On July 7, 2016, The New York Law Journal published an article by Frank Taddeo, Jr. titled “Dignity Rights for Mrs. Doubtfire: A Place for Fathers in Custody Disputes.”
The article addresses problems that arise when parents engage in a binary “game” in which one wins and the other loses. With regard to the win/lose dynamic, the article states, “A common story in states across the nation, rarely with a happy ending.”
The interesting thing about the outcomes of binary games is there is rarely “a happy ending.” Take Brexit, for example. On July 1, 2016, Bill Marsh published an article titled “Brexit And The Binary Bind.” In that article, he states, “Binary processes come with some fairly hefty downsides.” The same can be said of binary thinking. The world isn’t binary! Therefore, “Beware of the Viking-or-Victim Worldview.”
It bears mentioning that litigation (court) is such a binary process. Therefore, if parents (or anyone else, for that matter) don’t want a win/lose or possibly a lose/lose result, maybe they should consider resolving their conflicts and disputes outside of the litigation system, through mediation or collaborative law, for example.
In any event, the article also raises terms, such as “visitation” and discusses how one parent, typically the father, “becomes a mere visitor in his children’s lives.” I’m not going to argue that parents don’t want to “visit” with their own children; particularly considering that “custody” and “visitation” are considered fighting words in some jurisdictions.
That being said, visitation means different things to different people. By some definitions, any parent who has less than a 50% time share is visiting with their kids. Therefore, don’t assume anything, is my best advice.
The same thing could be said with regard to the following: “the slightest contact with his children.” That depends upon how one defines “the slightest contact.”
A similar argument could be made with regard to the following: “left with the crumbs of visitation, and crumbs they frequently are.”
Unfortunately, I wasn’t surprised that the article stated, “He becomes a mere visitor in his children’s lives (hence the term ‘visitation’ rights) obligated to pay child support and often doomed to fight monumental battles with spouse and court to maintain even the slightest contact with his children.” You see, the desire not to pay child support is frequently the unspoken motivator behind custody battles and equal or shared parenting advocacy. Many people believe that they shouldn’t have to pay child support (regardless of respective income and wealth), if they have equal parenting time.
In the article, Mr. Taddeo argues that “the quagmire for devoted, competent fathers” might be found in the law through “a right ripening on the vine called human dignity or ‘dignity rights,’ a right that just may elevate them to the sanctum of a protected class.”
In Obergefell, the United States Supreme Court case granting marriage equality, “Justice Kennedy has wound the Equal Protection and Due Process Clauses more tightly, finally fusing them together with the notion of ‘equal dignity in the eyes of the law.’”
It’s certainly true that the cases involving LGBT rights in the Supreme Court have established a concept known as “equal dignity under law.” However, that hasn’t granted the LGBT community protected class status. If it had, there wouldn’t be so much conflict with regard to so called “Religious Freedom” and “Religious Liberty” laws. Furthermore, it wouldn’t be legal in a great many states for LGBT people to be terminated from their employment or denied housing, merely because they are part of the LGBT community.
Therefore, all I can say is good luck on trying to make “devoted, competent fathers” a protected class in accordance with “equal dignity under law,” especially since parents seeking such protected class status are those harming their children by playing win/lose games.
Contrary to what is stated in the article, the best interest of the child (at least in California) is not “an objective evaluation of parental qualification.” Parents can be “equally qualified” and certain time share schedules or parenting schedules aren’t in the best interest of the child. Most parents are not deemed “unfit.”
The article provides that the “’best interest’ test which both custody and visitation courts impose ... requires courts to assess a variety of objective factors such as home circumstances, ability to nurture emotional and intellectual development, age and maturity of the children, time and commitment to child-rearing, and the like, and to determine by a preponderance of the credible evidence which parent will serve the interests of the children better.”
The preponderance of the evidence standard (burden of proof) is it’s more likely than not (50.01% likelihood). That’s a very low burden of proof. Furthermore, as stated above, best interest of the child does not necessarily involve “which parent will serve the interests of the children better.”
The article then discusses “perceived injustice” that occurs in court. Of course there’s a “perceived injustice” when people litigate cases. That’s because it is a grave mistake to confuse “legal justice” with “fundamental fairness.”
In his article, Mr. Taddeo also states, “Remaining may only be the agonizing choices of swallowing such rulings or challenging them with further litigation viewed negatively as aggressive and which is complex, expensive, subject to long delays, and often completely ineffective. Access becomes increasingly limited in duration, time, place, and scope with emotional injury often occurring to the children in the process. Worst case scenario? Communication ceases altogether, and the father-child relationship is destroyed.”
There is good reason why “further litigation” is “viewed negatively as aggressive and which is complex, expensive, subject to long delays, and often completely ineffective” - Because it is!
Litigation causes “emotional injury” to children. It also damages co-parenting relationships and communication. That’s well established and why parents shouldn’t be engaging in the litigation process.
Mr. Taddeo ended the article as follows by quoting what Robin Williams’ character said to the judge in Mrs. Doubtfire:
“In regards to my behavior, I can only plead insanity because, ever since my children were born, the moment I looked at them, I was crazy about them. Once I held them I was hooked. I’m addicted to my children, sir. I love them with all my heart. And the idea of someone telling me I can’t be with them, I can’t see them every day…it’s like someone saying I can’t have air. I can’t live without air and I can’t live without them.
Neither can they live without him.”
My antennas went up big time when that statement. When parents don’t live together, this is just not possible. Moreover, it’s parents’ refusal to recognize that basic concept that leads to custody battles, which are so harmful to children and which destroy any co-parenting potential.