Sunday, March 3, 2013

IF OUR LEGAL SYSTEM WAS A GAME OF PING PONG, CHILDREN WOULD BE THE BALL

Ever since the Arizona legislature passed its new law replacing "custody" with "legal decision-making" and "parenting time" something has been bothering me that I couldn't quite put my finger on -- until today.  In reviewing the development of custody law for an upcoming trial, it occurred to me that the history of Family Law in America has always been a battle between "Mothers' Rights" and "Fathers' Rights."  . . . But what about Children's Rights?  Who speaks for them?

From the time this country began until the late 1800's children were, from a legal standpoint, treated as property of their father.  Women had few legal rights, and when a divorce occurred, legal custody of the children was almost certain to be awarded to the father (despite the fact that the children had been raised by their mother).


That all changed at the beginning of the 20th Century. It was during this era when courts began accepting the view that children of tender years need the nurturing that only a mother could provide.  The vast majority of mothers, during that time period, remained in the home to care for children as their primary responsibility. (Of course, this was not necessarily by choice -- social and legal barriers were entrenched in our society and women had few opportunities in the workforce.  As late as 1970 only 27 percent of women with children under the age of three were working.)  The "Tender Years Doctrine" almost assured that mothers would receive custody of young children in a divorce proceeding. However, it ignored the fact that fathers could be nurturers, too; and that in any particular case, the children's father might be the better parent.


The Civil Rights and Women's Rights movements of the 1960's created a sea change in our society.  Barriers that had existed for centuries began to slowly crumble. Women were accepted into college and entered the workforce in increasing numbers.  As opportunities for women grew, it became more common to see families with two working parents, and by 1985 more than 50% of mothers with children under three were working at jobs outside the home.


In the 1970's the concept of "Joint Custody" was introduced into the Family Law lexicon.  Joint Custody assumed that divorced parents should share the rights and responsibilities of raising their mutual children.  The law provided that, in making its decision, the Court was to consider the "best interests" of the children based on a laundry list of factors contained in the statute.  As joint custody gained acceptance and eventually became the norm, fathers were given a greater role in making legal decisions for their children.  The "Tender Years Doctrine" was shelved by the courts.  


Now it is 2013 and a seismic shift in Family Law has once again taken place.  Arizona has amended its statutes to remove the term "custody" altogether.  That term has been replaced with the words "legal decision-making" and "parenting time."  This sounds innocuous, but the effect may well be that in every contested "custody" proceeding, a judge will start with the assumption (although not a legal presumption) that the parents should be awarded equal time and decision-making rights with respect to the children.  The Court is still required to make its decision based on the "best interests" of the children -- but it could be assumed (unless proven otherwise) that it is in the children's best interests to divide parenting time and decision-making equally between the father and mother.


Is this fair?  I say no.  Determining what is best for a child does not lend itself to a "template" decision-making process.  Every family is unique.  Every case is different. Therefore, every case involving children should be determined on its own merits.  Mothers should not be favored.  Fathers should not be favored.  Instead, the Court should look closely into the facts and family dynamics of each individual case to determine the outcome that best meets the needs of the children.


The children.  


What is in the best interests of THE CHILDREN? 

That should be the compass that guides the Court in making its decision.


 

Gary Frank, has been a courtroom litigator in the Family Law arena for over thirty years, and is a strong and committed advocate for his clients.  In addition to being a litigation attorney, Mr. Frank has acted in the capacity of a Judge Pro Tem in the Maricopa County Superior Court.  This has given him an understanding of the inner-workings of the court, and a unique perspective  that most attorneys lack.  He has also acted, for many years, as a professional mediator of Family Law disputes.   We handle a full range of Family Law matters, including divorce, custody, spousal and child support, division of property and assets, modification and enforcement actions, as well paternity/maternity cases, grandparent or non-parent custody and visitation actions, and relocation/move-away cases.  If you are in need of a consultation regarding any area of Family Law, please do not hesitate to give our office a call today at 602-383-3610; or feel free to contact us through our web site at www.garyfranklaw.com; or by email at gary.frank@azbar.org.   We'd be happy to help you.