Posted by: koherston | March 29, 2010

Some Tennessee Legislators Don’t Get It

Existing law in Tennessee requires that, in those few cases where parents cannot agree on what arrangement is best for their children, the court must consider evidence of a whole host of factors and come up with whatever arrangement the court finds is in the best interest of the children. This gives the court wide discretion to do what is best for children under the unique facts and circumstances presented by each case. Makes sense, right?

In response to a few vocal members of the “Father’s Rights” movement, some of our legislators are trying to score cheap political points  by taking away a judge’s discretion to the detriment of children. They think they know better than individual judges who—*gasp*—actually hear evidence in specific cases.

Specifically, they have introduced House Bill 2916 and Senate Bill 2881, which would require a judge to order equal custody (i.e., equal parenting time, joint decision-making, etc.) in every case unless one parent is found by clear and convincing evidence to be unfit (which is very rarely the case, in my experience).

Never mind that most child mental health experts oppose equal custody in high-conflict cases as being detrimental to children. Never mind that low-income parents who cannot afford to litigate will be forced to accept equal custody even though they don’t believe it is best for their child. Never mind that parents often live far apart, sometimes in different states and countries. Never mind that 5-10% of custody cases involve parents so angry and hostile that the children are being placed in a war zone.

Instead of allowing experienced judges the discretion to tailor a solution to the specific facts presented in each unique case, some legislators believe children should be forced into a “one-size-fits-all” solution even if that is not in their best interest.

Human relationships are complicated and no two are exactly alike. I’m not sure which is more complex—the relationship with an ex or that between a parent and child. When wading through this inherent complexity, the best interest of the children must be the ONLY focus. Period. Any legislator who says otherwise should be run out of office.

Politicians have to get re-elected so they are going to pander to various constituencies, particularly those fringe groups who make the most noise. That is never going to change. But it would be nice if they could confine their silly political posturing to other issues. Children ought to be off limits. Imposing the same solution to every custody problem is beyond absurd.

I didn’t post on these bills when they were first introduced because I thought they were so stupid that they would quickly be rejected. I am posting about them now because—in an embarrassment to every citizen of this State—the House bill actually passed a subcommittee and has made its way to the House Children and Family Affairs committee. The Senate bill is pending before the Senate Judiciary Committee. I encourage you to click the committee links above and email your thoughts on this proposed legislation to the committee members.


Responses

  1. So you’re saying that children don’t benefit from both parents, unless if fits a particular situation. You are fostering conflict by making money off it and perpetuating the stereotype of the “unfit parent”. The “Tender Years Doctrine” is dead. Studies show that children need both parents. I’m not even remotely surprised that you tout the party line of the TBA. Abuse exists on both sides of the gender aisle. Amicable divorces represent less than a fraction of divorce cases and are not in your best interest as an attorney. Your bias is more than evident. If you were a child psychologist, you’d realize that all divorces affect children and the best interest of children is to have both parents in their lives.

    • That’s not at all what I said, Jim. In fact, the opposite is true. Children do best when they have strong relationships with both parents. That’s why a court needs the discretion to tailor an appropriate schedule that meets the sometimes contradictory goals of fostering relationships with both parents while still providing the children with stability. That is sometimes a tough thing to do. Each case should be looked at individually because every situation is different. That’s why this was a bad bill.

  2. And I did email the representatives voicing my support of those bills. Conflict free divorce is non-existent and statistically fathers end up the NCP unless they have a shark for an attorney who can paint the mother as a crack whore. Other than that it’s the “standard deal”. An equal shot at parenting would remove children as a weapon in a divorce and encourage mediation as the children would no longer be pawns in the child support scheme. That would affect your bottom line and we can’t have that, can we. You obviously don’t even consider that fathers WANT to be a part in the childrens’ lives. If neither parent is unfit, why SHOULDN’T they have an equal shot at parenting, unless you espouse the tender years doctrine.

    • Both parents do have an equal “shot” (to use your language) at parenting under existing law. As for the remainder of your comment, note that I am not anti-father, pro-mother, or whatever. I represent fathers every day. I, like the courts, am pro-child. The needs of the children come before the needs or desires of either parent.

  3. Mr. Herston,

    If both parents ARE fit, then how does it not benefit the children to have both parents in an equal fashion. To advocate staying with one parent in a traditional custodial relationship perpetuates the “Tender Years” doctrine-you know, probably better than I do that the father is rarely granted anything remotely fair time, given judicial “widest discretion”. Your suggestion that judges always act in the childs “best interest” is ludicrous. If you note the language in these bills, the judge still has the discretion to determine a parent “unfit” if there is a chance of “substantial harm” but it’s evident that you don’t favor this higher bar and the leveling of the playing field. Your transparency is obvious.

    • If you can’t envision scenarios where it is not best for the child to have his or her life disrupted by flip-flopping back and forth between both parents’ homes in order to satisfy the “one-size-fits-all” approach advocated by this now-dead bill, then I cannot help you. The examples are infinite. Sit in a family court for 30 minutes and you’ll see plenty.

      People’s lives are complicated. Parents’ schedules are complicated. Children’s schedules and needs are complicated. That’s why the court must have discretion to tailor a specific solution to a specific scenario.

      You may disagree with a court’s determination of a child’s best interest in a specific case (as I sometimes do) but that doesn’t change the fact that the law should require that as the court’s goal.

  4. Lawyers are the winners when it comes to Family court.

    There is a glaring problem with an issue is divided basically down gender lines. Where there is a Father’s group going against a Mother’s groupe its obvious there is something unfair on a gender level in the system. I’m a perfectly capable father and my young son NEEDS to have access to his father. For us to see each other less than 25% of the time when I live 5 miles from his Mother is what is absurd. I pay for her house and see my son seldom. Where is the Justice sir? What is wrong with a Dad trying to be involved in his child’s life? The Father seems to either be a dead beat that doesn’t want to be apart of a childs life of someone in a “fringe group” to fight to be more involved. What gives? All I want is equal rights and those are not happening in the courtrooms across this country, PERIOD! I will continue to fight for my Son’s rights to have an equal relationship with his Dad.

    • I don’t know anything about your specific case so I can’t assess it. But, as noted above, the law gives no preference to gender. I see fathers named the primary residential parent of their children all the time. It’s not as unusual as you suggest. Nonetheless, feel free to continue to fight for “Father’s Rights” and I’ll continue to advocate for the preeminence of the child’s best interest.

      • I believe this man said: ” I will continue to fight for my Son’s rights to have an equal relationship with his Dad”

        He mentioned his son’s rights…not his rights.

  5. So this is what the world has came to. Attorneys and Judges thinking they know what is best for my children. No one cares about the stats for children in single parent homes, except for those pushing for a change because the current system DOES NOT WORK. I am a mother of 3 young boys. It didnt take me long to realize that what my attorney pushed for and what the Judge granted in my divorce was NOT in the best interest of my children. Children need BOTH parents in their lives and with the way things are now, they do NOT get that. You have ex’s who are waging war on one another and the kids get put in the middle! ITS WRONG! Just because I gave birth to my children doesnt make me no more of a mother than me eating oats for breakfast makes me a horse! There is discrimination in the court system and its sad to say but by the time fathers pay child support, alimony, and half the bills for their children they can not afford to fight for the sake of their kids. Give me a name of a “pro-bono” attorney for a man in a divorce/custody dispute and I will call you a liar. My husband has called nearly every attorney in the surrounding Nashville area and there are NONE that help fathers. As a test, I called around to many of the same attorneys and was given a discount, payment plan options, and offered FREE services. THAT IS DISCRIMINATION. Bottom line is this:
    Children deserve to have a relationship with BOTH parents. The way things are now, we have full-time mothers and part-time fathers. Children need both parents FULL TIME in their lives, and the truth of the matter is this, many couples going through a divorce can not be amicable towards one another therefore the “part-time” parent does not have the access to their childrens daily activities in school, sports, etc. because its up to the primary parents discretion wheather or not to allow the non-primary parent to be involved. Court papers may state the non-primary parents rights but NO ONE ENFORCES THEM because its a “civil matter!!!!” My children can not stand up for themselves so, I, as a responsible parent am doing it for them!

    • The law provides that the child’s parents get to decide what is best for the child. People are free to raise their children however they wish, even if you or I might disagree with their choices. If the parents cannot agree on what is best for their child, however, then the court decides what it thinks is best given the particular facts presented.

  6. A universal shared equal parenting law would prevent a scorned parent from preventing the other parent from equal parenting time. This is why 50/50 must be the starting point.. No one parent owns the child. Please join us in the this fight for equality, share your stories and let’s work together to change the laws!

  7. You keep saying “the Law” has no preference, but what you’re not saying is judges, who make the decsions by the way, have no preference. The simple fact of the matter is that unless the father can prove without a reasonable doubt that the mother is unfit he is going to get every other weekend with his child in the state of Tennessee. Period.

    You also keep using the phrase “best interest of the child” but you never state what you believe that is. I am not a lesser parent the my chld’s mother. And I don’t beleve she is a lesser parent that me. But the court system in the state of TN, and apparently you, believe the fathers are.

    An answer to your flip flopping statement… If one parent has the child every other weekend and the weekend began on Thursday, not Friday, and one other day during every week, Tuesday for example, and 3 weeks during the summer, and split the holidays, spring and fall breaks, you’ll find that’s very close to 50-50, without the child having to switch every week or every few days.

    I look forward to your response.

    • Yes, the law allows no preference for gender and, in fact, it specifically prohibits any such preference. Your statement about mothers automatically getting the children is simply untrue. That may be your experience and the experience of those you know but I can assure you there are many fathers who are the primary residential parents to their children and many who share equal time. I see their cases every day. (In fact, I was in court today on a case where the father is the PRP.) In many cases, the father being named the PRP or getting equal time is the best arrangement for the children. When it is, that’s what should happen. But it isn’t best for the children in EVERY case. That’s one of the reasons why this was such a bad bill. Each case needs to be judged on its individual merits.

      Just because you don’t like the way the law was applied to a specific case does not mean the law is flawed and should be changed. You’re conflating the macro/policy analysis with the micro/outcome analysis. They are not the same.

      On a macro/policy level, co-parenting schedules should be guided by the best interests of the children. Reasonable people may disagree about a particular outcome produced in an individual case, but I don’t think that’s a good argument for changing the law.

      You complain that I never state what I believe is in the best interest of the child. Here’s my short answer: “It depends.” It depends on the infinitely complex facts of each individual case. That’s why a one-size-fits-all approach is a bad idea. It’ll end up forcing children into arrangements that are not best for them. Will it do that to all children? No. Will it do that to some children? Absolutely. That’s enough reason to kill the bill.

  8. As the child of a dead-beat dad, I do understand what it is like to live with only one good parent. No bill or law will force either parent to be a good parent.

    HOWEVER, if both parents are involved, it can only benefit the children. I am not buying into the argument that it’s too hard on kids to live in 2 houses either – our children are smarter than play-dough and are capable of adjusting to each place just fine.

    The only real argument I see that is preventing this bill from passing is the erroneous belief that women need the financial assistance of child-support that they may loose (but will still get even at 50% shared custody).

    I was a single parent for years – I did not apply for or receive state or federal assistance. I used the tools given to me at birth; my brains, physical ability and the honesty to use them to pay my bills.

    • While it may not be ideal, they do adapt to two households. It’s the job of the parents to make the transition as seamless as possible

  9. “It’ll end up forcing children into arrangements that are not best for them. Will it do that to all children? No. Will it do that to some children? Absolutely. That’s enough reason to kill the bill.”

    What about the way our current laws are set up? It doesnt take into account that with the system now, it is not best for ALL children…So why not change it and make it a fair balance? Unless of course you have a wife-beating, child abuser for an ex then by all means terminate their rights, but Im here to tell you, a man getting primary custody is not unheard of but very far and few between. Alot of people believe this is about a man trying to get out of child support, that’s hogwash! I know plenty of men who want more time with their kids without being unreasonable but the mother will not allow it because “The judge gave you x amount of days for visitation, and thats all you get.” I believe that parental alienation is REAL, I see it and I live with it in my own household. I also believe that it may be best for a FEW cases to be heard on an individual basis but that does not represent the majority of the population going through a divorce or custody battle. Could you answer me this…Exactly what rights does a good father have when he is up against a good mother in court? Unless you can prove her unfit or having a daunting work schedule then the woman always wins unless SHE decides its best for the father to have the children. My husband is currently fighting for more time with his children in court and his attorney has pretty much laughed him out of his office and said “A judge is not going to grant you more time, because you already have standard visitation.” STANDARD VISITATION..Every other weekend, half of spring break, every other holiday and 2 weeks in the summer…STANDARD VISITATION. Please note the emphasis I put on those words. Those are the visitation standards set up for normal divorces. That is not on a case by case basis, that is not what is best for the kids. That doesnt take into account that my 12, 8, and 3 year old step-kids are left alone in DOWNTOWN NASHVILLE for 2 days during the week so mommy can work out for 3 hours. Nor does it take into account that the mother does not spend the other two weekends of the month with her children. They get dropped off at Grandmas house so mommy can go out with her girlfriends. Those arent just things the kids say either. Those things are plastered all over her facebook page (which we have printed off, hoping that might give us a slight chance in increasing visitation). My husband could care less if it does not decrease his child support. He didnt even have any idea it would until she accused him of trying to get more time to lower child support.

    • I cannot speak to your specific case. Your lawyer will have to do that.

      To answer your one quasi-substantive question (i.e., “What rights does a good father have against a good mother?”), the answer is they have the same rights. Read the law. It is linked in my post. Now, you may disagree with how that law is applied to a particular set of facts, but the law clearly gives no preference to gender. Read it. It doesn’t.

      So why are mothers named the PRP more often than fathers? My anecdotal speculation would be that, more often than not, they have been the primary caregivers for the children and I think courts tend to give that particular statutory factor considerable weight. Again, that’s a question of how the gender-neutral statutory factors are applied to a specific set of facts. You may disagree with the application, but I don’t think that is a valid argument for changing the law.

      • Mr. Herston,

        I believe your anecdotal evidence about the Mother to be correct. While it may be true that TCA does not allow gender bias in deciding custody, the statutory factor combined with the sociological “tender years” doctrine causes a De facto bias. Instead of tackling actual awarding of custody but instead focusing on removing this De facto bias by requiring the legal bar for refusing less than equal parenting time to be based on the standard of strict scrutiny wherein “substantial harm” would be the only just reason for denying fair access to the child, the judge would still maintain their discretion without being forced to award equal custody yet be prevented from allowing bias based on statutory decisions, which “widest judicial discretion” allows for. This is not criminal law where arguments are made based on precedent, but family law where the merits,as you say, are decided on a case by case basis, should be unbiased refereeing with the best interest of the child, more often than not, having full access to both parents. To allow cultural bias and stereotyping based on the actions of a few to determine parental access is to ignore the true best interest of the child.

  10. Mr. Herston,

    My case was decided by what was considered “acceptable” time by the courts, the same minimum contact that every other father gets. For a woman to grant equal custody is the outlier, not the norm. What is at stake is not the actual AWARDING of equal custody, but the PRESUMPTION of equality. You as an attorney know well that this presumption does not automatically exist, and in the case of certain venues like Judge Muriel Robinson, there is an inherent anti-father bias going in. All we’re asking for is a level playing field. If the judiciary was required to treat all parties equally instead of being allowed to rely on the Tender Years Doctrine as a guide, fathers would at least stand a chance going in. Fathers have been conditioned to accept whatever they get. I also understand that no judge in his or her right mind would allow their “widest judicial discretion” to be usurped in any way (as you mention sometimes that discretion is necessary) but to leave the standard for fitness of the parent to “widest judicial discretion” is to breed bias. The bar should be proof of “substantial harm” to allow for equality. If I were to hire you to protect my rights, I would expect nothing less.

    Sincerely,

    Jim Pleace

    • The “tender years” doctrine has been specifically excluded from consideration for a long time. Your claim that it is used as a “guide” is simply not true. Further, Tennessee law requires that parents be treated equally without regard to gender. But being equal in the eyes of the law does not translate into equal time as the default parenting schedule. Again, each situation is different. A one-size-fits-all answer would be harmful to children.

      • If it is excluded specifically in TCA, then what explains the anecdotal evidence? It would have to be worded on the side of restricting any gender bias to prevent judges from relying on statutory factors in making custody decisions. I think based on pure law of averages, such wording would be evident in the statistics of custody rulings. I would like to see such wording in the TCA which compels judges to eliminate such bias. Based on the majority of rulings, it would insist that on a case by case basis that it was ignored, that is the evidence would be borne out. To suggest that in most cases gender fairness existed would be to suggest that most fathers were determined to be unfit. I don’t think I exaggerate in saying that fathers are not granted equal parenting time in most cases. Donna Rowland managed to kill the last bill by replacing “equal custody” with “Maximum allowable time”. If the mother only agrees to 103 days, what compels the judge to do otherwise? If I’m missing key legal facts here, please enlighten me

      • Specifically I’d like to go to that statement that equal in the eyes of the law does not translate into equal time as the default. Really I’m not arguing for a one case fits all solution but that equal in the eyes of the law require a higher threshold to deny equal access. I don’t think you can say with a straight face that the statistics indicate an overall lack of fitness among male non-custodial parents. Given your statement that TCA does now allow gender bias, how do you explain the high predominance of mothers with full custody? Where is the gender protection you speak of. On a case by case basis it simply doesn’t exist.

  11. I think even more precisely I think you’re saying that Tender Years as a sociological doctrine is excluded but I don’t believe that TCA specifically disallows it. If this is untrue I welcome your posting the specific section of statute for my own viewing

    • I said Tennessee law specifically excludes gender as a consideration. Look it up for yourself: Tenn. Code Ann. s 36-6-101(d).

      As I explained in an earlier comment, I believe the anecdotal evidence is likely explained by the significant weight given to the statutory factor of who has historically been the primary caregiver for the child at issue. Generally speaking, that tends to be the mother.

      Jim, you can try mightily to couch your arguments for a default equal parenting schedule as being child-focused all you want but I’m not buying it. In my opinion, ANY default arrangement is inherently stupid because each case is different. You are free to disagree, and I respect that.

  12. Thanks for theTCA reference. I’ll take an objective look at it regarding the prohibition of gender bias and I agree with you about a default arrangement but for you as an attorney to tell me that there is no judicial activism is a whole different matter. I have a bridge in Arizona for you too. No disrespect intended but I could be really cynical and say of course you don’t favor a default arrangement as that would be messing with your livelihood. I’m not questioning your motives as I do believe you are for the best interest of the child but I’m also realistic. Case by case is how you bill.

    • You can ascribe whatever ulterior motives you want to me. In fact, in earlier comments, you did! Perhaps you are less cynical now.

      BTW, TCA s 36-6-412 says the same thing re gender.

  13. “36-6-101(2) (A) (i) Except as provided in this subdivision (a)(2)(A), neither a preference nor a presumption for or against joint legal custody, joint physical custody or sole custody is established, but the court shall have the widest discretion to order a custody arrangement that is in the best interest of the child. Unless the court finds by clear and convincing evidence to the contrary, there is a presumption that joint custody is in the best interest of a minor child where the parents have agreed to joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child. For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may direct that an investigation be conducted. The burden of proof necessary to modify an order of joint custody at a subsequent proceeding shall be by a preponderance of the evidence.”

    So if there is no agreement between my spouse and I and it goes to a hearing, where is the legal bar for her to prove me fit or not? It looks as though she has to show a clear and convincing reason to deny me that (this is in theory-my case is over). This is where I separate actually going to happen from what the actual rights of the father are. Do I read that correctly?

  14. ““36-6-101(2) (A) (i) Except as provided in this subdivision (a)(2)(A), neither a preference nor a presumption for or against joint legal custody, joint physical custody or sole custody is established, but the court shall have the widest discretion to order a custody arrangement that is in the best interest of the child. Unless the court finds by clear and convincing evidence to the contrary, there is a presumption that joint custody is in the best interest of a minor child where the parents have agreed to joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child.”

    I’m a little confused. it seems to hinge on both parties agreeing. I see no indication of that presumption if agreement is not present and an “investigation” would be held to determine whether joint custody should be awarded. I understand that individual cases are looked at regarding the location of the parents, their work schedule etc. but it sounds like it would become a contest of parental fitness at that point because there is no presumption of equality barring total agreement. One spouse would have to be determined PCP and the other NCP for the purposes of the case, which under TCA has a number of days with the child assigned to that definition. I’m really struggling to get my head around this in an unbiased fashion.

    • You’re trying to understand a 500-piece jigsaw puzzle by looking at one piece. If you read this blog regularly, you know that family law is complex. I have devoted nearly two decades to studying it, and I still learn something new every day. I can’t possibly teach you in a comment. Nonetheless, I will briefly try to help you understand this one piece of a very large puzzle.

      If you read this blog, you read about the recent opinion in Fletcher v. Fletcher. That taught you that a trial judge must affirmatively find that a parenting plan is in the child’s best interest, even when both parents already agree it is. All this statute says is that when both parents agree that “joint custody” is best (whatever that means nowadays; “custody” is generally supposed to be an anachronistic term after the parenting plan statutes were adopted, although some appellate court judges still use that terminology), the court should start its analysis with the presumption that it is. Because trial court judges already start with the presumption that whatever both parents think is best for their child is, in fact, best for their child, this particular section of this particular statute is generally of no substantive consequence, in my opinion. Part of your confusion appears to derive from your belief that “joint custody” is the same as “equal parenting time.” They are not the same. Even if they were, so what? Call it what you will—the court still has an obligation to make an affirmative finding that whatever parenting plan it approves is in the child’s best interest, even if both parents agree. In practice, trial courts almost always approve whatever both parents think is best. That’s part of what freedom means in this country, i.e., the freedom (within limits) for two parents to raise their child how they see fit, even if you or I disagree with their choices.

      I don’t know if I’ve helped you understand but, hey, I tried. If you want to learn more about family law, find a nice law library and have at it. Also, keep reading this blog. Maybe this will all make sense to you at some point. If you have a present legal issue, I would strongly advise you to find a reputable local attorney who concentrates his or her practice in family law.

  15. I think If I had to ask a single question it would be “what IS in the best interest of the child?” Clearly studies show that involvement by both parents is. If both parents choose not to use the child as a weapon and are mature enough to do what is right for the child, then an agreement is the best option. With that in hand, it would seem prudent that the judge respect that agreement .

  16. I am oppossed to “equally shared parenting” being court mandated. I contacted my legislation in oppossition. Here is why:

    I AM a mother who had a child out of wedlock. I have a very strong relationship with MY father, who did NOT have custody of me. I support good fathers who have participated equally in caring for a child. That being said, creating a mandatory presumption of equal physical custody is BAD for children- period.

    I have been court ordered into a 50/50 custody arrangement with a man who has Antisocial Personality Disorder. This was done with the enactment of the amended legislation of 36-6-106, encouraging maxium participation in the child’s life. My case is on currently on appeal.

    In researching the legislative intent behind the recent ammendment, it is clear that it was never intended to give BAD parents a shot at equal custody, yet this is exactly what happens. Even the shared parenting community admits that it takes a great deal of cooperation between 2 parents to make it work. Obviously, this cooperation is NOT present in high conflict cases- and in cases such as mine, it never will be.

    Who pays the price for this? The child does. One thing that are courts ARE clear about is that the child’s best interest always supercedes that of the parents. Mandated shared parenting legislation is about “splitting the spoils” between the parents, in complete disregard of a child’s physical and emotional needs.

  17. K.O.

    “As I explained in an earlier comment, I believe the anecdotal evidence is likely explained by the significant weight given to the statutory factor of who has historically been the primary caregiver for the child at issue. Generally speaking, that tends to be the mother.”

    I’m assuming this is in cases where there is not an agreement (or the rare case that the judge does not affirm the agreement).


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