"All our institutions, particularly government, must reexamine the ways in which they affect families... We've passed programs in housing that have helped to destroy neighborhoods. We've enacted tax policies that discriminate against families of average and lower income. And we've done most of this in a mindless way, not deliberately, but often unconsciously. All of us in public life must begin to examine the effect of proposed and existing laws and programs on family life."
Vice President, Walter Mondale (1977)
What We've Done For 20 Years Has Not Worked In The "Best Interests Of The Child"
We are beginning to recognize the impact of pervasive family disruption on a wide range of children's school behaviors. We are becoming uncomfortably aware that the increasing divorce rate isn't just a passing fad or a temporary artifact of the post World War II baby boom. Most importantly, we are beginning to understand that the growing lack of commitment to child-rearing may be one of the most significant societal changes in our lifetimes. (pp. 378, 379)
Divorce and Father Absence: How Much Evidence Do We Need?
Joint Custody: A Win-Win-Win Proposition
A search of the empirical research specific to joint custody was conducted. Major data-based studies available at the time of this review have been individually summarized and evaluated relevant to findings and adequacy of the methodology as requested. While flawless studies on such a complex subject are extremely rare as indicated by the evaluations, the goal of this report is to provide a synthesis so that the Commission's policy recommendations may be predicated on the best available empirical base. To minimize some of the confusion in such a highly charged area of study, this review focused on the weight of evidence as determined by both replication of findings and consideration of methodological rigor
Be it resolved that the Council of Representatives recognizes officially and makes suitable promulgation of the fact that it is scientifically and psychologically baseless, as well as a violation of human rights, to discriminate against men because of their sex in assignment of children's custody, in adoption, in the staffing of child-care services, and personnel practices providing for parental leave in relation to childbirth and emergencies involving children and in similar laws and procedures.
Parents' Constitutional Rights: A Biological Imperative
The rights of parents to the care, custody and nurturance of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institution, and such right is a fundamental right protected by this Amendment (First) and Amendments 5, 9 and 14. Doe a. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985).
A parent's right to care and companionship of his or her children are so fundamental, as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution. In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at 489.Federal courts (and State Courts), under Griswold can protect, under the "life, liberty, and pursuit of happiness" phrase of the Declaration of Independence, the right of a man to enjoy the mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of law. There is a family right to privacy which the state cannot invade or it becomes actionable for civil rights damages. Griswold v. Connecticut, 381 US 479, (1965).
The Permissive Society: Psychologically Enabling Divorce
Several studies in the U.S.A. prove that the divorce rates declined in times of economic depression and rose during the time of economic prosperity. The depression of 1932 to 1933 had the lowest rate of divorce and the highest rate in the 1980's during the period of economic achievement. Mothers are leaving home to earn money for a better living, but in many cases at the cost of a very high price. Money is definitely essential for the maintenance of a family. But one should not forget that money can buy a bed but not sleep, finery but not beauty, a house but not a home, medicine but not health, luxuries but not culture, sex but not love, and amusements but not happiness. (1995, p.74)
The Divorce Industry; The Fox in the Hen House
While serving as a counselor for Gordy, the owner of an auto body repair shop, his new wife informed me that she falsely accused her ex-husband of sexually abusing their eight-year-old daughter. After his arrest, she dropped charges, but only after he agreed not to be involved in the daughter's life, and to not meddle in her new marriage.
A ten-year-old boy, Billy, and his 12-year-old sister, Vera, were brought by their mother to my office because of severe school discipline problems. They had recently experienced the divorce of their parents and both were severely alienated from their father. When dad came to visit, they would refuse, slamming the door in his face and cursing with the ugliest of epithets. Mother supported their abusive behavior and explained that father was only getting what he deserved since he had been sexually unfaithful with his secretary.
Paul was going through a divorce process, but on the advice of his attorney, was living in the family home under a temporary separation order. He was contesting custody of his twin 5-year-old boys and had previously seen three psychologists, spending more than $6,000 for court ordered psychological assessments of himself, his wife, and their children. One evening, without warning, his wife hit him over the head with a heavy scotch tape dispenser, knocking him unconscious. When he regained consciousness he caged an ambulance. In the emergency ward, as he was receiving 26 sutures, he told the medical staff what happened. They laughed.
Gino, who owned several restaurants, was divorced from his wife. Later, he impregnated a woman he was dating and offered to marry her. She refused saying she didn't love him. After the baby was born, Gino established paternity and regularly paid $1,500 per month child support. Five years later, the child's mother brought Gino to court stipulating that because his income was higher than the maximum used in state child-support guidelines, he should pay the same percentage but based upon his actual income so that the "child" could be kept in the style he would have been entitled to if a marriage had occurred. Her motion demanded $1,000,000 in back child support, interest, and attorney's fees, as well as $100,000 per year in future child support.
Jim, who had custody of his daughter, came to counseling because he was considering a second marriage, but could not rid himself of the fear of financial exploitation, which he experienced at the hands of his first wife. His ex-wife had two college degrees, was in good health, and received a large cash settlement in the divorce. She claimed she could not obtain a job commensurate with her credentials, but had filed only four applications in nine years. At the divorce trial, Jim had been ordered to pay $1,300 per month alimony. He was still paying that amount nine years and three appeals later. The appeals court continued to rule that circumstances had not changed and that the trial court judge was operating within his "breadth of judicial discretion."
Marvin is an Orthodox Jewish man who had married Svetlana, a Russian immigrant. She fell in love with another man and would not return from her nightclub singing job until morning. She filed for divorce and was moving to another state with her new man. She insisted on taking their 5-year old son with her. Marvin refused, asserting that the son, Sheldon, had many ties in the Orthodox community where he lived. Svetlana won custody and moved from St. Louis to Tacoma.
Sam is a self-made millionaire, having developed patents for innovation of manufacturing procedures in a major industry. He married late in his forties, and had a prenuptial agreement. Four years and two children later, his wife filed for a divorce. Sam had bought a house for her and the children, was paying private school tuition for both children, and had established a substantial enrichment fund for the children's use in travel and recreational activities. A long 9-year period of court battles ensued over the issue of child support, his ex-wife demanding more than the $6,000 per month she was currently receiving, as well as more than $120,000 for her own legal expenses. Sam refused, was thrown in jail, and humiliated on the T.V. news as a millionaire "deadbeat dad." His children watched the T.V. coverage of their father's incarceration.
In order to maximize children's adult nurturance and safeguard both parents' constitutional rights of parenthood, thus increasing the attractiveness of marriage by assurance of fair treatment in the event of marriage failure, the President and Congress should promote legislation to ensure gender equity in divorce and unwed-parent child custody and financial settlements. This legislation should incorporate a rebuttable presumption of joint legal and physical custody, and should include provisions for determining fair child support awards to eliminate the phenomenon of disguised alimony.
In order to provide needed reforms in our domestic courts, the President and Congress should promote legislation to improve the accountability and responsible decision making of domestic court judges, including term limits, annual reviews by superior courts, and measures to make the appeals process less costly and less time consuming for litigants. Specifically, this minority report recommends:
Considering the child's right to enjoy the support of both parents, and also the strong relationship between effective child rearing and the culture's level of civility and socially responsible behavior, the President and Congress should enact legislation that places restrictions on the use of "no-fault" divorces when children are involved.
Acknowledging that American Public Schools have been historically entrusted with the tax supported mission to enhance both the academic capability and the good citizenship of our children, and recognizing the efficiency of utilizing a well established agency of government rather than generating a new bureaucracy to address a critical societal problem, the President and Congress should enact legislation that restores the school's ability to work effectively with parents as partners in the socialization process. Such legislation should include restoration of neighborhood schools, incentives for effective school-based parent organizations, utilization of school mental health professionals to assist families in distress, and effective school-based parent education programs.
In order to restore responsibility as a prerequisite to parenting, the President and Congress should enact legislation that would remove incentives and provide deterrents to the selfish practice of reproduction without obligation. Both fathers and mothers should be held to a standard that requires diligent effort on behalf of their children, rather than relying on taxpayers and governmental compensation for their own delinquency.
In order to address more specifically the declining popularity of marriage and pervasive father absence, the President and Congress should establish a new Commission to explore ways to reinforce stable co-parenting relationships in the interests of our nation's children.
John Guidubaldi, D. Ed., L.P.,L.P.C.C.
Commissioner, U.S. Commission on
Child and Family Welfare
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