from Reality” (http://www.touchstonemag.com/archives/article.php?id=22-01-019-f), on the family crisis in the US. I would like to summarize its content, but strongly recommend my readers to read the full text, due to to the extension and depth of Baskersville’s analysis on the issues discussed.

According to the author, the decline of the family structure has reached dangerous proportions, and it is the major source of social instability in the Western world, and a major threat to civic freedom and constitutional government. Quoting G. K. Chesterton, he sustains that the family structure serves as the principal check on government power, and that today family and state confront one another as the primary social organizing factor. He believes that today’s divorce laws are used by the state to erode family primacy, and to enhance its own power as social control. He writes:

“Indeed, many are devastated to discover that they can be forced into divorce by procedures entirely beyond their control. Divorce authorizes unprecedented government intrusion into family life, including the power to sunder families, seize children, loot family wealth, and incarcerate parents without trial. Comprised of family courts and vast, federally funded social services bureaucracies that wield what amount to police powers, the divorce machinery has become the most predatory and repressive sector of government ever created in the United States and is today’s greatest threat to constitutional freedom.”

Baskerville’s main concern are the laws regulating “no fault divorce”. When four decades ago laws were passed to legalize “no fault” divorces, these laws enabled the government, at the request of one spouse, to dissolve a marriage over the objection of the other. Divorce today, he states, seldom involves two people mutually deciding to part ways, but are unilateral in nature, prevailing over the objection of one spouse. He writes:

“Under “no-fault,” or what some call “unilateral,” divorce—a legal regime that expunged all considerations of justice from the procedure—divorce becomes a sudden power grab by one spouse, assisted by an army of judicial hangers-on who reward belligerence and profit from the ensuing litigation: judges, lawyers, psychotherapists, counselors, mediators, custody evaluators, social workers, and more.”

Unilateral divorce generates political and costitutional problems because by its nature, it requires constant government supervision over family life. Divorce expands government power because it involves state functionaries to enforce the divorce and the post-divorce order.

The implications of unilateral divorce are terrible: it allows the government to remove innocent people (usually fathers) from their homes, to seize their property, and to separate them from their children, even if they are innocent of any legal wrongdoing. The state seizes control of his children with no burden of proof to justify why; the burden of proof (and the financial burden demanded by it) falls on him. Baskerville writes:

“By far the most serious consequences involve children, who have become the principal weapons of the divorce machinery. Invariably the first action of a divorce court, once a divorce is filed, is to separate the children from one of their parents, usually the father. Until this happens, no one in the machinery acquires any power or earnings. The first principle and first action of divorce court therefore: Remove the father.”

The divorce machinery can take an respectable parent, block him for seeing his own children without government authorization, arrest him for failure to conform to a variety of additional judicial directives that apply to no one but him; arrest him for domestic violence or child abuse, even if no evidence is presented that he has committed any; arrest him for not paying child support, even if the amount exceeds his means; he can even be arrested for not paying an attorney or a psychotherapist he has not hired.

The growth of the divorce machinery has generated a series of hysterias against fathers so hideous that no one dares to defend those accused: child abuse and molestation, wife-beating, and nonpayment of child support. The accused of these offenses, even in the absence of any formal charge, evidence, or conviction, loses his children and is isolated from everyone, since no one wants to be associated with a “pedophile,” “batterer,” or “deadbeat dad.”

An while all these happens, there is no evidence that the family crisis is caused significantly by fathers abandoning their families, beating their wives, and molesting their children, but there is irrefutable evidence indicating that this crisis “is driven almost entirely by divorce courts forcibly separating parents from their children and using these false accusations as a rationalization.”

False Domestic Violence Accusations Can Lead To Parental Alienation Syndrome

Written by David Heleniak

Parental Alienation Syndrome (PAS) is a pattern of thoughts and behavior that can develop in a child of separated parents where the custodial parent causes the child, through manipulation and access blocking, to unjustifiably fear and/or hate the other parent. PAS is more than brainwashing, in that the child comes to actively participate in the degradation of the target parent, coming up with original (often ludicrous) reasons to fear/hate him or her.

Domestic violence (DV) restraining orders are a perfect weapon for an alienating parent. Typically, in addition to removing an accused abuser from the marital home, a DV restraining order also “temporarily” bars the accused abuser from seeing his or her children, and “temporarily” gives the accusing parent exclusive physical custody. And temporary, in the Family Court, has a funny way of becoming permanent.

Obtaining a restraining order based on a false allegation of domestic violence gets the target parent out of the house and out of the picture. A father who can’t see his kids, for example, is unable to rebut the lie “Daddy doesn’t love you anymore. That’s why he left you.” Nor can he rebut the alternate lie, “Daddy is dangerous. The wise judge said so. That’s why he can’t see you.”

Often, if an accused abuser is allowed to see his or her children, it is in a supervised visitation center. As Stan Rains observed in “Supervised Visitation Center Dracula,” “The demeaning of the ‘visiting’ parent is readily visible from the minute that a person enters the ‘secured facility’ with armed guards, officious case workers with their clipboards and arrogant, domineering managers.... The child's impression is that all of these authority figures see Daddy as a serious and dangerous threat. The only time a child sees this type of security is on TV showing prisons filled with bad people.” Not only does visitation in a visitation center send the clear message to the child that the “visiting” parent is a bad person, if children decline to see their parents under such a setting, they are generally not forced to do so. More perversely, if a child is encouraged by the custodial parent to refuse to see the target parent, there will be no significant repercussion to the targeting parent, and, generally, the child will not be forced to see the target parent.

The more time a child spends away from the alienated parent, the worse the alienation will become. As psychologist Glenn F. Cartwright remarked in his article “Expanding the Parameters of Parental Alienation Syndrome,” “the old adage that time heals all wounds, such is not the case with PAS, where the passage of time worsens rather than heals the affliction. This is not to say that time is unimportant: on the contrary, time remains a vital variable for all the players. To heal the relationship, the child requires quality time with the lost parent to continue and repair the meaningful association that may have existed since birth. This continued communication also serves as a reality check for the child to counter the effects of ongoing alienation at home. Likewise, the lost parent needs time with the child to ensure that contact is not completely lost and to prevent the alienation from completely destroying what may be left of a normal, loving relationship.... The alienating parent, on the other hand, requires time to complete the brainwashing of the child without interference. The manipulation of time becomes the prime weapon in the hands of the alienator who uses it to structure, occupy, and usurp the child's time to prevent ‘contaminating’ contact with the lost parent, depriving both of their right to spend time together and furthering the goal of total alienation. Unlike cases of child abuse where time away from the abuser sometimes helps in repairing a damaged relationship, in PAS time away from the lost parent furthers the goal of alienation. The usual healing properties of time are lost when it is used as the primary weapon to inflict injury on the lost parent by alienating the child.” Along these lines, Dr. Richard A. Gardner, who coined the term “Parental Alienation Syndrome” in 1985, maintained: “If there is to be any hope of their reestablishing a relationship with the targeted parent, PAS children must spend significant time with him (her). They must have living experiences that will demonstrate that the PAS parent is not noxious and/or dangerous.”

A parent willing to falsely accuse the other parent of domestic violence would probably be willing to poison a child against him or her. Add to this the problem that a judge willing to “err on the side of caution” by entering a DV restraining order based on a dubious false allegation would probably not be willing to do what was necessary to prevent the development of PAS.

PAS is heart-wrenching and, tragically, common. If the DV restraining order system could be reformed so that only real victims obtained restraining orders and only real abusers were thrown out of their houses, I predict that the number of PAS cases would be greatly reduced. Let’s try to get there.

Connecticut Takes a Step to Protect Men’s Rights

The basic principle of due process is that a defendant whose rights the state wants to limit is entitled to notice of the charge against him/her and a hearing before an impartial arbiter. But in the area of domestic violence law, those two basic rights are usually ignored. The mere allegation of domestic violence can be enough to deprive a person of constitutional rights (refer to my two previous posts).

Connecticut resident Fernando A., whose full name is not released in court records, was divorcing when his wife fabricated the attack story to gain leverage in family court proceedings. He never got a chance to object to the order of protection issued against him that removed him from his house and prevented him from seeing his children. His lawyer, Steven D. Ecker, of Hartford’s Cowdery, Ecker & Murphy, asked for an evidentiary hearing, but Superior Court Judge James Bingham denied the request. Ecker then challenged the denial up to the state Supreme Court.

The Connecticut Supreme Court then ruled an opinion in which states that, in order to award a restriction order, a defendant must be granted an evidentiary hearing at which the state must consider both sides of the story and must prove, by the civil standard of a preponderance of evidence, that the order is necessary. The defendant may testify or present witnesses, and may cross-examine any witnesses against him. The order may be issued initially on little evidence and with no notice to the defendant, leaving the defendant with no opportunity to defend himself, but that order can now remain in force only for a "reasonable" period of time (what constitutes a reasonable time remains gray area).

This is small but very important step towards a fair treatment of those who are accused of domestic violence, which in turn is a step towards a fair custody awarding system, because, as we all know, domestic violence accusations are one of the instruments most commonly used to block fathers from having custody and visitation rights.

This court opinion has its setbacks. Judges have an extremely broad discretion and can emit restriction orders based on little evidence, relying only on the written materials and hearsay to continue their restriction order. How long a defendant may be deprived of his home, his belongings, access to his children, bank accounts, etc., is not specified. The standard of proof required is, instead of the more restrictive criminal standard, the civil one of "preponderance of the evidence," which means that if the prosecution produces barely more than half of the evidence submitted to court, it wins and the defendant's children may face an indefinite time apart from him.

Again: this is a small step, but a small step in the right direction. Hopefully, this Connecticut court opinion will serve as a deterrent against false accusations and as a shield to protect men’s basic constitutional rights. Hopefully this court opinion will save many men from living in constant fear and intimidation.

Review of “The New Star Chamber: The New Jersey Family Court and the Prevention of Domestic Violence Act” by David N. Heleniak. Part 2 of 2

Last week I started a discussion on David N. Heleniak’s text on the terrible legal implications of New Jersey’s “Prevention of Domestic Violence Act.” Today I will focus on his concerns about the constitutionality of the Act. At a 1995 seminar for municipal judges, Judge Richard Russell of Ocean City, N.J., was caught on tape giving the following advice:

“Our job is not to become concerned about the constitutional rights of the man that you're violating as you grant a restraining order, (…) They have declared domestic violence to be an evil in our society. So we don't have to worry about the rights."

Judge Russell’s attitude reflects the general attitude that many family courts judges have towards men. This blatant disregard of constitutional rights has a clear expression in the Act under discussion. Among the deficiencies that make the Act unconstitutional are:

1 - The lack of notice: The Act requires that a summary hearing has to be held within ten days of the filing of the complaint, to determine whether the allegations in the complaint occurred. Ten days is not enough time to prepare a defense. A wife willing to commit perjury can spend years with her lawyer planning to file a domestic violence complaint at an opportune moment in order to gain the upper hand in a divorce proceeding, while the accused husband has only ten days to get ready.

2 - The denial of the right to free counsel: The Act does not provide for the free assistance of counsel for poor defendants, which added to the fact that they have only ten days to prepare their defense, reduces dramatically their chances of a fair trial.

3 - The denial of the right to take depositions: The deposition is usually the most important discovery tool during a trial. During deposition, a defendant's attorney can corroborate the veracity of the plaintiff’s assertions. In a restriction order hearing, a defendant is deprived of this discovery tool because, according to the Chancery Division, allowing the “…alleged perpetrator to depose a victim, (…) perpetuates the cycle of power and control whereby the perpetrator remains the one with the power and the victim remains powerless.” Defendant is therefore unable to anticipate all of the things the plaintiff says at the hearing, is unable to analyze her version of the events alleged in the complaint prior to the hearing, and is unable to test the veracity of her testimony.

4 - An improper standard of proof: The Penal Code treats domestic violence complaints as something other than a criminal offense. The result is that family courts can circumvent the protections normally accorded for an accused in a criminal case, including the right to due process of law, and to a trial by jury.

5 - The denial of the right to a trial by jury: The trial by jury is necessary for preventing the abuse of judiciary power. The fathers of the constitution, reluctant to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges, insisted that the truth of every accusation should be confirmed by the suffrage of his equals. In our constitutional framework, the jury is expected to serve the people by checking the judge, by protecting us against arbitrary actions by courts. By denying the defendant of his right of a jury trial, the Act denies him of one of the most basic constitutional rights.

In summary, the Act is unconstitutional because it denies defendants due process of law. The Fourteenth Amendment of the United States Constitution provides that no State shall "deprive any person of life, liberty, or property, without due process of law." But as we have seen, the Act does precisely that.

And as Heleniak writes, the protection of women does not justify the surrender of civil rights.

Review of "The New Star Chamber: The New Jersey Family Court and the Prevention of Domestic Violence Act" by David N. Heleniak. Part 1 of 2

David N. Heleniak is an attorney in New Jersey. Holding a MA degree in Theological and Religious Studies from Drew University, he is the vice president of RADAR (Respecting Accuracy in Domestic Abuse Reporting), a non-profit organization that works to improve the effectiveness of the approach to domestic violence (http://www.mediaradar.org) and the senior legal analyst for True Equality Network, a group dedicated to educating on how the failures of numerous federal programs and the abuses of federal funding systems affect the sovereignty of the American family (http://www.true-equality.org).

He is the author of several works, one of which is titled The New Star Chamber: The New Jersey Family Court and the Prevention of Domestic Violence Act, published in the Spring of 2005 issue of Rutgers Law Review, adaptations of which were published in the New Jersey Law Journal, New Jersey Lawyer, and The Liberator, America's Shared Parenting Quarterly (PDF: http://www.njccr.org/Articles/Heleniak2006NewStarChamber.pdf) (Video: http://www.youtube.com/watch?v=mwsgT_Yu008). It is this text that I want to summarize on this and next week posts.

The text starts with a disturbing quote by Dean Roscoe Pound: "The powers of the star chamber were a trifle in comparison with those of our juvenile courts and courts of domestic relations." From there, Heleniak develops an exposé on how the family court system, particularly in New Jersey, violates basic constitutional rights.

The title of the text refers to the Star Chamber, so named because of the star pattern painted on the ceiling of the room in Westminster Palace, where the king of England's council met, that was intended to be a more efficient alternative to the common-law courts, but that in fact, it became the embodiment of unfair judicial proceedings. Heleniak argues that through The Prevention of Domestic Violence Act, the New Jersey Legislature has been allowed to create, in the Family Part of the Chancery Division of the New Jersey Superior Court, a modern day Star Chamber.

The Act permits a self-proclaimed victim to file a complaint alleging the commission of an act of domestic violence, and to request a temporary restraining order. If the court determines that an act of domestic violence has occurred, it can authorize any of the following reliefs:

- An order giving the plaintiff exclusive possession of the marital home.

- An order requiring the defendant to make mortgage or rent payments.

- An order restraining the defendant from making contact with the plaintiff.

- Temporary custody of a minor child.

- The suspension of parenting time for the defendant or limitation of visitation to supervised visitations.

- Monetary compensation for losses suffered by the plaintiff to be paid for by the defendant.

- An order requiring the defendant to receive professional domestic violence help.

- An order requiring the defendant to undergo a psychiatric evaluation.

- The award of temporary custody of personal property, such as an automobile, checkbook, and other personal effects of the defendant.

The Act also provides for imprisonment for any person convicted of a second or subsequent nonindictable domestic violence contempt. As it is easy to see, the potential for abuse of the Act is immense. The advantages of a restraining order to the complainant are a temptation hard to resist: exclusive possession of the home, temporary and probably permanent sole custody of the children, and the opportunity to make the other person’s life miserable.

The Prevention of Domestic Violence Act authorizes a chancery judge to bar a defendant from ever setting foot in his house again, yet make him pay the mortgage payments; make him pay large sums of money to the plaintiff; bar him from seeing his children; force him to see a psychologist and/or psychiatrist against his will; temporarily give the plaintiff exclusive possession of the defendant's car, checkbook, and other personal effects; bar the defendant from ever speaking to any individual that the plaintiff does not want him to speak to; force him to turn any firearms he has and bar him from ever possessing another firearm in his life; and make the defendant pay a "civil penalty" of $500.00, and if the defendant refuses to comply with any aspect of the judge's order, he can be tried for contempt and imprisoned. Lastly, he is labeled an abuser and his name is put on a list of domestic abusers known as the New Jersey Judiciary's Domestic Violence Central Registry, a societal stigma that will follow him the rest of his life.

Knowing all this, it should not be a surprise that in many divorce cases, allegations of abuse are used for tactical advantage.

British Conservatives and Joint Custody

Robert Franklin published in the online men’s journal Men’s News Daily (http://mensnewsdaily.com) an article titled “British Tories Favor Shared Parenting After Breakup” (http://mensnewsdaily.com/glennsacks/2009/10/13/british-tories-favor-shared-parenting-after-breakup/), on the support of British conservatives of public policies that favor joint custody.

Tim Loughton, UK Shadow Children's Minister, said at a meeting hosted by the charity consortium Kids in the Middle, that his party (the Conservative and Unionist Party, “Tories”) preferred a system that presumed shared parenting following divorce, even if the couples could not reach an agreement and needed mediation to do so. Loughton said:

"At the moment we have got an incredibly adversarial system when parents split up. It is crazy we have so many acrimonious cases. (…) From the start of the process there should be a default mechanism for shared responsibility unless there is a welfare reason not to."

His comments come as a reaction to the growing concerns in British society over the adverse impact of conflict between parents on children. Several issues compound these concerns:

-The generalized rejection to the current adversarial nature of divorce processes.

- The growing acceptance of a presumption of equally shared parenting for custody awards.

- The understanding of the importance of mediation in divorce processes.

-The generalized idea that both parents should be involved in their children’s education.

Even though there is no concrete law project in favor of joint custody in the United Kingdom, the fact that the powerful Tory Party favors joint custody should be considered a milestone in the attainment of one. This should be read as a sign of the profound transformations that family relations and gender roles are undergoing in many countries around the world, transformations that in the end will bring healthier families, happier children, and stronger communities.

I would like to finish this post quoting the last paragraph of the article, on which, after mentioning all the possible barriers against the concretion of a pro-joint custody law in the United Kingdom, says:

“But those are all things to be dealt with, to be fought over when the time comes. Final victory never comes; movement toward greater father-child bonds is always a work in progress. It is now and always will be a process of becoming.”

Colombia: A Law in Favor of Joint Custody and Against False Accusations

The webpage of the Colombian newspaper El Tiempo, published last October 15th of 2009 an article by Andrea Linares Gómez titled “Pérdida de custodia por falsa denuncia o si un padre daña imagen del otro, plantea proyecto de ley” (“Law Project Proposes Loss of Custody for False Accusations or If a Parent Damages Image of the Other). (http://www.eltiempo.com/colombia/justicia/perdida-de-custodia-por-falsa-denuncia-o-si-un-padre-dana-la-imagen-de-otro-plantea-proyecto-de-ley_6335647-1). The article discusses the law project that wants to establish joint custody in Colombia. This project responds to a tendency in Colombian society. According to family judge Ana Lucía Suárez, although in the majority of cases is the mother who wants the children’s custody, more fathers ask for it with more frequency.

It is always good news knowing that another country joins the world trend in favor of joint custody, especially if that country is as important and has such an influence as Colombia. However, what catches my attention is that the project establishes that if one of the parents damages his/her children’s image of the other parent or makes malicious sexual abuse accusations against the noncustodial parent, that parent will lose custody of the children. The project also provides for taking custody rights from any parent who physically abuse his/her children.

Federico Cardona, president of the Colombian organization Fundación Primero la Infancia (Infants First Foundation), that gathers noncustodial fathers and mothers, states that false accusations are the most common problem among separated couples. These false accusations are used as an instrument to alienate the other parent from his/her children and to create in them a negative image of the noncustodial parent. This dynamic, as we all already know, is typical in Parental Alienation Syndrome (PAS) cases.

The problem of false accusations during custody disputes is a very serious one. In countries like Puerto Rico and Chile, the phenomenon reaches epidemical proportions. The main reason of this proliferation of false accusations is precisely its impunity: in family courts, anyone can accuse another of any atrocity, knowing that courts, with the excuse of protecting minors, will ban any contact between the accused and his/her children, knowing also that when accusations are proved false, the bond between children and the absent parent would have been weakened, and the accuser will not be liable for his/her malicious accusations. The achievement of this piece of legislation is that, as many pro joint custody groups have been asking for a long time, at last would exist a juridical figure through which the malicious accuser could be brought to court and be judged.

I hope that this pro joint custody law will be approved in Colombia, and that other Latin-American countries follow this example.

What Would Happen If The Fathers Sue?

I recently read the article “Dad Gets Custody; Sues Oklahoma Dept. of Human Services and DV Shelter” (http://glennsacks.com/blog/?p=4209) by Robert Franklin, Esq. This article is worth reading, due to its particular approach to the problem of domestic violence and to what Franklin calls the “domestic violence industry.”

Domestic violence is an extremely delicate matter. On one hand, domestic violence is a real problem that is suffered by both genders and that causes numerous deaths every year. On the other hand, during child custody disputes, domestic violence accusations (along with sexual misconduct) are often used as means to exclude one of the parents from their children’s lives and to eradicate from the process any chance of fair treatment. Because many divorcing parents know that courts follow the official policy of “shoot now, ask later,” they accuse the other parent of domestic violence to isolate them from their children. And since making false accusations is a crime everywhere except in family courts, the accuser knows that even when the accusations are proven false and malicious, even when in many times the other parent has done time in jail, nothing will happen to them and they would have achieved their goal of planting a physical and temporal barrier between the other parent and his/her children.

It is from the acknowledgement of this complexity that Franklin’s article should be read. The article starts stating Franklin’s concerns regarding the way battered women shelters deal with the problem of domestic violence. Quoting a study done in Germany, he sustains that many shelters work as centers of radical feminism indoctrination, where they teach women that only men are perpetrators and only women are victims. That view assumes that domestic violence is a political act of power and oppression, not the result of a psychological disorder. These shelters, more than making an effort to actually help victims, their goal is often the separation, whether by divorce or otherwise, of the woman and her husband/partner.

Is in this context that the case of Crystal Hall should be understood. Mrs. Hall, who suffers from a form of mental/emotional/psychological impairment, contacted Safenet Services, a shelter for victims of domestic violence in Oklahoma, claiming that she and her five children had been abused by her husband, James Hall. Safenet, through its executive director, Donna Grabow, suggested her divorce as the only solution to her situation, telling her that the court would be sympathetic to a woman claiming abuse.

Over the course of 28 months, Mr. Hall underwent seven evaluations by various state agencies, all of which found him to be a fit and loving father with no evidence of abuse of either his wife or his children. The court ordered the children placed in his custody and further ordered his wife to pay child support, given that she is mentally capable of, and is in fact, working.

Since this ordeal started, there has been no discernible improvement in Mrs. Hall's psychological health, and she has become seriously co-dependent on Grabow and Safenet, who come to her house three times each day, seven days each week to make sure she takes her medication. Furthermore, although the court granted her visitation rights, Mrs. Hall has made no effort to visit her children for over a year. Even more worrying is the fact that the Oklahoma family court judge has forbidden Safenet staff from contacting the Hall children, who feel harassed by the organization.

Franklin assess Hall case as the case of “a mentally unstable woman who fell into the hands of a more or less typical DV shelter.” Because the shelter religiously followed the ideology of men are abusers and women are victims, they accepted unquestioningly Mrs. Hall’s claims, and urged her to divorce with the promise of the custody of her children. And from then, the mess that followed.

Now Mr. Hall has filed a civil suit for damages against the Oklahoma Department of Human Services, Safenet Services, Inc. and Donna Grabow. I have always wondered what would happen to the family courts system if the fathers who suffered their abuse counterattack with legal actions, not against their spouses as they usually do, but against the court system itself. Mr. Hall is probably one of the firsts, if not the first, of a new breed of fathers that should propagate fast.

The Absence of Agreement between Parents Is Not a Valid Reason to Deny Joint Custody

Many divorced parents reject the concept of joint custody, and there are many of them who not only reject joint custody, but who also reject arrangements that are usual in sole custody cases. In Pascale v. Pascale (140 N.J. 583, 1995), the case that led to a revision of the child support guidelines in New Jersey, established that:

…many traditional custody arrangements… will include more than one night of parenting a week for the secondary caretaker of the children. 140 N.J. 611 (1995)

These parents reject even what would be considered a small variation of the traditional arrangement. Having said this, it should be said that in Beck v. Beck, the landmark joint custody case in New Jersey, the mother also rejected the idea of a joint custody arrangement, but that fact was not an obstacle to grant joint custody. To the objections to a court ordered joint custody, Dr. Clark, one of the experts used as consultants, replied that:

…the ideal joint custody arrangement would be one arrived at by agreement between parties. Nevertheless, in the absence of such an agreement, joint custody could successfully be carried out by Court decree, provided the parents put the best interest of the children first and were provided with certain “ground rules” governing the custody arrangement. 86 N.J. 492 (1981)

If both parents are responsible parents, joint custody will work, no matter if this arrangement has been ordered by court. Beck v. Beck dissipates any doubt that a court ordered joint custody could arise:

Although joint custody may be less likely to succeed if ordered by the Court than if achieved by the parent’s agreement, court-ordered joint custody is likely to be no more prone to failure than court-ordered sole custody following a divorce custody proceeding. 86 N.J. 498 (1981)

What the child will gain from a joint custody arrangement is so much, and what this child would lose in a sole custody arrangement is so much, that the Court should put all its effort to lead the divorcing parents to a joint custody arrangement, even if one of them disagrees.

Rhonda Gale

I recently read the blog post titled “Dads Are Winning Custody of their Children” by Rhonda Gale (http://mother-2-mother.blogspot.com/2009_07_01_archive.html), on which, with admirable motherly spirit and solidarity, celebrates the recent advancements of fathers on the matter of the custody of their children, and points out in a brief but accurate way the factors that have allowed this achievements to happen.

Two things called my attention in a special manner. First, that the author of the text is a woman that writes in a blog for women. Many times, we the men who fight for the cause of joint custody, tend to forget that there are many women who are also fighting for the cause, women who are wives, grandmothers, aunts, friends, in summary, women who although are not fathers, see and suffer the harmful effects that the current family laws have in their children and their families.

Second, it surprised me the simplicity and the clarity with which Gale enumerates those causes of the advancements of fathers and children rights. I now summarize those that I consider more important:

• Fathers are becoming more involved in their children's upbringing.

• Fathers are educating themselves on how to win the custody of their children, convincing the judge that they are just as fit as mothers are.

• Fathers are using their intelligence and emotional stability to win their cases.

• More men are willing to invest the money on attorney fees preparing for the legal battle.

• Men are forming support groups and learning from other fathers who have won custody of their children.

Take note.

Rejoice with me!

My friends:

God has visited me, again.

You all know how much I have fought for the joint custody of my daughter Sofía.
Last July 17 of 2009 I went court again, and although the judge did not grant me joint custody, he added another overnight a week to the one that I already have, what makes the current parenting schedule a de facto joint custody arrangement. From next week on, Sofía will have dinner with me on Tuesdays and go to her mom’s house afterward, and on Thursdays, I will pick her up at school and will bring her to her mom’s house on Saturday night.

The judge also awarded me vacation time, which I did not had until today (now I can visit my family in Puerto Rico), and at my request, the judge set a schedule to start disclosing to Sofía the fact that she is adopted, an issue that really worried me.

I want to point out two things that should be remarked. First, that during the hearing, both my attorney and the judge acknowledged the major advancements of fathers’ rights in recent years. Although it is true that these changes have not come at the speed that we would like them to come, they are coming, and in sustained and clear pace.

Second, that persistence and faith pay. If I had given up, as many people, including friends, had told me to do, this victory would never have happened. It was my faith in God and my will to fight what gave me the strength an the vision to keep on insisting on the rights of my child and my rights as a father.

So, God has smiled at me and life is good.

Vidal

One Step Forward, One Step Backward: Canada and Australia (2 of 2)

During the past decade, the Australian court system, by means of the Family Law Act of 2006, has supported joint custody as an important way of maintaining family life after divorce. The Act, which surveys in Australia have shown has high levels of support among Australians, presumes that joint custody is the arrangement that works best for both children and parents, and establishes shared parenting as the norm for post-separation custody arrangements.

Recently, an organized movement, formed mainly by government bureaucrats, feminist extremist and the family law industry itself, has opposed these advancements and has requested changes to family law, changes that in practice would bring Australian family law to the previous anti shared parenting policies. This movement argues that the current shared parenting laws put children in harms way, using as example several recent cases on which children have been murdered during visitation time with their fathers.

Several issues have to be discussed here. First, as recent horrendous cases have tragically proved, violence and filicide are not the exclusive realm of fathers. There are violent fathers, but there are many violent mothers too. Second, if the current law has loopholes through which inadequate parents have contact with their children, those loopholes should be corrected without removing the shared parenting concept, as the anti joint custody movement is requesting right now. Being the proved best option for children of divorced parents, shared parenting should be protected always. If we follow the logic of the anti joint custody movement, we would abolish marriage because many married women have been killed by their husbands. Of course, we should not, because marriage, as joint custody, has proved that its benefits for the whole society are far more numerous and important than its setbacks.

This type of step backwards is not new in history. In New Jersey, women were granted the right to vote in 1776, bust they lost it again in 1807, when the right was restricted to white males only, with the excuse of avoiding electoral fraud and simplifying the electoral process. As long as a right is not accepted as right but as a concession, there will be always a chance the forces against it would find a way to take it away.

The case of the Australian Family Law Act proves something important for the shared parenting movement. Having a pro joint custody legislation approved is not, I repeat, is not end of the road. It is just the beginning. Once a country has a good family law, we should stay vigilant, knowing that a law that is not enforced is dead, and that many retrograde forces will try to move back to the previous regime.

Sadly, many people like to live in the past.

One Step Forward, One Step Backward: Canada and Australia (1 of 2)

On June 16 of 2009, Maurice Vellacott, member of House of Commons of Canada, submitted Bill C-422, for a presumption of equal parenting. This bill, if passed, will direct courts to make equal shared parenting the presumptive arrangement in the best interests of the child. On its Preamble, the bill states that among its purposes are to:

(b) encourage divorcing spouses to assume more responsibility for their affairs, with less reliance on adversarial processes,

(c) promote joint responsibility and joint decision-making by spouses in respect of ongoing childcare, nurturing, and development,

(d) establish that the interests of the child are best served through maximal ongoing pa- rental involvement with the child, and that the rebuttable presumption of equal parenting is the starting point for judicial deliberations…

This historic bill is the result of the efforts of many pro joint custody organizations in Canada, especially of The Canadian Equal Parenting Council (CEPC, www.canadianepc.com). The Council is a coalition of 38 pro joint custody organizations encompassing a range of issues related to family and social justice in Canada. In its mission statement they write:

The primary mission of this organization, and the movement it represents, is to secure every child’s right to be equally parented when the relationship between the father and the mother breaks down.

Last week we rejoiced for the triumphs of Amor de Papá in Chile. Now we have to rejoice for the triumphs of our Canadian brothers and sisters. If Bill C-422 is passed, the fight for the right of our children to have two parents would haven achieved a historic milestone.