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Fathers & Families Files Official Response to Elkins Task Force Recommendations on California Family Law Reforms « Fathers & Families

In Best Interest of the Child, Child Custody, Child Support, Children and Domestic Violence, Civil Rights, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, False Allegations of Domestic Violence, Family Court Reform, Family Rights, Freedom, Glenn Sacks, Marriage, Parental Kidnapping, Parental Relocation, parental rights, Parental Rights Amendment on December 8, 2009 at 7:09 pm

Fathers & Families Files Official Response to Elkins Task Force Recommendations on California Family Law Reforms

December 7th, 2009 by Glenn Sacks, MA, Executive Director

elkinslogo“[Family law litigants should not be subjected to second-class status or deprived of access to justice. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trial proceeding governed by the rules of evidence established by statute. It is at least as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent’s future involvement in his or her child’s life…”–Elkins v. Superior Court (2007)

Family law takes up more court calendar time than any other form of law in California, yet it receives the least amount of funding. Moreover, the public’s trust and confidence in the family court system is lower than that of any other area of law the judicial system handles.

The Elkins Family Law Task Force is conducting a comprehensive review of family law proceedings and will recommend to the Judicial Council of California proposals that increase access to justice for all family law litigants. The Task Force grew out of the Elkins decision referenced above–to learn more, click here and go to page 3.

The Elkins Family Law Task Force recently issued its draft recommendations and Fathers & Families has submitted its official comments in response. Fathers & Families’ comments, which were submitted by F & F Board Member Elizabeth Barton, PhD of the University of California at Irvine, are here.

Elkins’ recommendations concern 21 family court issues, including: Enhancing Mechanisms to Handle Perjury; the Right to Present Live Testimony at Hearings; Contested Child Custody; Streamlining Family Law Forms and Procedures; and numerous others.

While Fathers & Families feels that many of the recommendations lack sufficient substantive detail, we believe that this will be addressed in the Task Force’s final recommendations to the Judicial Council in Spring 2010. We are encouraged that the recommendations address transparency, due process, and education.

Many of the issues the Elkins Commission is taking up, such as conflict reduction, improving transparency, and protecting all parties’ due process rights, were first addressed by Fathers & Families’ legislative representative Michael Robinson during his work on AB 402 in 2006.

AB 402, a family law bill sponsored by then-California Assemblyman Mervyn M. Dymally, codified collaborative law practice into our family law codes. The current adversarial litigation process escalates conflict between divorcing parents instead of reducing it. Collaborative Law is a better option.

Among other provisions, AB 402 mandated a written statement of decision in all hearings or trials involving child custody. While this provision was already part of the Codes of Civil Procedure, it was not always being followed.

Robinson also attempted to add provisions for stronger enforcement of child custody orders by adding a new SECTION. 4. Family Code 3022 as part of AB 402. There was strong support for this provision from the California Judges Association and the Family Law Section of the State Bar. This provision was lost, but Fathers & Families is continuing to pursue this goal in Sacramento.

During the Work Group that AB 402 established (similar to the Elkins Task Force), Donna Hitchens, Presiding Judge of the San Francisco Family Court, commented:

You have no idea how many children’s college educations I have seen unnecessarily wasted in my court room. This must be stopped.

Fathers & Families will continue its close monitoring of the Elkins Task Force and will be reporting on future developments.

The next event is the Task Force’s two-day meeting February 1 & 2, 2010 in the Judicial Council Conference Center of the Administrative Office of the Courts in San Francisco. Fathers & Families will have a representative speaking at this meeting, and will post its presentation on our E-Newsletter and on www.FathersandFamilies.org.

Fathers & Families is also working on 2010 legislation to codify some of the Elkins Task Force’s most important recommendations–stay tuned for more details.

California law has an enormous impact on the laws of other states, as well as federal law. For example, many of the misguided domestic violence laws that have separated so many innocent fathers from their children emanated from the legislation passed in California in the mid-1990s in the wake of the OJ Simpson trial.

In addition, many of those reading this participated in our successful 2005 campaign to pass California SB 1082, a military parents bill. Since then 30 states have passed bills based in part on SB 1082.

Fathers & Families is the only family court reform organization with a fulltime lobbyist working inside the capitol of California or any other major state, and we probably have the only fulltime family court reform lobbyist in the country. This important work costs money–please support it by giving here.

The family court system has become so damaging and dysfunctional because for 40 years our opponents have passed, defeated, and amended legislation while our side usually didn’t show up. We’re there now, and we’re growing stronger–become a part of it by filling out our Volunteer Form here.

Fathers & Families Files Official Response to Elkins Task Force Recommendations on California Family Law Reforms « Fathers & Families.

Why Custody Labels Matter

In Alienation of Affection, Best Interest of the Child, Child Custody, Child Custody for fathers, Child Custody for Mothers, children's behaviour, Childrens Rights, Civil Rights, family court, Family Court Reform, Family Rights, Freedom, Intentional Infliction of Emotional Distress, Liberty, Marriage, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parentectomy, Parents rights, Restraining Orders, Rooker-Feldman Doctrine, Single Parenting, Sociopath on September 21, 2009 at 5:02 pm

Most family lawyers in Ontario likely received at least one telephone call from a distraught client this winter following the series of national newspaper articles on parental alienation. Many of my clients called with a self-diagnosis: they were clearly “being alienated.” A handful of helpful clients clipped one of the articles out of the paper and mailed it to me personally. Sadly (but somehow not surprisingly) many of my clients had the pleasure of receiving a copy from a former spouse.

The dialogue surrounding alienation has caught the attention of not only the family law community, but also the public at large. Amidst the flurry of attention that it has garnered, we need to reflect on the reality that alienation does not occur in a vacuum. It exists as one of the many problems that lawyers, judges and other helping professionals face when confronted with a high-conflict family.

Although many issues surrounding alienation are hotly contested, it almost always occurs in the context of high-conflict families following a separation. High-conflict families exist and interact in a state of perpetual dysfunction and disorganization, which leads to further emotional and psychological strain.

Alienation or not, high-conflict families are not able to manage their interactions and communication at any level. They require, sometimes on a daily basis, the assistance and intervention of lawyers, judges, doctors, social workers and other helping professionals. They fight about travel, schooling, tutoring, soccer and music.

Tragically, in spite of the significant efforts made to identify and address the causes of conflict in post-separation families, we are confronted with not a decrease but an increase in high-conflict cases, including more alienating parents and alienated children. One of the major problems we face in dealing with high-conflict families arises from the major shift over the last ten years in our attitudes about identifiers and basic concepts of custody and access.

Structured definitions have become passé in the past decade, joint custody or label-free settlements have been considered by many to be the norm and requests for sole custody have become almost politically incorrect. This shift in attitudes is a result of a variety of social and political developments that have fundamentally altered the language of and attitudes about post-separation parenting roles across Canada.

In 1998, the Joint Senate House of Commons Committee on Custody and Access released its report, “For the Sake of the Children.” The report was the result of a political compromise reached when the federal child support guidelines were in the Senate and Senator Ann Cools imposed her fathers’ rights agenda on the process. The report suggested an increased emphasis on the maximum contact principle, a movement away from the language of “custody and access” and a presumption of joint custody in every case.

Although not adopted as law, the report and the fathers’ rights agenda have been highly influential on the public, legal and judicial mindset. There has been an increased preoccupation in custody and access litigation with elevating the maximum contact principle through the language of shared parenting.

Clients often feel pressured by mediators, mental health professionals, judges or their own counsel to agree to joint custody. “Just give it to him and the conflict will end;” “Why would you object?” and “Nothing will change anyhow; you will still make all the decisions in a practical sense” are the common arguments. I have said these things myself. When respected authorities put this kind of pressure on individuals who are already quaking under the emotional and financial costs of conflict, the result is pretty much assured: joint custody or label-free “deals.”

Sometimes spouses agree to these arrangements because they hope that conflict will abate if the other spouse’s role is ratified. Sometimes they believe that there will be few changes to the reality of the parenting roles and that a little joint custody label will not change that. In high-conflict cases, another compromise has been joint custody with the appointment of an arbitrator or parenting coordinator to assist with decisions that cannot be made jointly. Unfortunately, these rationales and compromises are almost always flawed.

Australia adopted radical new custody and access legislation in 2006 that established mandatory mediation of all custody cases and imposed a presumption of joint custody. The result has been  increased conflict and custody litigation. This lesson translates to the issue of labels. Joint custody mixed with arbitration/parenting coordination can often create a forum for increased or continuing conflict by allowing access to a person who can be called, day or night, to referee issues that might actually not arise, or might get resolved naturally, if that opportunity for accessible conflict was not there.

Label-free arrangements can also lead to ongoing conflict and difficulty with third parties. Teachers, doctors and immigration officials require more than the language of “shared residency” or “parenting time.” In practice, many require opinion letters about what the terms mean, or refuse to take direction from one parent because they are unsure. In abduction and jurisdictional issues, the absence of custody can be devastating to an enforcement or Hague Convention proceeding. Police enforcement can also be very challenging without labels that everyone understands.

Sometimes the label the parties have put on their arrangements also matters to judges. In mobility cases, we are instructed by the Supreme Court to give the views of the custodial parent “great weight.” What is a court to make of a label-free parent, or the one who acts as a primary or sole parent but carries the label of joint? Or, when joint decision-making fails or parties become exhausted by parenting coordination, a material change is required and the judge wonders why he or she should change the former agreement, which the parties must have thought was in the best interests of their children at the time they settled.

While it is true that we all had good reasons and lofty ideas when we moved away from structured concepts, we need to re-examine these ideas in the context of high conflict cases. Parents and children who are embroiled in conflict need the certainty and stability that traditional concepts provide. Labels matter.

Martha McCarthy is a certified specialist in family law and the recipient of the Ontario Bar Association 2007 Award of Excellence in Family Law. She operates a boutique family law firm located in downtown Toronto.

http://www.lawyersweekly.ca/index.php?section=article&volume=29&number=19&article=2

Law Times – Children in conflict focus of family law congress – Children’s Rights

In Childrens Rights, Civil Rights, Divorce, Domestic Relations, Family Court Reform, Family Rights, fatherlessness, Marriage, Non-custodial fathers, Non-custodial mothers on August 25, 2009 at 10:20 pm
Children in conflict focus of family law congress Print E-mail
Halifax hosting international event this week
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By Kelly Harris | Publication Date: Tuesday, 25 August 2009
Children faced with conflict suffer the same challenges worldwide, it is the solutions that differ, says Justice Stuart Fowler of the Family Court of Australia.

A driving force behind the World Congress on Family Law and Children’s Rights, being held in Halifax this week, Fowler hopes the meeting will promote a renewed enthusiasm for the protection of children. This will be the fifth installment of the congress that began in Sydney, Australia in 1993.

“The thing this congress has taught me is that problems with children around the world are the same, but solutions are dissimilar,” Fowlers says. “Everybody has the chance to learn from each other.

“This congress . . . has never been one to suggest that it should be a self-education caucus. It also seeks to achieve outcomes for the future. It has in the past achieved outcomes.”

This year’s congress coincides with the 20th anniversary of the United Nations Convention on the Rights on the Child. One of the resolutions from the original congress held in Sydney was the worldwide ratification of the convention. To date, 193 countries have ratified the main convention with only the United States and Somalia deferring. The U.S. has ratified two optional protocols on child prostitution and child pornography.

Other initiatives promoted through the world congress have included the criminalization of sex tourism. More than creating a law to punish those who would go abroad and conduct acts that would be illegal in their own country, the congress achieved a “societal change,” says Fowler.

Prior to 1993, there wasn’t an awareness of the sex tourism issue. By raising awareness, the congress has helped to encourage better protection for the children involved.

The theme of this year’s conference being held in Halifax from Aug. 23 to 26 is Children Caught in Conflict. It focuses on areas of child protection, responding to differences, children of war, and children’s rights and family conflicts. Nova Scotia Supreme Court Justice Jim Williams says the conference’s theme shows both the micro and macro level of conflict faced by children.

“Micro in the sense of perhaps looking at the traditional family law, looking at the model of children caught in conflict with family,” he says. “Macro in terms of looking at children in conflict on a much broader perspective in terms of issues of war, poverty, disease . . . which obviously has a significant impact on the breadth of the interdisciplinary experience.

“So it is a conference that is fairly unique in the breadth of the experience it offers professionals who attend it.”

Specific topics discussed at the congress include traditional family law issues including adoption, children’s voices in family law cases, changing nature of families, and comparative family law reform. Other topics include child trafficking and exploitation and children recruited to war. The conference will feature a special presentation from a former-child soldier.

Presentations given by family law professionals will become resolutions that will be considered for adoption at the end of the conference.

Chief Justice Diana Bryant, of the Family Court of Australia, says the resolutions are what make the congress unique, not only will there be shared research and ideas, “but it combines that with trying to actually come out of the conference with some resolutions, which will actually improve a lot of vulnerable children, both in our own country and around the world.”

Law Times – Children in conflict focus of family law congress.

California Family-law Makeover

In Alienation of Affection, Best Interest of the Child, Child Custody, Child Support, children criminals, children legal status, children's behaviour, Childrens Rights, Civil Rights, CPS, cps fraud, deadbeat dads, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, Feminism, Freedom, Intentional Infliction of Emotional Distress, judicial corruption, kidnapped children, Liberty, Marriage, motherlessness, mothers rights, National Parents Day, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Kidnapping, Parental Relocation, parental rights, Parental Rights Amendment, Parentectomy, Parents rights, Restraining Orders, Rooker-Feldman Doctrine, Sociopath on July 23, 2009 at 8:12 pm

Family-law makeover

Opponents of California’s family-law system take their battle to the Legislature
By Ted Cox
More stories by this author…
Read 26 reader submitted comments

This article was published on 06.25.09.

Michael Newdow thinks California’s family-law courts are broken. He’s not alone.

PHOTO BY KYLE MONK

Michael Newdow is no stranger to controversy. First, in 2000, he filed a lawsuit against the Elk Grove Unified School District in an attempt to ban the Pledge of Allegiance, arguing that the phrase “under God” was an endorsement of religion. Then, in 2006, he attempted to have “In God We Trust” removed from U.S. currency. At the end of 2008, Newdow filed a suit to keep Supreme Court Chief Justice John Roberts Jr. from uttering “so help me God” at the conclusion of President Barack Obama’s inaugural oath.

For various reasons, all three lawsuits were dismissed. But that hasn’t kept him from focusing on a new target: the family-law system.

“The entire family-law system is unconstitutional,” Newdow told SN&R. “It deprives people of their rights to their relationships with their children.”

In 2005, 2006 and 2007 Newdow informed the speaker of the Assembly of his intent to file suit under California Code of Civil Procedure Section 526(a), which allows taxpayers to file grievances against government waste.

“You waste incredible amounts of money,” said Newdow. “People spend millions of dollars—literally—on individual cases that should be going towards the family.”

The complaint names as defendants California Superior Court Judge James Mize, Presiding Judge Eugene Balanon, State Attorney General Edmund Brown, Gov. Arnold Schwarzenegger and state Controller John Chiang.

But when Senate President Pro Tem Darrell Steinberg’s office responded to his notice, suggesting that Newdow send his complaint to the Senate Judiciary Committee, he decided to hold off. In the meantime, he’s looking for additional plaintiffs.

“Maybe I’ll file it anyway,” Newdow said. “I doubt the Legislature will do what I want.”

Newdow believes that pitting two parents against each other from the outset of custody cases just sets the stage for trouble.

“My argument is that that’s why we have custody battles and custody wars, because we set things up to be that way,” he said.

Like Newdow’s previous cases, the chance that he could revamp the family-court system by way of a taxpayer complaint is a long shot. But reform is needed; ask just about anyone who’s trudged through the legal muck of child-custody disputes, and you’re certain to hear a horror story.

Connie Valentine is a founding member and current policy director of the Sacramento-based California Protective Parents Association. CPPA was formed 10 years ago partly to deal with what she calls abuses in the family-court system. In those 10 years, Valentine’s organization has assisted with thousands of cases. She said that the biggest problem in family-law court is a lack of oversight.

“When there’s no effective oversight, things fester and abuse of power can occur without any ability to change it,” she said. “The reason that there is no effective oversight is that most of the people who are involved in family court do not have lawyers. And if you do not have a lawyer, that means you don’t have money.”

Having no money in the family-court system, explained Valentine, means you can’t file costly appeals to challenge court rulings.

Valentine said that a second pressing problem is the unregulated cottage industry of mediators and other professionals who hold enormous sway over court rulings.

“The court has, in good faith, decided that they need assistance,” Valentine noted. “One judge is not enough to handle all the problems that they’re seeing.” The solution has been to hire mediators that hear cases and make recommendations to the court. “Now if it’s a good mediator, that may not be such a bad thing if they’re balanced and unbiased,” she continued. “But if you happen to have a bad mediator who’s biased and decides they like one person over the other—because of their looks or their gender or their persuasiveness—then you’ve got big problems, because the judges rely tremendously on their mediators.”

Another problem, said Valentine, is that children often don’t have a direct say in custody cases. Instead, attorneys report on behalf of minors. Oftentimes what the attorneys report conflicts with what the children themselves say. The solution is to let children speak directly with the judge.

“A 4-year-old in criminal court can testify against their abusers,” Valentine said. “We can certainly take children and talk to them in family court.”

Family-law attorney Barbara Kauffman feels another problem is a lack of uniform training in domestic-violence and child-abuse issues among judges and court appointees. “There are theories being taught that are all over the map,” she said.

Kauffman recounted one instance where she sat in on a training session taught by a fathers’ rights advocate. Judges and mediators were in attendance. “He was spouting off about how most domestic violence is mutual. And [the judges and mediators] were just sitting there raptly listening to this.”

Efforts are underway to fix these and many other problems.

State Sen. Mark Leno has asked the Legislature’s Joint Legal Audit Committee to investigate Sacramento and several other counties’ family courts. The audit will look at, among other things, the criteria used to assign mediators to cases.

Assembly Bill 612, sponsored by Jim Beall, would eliminate the use of controversial theories—namely Parental Alienation Syndrome—from family-court proceedings. Adherents of PAS argue that one parent alienates their child against the other. PAS opponents argue the theory is unscientific and is often used to place children into the hands of abusers.

A.B. 375 would prohibit courts from using last-minute ex parte hearings to determine child custody, except in cases where the child is in immediate danger.

A.B. 1050 “would require the family court to consider and give due weight to the wishes of a child in making an order granting or modifying custody, if the child is of sufficient age and capacity to form an intelligent preference as to custody or visitation.”

Of course, reforming the system itself isn’t the only problem. As Kauffman, puts it, “In family law, everybody’s on their worst behavior. There is an incentive to lie about finances, about children.”

With attorneys, mediators and child psychologists collectively raking in millions of dollars in fees for their services, there’s an invested interest in making custody cases as nasty as possible.

Newdow’s case, even if it seems far-fetched, may simply be effective in the way it calls attention to a broken court system.

“The things that happen to these people are absolutely horrific, but it’s such a typical thing. That’s what’s so amazing,” said Newdow.

At stake here is more than just winning legal battles.

“Every parent, if you gave them the choice of being paraded around naked on a leash or losing their right to be a parent to their kid, all of [them] would say, ‘Hey, take my clothes off right now,’” said Newdow.

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