Live From Glenn Sacks’s Blog: Child Custody, Part Two
Published by Lisa Kansas October 20th, 2008 in Family, Feminism, Men's Rights ActivismPart Two of my two-part series on child custody after divorce is up over at Glenn Sacks’s “Feminist Dissident.” As before, to allow those who wish to examine Part Two from a feminist-friendly perspective to actually be able to do so in a constructive fashion, the fabulous violet and I will be heavily moderating any comments made about the article over here on this thread at PAB. (PS: If you were banned from the comment thread of Part One, you are not automatically banned from the comment thread of Part Two unless you repeat your Part One behavior.)
Forbidden: ad feminam statements and wild generalizations about what women believe or do and what feminists believe or do. Also, if I or the fabulous violet (or any other PAB moderator) ban you, that’s all she wrote, folks. Arguing about somebody else’s ban or about the fact that these particular threads are under any moderation scheme at all will only allow you the opportunity to share the solidarity of the Hypnotoad.
Allowed: reasoned, polite argument, based in accurate reporting of facts and people’s previous statements, and civil answers to direct questions.
You are absolutely right that the best outcome is a negotiated one.
One anecdote on bias, from Maryland. In my divorce, we quickly agreed to joint legal and physical custody. In Maryland, child support is generally calculated by a formula. The formula itself is gender neutral: put in Parent A’s income and custody percentage, then Parent B’s, and it spits out how much support is required and in what direction. As our incomes we similar, but mine was a little higher, the formula resulted in a small support payment from me to her, which we rounded up to the next $100 for various reasons having to do with our off the record agreement about who would shop for clothing and school supplies.
At the hearing to approve the settlement and divorce, the judge (actually a special master) went through the elements of the settlement and noted “The child support payment exceeds the minimum provided by statute and so is approved.”
I agreed to the amount of the payment, so obviously I don’t have any complaint against the finding, but the idea that this element required less scrutiny because it distributes a larger portion of the collective resources to the woman in a 50/50 custody arrangement was interesting.
Lisa,
Thanks for the open sharing of ideas in this post and your previous one on Glenn’s blog. Like several commenters over there, I have to take issue with your suggestion that the judge make each parent justify having custody of their child, with the potential that neither one will get it. I suspect that may have been an exaggeration to make a point, but I can think of a couple of problems with such an intrusive approach.
First, as to simple fairness there are a lot of families where neither parent is more than mediocre, who never see the courts because the parents never divorce. Divorcing or never-married parents shouldn’t arbitrarily be held to a higher standard.
Second, judges wield enormous power without much accountability. It costs the judge nothing to make a decision, but if it’s the wrong one then two or more private citizens have to either live with it or spend the price of a nice car to correct it. I believe most judges are good people doing the best they can with biased and incomplete information, but that’s just the more reason to err on the side of limiting the damage they can do - be it through malice or just a bad day (we all have them)
balt,
Maybe what they need is a maximum number too, that would trigger investigation if exceeded?
Stacy,
Actually, I wasn’t exaggerating.
I’m a strange one, there can be no mistake about that.
I don’t advocate holding divorcing or never-married parents to higher standards than any other parent, unless they are unable to agree on division of child custody amongst themselves. Then I do. If they are able to agree, they should go right on flying under the radar. I consider an inability to agree to be a sign of potential child abuse or neglect, which when married parents do that as well, they are also subject to a higher standard than everyone else.
Well, your second point is more of a complaint against the structure of our justice system in general. I don’t have a formalized opinion on that yet but I may work on one.
I do agree that a negotiated outcome is the most preferable situation as long as there isn’t a expectation bias in the negotiations. If both parents go into the negotiations with the looming shadow that if they don’t reach an agreement they won’t get anything close to what they want, then the negotiations may not be the best for the child. My concern is that while negotiations are still the best case, that negotiating under pressure may not produce the best results.
“I consider an inability to agree to be a sign of potential child abuse or neglect, ….”
Lisa, you made this point in the other thread, and no one picked up on it, but i think it is very, very important, because it bears on so many other parenting issues that arise in a divorce, such as PAS, and a tendency in some parents to make the divorce more about punishing the other spouse than about building a new kind of life for the children’s good.
That last tendecy can be directed against the kid if the absent parent is not present when the custodial feels the need to do some bashing. It can become a real tempation in the case of re-marriage and a new set of kids by the new spouse (in which case the kid can become a disposable burden).
The ability to agree during the divorce, when it is probably the hardest it will ever be, bodes well for a smooth resolution of all the other parenting issues that WILL certainly arise in the out years - school issues, dating and other norms, treating the custodial parent decently in the teenage years, treating step-parents decently (both my step-daughter with me and my son with his mom’s next-husband),short-stopping the kid from playing both ends against the middle, etc.
Mmm…I have to reserve comment on “PAS” specifically, as I am currently researching it and have thus far discovered that the man who “developed” it also held very, very strange views on pedophilia and child molestation.
However, I agree that there are parents out there who want to punish their spouse by making custody a living nightmare, and that’s why I think that people who want to go there should be in a situation where the price for doing so is loss of their own custody from the get-go.
WOOT! My standards have been adopted!
Hooray for reasoned, polite discourse, based in accurate reporting of facts and other people’s arguments!
That’s all for now.
lol
I also think that negotiating custody is only the first step. My sweetie and his ex have negotiated joint custody of their kid, and to do it right, they’ve had to negotiate which neighourhood to live in, which school and daycare the kid will attend, and they have to be in near-constant communication about the kid—making sure that neither agrees to any social engagement on the kid’s behalf if they’re going to affect the other parent, making sure that they agree about discipline and rules, heck, making sure that the kid has his swimsuit for swimming class.
Figuring out that for now, they want to have him stay with each parent half of the time? That was the easy part.
“I also think that negotiating custody is only the first step. My sweetie and his ex have negotiated joint custody of their kid, and to do it right, they’ve had to negotiate which neighourhood to live in, which school and daycare the kid will attend, and they have to be in near-constant communication about the kid—making sure that neither agrees to any social engagement on the kid’s behalf if they’re going to affect the other parent, making sure that they agree about discipline and discipline and rules, heck, making sure that the kid has his swimsuit for swimming class. ”
Me and my ex have done the same and have an agreement that specifies interactions with grandparents, who is where during holidays, both parties attend birthday parties, etc. Makes life a lot easier.
Wowza. The kids’ dad and I are way more hands-off. We’re more of the school of thought that if the kids aren’t being abused or neglected, we do better not knowing the fine details. We clear vacation plans in advance and agree on extracurricular activities that cost $$$, of course, and also agree on any controversial medical treatment (that last one was one of the few issues where we nearly had a breakdown in our agreement, but luckily we managed to pull through).
We even stipulate who pays for what (equipment vs. classes) for extracurriculars with a deadline for when receipts have to be submitted to each other for payment.
We also stipulate an agreed upon time for the other parent to call the kids, along with a time for the other parent to have the kids during extended vacations if they haven’t seen the other parent for more than eight days, among other things. We are working on a agreement to set up funds to pay for college.
Things are a lot better now, but it is nice to refer to a depersonalized piece of paper to defuse any ambiguity, if it arises. It cost me about $100,000 and 5 years of litigation to see my kids 50% of the time, which is what I always wanted.
I’m not getting married again!
The problem does not lie in the ideal, or even typical situation. The problem lies in the question “If I was sufficiently motivated, are there any ways in which I might tilt the system in my favour?”.
For instance, say Mom hates Dad, and wants to “make him pay”. Assume Mom lives in a State with “generous” child support rules. Now, assume Mom is a grown up “schoolyard Princess”, with a lifetime of manipulation and deceit behind her.
How easily could this type of person twist the legal system, and the prejudices of those within?
THAT should be the guiding principle in the development of new policy.
Factory, this is a moderated thread. Hostility towards women as expressed in your “example” above is not appropriate for this thread. This is one-warning moderation; future violations will result in the dreaded Hypnotoad. Repeat: this is for this particular thread only.
Resistance is futile.
What are you, made of baby parts?
Fine, switch the genders and do it that way.
I think “hands-off” is a negotiated position, and one that works fine for some families. I don’t think my sweetie and his ex would be able to be hands-off with their kid and each other–they’d get frustrated with each other and feel like they were losing control. So there’d be more ill feelings and confusion, and that wouldn’t be very good for either of them or for the kid.
It helps that in their case, the separation hasn’t been incredibly bitter or angry, and they’re still able to be friends–not close friends, perhaps, but friendly enough to go for coffee and make sure that they’re presenting the kid with consistent rules.
These are great as ‘ideals,’ and I don’t think that there are too many flaws in Lisa’s approach at all.
Unfortunately, it runs into problems when the parents can’t agree. It’s fine to suggest that not coming to a compromise agreement is tantamount to abuse, but just how much compromise is expected, and from whom?
On what basis do you decide what’s ‘fair’ or even ‘best’ for the child? If you’ve got two very hands-on parents, neither might be prepared to budge from seeking primary custody and it might be difficult to ’split’ them.
In a Scandinavian country, a judge would probably award 50-50 legal and physical custody to them. With the same facts, an American or British judge would be more likely to award primary custody to the mother with very little time (usually every other weekend is seen as generous!) for the father.
Knowing that that is the norm, I imagine a lot of US and British mothers would push hard for primary custody, even if the father isn’t looking for anything more than 50-50 time. That MAY be to do with the CS side of things, but it’s just as (if not more) likely to be down to their not wanting to cede control of the children - to not wanting to ‘let go.’
Their emotional drive is amplified by a very strong cultural bias, which seems to strongly favour children being ‘given’ to Mum. If the comments sections I’ve read in newspaper columns discussing this topic are an indicator, then a lot of mums would fight very hard to keep primary custody, even whilst acknowledging what a good dad their partner is/was.
To expect a judge with necessarily limited time and access to the family to be able to play Solomon successfully is, in my opinion, overly optimistic. There should be a presumption of shared parenting, which could be set-aside only by mutual agreement or if a good case can be made against it (abuse, violence etc).
Zing,
I would say that the kids’ dad and I are friends to some degree. It took a while, but it’s helped a lot that he’s found someone to be happy with on his end, I think. (Actually, my older son said something like that the other day.)
James H,
I get accused of naive optimism a lot.
I also get told frequently that I need to stop expecting people to behave logically.
I agree that you raise concerns. But given what a mess the whole thing can turn into now, I don’t think that my idea could possibly make anything worse, and it has the virtue of having not been tried yet.
Factory,
It would be just as sexist (although, nonsensical) to switch the genders.
Everyone’s acting like the preference for out-of-court settlement is unique for child custody. It isn’t: judges ALWAYS like it when parties don’t use the court. Judges are lazy: they want people to solve their own problems.
The US court system does not operate on the assumption that people are always trying to screw the system. The US court system has the presumption that EVERYONE is entitled to the court system. That means it plays out poorly in child custody and divorce.
My fix is go to mediation for custody, not a fight, but that’s unpopular in the legal community.
Lisa, I’m sure it’s helped that my sweetie and his ex. each have someone else in their lives right now—when both exes are happy with their current lives, it’s much easier not to want to blame or punish the other party, for one thing, and for another, it makes people less inclined to suspect each others’ motivations, or that’s what we’ve all found.
For my part, I am not friends with my ex husband, but then, we didn’t have kids, so there was no need for me to ever speak with him again after we split.
I think that it’s important to acknowledge the difference between negotiating in good faith and negotiating in a spirit of friendship. I think even people who are very hurt and angry with each other can negotiate in good faith with each other, if both parties are resolved to do so. And I think that, yes, the ability to negotiate in good faith is a sign of good parenting. I don’t think it makes sense to do as Factory suggests, and set up a child-custody system that presumes that only one party is negotiating in bad faith. Rather, as Lisa suggests, take the inability of the parents to negotiate in good faith as a sign that someone may not have the best interests of the child in mind, and set out to determine, given the available options for child custody, which of those options is most likely in the view of a competent external observer (judge, mediator, arbitrator, child-welfare committee, whatever) to work in the best interest of the child, where the criteria for the child’s best interest include the following:
the child’s basic physical and health needs are met
the child is in a safe environment (this is a subset of physical and health needs)
the child’s emotional and psychological needs—stability, consistency, a belief in security, access to loving family/community, access to peers, developmentally appropriate activities and surroundings, etc., are met
the child’s educational needs are met, and the child’s access to education is a priority
I also think that it’s very important to include kids in these discussions, if the kids are old enough to want to take part. When my parents separated, my brother and I chose to live with our mom, because my dad was unstable and not a really excellent day-to-day care provider. We both figured that my mom was better at taking care of us. Of course, I was too old for child custody laws to apply (I was sixteen), and my brother was old enough to decide, and to be a right royal pain if he were living in a situation he didn’t like (he was thirteen).
We both spent time at our dad’s: dinner, weekends, the odd periods during school (I think I spent some time there during exams), summer vacations, etc., but we both regarded my mom’s place as our primary residence, and continued to do so until we each moved out on our own. I felt bad for my dad, but was not sure I’d have the best living arrangements with him.
balt,
I think that if your ex-wife made more money than you, and she ended up paying you child support that was more than the minimum, then the special master would have read the exact same statement into the record. It was the support being more than the minimum that made it automatically approved, not the recipient of said support. Judges like it when couples come into court with reasonable divorce settlements already worked out that can be read directly into the record. It makes their lives easier.
OK, I’ll try again.
People are not nice most of the time. People act out of self-interest most of the time. The potential for “abuse” of the system is the guiding principle. If it is possible to do something (anything really) within the bounds of a law, people will push all edges of the law looking for advantage.
It’s simply the truth.
So if something is possible, it WILL be done. If it’s easy, it’ll be done regularly. Call it a sexist position if you want, but I don’t believe people are generally good.
For instance, legislatures in the US have had to clarify and rewrite laws in order to prevent the twisting of law BY THE JUDGES to suit personal/social bias.
http://www.csmonitor.com/2007/0209/p01s01-usju.htm
The idea is to make the arrangement as “rigid” as possible (tie the Judges hands as it were), in order to remove the possibility of judicial activism or plain outright bias.
Hey, if they had proved themselves impartial in this area, this wouldn’t be necessary.
Factory, I moved your second comment over to the “Domestic Violence” thread because I think it more belongs over there. Just FYI.
Lara: You may be correct. But, despite the judge’s terminology, the formula doesn’t actually determine the minimum, it determines the amount (as represented by the parent A and parent B). What we created was an imbalance in the distribution of the resources for the children. That should have been examined in any event.
Of course, in my case the amounts were so low that the effect to anyone’s net positive or negative was negligble, and so not really worth anyone’s time to argue about. But what if instead of an extra ~$70, it had been an extra $2000? (i.e., some amount that would have severely impacted my ability to afford basic housing and food)
I hope that the judge would have stopped to think about it. I’m not certain, though.
FWIW regarding the other posts, the baltspawns’ mother and I negotiated a physical custody schedule and try to stay otherwise hands off each other. Nonetheless, we seem to need to communicate almost daily over some thing or another. We found the book Mom’s House, Dad’s House by Isolina Ricci to be very useful. It’s mostly about managing the post-relationship relationship so that it functions well enough for the well-being of the kids. Great book.
balt: Inability to pay is often seen as a ruse, and is regarded as no excuse. So no, the Judge would likely not have cared.