How Much Father’s Rights Is a Good Thing?

Joan and Jack, two venerable divorce lawyers, bumped into each other while having coffee in the café close to the courthouse.  They greeted each other effusively and sat down at a table together putting their legal files on empty chairs.

“I’ve got this tough case,” said Jack.  “My client is the mother and she wants the father to have no visitation at all.  The father will settle for nothing other than 50 percent of the time with the children.”

“So what are you going to do?” asked Joan.

“I’m going to tell the father that he has a career to worry about.  And he is going to want to have a social life.  There is no better baby sitter than the mother.  I’m going to try to talk him into less than 50 percent.”

“I’ve got another idea,” said Joan.

“What is it?”

“Tell the mother to let him have the children 50 percent of the time.  Lot’s of fathers idealize about custody of the children.  But once they try to juggle a career with the demands of little children, they find it is no easy task.  After a couple of weeks, he will be asking the mother to spend more time with the children.”

“Not bad,” said Jack, “For that salutary advice, I’ll buy you a doughnut.”

Father’s Rights AND Decision Making

David Rembert tried his divorce case against Angela Rembert and got joint legal custody of his two children.  But the judge also gave him primary physical custody and final decision making authority on all matters involving the children including the school they attend, membership in organizations, and other extracurricular activities.

Angela appealed contending that the order didn’t really grant joint legal custody because it gave David greater father’s rights via the final decision making authority.

The Supreme Court of Georgia noted the joint custody statute provided that the judge may designate one parent to have sole power to make certain decisions.

Angela also complained that the decision to award primary physical custody to David was wrong because she was equally fit to be a parent.  The court noted that Angela had a romantic involvement with a married man prior to filing for divorce and said she intended to marry him after her divorce.  She also planned to be a full-time student.  She borrowed $43,000 from David to buy a car after the separation.  And she threatened the life of a neighbor.

David, on the other hand, intended to stay in the marital home, and was seeking a transfer from his job as a pilot to be a trainer with a more regular schedule.  The appeals court said this was ample support for the decision of the trial court and affirmed the decision.

Rembert v. Rembert, Case No. S08F1582, Georgia Supreme Court (Decided March 23, 2009)

Twist on Father’s Rights

Pasqualino Cornelio of Toronto, Canada, married Anciolina Cornelio and they had twins.  They separated in 1998 and Pasqualino began making child support payments.

Recently, Anciolina sought to reduce his time with the twins and increase his child support.  Pasqualino retaliated by have a DNA test.  Guess what.  He was not the biological father of the twins.

Pasqualino claimed he was the victim of misrepresentation and fraud.  He demanded termination of child support and reimbursement of the tens of thousands of dollars he has paid over the years.

But there was no other father to step in and take his place.  “Ms. Cornelio denies knowledge of who the twins’ biological father might be,” the Judge said. “In fact, she claims to have no memory of an extramarital affair preceding their birth, which she attributes to the medication she was taking at the time.”

So, the court decided that because Pasqualino “was the only father the twins knew during the course of the marriage,” he could neither stop paying child support nor recover past child support. His father’s rights remained intact.

“While the failure of Ms. Cornelio to disclose to her husband the fact that she had an extramarital affair and that the twins might not be his biological children may well have been a moral wrong against Mr. Cornelio, it is a wrong that does not afford him a legal remedy to recover child support he has already paid, and that does not permit him to stop paying child support,” wrote Judge Katherine van Rensburg on Dec. 22, 2008.

Source:  National Post

Percent of custody cases that go to trial (5 percent)

Ratio of divorce cases where mom ends up with primary physical custody (5 out of 6)

Ratio of divorces where parties agree to joint physical custody (5 percent)

Noncustodial dads who see their children at least once a week (31 percent)

Percent of sole physical custodians who are men (7 percent)

Source:  “Not Your Dad’s Divorce”, Newsweek

Father Has Creative Solutions that Preserve Father’s Rights

Eathan is a divorced father of two boys who is thinking outside of the box when it comes to father’s rights and alternating holidays.  He says in his blog that he tried the every other year for holidays and it’s no fun.  There are travel arrangements, scheduling conflicts and plans that don’t work.  You have to coordinate the weeks events around the dreadful kid-swap.

So, Eathan says, he decided to let his boys stay with their mom for the holidays.  “They get to spend the day with grandparents, uncles, aunts and cousins.  They get to eat Grandma’s stuffing and pies.  They can take their time and relax.  Problem solved.”

Then Eathan takes his sons on other holidays and special vacations.  He went to Disney World one year and took them on a father/son camping trip. “ Both of those trips are still talked about every year.  They are burned in their memory.  The one thing they can’t remember is Thanksgiving at Grandma’s last year.  It’s just a normal event, but the trips with dad are memorable.”

An ad hominem argument, also known as argumentum ad hominem (Latin: “argument to the man”, “argument against the man”) consists of replying to an argument or factual claim by attacking or appealing to a characteristic or belief of the person making the argument or claim, rather than by addressing the substance of the argument or producing evidence against the claim. The process of proving or disproving the claim is thereby subverted, and the argumentum ad hominem works to change the subject. – Wickipedia.com

Maybe it is the stress of the holidays, but I’ve received two ad hominems this week, one against me and one against a client of mine, from opposing counsel who ought to know better.

The first accuses me of asserting a right without any legal basis and the writer says “as I have come to see your conduct, it does not surprise me.”

The second says “Frankly, it is puzzling that [your client] would fight for custody in light of his apparent disinterest in taking parental responsibility.” Father’s rights challenged again.

Now you have to be fairly thick-skinned to be a divorce lawyer, and litigation is pretty rough and tumble in the heat of battle, so I don’t lose a lot of sleep over things like this.  But there is a Code of Civility in both jurisdictions where I practice, that says lawyers should treat opposing counsel and opposing parties with respect and courtesy.

Both of these ad hominems are unnecessary attempts to say “Shame on you.”  If anything they are counterproductive because they only cause the recipient to dig in their heels and redouble their efforts to prove them wrong.  So think twice before you hit the send button, reread your letter, and make sure it contains only those matters which move the case forward.

And for those who celebrate Christmas, remember that Santa is watching.

Fathers will ask me from time to time how they can monitor their child support payments to make sure the money will be used for the children’s expenses and not the mother’s expenses.  Is it a father’s right to know?

Some of the money would have to be allocated to common expenses like rent, utilities, food and transportation.  Others would be direct expenses like clothing.  It seems to me that this would be an accounting nightmare so I recommend against it.

Some fathers want me to raise the issue with the court.  I tell them about the equitable doctrine of “De minimis non curat lex” (“The law does not bother with trifles”).  Judges are barely keeping up with the cases they have, and simply don’t have the time or inclination to monitor monthly expenditures in a child support case.

The court will take action if a child is being neglected, typically by changing custody.  But short of that, mothers do not have to report how child support is spent.  For a mother’s perspective on this, see this article by Christina Rowe.

This post was contributed by Kelly Kilpatrick, who writes on the subject of a police detective. She invites your feedback at kellykilpatrick24 at gmail dot com.

If you’ve seen someone go through a bitter divorce and the even uglier child custody battle, you’ll know that the courts are not generally favorable towards the father, especially when it comes to securing custody of the child. Some fathers are happy to wash their hands of the responsibility of child rearing, but others are left devastated when their spouse gets sole custody and they’re asked to pay child support and alimony too in some cases.

Most judges are predisposed to awarding custody to the mother, simply because she is the one who’s had more time with the child, especially if he or she is pretty young. When you’re on the verge of a divorce, it’s hard to be rational and think before you act. But when it comes to your children and the fact that a court is going to tell you how you’re going to be allowed to relate to them for the rest of your life, you must put your emotions aside and use your head alone to save yourself a whole lot of trouble.

The first thing to do is to make your divorce amicable; I know it’s the hardest thing to do, part on good terms with someone you don’t want to live the rest of your life with. But if you share children, it’s the mature thing to do. This has a host of advantages, especially to you as the father. You don’t say things you may regret later, things that if overheard by your youngster, could end up harming your reputation in his or her eyes. Remember, your child is likely to be influenced by your spouse, so it’s best to remain on cordial terms with her.

A friendly divorce also allows you both to save a ton of money – you can bypass the lawyers altogether, seek joint custody of your children and reach a mutually satisfactory amount for child support and alimony. Better still, you remain on good terms so that your children feel secure even though you’re divorced.

I know I’m painting a pretty rosy picture where your spouse agrees to an amicable divorce and joint custody, but it’s worth a try, for yourself and your children. Rather than assume that your spouse would never go along with your suggestions, and that she is out to hurt you, be gracious enough to give in once in a while. After all, you were in love with the woman once, and by being the bigger person, you save yourself an acrimonious divorce proceeding and a lot of money in the process. Your spouse may also feel the need to relent once she sees how reasonable you’re being, so go ahead, give it a try. You’ve nothing to lose (other than what you will even if you don’t try) if it doesn’t work out, and everything to gain if it does.

Family Law Commissioner Scott M. Gordon signed an Order on October 30, 2007, in Los Angeles, ruling on several custody motions in the Britney Spears v. Kevin Federline case.

The court appointed Parenting Coach, Lisa Hacker, reported that it took her four attempts before she was able to meet with Britney. She said that Britney was not child-centered, that she wanted to what she wanted to do and not what would be enjoyable for the children. She said that there was no real schedule for the children at Britney’s house and the environment ranged from chaotic to somber. Britney rarely spoke with or played with the children during her visits. The Parenting Coach said, “The problem is that unless Ms. Spears realizes the consequences of her behavior and the impact that it has [on] her children, nothing is going to be successful.”

As a result, the Commissioner gave Britney three visits per week, two from 12:00 Noon to 7:00 PM, and one overnight visit. The visits will be monitored and Britney will be tested for drugs and alcohol.

Spears and K-Fed are ordered to figure out holiday schedules with the kids. A complete custody evaluation report is due in the case in mid-January.

Question:

My wife says she is leaving and taking the kids.  I don’t want her to.  What do I do?

Answer:

First, tell her that she can go, but the kids stay.  Protect your father’s rights. You have joint legal custody and joint physical custody until and unless the court says otherwise.  You have the right to pick them up from school or any other place she takes them.

Second, call your lawyer.  He or she will try to reach a written agreement with your wife’s attorney about the children, even if it is a temporary one.  The agreement will cover who lives where, how much time each party spends with the children and how the bills will get paid.

Third, if you can’t reach an agreement, then you can petition the court for a custody and access order.  This will usually involve legal fees, pleadings and a hearing.