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 professionals" is a bad sign. It indicates that at least one of the parents is being coerced. It also indicates that the parents do not sufficiently cooperate or communicate to make them candidates for a right of first refusal, and that they need bright-line and simple guidelines to show "compliance with their parenting plan". In addition, the flexibility of a childcare right of first refusal will give a parenting coordinator unwarranted opportunity to churn time and fees, and an inappropriate amount of power to pass judgment on and meddle with parents' lives and personal decision-making, as well as with the timeshare arrangement itself.]

Article originally published at the liz library

Mothers' versus Fathers' Time Spent Caring for Children

Excerpt from the liz library http://www.thelizlibrary.org/liz/custody-evaluator-questions.html.

Much research exists indicating that on average, fathers in intact homes spend far less time than mothers do in direct and indirect childcare. Recent research, however, has been touting an increase in father's participation but much of the research as designed appears to perpetuate the same lack of understanding of what constitutes primary parenting. See, e.g., W. Jean Yeung et al., Children's Time With Fathers in Intact Families, 63 J. Marriage & Fam. 136 (2001), finding that fathers in intact families spend 67% as much time on weekdays, and 87% as much time on weekends as mothers do doing childcare.

A closer look at the Yeung study indicates that no allowance was made for what the fathers versus mothers actually were doing in the time they were credited for, particularly for indirect care "accessibility", and moreover, no time was logged that included childcare activities (such as telephoning arrangements, cooking, laundry, and so forth) that did not involve either being "directly engaged" with the child or being "accessible" to the child (somewhere in the vicinity). Thus, fathers were credited for being directly engaged in childcare for such things as merely being present at a meal or accompanying the family to church. And mothers were not credited for a substantial amount of childcare activity. Fathers also were credited for being "accessible" merely by being in the home at the same time as another adult who was actively engaged in direct childcare and other chores, or else was similarly "accessible." For example, fathers were credited as performing childcare activities by being "accessible" while someone else actually fed the infant, and while other adults were present in the home while an older child did homework alone. Mothers' work thus was downgraded and minimized, while for the most part, fathers' was enhanced.

The researchers apparently were aware of the bias, but disclosed it in a way that only a sharp eye would be likely to notice -- as a lack of reporting on fathers' ostensible other caregiving activities and ignoring the impact this would have on mothers' comparable caregiving time: "The definition of fathers' involvement in this article is limited to those that require the physical proximity of the fathers, however. Thus, activities that may entail cognitive or emotional investment of fathers when they are not physically near their children, such as setting up a college fund or searching for a good health insurance policy for a child while he or she is at school, are beyond the scope of this article." p.137 (How often does a parent search for health insurance or set up a college fund... versus do the food shopping, prepare meals, shop for the children's clothing, arrange playdates, check in with the babysitter, do the laundry, purchase the child's school supplies, clean the child's room...? Specious.)

The Yeung study numbers were taken from daily logs of 1738 children's activities. The most telling data of the entire study is who completed those daily logs: "For the sample used for this article, 60% of the diaries were completed by the child's mother alone, 12% were completed by the mother and the target child, 6% were completed by the child alone (all of these children were 9 years or older), and 15% were completed by someone else in the household, such as a grandmother or other relative.

Information on who completed the instrument is missing for approximately 7% of the diaries." p.139. That mothers and apparently few or no fathers prepared or assisted with the preparation of the children's logs was, however, a negative in the eyes of the same researchers: "It therefore is important to bear in mind when interpreting the results the variation in respondents and the fact that data used in this paper were reported mostly by mothers." p.139-140.

To read more, go to Reevaluating the Evaluators: Rethinking the Assumptions of Therapeutic Jurisprudence in the Family Courts, at the liz library.

Fatherless Children - Episode 1

This child was born into poverty to an unwed mother who was a servant on a sugar plantation in the Caribbean. His father was a shiftless loser from Scotland who abandoned her at a time when this was a scandalous and irreversible blight on the mother's life. She taught the child how to read, write, and do math. The child was left alone much of the time. She died when the child was thirteen, leaving him an orphan.

The child, somewhat small and runty -- he never grew beyond a slight 5'7" as an adult -- went to work as a clerk for a large and wealthy sugar- and slave-trading and importing company. His talent for math and writing and his conscientiousness soon enamored him of his bosses. By the age of 14, he was left for periods of time in charge of the entire company. By the time he was 17, his acumen had so spread around the island that locals took up a charity collection to send him to college. Thus, he went to New York, to King's College (later known as Columbia University.)

Having witnessed the horrors of slavery and discrimination, the child in his later life became the first of his kind to speak out vehemently and publicly against these abominations. He also spoke and wrote against aristocracies in favor of meritocracy. His lack of having grown up in a real family did not impede him at all from having a successful marriage to the woman he loved, including having eight children whom he adored.

Notwithstanding that he had no real prior experience in another field of work -- or his slight stature -- in his early 20s, he convinced the man who was then his boss to give him a chance to form and lead a new division in his company. His ideas and almost maniacal commitment and enthusiasm for his new task literally caused jaws to drop. He led his division in the Battle of Yorktown, a resounding success, and the turning point of the Revolutionary War.

He was the author of the Federalist Papers, the first treasury secretary of the United States, and without question, singlehandedly, the creator of the economic system of the United States. After the War, his leadership and his unique ideas and future vision turned a debt-ridden, wounded collection of thirteen bickering colonies into a world-class economic power in three years.

Alexander Hamilton, 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.

Article originally published at the liz library http://www.thelizlibrary.org/fatherless/001.html