Post-Divorce Relocation: Policy Considerations

POST-DIVORCE RELOCATION: POLICY CONSIDERATIONS
by Scott Altman

Professor Braver suggests that children would be happier and healthier if we discouraged parents who divorce from relocating. I am not convinced that this policy would help children. But this is an empirical question about which I will comment briefly as I conclude.

Professor Braver also offers a glimpse into public opinion, which seems to favor relocation deterrence, partly on fairness grounds. My main goal tonight is show why this view is wrong: inhibiting relocation by threatening to take custody away from the moving parent is not a fair solution.

It might strike you as odd that I mention fairness to parents; shouldn't custody law try only to protect children? I do not think so. Children are not the only people worthy of moral concern, and our legal practices reflect a commitment to many competing values.

Consider just a few examples: We permit parents to risk orphaning their children by sky-diving and climbing mountains; we allow intact families to relocate (for a job or just on a whim) even if this disrupts important social ties for children. We also send parents who commit crimes to prison, despite obvious harms to their children. And we force parents who commit torts to pay damage awards, even though these payments impoverish children.

Why do we allow all these risks to vulnerable children? Because we think that adults should be free to pursue their own interests, and because social goals, such as crime control or justice between adults, sometimes matter more than protecting children.

Relocation law already places many adult interests above child welfare. For example, if Professor Braver is right, moves by non-custodial parents harm children as much moves by custodial parents. Yet there has never been a serious effort to deter non-custodial parents from relocating. That people see little unfairness in this discrepancy suggests that the core issue in relocation is access to children and choice of residence, not the best interests of children.

Do these adult interests merit much weight in child custody policy? If so, how should we resolve conflicts between the interests of custodial and non-custodial parents?

Fairness requires us to take these adult interests seriously for three reasons. First, relocation doctrine should try to allocate fairly the personal hardships of divorce. Second, it should not exacerbate gender inequality. And third, it should not involve the law in unjust coercion. These conclusions do not provide simple solutions. But I will argue that they counsel against using conditional custody changes to deter relocation.

My first argument begins from the perspective of equality. Parents regularly make sacrifices to promote their children's welfare. Perhaps becoming a parent requires committing in advance to sacrifice for the child when necessary. But both parents share this obligation. Fairness between them counsels that one parent not be asked to sacrifice far more than the other in the interest of protecting their child.

Demands that sacrifices be fairly allocated are among the few positions shared by advocates on both sides of relocation debates. Indeed, it may be the reason these debates are so heated.

From the perspective of a noncustodial parent, relocation not only harms the child and deprives him of frequent access; it does all this even though he may already have made a very large sacrifice by accepting non-custodial parent status. He may concede custody willingly - preferring to settle custody terms quickly and peacefully for the benefit of the child. Having already given up daily contact with the child, much to the benefit of his former spouse, he is now asked to sacrifice even more for her convenience.

Custodial parents often see things differently. Child custody, despite its many rewards, also requires work and sacrifice. The custodial parent may feel she has given up personal freedoms and job advancement to provide child care, and that she is now being asked to sacrifice further, by foregoing a new job or proximity to family, all for the convenience of a parent who already had more freedom and fewer child-care duties. Relocation limits from this perspective are the insult added to the injury of her disproportionate child-care duties.

And each parent often suspects the other of bad faith: non-custodial parents believe that the move is motivated by spite or a desire to avoid continued contact; custodial parents often think opposition is motivated by spite or a desire for ongoing control.

No doubt there is some truth in both perspectives. Bad faith is always possible. And any self-aware parent knows that time with children is both a joy and a pain. In any given case, the balance of sacrifices and level of sincerity may vary.

But for most cases, this balance is more certain. Most fathers do not want custody of children, much preferring the freedom of visitation to the ongoing responsibility of single parenthood. Given what we know about the division of childcare chores and custodial parents' lower standard of living, custodial parents likely sacrifice more on average than noncustodial. Rules limiting their mobility exacerbate this imbalance.

I would weigh this imbalance less heavily if the law made great efforts to restrain moves by non-custodial parents. Inequities would remain - for example custodial parents would still likely suffer more from their inability to move. But at least all parents would lose mobility so that their children can flourish.

Without strong measures to restrain noncustodial parents, our laws are doubly unjust in their impact. First, they ask the overworked custodial parent to restrict her mobility to protect the child. And then they grant broad freedoms to the relatively unencumbered non-custodial parent whose relocation might be equally harmful. The inequalities I have mentioned so far ignore gender. But we all know that most custodial parents are mothers and that restrictive relocation rules disproportionately burden women. This is especially so for poor women, who most desperately need to relocate for higher pay or lower-costs, and who can least afford to navigate complex legal proceedings required by the procedurally burdensome factual inquiries that accompany restrictive rules.

For anyone who cares about equality of outcomes, restrictive relocation laws are problematic. These laws tie women to the location of their marriage, which often was chosen by their husbands, and therefore often keeps them far from family. It also limits their mobility to seek better jobs or new relationships, either of which may be important to raise their standards of living. Those standards of living are - by all measures - lower than men's after divorce. For some women, this lower earning capacity is due to their prior career sacrifices made while caring for children.

At the same time, relocation law allows men to keep the jobs they had during the marriage, or to relocate for better jobs or new spouses. Even if all this is fully equal in principle, it does not work out as very equal in effect.

Despite all my arguments so far, I am remain ambivalent about relocation. I share one intuition with people who oppose relocation: decent parents ought to make personal sacrifices so that their children have frequent contact with both mother and father - at least when there is no domestic violence or other serious problem. I hope that I would do as much, and admire the friends I know who have done so to protect their children.

If parents have this duty, shouldn't our legal system encourage them to fulfill it? Often the parent seeking to relocate would remain with the child if she had to choose between relocation and losing custody. By threatening a custody change that need never occur, the law encourages parents to fulfill their obligations. Absent domestic violence or high conflict, this might work to children's advantage.

I do not embrace this conclusion for two reasons. First, the inequality problem remains unless we enact strong measures to deter relocation by non-custodial parents. If we really think parents waive their rights to relocate away from children, we could dramatically increase the child-support duties of non-custodial parents who move, or threaten to end their visitation rights in the hope that the threat would induce them to stay.

Second, not all incentives are reasonable for governments to use. Most of us recoil when the police leverage family members' loyalty to their own ends. For example, officers sometimes threaten to prosecute a suspect's spouse or child unless the suspect pleads guilty. The problem here is not coercion, or even that people should not face hard choices; it is that government should not threaten to undermine intimate relationships as a way of influencing behavior.

Having offered some reasons to doubt that restrictive relocation laws are fair to adults, I want to conclude with a few cautionary notes about whether they are really important for children.

Professor Braver's research on this topic is in many ways careful. But like any social science work it has limitations. I am reasonably confident that he would be the first to acknowledge these. A few seem worth noting here.

First, the underlying data here is largely from surveys that ask college students to recall events from their childhood, some of which long predate the survey. There is nothing wrong with this method. But before making policy choices based on these conclusions, we would want to see them confirmed through other methods, such as longitudinal work that allows measurements taken closer to the events being studied.

Second, it is always difficult to know whether relocation is causing harm, rather than that harmful circumstances are leading to relocation. Professor Braver acknowledges this issue. Indeed his paper examining whether prior parental conflict caused both relocation and harm shows how important causal ambiguity can be. Several of the harms discussed in his first paper were reduced or eliminated once he controlled for conflict. This leaves me wondering whether there are other omitted variables that, once studied, would lead us to think relocation is not harmful at all. Indeed, if we had information about actual parental conflict, rather than children's memories of conflict years earlier, we might learn that conflict explains all of the harm that Professor Braver attributes to relocation.

Third, Professor Braver's study compares the welfare of children who moved with their mothers, or whose fathers moved away, with a third group who fared somewhat better. This third group was a set of families that remained near the marital home. The problem with this comparison is that these families may have remained nearby one another voluntarily. Until we can study children who live with custodial parents who were restrained from moving, we cannot predict what effect restraining moves will have on child welfare.

This comparison-group problem is more than just a methodological quibble. Many other researchers have found connections between child welfare and having a financially secure and personally stable custodial parent, and a home free from violence. We know that escaping conflict and seeking stability are common reasons given for wanting to relocate. So it seems likely that mothers who did not relocate in Professor Braver's study faced fewer problems with conflict, poverty, and personal stability than those who did relocate. This pattern might reveal that children whose mothers relocated had more problems than children whose mothers did not. But those children whose mothers relocated might have been even worse off had their mothers been forced to remain where they were. Given this uncertainty, we cannot really know what relocation rule Professor Braver's data supports.

In closing, I have focused on fairness to adults. In most cases, these concerns counsel allowing relocation without the need for burdensome factual hearings. I am unsurprised to learn that the public may have contrary views about fairness. And I do not discount the wisdom of common intuition. But in this case, the unfairness may have escaped public notice. The job of policy makers is to help shape public opinion to favor fair outcomes, rather than to follow public perception.

As to children's interests, a large body of research suggests that children do well when their primary caregiver does well (both financially and in other ways). Until the harms of relocation are demonstrated with greater certainty, we should not put custodial parents and children at risk by limiting relocation for those who need it, either by coercive threats to change custody or by costly and time-consuming legal proceedings.

Babies Need Their Mothers Beside Them

BABIES NEED THEIR MOTHERS BESIDE THEM
By James J. McKenna, Ph.D.

Throughout human history, breast-feeding mothers sleeping alongside their infants constituted a marvelously adaptive system in which both the mothers' and infants' sleep physiology and health were connected in beneficial ways. By sleeping next to its mother, the infant receives protection, warmth, emotional reassurance, and breast milk - in just the forms and quantities that nature intended.

This sleeping arrangement permits mothers (and fathers) to respond quickly to the infant if it cries, chokes, or needs its nasal passages cleared, its body cooled, warmed, caressed, rocked or held. This arrangement thus helps to regulate the infant's breathing, sleep state, arousal patterns, heart rates and body temperature. The mother's proximity also stimulates the infant to feed more frequently, thus receiving more antibodies to fight disease. The increased nipple contact also causes changes in the mother's hormone levels that help to prevent a new pregnancy before the infant is ready to be weaned. In this way, the infant regulates its mother's biology, too; increased breast-feeding blocks ovulation, which helps to ensure that pregnancies will not ordinarily occur until the mother's body is able to restore the fat and iron reserves needed for optimal maternal health.

It is a curious fact that in Western societies the practice of mothers, fathers and infants sleeping together came to be thought of as strange, unhealthy and dangerous. Western parents are taught that "co-sleeping" will make the infant too dependent on them, or risk accidental suffocation. Such views are not supported by human experience worldwide, however, where for perhaps millions of years, infants as a matter of course slept next to at least one caregiver, usually the mother, in order to survive. At some point in recent history, infant separateness with low parental contact during the night came to be advocated by child care specialists, while infant- parent interdependence with high parental contact came to be discouraged. In fact, thefew psychological studies which are available suggest that children who have "co-slept" in a loving and safe environment become better adjusted adults than those who were encouraged to sleep without parental contact or reassurance.

The fear of suffocating infants has a long and complex cultural history. Since before the middle ages "overlying" or suffocating infants deliberately was common, particularly among the poor in crowded cities. This form of infanticide led local church authorities to make laws forbidding parents to let infants sleep next to them. The practice of giving infants alcohol or opiates to get them to sleep also became common; under such conditions, babies often did not wake up, and it was presumed that the mothers must have overlaid them. Also, in smoke-filled, under-ventilated rooms, infants can easily succumb to asphyxia. Unfortunately, health officials in some Western countries promote the message that sleep contact between the mother and infant increases the chances of the infant dying from sudden infant death syndrome (SIDS). But the research on which this message is based only indicates that bed- sharing can be dangerous when it occurs in the context of extreme poverty or when the mother is a smoker. Some researchers have attempted to export this message to other cultures. However, in Japan, for example, where co-sleeping is the norm, SIDS rates are among the lowest in the world, which suggests that this arrangement may actually help to prevent SIDS.

Human infants need constant attention and contact with other human beings because they are unable to look after themselves. Unlike other mammals, they cannot keep themselves warm, move about, or feed themselves until relatively late in life. It is their extreme neurological immaturity at birth and slow maturation that make the mother-infant relationship so important. The human infant's brain is only about 25% of its adult weight at birth, whereas most other mammals are born with 60-90% of their adult brain size. The young of most other mammals become independent of their parents within a year, whereas humans take 14 to 17 years to become fully developed physically, and usually longer than that to be fully independent.

Apart from being a natural characteristic of our species, constant proximity to the mother during infancy is also made necessary by the need to feed frequently. Human milk is composed of relatively low amounts of protein and fat, and high amounts of quickly absorbed and metabolized sugars. Therefore the infant's hunger cycle is short, as is the time spent in deep sleep. All of these factors seem to indicate that the custom of separating infants from their parents during sleep time is more the result of cultural history than of fundamental physiological or psychological needs. Sleep laboratory studies have shown that bed-sharing, instead of sleeping in separate rooms, almost doubled the number of breast-feeding episodes and tripled the total nightly duration of breast-feeding. Infants cried much less frequently when sleeping next to their mothers, and spent less time awake. We think that the more frequently infants are breast-fed, the less likely they are to die from cot death.

Our scientific studies of mother and infants sleeping together have shown how tightly bound together the physiological and social aspects of the mother-infant relationship really are. Other studies have shown that separation of the mother and infant has adverse consequences. Anthropological considerations also suggest that separation between the mother and infant should be minimal. Western societies must consider carefully how far and under what circumstances they want to push infants away from the loving and protective co-sleeping environment. Infants' nutritional, emotional and social needs as well as maternal responses to them have evolved in this environment for millennia.

Dr. James J. McKenna is a Professor of Anthropology and the Director of the Center for Behavioral Studies of Mother-Infant Sleep, Notre Dame University. This article first appeared in the March-April 1996 issue of World Health, the journal of the World Health Organization.

1996, James J. McKenna

Dr. James J. McKenna is a Professor of Anthropology and the Director of the Center for Behavioral Studies of Mother-Infant Sleep, Notre Dame University. http://www.naturalchild.org/james_mckenna/babies_need.html

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More at http://www.thelizlibrary.org/

Attachment Research Bibliography

(Find annotated Research on Fatherhood, Motherhood, Joint Custody and related topics at http://www.thelizlibrary.org/liz)

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"I've been in this business (of academia) for nearly a quarter century now and nothing depresses me more than the rampant, seemingly inveterate mis-characterization that lies at the core of nearly every academic debate. We are not incapable of arguing about intellectual substance and empirical reality, but we seem to prefer misunderstanding as a subject for invective. The root of this lamentable behavior can only lie in careless habits of reading and thinking (or, worse, in our willingness to argue without reading at all)."
-- Stephen J. Gould. as quoted in Belsky, J. (2001). Emanuel Miller Lecture Developmental Risks (Still) Associated with Early Child Care. J. Child Psycho). Psychiat. Vol. 42, No. 7, pp. 845-859.

Fatherless Children

**Fatherless Children:

Alexander Hamilton - President Gen. George Washington - President Thomas Jefferson - President James Monroe - President Andrew Jackson - President Andrew Johnson - President Rutherford B. Hayes - President Herbert Hoover - President Grover Cleveland - President Gerald Ford - President William Jefferson Clinton - U.S. Supreme Court Justice James Wilson - U.S. Supreme Court Justice John Rutledge - U.S. Supreme Court Justice Stephen Johnson Field - U.S. Supreme Court Justice Thomas Todd - U.S. Supreme Court Justice David Davis - U.S. Supreme Court Justice John McKinley - U.S. Supreme Court Ch. Justice (and U.S. Treasury Secretary) Salmon P. Chase - U.S. Supreme Court Justice Melville Fuller - U.S. Supreme Court Ch. Justice Edward D. White - U.S. Supreme Court Justice John Marshall Harlan - U.S. Supreme Court Justice Benjamin N. Cardozo - U.S. Supreme Court Justice William O. Douglas - U.S. Supreme Court Justice James F. Byrnes - U.S. Supreme Court Justice Arthur J. Goldberg - U.S. Supreme Court Justice Clarence Thomas - Frederick Douglas - Gen. Robert E. Lee - Gen. John Rawlins - Booker T. Washington - Benjamin Rush - Stephen Colbert - George Mason - Fr. Gen. Marquis de Lafayette - Henry Clay - Meriwether Lewis - Eleanor Roosevelt - Jackie Robinson - Mark Twain - George Washington Carver - Nathanial Hawthorne - Eli Whitney - Linus Carl Pauling - Aristotle - Nicolas Copernicus - Sir Isaac Newton - Mahatma Gandhi - Leonardo da Vinci - Confucius - Queen Elizabeth I - Jean-Jacques Rousseau - William Blackstone - Alexander Fleming - Nelson Mandela - Catherine the Great of Russia - Alexandre Dumas - Gen. Alexander Haig - Alabama Governor Bibb Graves - New York Governor Al Smith - Tennessee Governor Sam Houston - Indiana Supreme Court Justice William Allen Woods - U.S. Senator Al Sharpton - U.S. Senator Bella Abzug - U.S. Senator Barack Obama - U.S. Senator William Warren "Bill" Bradley - Queen Victoria of Britain - Alan Greenspan - Alessandro Volta - Ada Lovelace - Jane Austen - George Eastman - Roy Wilson Howard - Johann Sebastian Bach - Gottfried Wilhelm von Leibniz - John Lennon - Hans Christian Andersen - Edward Jenner - Giacomo Puccini - Joseph John ("J.J.") Thomson - Bertrand Russell - Hermann Rorschach - Herman Melville - John Keats - Marian Anderson - Garry Kasparov - Leo Tolstoy - Peyton Rous - Benjamin Carson - Raphael - David Hume - Hannah Arendt - Ralph Waldo Emerson - Stephen Crane - Friedrich Nietzsche - Agatha Christie - William Wordsworth - Max Weber - Cleopatra - Audie Murphy - Gustav Theodor Fechner - Edgar Allen Poe - Emile Zola - William Smith - Gerald Bull - Willa Cather - Daniel Dennett - Cass Gilbert - Mary Leakey - Charlie Chaplin - Nelly Bly - Max Born - Sarah Breedlove - Steve Allen - Louis Armstrong - Warren Hastings - Allan Pinkerton - Billie Holiday - Hank Williams - Malcolm X - Carol Burnett - Thomas Green Clemson - John Irving - J.R.R. Tolkien - Charles Bronson - Gene Hackman - Robert Hooke - Halle Berry - Eddie Murphy - Caroline Kennedy Schlossberg - Deborah Sampson - Ralph Ellison - California Supreme Court Justice Rose Bird - Eamon de Valera - William Reddington Hewlett - Mother Angelica - Deval Laurdine Patrick - F. Whitten Peters - Henry Talbot - Arthur C. Clarke - Jim Rogan - Frederick W. Alt - Emil J. Freireich - Charlotte Perkins Gilman - Bessie Coleman - Bertrand Russell - Dorothy Andersen - Chiang Kai-shek - Coco Chanel - Anderson Hayes Cooper - Hunter "Patch" Adams - Jack Nicholson - Roald Dahl - Douglas Fairbanks - David Harker - Irving Berlin - Loretta Young - Barbara Stanwick - Steve McQueen - Cher - Wayne Dyer - Sophia Loren - Stephen King - Whoopi Goldberg - Fatty Arbuckle - Dorothea Lange - Gloria Steinem - Gloria Gaynor - Jon Stewart - Bette Davis - Tom Cruise - Bill Cosby - Barry White - Jodie Foster - Ed Bradley - Rickey Henderson....


**The term "fatherless" is used in this post as it is in current research and policy rhetoric by the U.S. federal government, DHHS and the National Fatherhood Initiative, most U.S. states in connection with child custody law and policy, and various family values and fatherhood interest policy and lobbying groups.

Why Therapeutic Jurisprudence Must Be - and Will Be -- Eliminated From Our Family Courts

One of the problems with the rise of therapeutic jurisprudence and the placement of non-legal systems into the courts is the subtle denigration of long-established precepts of lawyer independence and due process. One of the multiple ways this happens in the family courts is through the common development of multidisciplinary collegial relationships and business referral.

The problem arises because most lawyers represent different clients taking different sides in different cases (sometimes the wife, sometimes the husband, sometimes the "good guy", sometimes the "bad guy", etc.). If a lawyer coming into a case runs up against an expert he has a referral or employment relationship with in other cases, and that expert takes an adverse position to the lawyer's client in the new case, the lawyer will have a very difficult time adequately representing his client. Appropriate representation may require the lawyer to strenuously object to an expert's testimony -- or even the expert himself. But if the lawyer needs the good will and cooperation of the expert in connection with the lawyer's other clients' pending cases, he cannot do that because he may put those other cases at risk.

Lawyers in these positions will be tempted to rationalize to themselves, as well as maintain the posture in the community at large, that the expert's opinions, even when they are adverse to his client, are scientifically valid -- even when they may not be, even if they are deeply flawed or completely bogus. These lawyers may rationalize to themselves that the validity of the science is not their responsibility because, after all, lawyers are not "scientists".

The lawyer who naively or purposefully steps down the path of multidisciplinary practice, regularly exchanging referrals and engaging in other close associations with nonlawyer case participants (a practice that is encouraged by the mixed-discipline organizations such as the AFCC under the Orwellian assumption that this fosters justice and works to "improve" the courts) in fact has sold his professional soul to the devil -- literally.

The lawyer and these other participants in the system have different roles. When lawyers directly hire paralegals, experts, and others to assist them, there is not as much of a problem, even when these individuals are independent contractors. First, their work is covered by attorney work product unless and until they testify. Second, because they were hired by the lawyer, they are subject to the same conflict of interest rules as the lawyer is, as far as their involvement in other cases. That is not the case with "independent" experts, however. Custody evaluators and guardians ad litem who render opinions "for the court", so-called "court-appointed experts", are a very different matter.

The conflict of interest problems are inherent in the nature of the association. They exist even when there is no explicit association or referral relationship. They are not the same as having a professional relationship with another lawyer who regularly may be on the opposing side of a case, because unlike the lawyer colleague, these individuals are case participants -- witnesses or even parties. They are not akin to neutral judges or magistrates, the bailiffs or other courthouse personnel. None of these truly neutral courthouse persons advocates for a position in a case, testifies as a witness, or participates as a party proper, as do some GALs.

The routine broad involvement of these expert witnesses must be recognized by the legal profession as an egregious misjudgment it is, as well as fostering ethical violations that must be addressed by state bar ethics rules.

Ironically, the problem is worse for lawyers who are not ideologues, because these lawyers are more likely to advocate for different client perspectives. The legal community, even in urban areas, is limited and often close-knit. Lawyers in the same area of practice regularly encounter each other. The pool of forensic experts and GALs tends to be even smaller. The repeated association time and again of these experts in cases means that at any time and from time to time any given expert may show up on the "wrong side" of a lawyer's case -- and simultaneously also be on the "right side" of other of the lawyer's cases, whether as hired expert or court-appointed expert. This creates many of the same dilemmas that ordinary client conflict-of-interest issues do.

Contrary to the rationalizing rhetoric, court-appointed evaluators and opining GALs are not neutral participants in the system. Even if they initially are hired under that rubric, once their reports are rendered, and their opinions formed and ready to be given, they have become advocates for one or the other side or issue. Thus, at a point, they are, just as any party would be, pointedly in favor of certain outcomes, and adverse to others.

What does the lawyer do when an expert the lawyer is relying on in one case takes a similar position that lacks scientific merit against another of the same lawyer's clients in another case. Because the expert and the lawyer have been, are currently, or will be in cahoots in other cases, the lawyer is placed into a conflict, unable zealously to discredit the expert when that is necessary to protect his client. Bar ethics rules must address this.

Lawyers are advocates. If an expert's position supports the lawyer's client, the lawyer is going to accept that opinion and put it forward in the interests of his client's case. But when the lawyer encounters the very same scientifically meritless position by the same expert in a case in which that does not favor the lawyer's client, what does the lawyer do? The problem is especially egregious in the area of psychological "experts" because, unlike other kinds of experts, the field of applied psychology is overrun with political machinations, nonsensical theories, half-baked ideas, and outright misrepresentation of research. Too often it's not "science" and it's not technical knowledge. Much of the time, it's akin to expertise in astrology, or theology -- a familiarity with complicated ideas and methods of calculating answers, and the body of literature that discusses all of this, but somewhere between unhelpful and misleading when it comes to ascertaining the facts.

Unlike lawyers in many other areas of practice, who may retain their clients for years, family lawyers typically need a steady stream of new one-shot clients. In addition, family lawyers also tend to work in smaller firms. So they value those who send them business. Too many family lawyers, perhaps without recognizing or acknowledging the subtle conflicts of interest that have caused their discomfort and unwillingness adequately to represent some of their clients in some of their cases, in fact have sacrificed these clients on the altar of maintaining their professional relationships, associations, and referral sources.

In such circumstances, some busy family lawyers admit to feeling burnout, but they've rationalized their unwillingness to zealously advocate for their clients, as well as their discomfort, as stemming from the "high conflict" created by unreasonable clients, or the high emotional toll the cases are taking on them. Others retain their enthusiasm by becoming extremist ideologues and proponents of bad science, taking only cases in which they will not encounter these conflicts. For example, this is seen among lawyers who overwhelmingly assert that their clients have been the victims of "parental alienation". The lawyer becomes committed to propositions outside of law and outside of the lawyer's academic expertise, carrying these into media of the legal field. This conveniently furthers the propagation of the bad science.

Some lawyers caught in this vortex justify their lack of vigorous representation, and the coerced settlements they've foisted on some clients as really hailing from a motivation and concern for the best interests of children, or as taking the reasonable settlement position, or the high road, or as their commitment to helping people to just get along. They may profess to themselves and each other and everyone else around a great affinity for mediation and therapy and collaborative resolution, and all manner of therapeutic jurisprudence in the interests of everyone, and similar specious posturing, encouraged in their self-delusion by a steady drip of MHP literature. This kind of thing is just not as pervasive in other areas of the law, no matter how heated the conflicts get, and it's one substantial reason the public has such a generally dim view of the family courts and family lawyers.

Given that clients are entitled to their choice of attorneys, and are entitled to independent, unconflicted, agents at law who are committed to furthering their interests and goals (as the client, not the attorney, has defined them), the only viable solution is a disqualification of any GAL or forensic expert who previously has been associated in any case with either of the lawyers in that case, and the striking and nullification of all testimony and reports of that expert, no matter at what stage of a case the lawyer is hired.

It also is time to substantially limit the use of forensic experts and GALs in family court altogether because for the most part, MHPs, including child custody evaluators and their related forensic offshoots, in fact are unneeded, unhelpful, and undesirable in the vast majority of child custody cases.

http://www.thelizlibrary.org/therapeutic-jurisprudence/time-to-end-it.html

The Constitutional Right to Travel

DiAnn Lindquist, Esq. (Colorado) makes the following argument in favor of custodial parent post-divorce relocations:

A citizen's right to interstate travel has long been recognized as a fundamental right, grounded upon the Privileges and Immunities Clause of Article IV, Section 2, of the United States Constitution. Edwards v. People of State of California, 314 U.S. 160, 173, 62 S.Ct. 164 (1941).

This principle encompasses the right of individuals to "migrate, resettle, find a new job, and start a new life." Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct 1322, 1329, 22 L.Ed.2d 600 (1969).

Edwards, Shapiro, and their progeny were concerned with the constitutionality of state statutes designed to discourage indigent people from relocating to their state of choice.

The Supreme Court consistently held the statutes to be unconstitutional, reasoning,

"...[t]he nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land, uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement." Id.

The Court also held that the right of travel is "...a virtually unconditional personal right, guaranteed by the Constitution to us all." Id. at 643, 89 S.Ct. at 1336.

For the same reasons that a state cannot prohibit a person from moving to a particular area, it also cannot prohibit a person from moving from a particular area.

Strict Scrutiny

Court action that places restrictions on a citizen's fundamental rights requires application of the strict scrutiny test. Jones v. Helms, 452 U.S. 412 (1981); U.S. v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778 (1938).

Under strict scrutiny, the state must show that it has a compelling purpose for denying the fundamental right and that the remedy chosen is narrowly tailored to meet the stated purpose. Shapiro, 394 U.S. at 634, 89 S.Ct. at 1331.

Requiring a citizen to live in a specific locale, thereby restricting his or her fundamental right of travel, must be based on compelling state concerns. Hodgson v. Minnesota, 497 U.S. 417 (1990).

Parents also have a fundamental liberty interest in the care, custody, and management of their natural children, and due process must be provided when the state interferes with that relationship. Santosky v. Kramer, 455 U.S. 745 (1982).

This argument successfully was used in the mother's brief in the Colorado Supreme Court relocation case of Spahmer v. Gullette, decided June 5, 2005 (Barry Seidenfeld, Esq. and Anne Whalen Gill, Esq., counsel.)

Joint Custody and Infants

More on joint custody and infants -- Attachment Parenting Org's November newsletter has an article by Dr. Susan Markel that's worth a read:

Q: How feasible is it for the Courts to insist on shared custody of infants and toddlers?

A: "Fair and equitable distribution" is a concept that works with property, but not with young children. In that case, the attachment to the primary caregiver (usually the mother) is the most important and overriding issue.

Maintaining a consistent, nurturing relationship cannot be reduced to a comparison of hours spent with either parent. This is even more critical in a situation where the toddler is breastfeeding (the norm in most areas of the world).

Most often it is the mother who feeds, rocks, diapers and comforts the baby from birth, responding consistently to the needs of the infant and thereby forming a strong emotional attachment. Toddlers and young children are in no way able to understand the concept of time and certainly have no awareness of the needs for a custody arrangement where there is a desire for an equitable arrangement that is satisfactory to both parents. Indeed, a child whose predictable routine has been altered without regard to the anxieties that would be engendered is under unimaginable stress, further compounded by the inability of the child to express verbally the distress that is being experienced.

Children who are attached to their mothers can simply not be expected to endure having that relationship disrupted. The situation between these children's parents regarding their own needs for satisfaction is simply not their burden to bear, and yet, if pursued, (by removing them from their mother for many hours at a time, particularly overnight), the children would be expected to lose their sense of trust. In the long term, any resulting anxiety and depression would then be the forbearers of later emotional problems during early school years, adolescence, and in adulthood.

Even if their parents both genuinely want what is best for these children, it is necessary that these parents, as well as the court system, be educated, enlightened and really committed to understanding the profound problems that will result if prolonged visits are allowed to occur away from the primary caregiver during this sensitive time in their development.

Susan Markel, M.D.

For more information on Dr. Markel's work, see her website at http://www.attachmentparentingdoctor.com/

For more information on the issue of joint custody and infants, see liznotes at the liz library at http://www.thelizlibrary.org/.

Fatherless Children - Episode 2

This child was born into a prosperous family and well-educated in his early youth. But then his father died when he was just 10, and he was sent off to live with his older half-brother. His formal education largely ended at that point, and he was sent to learn the trade of surveying, which he went to work at full-time by the age of 16.

When he was 20, his half-brother died of tuberculosis. Weary of the drudgery of surveying, and fortuitously now in possession of an inheritance from his half-brother that relieved him from that, he joined the army. Within three years he rose to the rank of colonel.

His military career was not uniformly positive, however; he gained a reputation for being brash, occasionally rude to superior officers to whom he wrote multiple lengthy letters espousing his differing opinions, and impatient with authority.

By the time he was 26 he left the army, and then married an older wealthy widow with two children. With their combined money, he retired for a while to be a gentleman farmer and went into local politics. He became very interested in science and agriculture.

Not long afterward, however, he was recruited to lead an army of revolutionaries against the soldiers he formerly had commanded as a colonel. His success in these endeavors won him fame and honor that would persist for centuries. His bravery at bring bringing his troops through hardship and losses made him respected and greatly admired. His reputation for integrity and wise leadership made him a beloved hero and legend in his own time.

He became the first president of the United States.

George Washington, a boy from a "fatherless home."

The term "fatherless" is used in this series as it is in current research and policy rhetoric by the U.S. federal government, DHHS and the National Fatherhood Initiative, most U.S. states in connection with child custody law and policy, and various family values and fatherhood interest policy and lobbying groups.

See more Fatherless Children Stories.

Twelve Steps for a Mom to Lose Her Children in Divorce

From an article by Mark Evans: The following are steps for a mom to follow in Cobb County Georgia and many other locales across the USA to lose her children in divorce:

1. Marry a charming business man (whom we shall call Jack) who comes from a wealthy family. You are impressed with Jack's love of children. Jack spent over $140,000 to win custody of a daughter from a previous marriage. Of course, Jack would never do this to you. Jack says his finest qualities are loyalty and honesty. Hmmm.

2. Give birth to two daughters and survive a close brush with death due to complications with your second pregnancy. Give up your career to be a stay-at-home mom.

3. To help you sort out the strains and conflicts of a blended family, record your deeply private thoughts in a diary that Jack can later steal and use against you.

4. Strive to make God and church the bedrock of your life, especially if Jack is an avowed atheist. Participate in church activities and take Bible study classes so that you can be branded a religious fanatic.

5. Home school your children because of concerns with the quality of the local public school system and because you want only the best for your children. For this you will be branded an anarchist.

6. Contract a serious lingering illness with Multiple-Sclerosis-like symptoms so that as household chores slide while you convalesce, Jack can say you are a hypochondriac, sloppy housekeeper, and lousy entertainer for his friends visiting from abroad.

7. As your daughters begin to mature (ages 4 and 6) take note of things they say that suggests that daddy likes to play with more than just the rubber duck while bathing with the girls, that daddy plays games that he does not want mom to know about.

8. Follow your natural maternal urge to protect your children by having them evaluated by a forensic psychologist. When the psychologist tells you the girls have been sexually abused, proceed to the threshold of family court hell -- the Department of Family and Child Services (DFACS, CPS, etc.) -- where you file charges of sexual abuse against Jack.

9. When you select a lawyer for the ensuing divorce, choose someone nice with a good reputation in the Christian community who will turn the other cheek when the other side accuses you of fabricating evidence of sexual abuse, of parental alienation, of being vindictive, hysterical, and insane.

10. You discover your lawyer also represented Jack's first wife, ineffectively, in divorce court (what a small world). Since you've gone so far with this lawyer, ignore the advice of family members to get a new lawyer. They are probably wrong anyway because to change lawyers makes you look unstable.

11. Disregard that for every dollar you spend on a lawyer and psychiatric professionals, Jack's family will spend three. Disregard that the legal system is more concerned with money and influence than with doing the right thing for children.

12. During the two years leading up to a custody trial in which temporary custody is switched to Jack and his new girl friend because you have been branded an alienator, vindictive and insane, continue with all your heart to fight for your children. Exhaust all your resources and borrow from friends and family for mounting legal bills, even a therapist for yourself to prove that you are not insane. (Unfortunately, your sanity became suspect when you married Jack in the first place.) The more you try to protect your children and prove yourself worthy, the deeper the court appointed "professionals" (Guardian Ad Litem, Psych, etc.) will be pitted against you while all the time billing you for their services! It's like being robbed and then having to pay the robber.

Note that it is not necessary for you to engage in adultery, prostitution or nude dancing, to abuse drugs or alcohol, to abuse or neglect your children, or engage in other immoral, unethical or illegal behavior. To lose your children, just follow these twelve steps.

This is the general pattern by which moms in Georgia and in family courts across the USA are being stripped of their children and all their parental rights. The children are deprived of their mom's love and daily guidance. And the Jacks of the world are free to repeat the cycle again and again.

As the children you once nursed and nurtured place their little hands on their hearts and pledge, "One nation under God, indivisible, with liberty and justice for all," will they think of themselves and their mom and wonder if they got justice?

Article also published at http://www.thelizlibrary.org/liz/1.html For more information, see liznotes.

Busting the Fatherhood Myth for Victims of Domestic Violence

From article by Lily DeVilliers:

Every now and then in your life, you meet with a statement or opinion from somebody else which runs counter to every belief that you've ever held. But it lies around in your mind anyway, and if you ever want or need to do processing that goes beyond your existing system of thought, there it is providing a bridge for your mind to walk over into different turf. The statement opens a door in your mind, and even though you don't choose or want to go through it at the time, sometimes there are later moments when an open door makes an important difference.

I was lucky enough when I left my son's dad to meet a counsellor who broke a lot of that ground and opened a lot of those doors for me. She was this marvellous, mild old Dutch grandmother, and she always seemed to be knitting when I went to see her. She'd just seen too much life, and thought things through too clearly, to be the least bit bothered by the unconventionality of some of her own conclusions. And I remember two things she said, both of them entirely matter of fact, and neither of them entirely assimilable to me at the time.

It was about the myth and bugabear of fatherhood. I wish we talked more sensibly about this aspect of abuse, because I had a lot of trouble when I left my son's dad, first with him using my son as the only button he had left to push in me, and second with the deeply ambivalent attitude society has about abusive men and their 'rights' to fatherhood, not to mention my own son's 'right' to a relationship with his father.

My counsellor said two marvellous things. She said, on the subject of my ex-partner's purported 'love' for our son, and his stated intention of being a great dad to him: 'It may be unconventional, but I believe that when a man has four children and he's not supporting any of them, he should be castrated'. And she said, about the familiar yank of be-nice-to-me-or-I'll-make-sure-the-child-suffers (which I'll get to in a moment): 'Personally, I think a lot of children would be better off if we encouraged and allowed them to view their fathers as more like uncle figures.'

That second statement let me off an enormous hook, and I believe it's saved my son's life and the lives of people he'll meet in his adult life. In the first six or eight months after I left my son's dad, he went through a very common abusive pattern, and arrived at a very common abusive tactic. It works like this.

When you live with an abuser, and an abuser has the ability to affect your life and your well-being simply as a side-effect of the fact that you DO share a life, it's like he has this huge switchboard of buttons available to him that he can push. And when you leave him, it's like you gather all those wires together in one hand and yank them out of the wall. Most abusers don't register
this, because they're not quite normal in their thinking: cause and effect are a little blurred in their minds, and to them, people really are nothing but collections of springs and wires connected to the central control panel inside their heads.

You don't realize how truly abnormal they are until you leave them, and you realize that they're incapable of adjusting their button- pushing to adapt to the new circumstances. From a distance of half a city, I watched with amazement as my own abuser went through all the motions of controlling a human robot just like he'd been doing for almost three years - even though he realized on an intellectual level that I wasn't in a position where I had to care anymore.
It was one of the strangest collections of human behaviour I've ever seen, and it convinced me irrevocably that the man was insane. Maybe not the kind of insane that anyone could ever lock up, but disconnected from reality, living inside his head, so far round the bend he's on the return journey - absolutely. He was an unpleasant feature of our lives for about two years after we left, and the last I heard of him he was still dealing with all of life by pointing his remote-control device at the world and punching buttons. If he's still alive at this time, I doubt very much that he's changed his M. O. one bit. I don't think he's able to, quite honestly. He looks to me like someone who's not only hardwired that way, but has had the panel over the wiring welded shut forever. And with the dull intelligence of insanity, my abuser finally figured out that our son was the only button left with any life in it.

When I left him, it was amazing to me how many people applauded me for leaving him and dropping him off the edge of my personal world, but had the screaming hab-dabs at the idea that I wasn't going to go out of my way to foster a 'relationship' between him and my son.

I can't pretend there was ever any logic in the discussions that arose around this issue. I could never understand how it made sense. The man's bad for me, I'd explain. He's dangerous and insane and unhealthy, and you think it's great that I'm never going to see him again - so what makes you think he'd be 'good for' a two-year-old? I heard some pretty weird answers to that.

A child needs a father.

Even more than a father, a child needs to not be abused, or witness abuse, or given the message that abuse is okay, inevitable, or somehow redeemed by the position the abuser holds in the victim's life. I'd even say that a child needs to be able to choose ALL their relationships based on who's good for them or not - including fathers. There's really no difference between saying 'A child needs a father' and saying 'A woman needs a partner'. Fathers and partners are nice to have - but they're less important than some other things.

When you value parenthood above personal safety and integrity on a child's behalf, you send a very mixed message. The message says: 'We don't choose who we love based on who makes us feel safe, confident, open, happy. We don't choose the most trustworthy people to be closest to us. We're just stuck with whoever happens to be born in a certain relationship to us.' Great message for adult life. You might as well just stamp the poor kid with a sticker that says 'Property of [father's name]' and box them up right away.

Children need someone to look up to.

Sure, and because it's a need, all the more reason to make sure the people available for them to look up to are worthy of it. Otherwise you condemn them to admiring and emulating the mediocre, the shoddy, the commonplace.

You'll destroy the child's faith in his dad.

My take on that is pretty simple. Abusers are the people who destroy their kids' faith in them, just like abusers are the people who destroy their marriages and relationships. All that's left for a child to wonder is whether the other parent can be trusted or not. Personally, I found that the fastest way to make a child feel really alone and untrusting is to not give them a safe place to express and validate their own impressions. That gives them TWO parents who seem to think abuse is okay and normal, not just one.

You're imposing personal baggage on the poor kid.

Strange statement. There's a big difference between 'baggage' and 'knowledge'. It's not 'baggage' that makes us teach our kids look both ways before crossing the street, or keep them from drinking the Drano under the sink. If I withdraw my child from a class run by a known pedophile, am I 'imposing personal baggage on him' or am I using my experience and judgement to protect him from unsafe people? Personally, I decided not to stand by while the poor kid went through the same hoops I'd been through, and learned the same lesson the same hard way I did. My feeling was that if I have knowledge that's relevant to his safety and well-being, and I consciously don't act on it, then that's a real betrayal. It seems to me like it sends the message to my son that he's a second-class citizen: what I won't put up with myself, I'm quite happy to let him suffer.

He's an abusive PARTNER, not an abusive PARENT.

I don't think this one is accurate or relevant. A person who is abusive is, by definition, unfit to raise or be around children regardless of whether or not the child is ever a specific target. As parents, what we do counts at least as much as what we say. We don't subject our children to abusers when they're strangers, and we don't subject ourselves to anyone who we know to be abusive 'because you're not the victim personally'. The rules shouldn't be different for children, or simply because the abuser's a parent.

You're using your son in your personal power-struggle with his dad.

Actually, no. There certainly was a power-struggle going on, but just like the abuse, none of it started with me. All I did was refuse to give in to the blackmail and eventually move to prevent my ex-partner from using my son as a tool for blackmail. Not something I did only to preserve myself, but also because kids are not pawns and should be made safe from people who use them that way. I personally believe that any parent who uses children as an extended control tool is abusive of those children by definition and forfeits all rights to contact with them on the spot.

What about his father's rights?

You earn the right to be a parent, and not with a quickie in the back seat without a condom. Children don't come stamped with their parents' mark of ownership, and pretending that they do is reducing them to the level of any other possession. It makes them into objects. My son has a greater right not to be an object than any man could claim through mere genetic connection. Parenthood isn't a right, it's a privilege. It's the children who have rights. And it's the parents who have never been abusive who are in the best position to enforce and protect those rights on the child's behalf.

You'll poison him against humanity.

Well, I guess if that were going to happen, eight years would be long enough for some signs of it to have shown up. I think kids actually learn greater faith in humanity from knowing a few people who actually do put principles into practice. They learn less of it from living around adults who turn wishy-washy and won't stand up in their children's defence.

Fatherless children are permanently damaged and scarred.

I wonder. Does being fatherless scar them, or does society's treatment of them and their mothers do the damage? Or do our stats on 'damage' REALLY come from all the adults who were forced into proximity with dangerous, negiligent, unhealthy people in the name of 'keeping in touch with their dads' when they were kids? I never could see how a poisonous father was better than no father at all.

It's been eight years and counting - six since I actually filed a motion to end all contact until he shaped up as a parent. I never forget how lucky we both are that he just disappeared instead of trying to fight me on it, because the two years before he dropped out of our lives were the real hell for my son - not the six years afterwards.

I'm eternally grateful to my old Dutch counsellor, who provided me with the two bridges of thought that made it possible for me to walk over the bridge of the fatherhood myth. So, for what the words were worth in our lives, I leave them here for others as well.

Parenting and Children's Educational Achievement

WHAT WORKS (in order):

1. The educational attainment of the children's mother.

2. The socio-economic level of the children's home.

3. In-home parental promotion of preschoolers' skills acquisitions, such as reading and numbers, game playing, and the creation of a stable, stimulating environment.

4. Parental aspirations (expectations) for children's achievement, and parents' own enthusiasm for, and attitudes toward education and learning.

5. In-home parent-child discussions, valuing of children's opinions and conversation, and social interaction, i.e. "the curriculum of the home."

6. Parental supplementation of children's education with enrichment activities, such as libraries and museums, and family hobbies.

7. Parental encouragement of older children's self-reliance and autonomy.


WHAT DOESN'T WORK

1. Homework in elementary school. [Recent research again confirms this.]

2. Routine parental involvement and help with homework.

3. Extended parent-teacher contact beyond the minimum necessary communication of notices, events, grades, and so forth.

4. Parental volunteering in and presence at the child's school and children's in-school activities. (As an independent variable and not merely appearing in the research as a correlate of parental socioeconomic status or family culture and interest in education, this does nothing for children.)

5. Parental involvement with and participation in school-related organizations, such as PTA. (Same comment as #4, above. This is not the kind of "parental involvement" that matters.)

6. Verbally encouraging a child to "do well in school," and giving rewards or punishment based on grades.

7. Parenting programs to enhance parenting skills. (Notwithstanding promotional hype, parenting skills programs have not been shown to result in any clear academic achievement or enhanced outcomes for children. However, to the extent there is some small success in situations in which these programs address families with serious problems, such as adolescent behavior issues, behavior-based programs work and relationship-oriented programs don't.)


WHAT ELSE DOESN'T MATTER

1. Children's educational achievement is not negatively impacted by a parent's lack of fluency in the English language.

2. Single motherhood, while it tends to reduce mothers' participation with children's schools and with their teachers (an "involvement" of little or no benefit anyway but bearing on educators' and the public's perceptions), does not reduce maternal in-home enhancement of children's education -- where "parental involvement" counts.


See the research and more at The Liz Library.

National Network On Family Law Policy™: Mothers' versus Fathers' Time Spent Caring for Children

National Network On Family Law Policy™: Mothers' versus Fathers' Time Spent Caring for Children

The "Right of First Refusal" in Parenting Plans -- When is it reasonable? 20 Questions.

The "right of first refusal" is a provision sometimes placed in child custody agreements which requires one of the child's parents, who otherwise would have "timeshare" prior to placing a child into third party care (such as a babysitter) to first grant the child's other parent the right to care for the child during the period of the first parent's absence. It is not a reasonable provision when it is sloppily thought through and badly drafted, because in such event it will not be practicably fair or workable, and will only exacerbate disputes.

CONSIDERATIONS TO DETERMINE WHETHER A RIGHT OF FIRST REFUSAL PROVISION IN A PARENTING PLAN IS REASONABLE AND WORKABLE:

1. There have been no substantiated stalking or domestic violence allegations made against the requesting party, whether or not same rose to a level that merited the issuance of a restraining order or resulted in a criminal conviction.

[If there have been substantiated stalking or domestic violence allevations, STOP HERE; the request for a right of first refusal is unreasonable. Even if they have not been substantiated, if there have been multiple allegations in a highly conflicted case, or allegations that the party requesting is "controlling", the request for a right of first refusal may still be unreasonable, and should be viewed with caution in light of other considerations.]

2. In the past, the parent requesting the right of first refusal, when given at least 24 hours' notice by the other parent, has never refused to take the child in order to pursue a voluntary or re-schedulable activity of lesser importance than that requiring the temporary absence of the requesting parent.

[For purposes of this question, family emergencies, required non-schedulable work-related activities, and illnesses, injury, and related doctor visits and hospital stays should be considered to take precedence over all other activity choices; significant social activities such as attendance at a family member's wedding, scheduled vacation travel, and events that require costly advance ticketing should take precedence over voluntary work-related activities that can be rescheduled without risking a loss of income or employment; and voluntary or re-schedulable work-related activities should take precedence over re-schedulable or non-significant social activities such as hobbies, parties and dating.]

3. The parent requesting the right of first refusal, when given at least 24 hours' notice by the other parent, has not declined on two or more occasions in the recent past to take the child, or to assist with or attend child activities -- for any reason.

[If there have been two or more occasions in which the parent requesting the right of first refusal has failed or refused to pick up a child from an activity, or to attend a child's activity when invited, or declined to care for the child in the absence of the other parent, STOP HERE, the request for a right of first refusal is unreasonable. The reason for the refusal itself is irrelevant because the pattern indicates that a right of refusal provision will be burdensome to the child's other parent, and tantamount to an indrect means of requiring that parent to have to "report in" the parent's planned activities without resulting in a response from the other parent that is beneficial. Caution also should be exercised (see consideration #1) with regard to the other parent's possible controlling behavior.]

4. The parent requesting the right of first refusal regularly has exercised scheduled timeshare without repeated (more than two) late pickups or returns of the child.

5. The parents are generally cooperative and friendly, have joint physical custody (whether or not equal, and by whatever name), and have confidence in each others' parenting ability. Neither party has filed motions in litigation alleging visitation interference or noncompliance. Neither party has alleged "parental alienation." The parties are not "parallel parenting".

[If parents are highly conflicted, and prone to having arguments or just exhibiting a cold and disengaged "attitude" when making exchanges of the child, the right of first refusal is unreasonable, and the additional transitions are a potential source of detriment to the child. Moreover, for one parent to function in lieu of the other parent's hired or family childminder, that parent must be willing to be contacted multiple times daily, and disclose the very same information about the child's activities and whereabouts as the current timeshare-exercising parent ordinarily would be receiving from a hired childminder. In order for the right of first refusal to not turn into a denigration of the other parent's timeshare, the "right of first refusal" must in fact function as it's posited to function, as a helper position in lieu of third party childcare, and with the same level of communication that happily married parents would exercise with each other.]

6. The parent requesting the right of first refusal does not occasionally use alcohol to the point of drunkenness or become impaired by substances even when that parent is not caring for children.

[This is not a moral condemnation, but it indicates that the requesting parent is not sufficiently ready and able at all times have care of children and thus, requiring that the other parent have the burden of contacting that parent, and disclosing the parent's schedule by offering a right of first refusal is unreasonable. It is also potentially dangerous, since the impaired parent may not disclose his or her impairment, but feel under a compulsion to accept the offered right of first refusal in order to protect his or her ongoing right by taking the child even when the parent is impaired and should not do so.]

7. Neither party has objected to or been recalcitrant in providing any litigation discovery or charged the other parent with discovery abuse.

[This consideration goes to assessing the level of trust between the parties and the degree of openness and honesty. The right of first refusal entails a substantial degree of loss of privacy in that to work adequately, both parents must have no problem freely disclosing their schedules, whereabouts, contact information, and day-to-day activities to the other.]

8. The parents live within a 10 minute drive of each other, in the same school district, or otherwise close enough (depending upon the occasion for which the right of first refusal is being sought), that the right of first refusal arrangements will not create a burden for either the child or the other parent. The right of first refusal will not create a need for the parent otherwise having timeshare of the child to spend increased time traveling, transporting the child, or making preparations. For example, a "right of first refusal" to care for a sick child who will stay home from school is not reasonable where it will entail that sick child having to dress and travel for an hour in rush-hour traffic, or require the working parent to transport the child to the other parent's residence prior to getting to work.

[A right of first refusal for anything less than a multiple overnight trip by the timeshare parent is unreasonable if it will add long car rides and travel for the child during the school week that the child otherwise would not have to suffer, or if it requires that the nonrequesting parent undertake burdensome out-of-the-way travel time, scheduling, and preparation, such as packing the child's things, in order to comply with the right of first refusal, especially if that parent's alternate childcare arrangement was in-home or close to home.]

9. If the requesting parent is the lesser time-share parent, he or she has not sought or threatened to seek additional timeshare via post-decree motions, and is not seeking the right of first refusal to position him- or herself to do so.

[The right of first refusal is unreasonable, and will increase conflict, stress, and distrust, where one parent is or is suspected to be seeking it to position him- or herself to motion for a change of custody. The reverse also is unreasonable; the right of first refusal should not function in lieu of reduced custody timeshare where one parent seeks an unwarranted amount of time for ulterior reasons, such as to reduce child support or maintain control, but cannot or will not exercise it (e.g. because of work demands, or plans to place the child into third-party care with a stepmother or grandmother), and when this is pointed out, offers the "right of first refusal" like a bone back to the primary caregiver. This is a way of obtaining "joint custody in name only" but with reduced financial support obligation to the caregiving parent. Also see consideration #10 and comments, below.]

10. The requesting parent, if the payor, has not objected to the amount of child support or alimony, or sought to reduce child support or alimony, and would not be using the right of first refusal to position him- or herself to do so.

[The right of first refusal is unreasonable where one parent is, or is suspected to be, using it to position him- or herself to motion for a change of child support or alimony, or where it will in fact result in a change of child support because of the application of formulaic guidelines.]

11. There have been no allegations made at any time of "snooping" into the other parent's privacy, and there have not been issues between the parents either before or after separation or divorce involving jealousy, paramours, adultery, or dating behaviors.

[See comments after consideration #12.]

12. The childcare right of first refusal will be requested only for time the other parent will be traveling overnight, or for periods of time in which that parent regularly is at work, and is NOT being requested for occasional evening or weekend time the other parent will be engaged in private social activities, for evening hours the younger child ordinarily would be sleeping while the regular timeshare parent attends a private social activity, or for after-school and evening hours in which the older child otherwise would be studying or attending extracurricular activities.

[A blanket right of first refusal, in order to be functional and able to be monitored for compliance and enforcement, will necessitate that both parents be willing to freely disclose to each other at all times their personal whereabouts, work and social schedules and plans, and even the details of their dating activities, such as times of departure and arrival and destinations for emergency contact purposes -- just as they would for an in-home babysitter. If this level of intrusion into a parent's private life is felt to be unacceptable, or if the intrusion into privacy will be one-sided, then the right of first refusal, if granted at all, should be restricted to more substantial and lengthy periods of time, such as travel out-of-town with multiple overnights.]

13. The right of first refusal is being requested for regularly scheduled time that the child otherwise would be spending with nonrelative babysitters, in infant/toddler institutional daycare, or with stepparents and paramours with whom the child has no significant attachment.

[If the time a child, who is not yet in first grade, regularly spends in nonparental third party care of any kind already exceeds 20 hours a week, and the other parent is ready, willing, and able to provide care, this especially bodes in favor of a right of first refusal for additional hours of care. But compare consideration #14, below, differentiating between enrichment and educational activities and mere child-minding.]

14. The childcare right of first refusal will not interfere with regularly scheduled school, preschool enrichment (educational preschool not in excess of 20 hours a week), or afterschool extracurricular activities of the child.

15. The childcare right of first refusal will not interfere with grandparent and other extended family occasional derivative visitation time.

[A parent should be permitted to "share" that parent's time with extended family members. This does not include frequent and regular childminding by a stepparents, grandparents, or other third party relatives while a parent works, both of which should take less precedence than direct care by a child's parent. It does include, however, such things as time over spring break in which a child visits grandma's house, or the occasional babysitting by a grandparent or other relative in lieu of a stranger babysitter, which should not give rise to a right of first refusal.]

16. When the parent who is requesting a right of first refusal is him- or herself exercising timeshare, that parent does not place the child into nonparental (including stepparent) third party care for equal or greater amounts of time than does the other parent from whom the right of first refusal is being requested. In addition, the parent who requests the right of first refusal will be personally minding the child.

[Anything otherwise is hypocritical and should give rise to consideration of ulterior motive for the parent's request for a right of first refusal.]

17. The childcare right of first refusal will not result in a reduction of income for the parent otherwise having timeshare of the child, inhibit the timeshare parent from pursuing reasonable career, educational, or social activities, create significant additional out-of-pocket expenses for the parent otherwise having timeshare of the child (for example, by changing a daycare arrangement from a lower monthly rate to a per diem or hourly rate), or result in the loss of needed regular caregivers or the necessity to pay for duplicate caregiving (for example, a loss of access to babysitting help when employment that was counted on diminishes).

18. The parents are in unambiguous agreement regarding the circumstances that will trigger the right of first refusal, and where the childminding will take place (such as in the residential or nonresidential parent's home if in the nature of and in lieu of short-term babysitting).

[It is unreasonable to "cure" burden defects (such as transportation and packing) in the right of first refusal by permitting a hostile "co-parent" access in the manner of a babysitter to the other parent's home and private life. While this kind of arrangement does work for some parents, they are unlikely to be the sort of parents who would need rights of first refusal dictated in parenting plans.]

19. The parents are in unambiguous agreement regarding the way the right of first refusal will be offered and accepted, and the method of notice and acceptance, such as whether by telephone, fax, or email. The amount of notice time that will be required when the right is offered and for accepting the option is well thought out and agreed to by both parents. The right is structured so that it is functional and flexible, and it will not place the current residential parent under a scheduling burden that will effectively prevent that parent from engaging in spontaneous last-minute arrangements and activities under threat of facing possible litigation allegations of noncompliance or noncooperation.

[If the requested right of first refusal is a blanket right, applying to all instances in which the other parent otherwise would hire a third party childminder, such as a babysitter for an evening out, the parent requesting the right of first refusal must be willing and able to assure that the other parent can readily contact him or her at all times, without delay, and promptly receive a response.]

20. The right of first refusal has not been recommended by a custody evaluator or recommending mediator or GAL, has not been not court-ordered, and is an arrangement that has been freely entered into by two parents in agreement. In addition, no "parenting coordinator" or "case manager" has been requested, recommended, threatened or used in the parents' custody case.

[The presence of one of these "helping profe