During my December 4, 2002 hearing for relocation, custody and parenting time, the biological father from a extremely brief encounter, (Ted Potzka), requested joint custody. This is a man who I had not seen from the time I was 11 weeks pregnant in Oct. 1999, until the court ordered hearing to establish child support in March of 2001. Up to that point, he was a virtual stranger to me, and to my child. I had been sole custodian since my son's birth in April of 2000, over 2-3/4 years. The Judge (Maria del Mar Verdin) applied a "presumption of joint custody" and granted the father's request going against the dispute assessment report that she herself had ordered. The report stated I should retain sole custody and be allowed to relocate.
Most experts agree that legal presumptions creating a "one size fits all" custody solution are inappropriate and are harmful to children in many cases. Custodial arrangements must be tailored to the specific needs and circumstances of parents and children in individual cases.Past rulings related to joint legal custody in Maryland do not support a rebuttable presumtion for joint legal custody. In fact, they emphatically oppose it. In Taylor v. Taylor [306 MD.290] (1986) the court ruled as follows:
"Questions of whether to award joint custody is not considered in a vacuum but as part of an overall consideration of a custody dispute.Blind hope that a joint custody agreement will succeed, or that forcing the responsibility of joint decision making upon warring parents will bring peace, is not acceptable, when determining whether to grant joint custody.Generally, parents should be willing to undertake joint custody or it should not be ordered."
I had joint custody with my ex-husband and it worked wonderfully. Joint custody was chosen by us, not forced upon us. He left the parenting to me, so it was joint custody basically in name only and, he allowed me, as primary residential parent, to make all day to day decisions involved in raising a child, without interference, unlike Mr. Potzka. While it worked great for us, it does not work for everyone. My current situation is quite different. Here is a man who,out of revenge for being ordered to pay child support, filed for joint custody. Not out of a desire to be in his child's life, because he was and is certainly entitled to that, but out of a desire to lower his child support and make our life miserable with constant court intervention.What the joint custody ruling has done in my case has been to allow the biological father to continue litigating this matter for the last 5 years taking up tax payer dollars and my limited funds.
Rather than ease tensions between us and allow us each to enjoy our child, joint legal custody has done the opposite, and opened the door for the next issue called "the friendly parent rule". i.e., ARS statute 25-403(A)(6) and (D) (1 and 2).Margaret K. Dore an attorney in Washington State, published the following in the Washington State Bar Association, Family Law Section Newsletter, Fall 2001, Entitled, "The Friendly Parent Rule, Anything but Friendly.
'"Under the friendly parent concept, primary custody is awarded to the parent most likely to foster the child's relationship with the other parent, i.e., the "friendly parent". The parent not awarded custody is thereby determined to be less friendly or "unfriendly""."In practice, trial courts use friendly parent provisions to punish parents for perceived "bad behavior", i.e., making allegations about the other parent, withholding access to the child or being uncooperative. Parents who engage in such conduct are in effect punished with loss of custody. The interests of the child are rendered secondary."
In my case, the parent that has never been invovled in the day to day care of the minor child, wasn't around for the first entire year of the child's life, and spent very limited time with him during the second year of his life (all while attempting to harass me into lowering his child support, even offering to go away if I would do so) is now given the opportunity to attempt to take away our child from the parent that has been this child's primary caretaker and nurterer for nearly 8 years. The father has tried to become sole custodian and has attempted this twice now, just recently "losing" again a week ago (2008). The friendly parend concept rewards manipulative litigation tactics, which his latest attorney attempted to use, however, she should have known better than to attempt these nasty tactics.
Now, three recent Court of Appeals decisions have clearly rejected the friendly parent concept: Custody of Nunn, 103 Wn. App. 871, 14 P.3d 175 (2000) (reversible error to find the mother unfit due to her failure to foster a good relationship between the child and the deceased father's family). Lawrence v. Lawrence, 105 Wn. App. 683, 20 P.3d 972 (2001), and In Re Parentage of Schroeder ___ Wn. App. ____, 22 P.3d 1281 (2001). Indeed, Lawrence expressly holds that "use of the friendly parent concept in a custody determination would be an abuse of discretion." Lawrence, 20 P.3d at 974. Lawrence is the first reported decision in the United States and Canada to both identify the concept by name, and reject it.A similar holding is found in Schuster v. Schuster, 90 Wn.2d 626, 630, 585 P.2d 130 (1978) ("custody of the child is not to be used as a reward or punishment for the conduct of the parents").
Approximately 25 years ago, unwed fathers had no legal rights but now claim the same rights as wed fathers. The pendulum has swung so far in the opposite direction, that children are being uprooted from their one stable home environment, all for the best interests of the non-custodial parent, who is typically the father. Father's rights have crept into what should be "best interests of the child". Splitting a child in two like a piece of property is not looking out for our children's best interests...its looking out for father's rights and their best interests. The politics of adult rights has no business injecting itself into this issue as a compelling consideration to the interests of a child.
I believe Arizona Family Court Judges, evaluators and parenting coordinators should be required to read "The Custody Wars: Why Children are Losing the Legal Battle and What We Can Do About It" by Mary Ann Mason, Ph.D., JD, NY, Basic Books, 1999. The People making life altering decisions should be trained to take each contested custody case on a case-by-case basis and not force joint custody on every single parent, or divorcing parents. You cannot lump together all custody determinations believing that every family is a cookie cutter situation, and that joint custody is a workable solution for every family that steps through the courthouse doors. It lacks stability and consistency. Young children form a sense of identity from their family base and, notwithstanding the fiction, joint custody does not give the child a "whole family", nor does it approximate a two-parent intact home. The child, in fact, is central and permanent to no home, which only reinforces the trauma of the divorce or other split. It would be far better for the child to have one stable, one-parent "intact" home and for the other parent to visit in a complimentary way, rather than create the conflict of a competing "home."
The friendly parent rule needs to be abolished here in Arizona so attorneys and vengeful parties stop attempting to use it. It is putting custodial parents, typically the mothers, in jeopardy by punishing the parent rather than meeting the needs of the child. It is being improperly used by fathers, judges and custody evaluators (as in my case with Dr. Marlene Joy of Scottsdale). They are emotionally and financially draining the custodial parent and destabilizing children's lives all under the guise of "best interests of the child".
Friday, January 25, 2008
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