As someone who has been working for almost 20 years to help parents navigate the very choppy waters of family court, I get a fair amount of calls and emails from parents who feel overwhelmed with how off track their case has become. High conflict cases snowball into unimagineable craziness and parents desperately want […]
If I were to pass legislation to improve the Family Courts, I would not want to pass a joint custody assumption or a 50-50 shared parenting time assumption or anything of the sort. I’d put forth a “Make No Assumptions” Family Law bill. I would prefer that the courts not be involved in families at all. If you are the two parents whose relationship resulted in bringing a new life into this world, you already share a child. Why look to the court to give you something you already have? The only time a court should be concerned about the relationships in your family is if someone or something is denying with or interfering with your right to participate in that relationship. Other than that, it should be up to you to determine how parenting should be split, based on numerous different factors, and if you have to look to a court for a decision, they should have to look at those numerous different factors, too. A split down the middle might be the right way to go, but it might not be. We should also keep in mind that parenting is not just about time with the children. It is about much more. Raising a child is not an equal proposition. It’s not a perfect science, and it is definitely not fair. 50-50 is something we invented to seem fair, but is it fair? Is it fair to the child? What about the parent who works evenings, whose kids are in school all day? Should we still give evening time, to be fair, even though the parent cannot be there? If that parent has every weekend with the child, is that fair and equal to the parent who gets zero weekends? Kids do not always feel close to both parents equally, at all times. That is just the nature of life, love and the intricacies of a relationship, and it isn’t always fair. If parents come to court to settle parenting time disputes, shouldn’t the court have to look at all of the factors of the case and then decide what makes sense for that family over what is fair?
Let me explain why I believe that courts should not make assumptions about custody, or even parenting time.
In Minnesota, the courts use the Best Interests of the Children Standards when there is a Custody dispute. That standard is often applied in parenting time disputes as well. Many legal experts admit that these standards are out of date. Personally, I feel that the Best Interest standards are a myth, just like much of what Family Court tries to do to “Case Manage” families, is a myth. Families cannot and should not be case managed, and who is qualified to determine anyone’s best interest?
The interesting thing about the best Interest of the Child Standard is that the courts have gone to a shared parenting assumption throughout the nation. It may not be law in every state, but it is the line of thinking behind the scenes. Research shows that children do better in life when they have involvement and on-going contact with both of their parents, whether in the marital home, or after the marriage has ended. Shared parenting, one could say, is in the “Best Interests of the Child”. I am not arguing that fact. Whenever possible, both mom and dad should continue to be involved parents for their children. What I am going to argue here is whether or not the courts are actually concerning themselves with the best interest of the child, or more with the best interest of the parent. Is giving a parent 50% of a child’s time/life about the child, or about the parents perceived “right” of fairness?
There is research out there that shows children of married parents do better than children of unmarried parents. Should a court force a couple to stay married because of that research? How can you force a relationship between two people? Still, Family Courts do try to force their idea of shared parenting on families and it has been a disaster. They instill parental “rights”, and when parents fight over those shared rights, there is no one actually looking at the “rights” or needs of the child. The child becomes lost in the battle. The battles are almost always a dispute about what dad wants or what mom wants, and judges decide which parent “wins”. Children are an unseen entity that everyone loses sight of. They are usually not in the court and rarely given a voice. Of course age has to do with that somewhat, but even older children are excluded from the process.
I do agree that a child has 2 parents with equal rights, and those parents share the rights to that child. I really hesitated writing that last sentence because to say a child belongs to both parents, or anyone has the “rights” to each other seems highly adversarial and enslaving. It creates a misconception that a person could be the property of someone. We do not own our children. We have been blessed with being given a relationship with them and a responsibility to care for them. We have to recognize that both people are the parents of the child, and the child was born to those two individuals who produced the child. I do not want to use words that imply “ownership”. None of us have a “right” to another person. Maybe we need to call it “relationship with”, and rather than protecting “parental rights”, we should protect the “parental relationship”. When you think in terms of a relationship with someone, you can then realize that a relationship cannot be proclaimed. If you want to have a relationship with another human being, you have to cultivate and cherish that relationship. You have to honor and respect the other person if you want to keep them in relationship with you. This applies to a co-parent and it applies to your child. It applies to every person with whom you intend to have an ongoing relationship, and asking a court to proclaim it for you will never create the relationship you hope to have with your child, former spouse that you parent with, or anyone else.
If we want to look at best interest of a child, we need to look at best interest according to whom? I certainly would not want anyone deciding what was in my best interest because they would have to know my history and what things have happened in my life that forged the person I am today. They would have to know my heart, and what makes me tick. They would have to know what my passions are, what I am interested in and what I am not interested in. They would have to know what family means to me, because it means different things to different people. Some people could care less about blood relationships and more about caring relationships in their lives, than they care who shares DNA. They would have to know my life experience from birth, and there is just no way that they could. So who is the best authority on what is in anyone best interests? As you ponder that question, you can see, that is a tough one to answer.
Maybe it should be the best interest of the family. What do little Mary and Johnny need? What do mom and dad need? What does the family need to make this transition easier for all? What has happened in their past? What are their dreams for the future? Can a family find that kind of help in the legal system? No, they cannot. You can ask for court orders, but try to get enforcement when another individual is truly opposed to something. Asking for court orders also creates a bad pattern for your life because the only authority courts have over your family exists now, because of a minor child. If you have to force children to be in relationship with you, what happens when they turn 18? A parent had better hope to cultivate, honor and respect that relationship so that it still exists when a child becomes an adult. Court can only ever be a temporary fix. You will need to figure it out at some point, or you just might lose it all in the end.
The reason that no one should make assumptions about families is because families are complex. Is it fair when one parent wants the relationship with their children, but not the responsibility for them? Families are made up of individuals and relationships. They have different passions. They have different personalities. They have different schedules. There may be good reason why the parents do not interact. There may be good reasons why a parent should not have 50% of their children’s time. Parents have to look at time, not as a reflection of their value as a parent, but rather as the value of their child’s life and activities and interests. Life cannot be scheduled on weekends and mom’s time/dad’s time, and be fair to everyone. Life happens on its own schedule and in its own time frame. Events and milestones happen when they happen. Parents and children have different time frames of healing from trauma, and let me tell you that there are very few things in life as traumatic as divorce, especially divorce with children.
In a perfect world, we would stop talking in terms of “Parental Rights” and the “best interest of the children” and start honoring and respecting the family relationships and dynamics. These things cannot be legislated or court ordered. We can and do have laws to protect parental relationships so that parents are never denied time with their children, or restricted in building a relationship with their children. Denying and restricting time is something that not only warring parents try to do, but courts do as well, and there are laws that are supposed to prevent that, if only those would be enforced. Naysayers will always remind me about safety and abuse, but if the Family Court would get out of relationships, the criminal courts could and should deal with abuse and neglect issues where they exist.
Children are not property and society needs to stop treating them as such. We are destroying beautiful children as we carve up their lives into the ownership of percentages of time, and we are setting them up for failure. They are also being given a horrible example of how to build and cultivate healthy relationships and work through relationship conflict. We have to do better as a society with honoring and respecting each other as the beautiful, wondrous people that we are.
There is a huge problem today in how Family Court has decided that their role is to oversee families after divorce. Time and time again I remind court authorities that they cannot force co-parenting; it will either happen naturally, or it won’t. Time and time again I listen to court authorities continue to believe that it is their duty to determine how parents will parent their children after divorce, and to force these parents “get along” to make a better life for the children. Still, I persist in trying to stop court ordered co-parenting. Many people think that I am anti-co-parenting. I am not. I am just a realist, and a champion for peace in the home of parents and their children.
Co-parenting is the best way to move past divorce. It is the best way for parents, and the best way for children. It is the best way to create a healthy, functional family. I do not dispute that, and I would not interfere with families who choose to do that for their family. I am a supporter of co-parenting where it can and does work. On this, I do not disagree with court authorities about co-parenting. Where I disagree with the court authorities is when they put parents and their children through hell to try to get them there. My belief is that if parents are going to co-parent, they will do so without being forced by a court. It comes naturally to those families, after they have been allowed to heal the hurts that created the divorce. When it doesn’t come naturally, it is my belief that the harm caused by the court authorities who “case manage” the family for years and years, is more harmful than if those families are allowed to choose a different way to parent after divorce. It prolongs the pain and anguish for each member of the family, and it actually interferes with the healing process of each member of the family. Forced co-parenting creates high levels of distrust, which generates much higher levels of hostility, and leads more families into the category of high conflict, as those parents feel pressured and depleted, emotionally and financially. The parents feel imprisoned and no longer feel that they control their own destiny. This affects the whole family, including extended family members.
A recent op-ed in the New York Times speaks to how divorced parents lost their rights. Courts do not take the same control of married families, as they should not, but they seem to feel obligated to do so when people with children terminate a marriage. I do not think they have the right to do this in any family. There are many ways to parent after divorce. Families can co-parent, parallel parent, and alternate parenting. Who said that the courts should get to dictate which method you choose? When did it become illegal to parallel or alternate parenting?
When I was married, my husband and I never referred to our parenting style as co-parenting. We never heard the term “co-parenting” until after we divorced and we experienced a conflict. The word was in our divorce decree, but we never really paid much attention to it until court authorities started chastising us for not “co-parenting”. Had we not had a post decree conflict that took us back to court, we would have gone happily on our way, having very little to do with each other, parenting separately, and both parents and children, would have never been the wiser. We would have never called that wrong for our family, and we would never have considered it to be illegal. Do you know why? Because it is not illegal for us to live our lives as we see fit, and to parent our children, as we see fit, even when doing so deviates from the group think of Family Court authorities. I’m not sure what one might have called the way my ex husband and I were parenting, in between the decree and the conflict that lead to the shackles of the Family Court takeover, but it was natural for us and informative. We did not need to discuss the children much and each had our own way of parenting the children, based on the fact that we hadn’t spent much time doing anything together. My husband had not been very interested in doing things as a family, including the years that we were married, so it was natural for us to do our own things with the children. Even though we kept things separate, we knew enough to tell the other when there was an important school and medical matter that arose. No one had to tell us to act, we just knew to tell the other because we did know right from wrong, as it went along with our morals, values and beliefs. The relationship wasn’t perfect, not much is perfect in a life, but it was manageable and peaceful. Once family court authorities told us how wrong it was and took our family captive, we no longer knew wrong from right. The reason we could never know wrong from right is because those court authorities wanted us to live under their morals, values and beliefs. They were strangers. How can we know what is right and wrong in their eyes, especially where parenting is concerned? There is no manual on how to parent, and no one ever gave us a manual to explain the court way of parenting. Another problem was that the court way of co-parenting changed with each individual court authority who came along. Just when you thought you had figured it out, someone new came along with their morals, values and beliefs, and we had to try to conform again. It was a never-ending process of trying to follow rules in a game where the rules kept changing and the goal posts kept getting moved.
A friend and I were discussing co-parenting and the courts the other day. We were trying to figure out why court authorities ever came to the belief that they needed to involve themselves in relationships. Why would anyone think it was a good idea? Our discussion went to how the court should be able to terminate a marriage, and to ensure that both parents are able to establish a continuing relationship with the children, but we drew the line at allowing the court to determine the relationship between the parents. To us, you cannot court order relationships. Period. Think about the two of us as friends. We are very close friends and have been friends for a number of years. We have had our disputes over the years, and even did end our friendship for a couple of months at one time. This “breakup” was created when we were having a profound difference in a situation which showed the difference in our values and beliefs, and neither wanted to bend our values and beliefs to cater to the other. Luckily, we were able to come together and resolve those differences, and our friendship is stronger than ever. We have figured out, all on our own, how to maintain our friendship, but still allow each other to have our different beliefs. Had one of us decided that the friendship was not worth working things out, the friendship would have ended. Neither of us would have been able to force the other back in, and no court would have cared how we moved forward after the split.
Should a court have told us that one of us had to cater to the other? Do you think we’d be friends now if one of us had to give up our core values for the other? How often would we have needed to return to court to ensure that we stayed in the relationship? That’s what we are doing by having Family Courts “manage” post decree conflicts. Why don’t courts interfere in all relationships? When someone wants to end a relationship, shouldn’t they be allowed to do so without judgement? Should the next step in Family Court be to have a friend take the other friend to court to make one stay in the relationship? It sounds ludicrous, doesn’t it? But that is what we are doing with forced co-parenting. Since the courts force co-parenting on this ridiculous argument that it is “in the best interests of the children”, maybe the courts should not allow divorce for couples with children. Research also shows that children whose parents stay married do better overall so why is it not considered the best interest of the children to force the parents to stay married? Because it is ridiculous to court order relationships! That’s why!
We need to get away from this notion that any court or law can force a relationship to continue. They can’t. Family Court should continue to free people from of a marital relationship they no longer want, but they need to stop there. They need to get out of relationship matters, stop with co-parenting orders and stop with post decree conflict resolution. Couples are made up of 2 individuals, each of whom has the right to life, liberty and the pursuit of happiness in these United States of America. Most people will negotiate a way to continue on as parents in a way most beneficial to their children. For those who won’t, there are probably equal numbers of married parents who are not parenting as Family Court would like them to either. The difference is that Family court doesn’t have the authority to dictate how married people parent anymore than they do with divorced parents. It is a myth to think they can, and the reason why some families get embroiled in high conflict situations that devastate their children for years.
Co-parenting is not only a style of parenting after divorce, it is also a relationship between two people, much like a marriage is. If one doesn’t want to do it, nothing in the world will make them. The reason why courts stay out of most relationships is because it is not violating a law to choose not to be in a relationship, and there are too many variables in the relationship for a court to even try to dictate what to do. Still, the Family Court uses “co-parenting” as a way to keep families in perpetual legal proceedings for years. The time has come for this to stop.
I do believe Family Court authorities can and should present information to divorcing parents about why co-parenting is best and explain what co-parenting means, but I do not believe that co-parenting has any place in the law, or in a court order. Families should follow the natural way of parenting that worked for them during the marriage based on their own morals, values and beliefs, either shared, or not shared, and with that, figure out the best way they can go forward after the marriage ends. If left to their own devices, I believe most people will enter a natural way of parenting after divorce that will be more peaceful than any court coerced relationship would be.