BRIEF
IN SUPPORT OF MOTION FOR EQUAL PARENTAL RIGHTS AND DENIAL OF CONSTITUTIONAL AND CIVIL RIGHTS

Mitchell Sanderson and Cheryl Harlow were divorced in August of 2003. The Plaintiff was never found to be an unfit parent or a danger to the children yet was stripped of his Constitutional right to be a parent. He was discriminated against which is prohibited by the Fourteenth Amendment of the United States Constitution.
2.
The Judiciary, Donovan Foughty, has refused to grant a change of visitation and custody using the high conflict excuse alleging myself to be hostile with Cheryl. The US Supreme Court has ruled that only a finding of unfitness can be used to deny custody! No fitness hearings were ordered in this divorce case when requested by the Plaintiff. Article XI Section 4 of the North Dakota Constitution states: Members of the legislative assembly and judicial department, except such inferior officers as may be by law exempted shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation: “I do solemnly swear (or affirm as the case may be) that I will support the Constitution of the United States and the Constitution of the State of North Dakota; and that I will faithfully discharge the duties of the office of _________ according to the best of my ability, so help me God” (if an oath), (under pains and penalties of perjury) if an affirmation, and no other oath, declaration, or test shall be required as a qualification for any office or public trust. A court faced with a motion to dismiss a pr se complaint must read the complaint allegations expansively, Hainses v. Kerner, 404 U. S. 519, 520-21, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972), and take them as true for purposes of deciding whether they state a claim. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972). More over, the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory. Bonner v. Circuit Court of St. Louis, 526 F. 2d 1331 1334 (8th Cir. 1975) (quoting Bramlet V. Wilson, 495 F. 2d 714, 716 (8th Cir. 1974)).
3.
I challenge this court to find any domestic violence or abuse against Cheryl Harlow or our children. You cannot find any such conflict! I as well challenge this court to find judge Gieger’s findings to be factual! You cannot! The only problem here is a hateful controlling former wife trying to keep a loving father from his children with perjury and a family law system that allows such behavior to continue. This system is the fault creating and allowing conflict in divorce cases.
4.
All courts are bound by law to follow the law. The Walsh County district court failed to abide by Constitutional law and higher court rulings on parent rights. In doing so the custody order in the divorce case 03-C-57 is null and void due to it is an unconstitutional act due to no custody can be lost by the Plaintiff unless first found unfit or a danger to the children!. The best interest standard for taking away custody is null and void due to the fact that both parents can be found to be fit yet the courts award custody to the mother in over 90% of custody cases creating two fit natural parents into different classes is patently unconstitutional. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby County, 188 U.S. 425 (1886)1. The United States Supreme Court Has long and consistently held that the care, custody, maintenance, management, companionship, education choices, and general child-rearing decisions related to one’s children are fundamental rights protected by the Federal Constitution. As such any action by any person or entity, whether it be by a person acting alone, in conjunction with another, directly or indirectly, by any State entity, or demonstrated by a pattern of deprivations generally attributable to the State itself, that intrude upon these fundamental right, are patently unconstitutional until, and unless, first validated by a substantially compelling State interest Applied with strict scrutiny, and only performed in the least intrusive manner. The State is not permitted to intrude upon these right of the natural parent without clear and convincing proof of demonstrable harm to the children in question. The United States Supreme Court has consistently reminded that there is a presumption that fit parents act in their children’s best interest, and that there is normally no reason for the State to inject itself into the realm of the family to further question fit parents’ ability to make the best decisions regarding their children.
5.
Hopt v. Utah, 110 U.S. 574 (1884). Judicial solutions to problems of constitutional dimension have evolved decade by decade. As courts have been presented with the need to enforce constitutional rights, they have found means of doing so. That was our responsibility when Escobedo was before us and it is our Page 491 responsibility today. Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.
6.
Article I Section 21 of the North Dakota Constitution: No special privileges or immunities shall ever be granted which may not be altered, revoked or repealed by the legislative assembly; nor shall any citizen or class of citizens be granted privileges or immunities which upon the same terms shall not be granted to all citizens. Over 90% of custody is given to mothers (without ever declaring a father unfit) in divorce cases, this is a clear bias and special privilege in our courts and cannot be legally allowed by law. The Plaintiff is demanding his equal parenting rights be restored due to he is a fit parent and no danger to the children.
7.
LEGALITY OF PARENTAL RIGHTS
14-09-06 “Priority of custody of father and mother” The husband and father and wife and mother have equal rights with regard to the care, custody, education, and control of the children of the marriage, while such husband and wife live separate and apart from each other,…
The Plaintiff has been unlawfully stripped of these equal rights.
8.
“a (once) married father who is separated or divorced from a mother and is no longer living with his child” could not constitutionally be treated differently from a currently married father living with his child.  Quilloin v. Walcott, 98 S.Ct.549; 434 U.S. 246, 255-56, (1978)
9.
Parenting is a fundamental right protected by the 5th and 14th amendments. This has been established in Troxel v. Granville, 530 U.S. 99-138 (2000), Santosky v. Kramer, 102 S Ct 1388; 455 U.S. 745 (1982) and Quilloin v. Walcott, 98 S Ct 549; 434 U.S. 246, 255 Q56 (1978), among other cases. Treating parental rights as fundamental rights requires a presumption of joint legal and joint physical care upon divorce and through litigation. The Fourteenth Amendment’s due process clause has a substantitive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests, “Washington v. Glucksberg, 521 U.S. 702, 720, including parents’ fundamental right to make decisions concerning the care, custody, and control of their children, see e.g., Stanley v Illinois, 405 U.S. 645, 651, Pp. 5-8. Troxel v Granville. U.S. Supreme Court, June 5, 2000.
10.
There is a presumption that fit parents act in their children’s best interests, Parham v. J.R., 442 U.S. 584, 602; there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their children, see e.g., Reno v. Flores, 507 U.S. 292, 304. Troxel v Granville. U.S. Supreme Court, June 5, 2000.
11.
The routine and cavalier deprivation of parental rights takes place in the context of divorce where, during the pendency of litigation, one parent is routinely deprived of significant parental rights without any demonstration that a state interest exists-much less that there is a compelling state interest that cannot be achieved in any less restrictive way. In marked contrast to our current practice, treating parental rights as fundamental rights requires a presumption of joint legal and physical custody upon divorce and during the pendency of divorce litigation. The presumption may be overcome, but only by clear and convincing evidence that such an arrangement is harmful to the children. Doe v. Irwin, 441 F. Supp. 1247 1249 (D. Mich. 1977).  From: Hubin, D.C., 1999, Parental Rights and Due Process. The Journal of Law and Family Studies, V 1, N 2, pp. 123-150.
12.
Meyer v. Nebraska, 262 US 390; 43 S Ct 625,(1923) Parent’s rights have been recognized as being essential to the orderly pursuit of happiness by free man.
13.
Santosky v. Kramer, 102 S Ct 1388; 455 US 745 (1982) Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs.
14.
Troxel v. Granville, 530 U.S. 99-138 (2000) The liberty interest at issue…the interest of parents in the care, custody, and control of their children--is perhaps the oldest of the fundamental liberty interests recognized by this Court… [I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57, 65 (2000). This Supreme Court precedent states these rights are neither lost or diminished in any way by a divorce. In this case, we have the same situation faced in Troxel: a disagreement between Petitioner and the trial court as to what is in the “best interests” of Petitioner’s children. See Troxel, 530 U.S. at 72-73: “As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.”
15.
EQUAL PROTECTION FOR PARENTS
The above rules lead to four conclusions: (1) there can be no disparate treatment of either of two fit parents as it relates to their constitutional right to make decisions about their children, including choosing the children’s residence and education; (2) there is a due-process presumption that both parents are fit and have not relinquished their fundamental right to parent; (3) operation of logic on points 1 and 2 must produce in each parent a right to equal, post-divorce possession of their children and to have equal control over the life decisions affecting those children; and (4) this presumption can only be overcome by clear and convincing evidence that one or both of the parents is unfit. Lehr v. Robertson, 463 U.S. 248, 265-66 (1983). See also Troxel, 530 U.S. where a majority of this Court held that fit parents are presumed to act in the best interests of their children: “First, the Troxels did not allege, and no court has found, that Granville was an unfit parent. That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children.” The fact that this Petitioner was not afforded that same presumption calls the North Dakota’s court’s procedures into serious question. This means that only one of two equally-qualified and identically-situated parents—neither of whom has been adjudicated “unfit” or otherwise incapable of making such basic decisions for their children—is allowed to retain a significant legal right while the other parent is completely and suddenly deprived of the exact same right they possessed only moments before the divorce decree was signed, said deprivation being imposed for no other reason than because “the law” says it must. This entire process is the antithesis of “equal” protection of the laws. The equal protection clause of the Federal Constitution requires that similarly-situated persons be treated similarly.  It is the definition of unequal protection to grant favoritism or special rights to either of two similarly-situated persons.
16.
Chief Justice of the ND Supreme Court stated “We recognize the adversarial system is not good for families,” VandeWalle Said. “It can, and on occasion does inject hostility and bitterness into a situation that is already wrought with emotion.” This statement from our chief justice, in the Gavel, clearly states that the current system as being ran is detrimental to our children and parents and is not in the best interest of our children. It creates conflict and harms our children.
17.
“Although the dispute is symbolized by a ‘versus’ which signifies two adverse parties at opposite poles of a line, there is in fact a third party whose interests and rights make of the line a triangle. That person, the child who is not an official party to the lawsuit but whose well-being is in the eye of the controversy, has a right to shared parenting when both are equally suited to provide it.  Inherent in the express public policy is a recognition of the child’s right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents’ wisdom, judgment and experience.  The child does not forfeit these rights when the parents divorce.” Presiding Judge Dorothy T. Beasley, of the Georgia Court of Appeals, “In the Interest of A.R.B, a Child, July 2, 1993.

BEST INTEREST STANDARD UNCONSTITUTIONAL
18.
Gordon E. Finley, Ph.D., Professor of Psychology, Florida International University states “The Best Interest of the Child” standard is, in reality, no standard whatsoever (Finley, 2002).  Given its vacuous status as a standard, it is critical to determine who has the authority to define the best interests of children of divorce.
19.
14-09-06.1. Awarding custody - Best interests and welfare of child. An order for custody of an unmarried minor child entered pursuant to this chapter must award the custody of the child to a person, agency, organization, or institution as will, in the opinion of the judge, promote the best interests and welfare of the child. Between the mother and father, whether natural or adoptive, there is no presumption as to who will better promote the best interests and welfare of the child.
20.
Without of a finding of unfitness a judge cannot constitutionally alter any parental rights or custody! See Troxel, 530 U.S. at 72-73: “As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.” The best interest standard is as well unconstitutional due to it favors one parent over the other event if neither is found unfit.
21.
14-09-06.2. Best interests and welfare of child - Court consideration - Factors.
22.
1. For the purpose of custody, the best interests and welfare of the child is determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable: The court must treat parental rights as fundamental rights requiring a presumption of joint legal and physical custody upon divorce as stated in the above case law.
23.
a. The love, affection, and other emotional ties existing between the parents and child. The love, affection and emotional ties existing between myself and my children are indisputable and can be proven by multiple witnesses. I attend all school programs and as many other functions that my work schedule will allow. I am at all cub scout meetings and events if work hours permit. I discipline when needed and the kids respect my judgment. This is an area were Cheryl is weak in. I fear that this current custody arrangement puts me at a disadvantage to parent due to the kids may look at me as a weekend grand parent instead of as a father. My time is precious with the kids knowing they will eventually grow up and move on.
24.
b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child. My capacity of a parent to give love, affection and guidance and help with our children’s education is as well undisputable. I help the kids do their school work when they are with me and hugs and kisses are a daily practice with the kids.
25.
c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs. I provide the kids with food, clothing and other care when I am parenting them. I as well provide my share of court ordered medical to the children. In our marriage I was the primary care taker of the children when sick and stayed home to care for them. Work was more important to Cheryl.  I am disappointed at Cheryl’s attempts not to inform or invite me to the kid’s doctor appointments. If we had shared parenting this is a greater chance the kids could spend more time with their parents than at a daycare or a third party.
26.
d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity. The children will never live in a stable environment when their mother has a rotating door of boyfriends she runs off. Social Scientists consider a stable environment one with which the children can have equal access to both parents. A stable environment is falsely portrayed in this family law system as the children spending more time with a custodial parent. Children clearly need both parents!
27.
e. The permanence, as a family unit, of the existing or proposed custodial home. The most stable family unit would be an intact family. In a divorce the closest you can get to this is equal physical custody with the children spending a rebuttable presumption of equal time with both parents. The kids do not get to see their grand mother or aunts and uncles on my side of the family due to this custodial system.
28.
f. The moral fitness of the parents. I am moral and a fit parent and never have been found not to be as the US Supreme Court has ruled I must be to loose any custody! The children have seen at least 3 different men sleeping with their mother since our divorce. One even fought with Cheryl so much the kids have told me they would be woke up by them yelling and it scared the kids. Cheryl also had a man living in the marital home before the divorce was even final. Cheryl has punished the kids by putting powdered cocoa in the kids mouth which could choke them! Cheryl has played dirty, hateful games to keep me from the kids.
29.
g. The mental and physical health of the parents. I am mentally sound and clearly am doing what is best for kids as social science research suggests. I, however, think that if Cheryl Harlow’s past counseling records were introduced into this divorce we would find otherwise. Cheryl displays characteristics of bi-polarism, depression, paranoid delusional fears, extreme hateful behavior towards the Plaintiff and then takes out her issues on myself and the children.
30.
h. The home, school, and community record of the child. I provide a clean home for the children providing for their basic needs. I as well work with the school and attend school functions for the kids. People in the community see me with the kids and comment on how much fun we have together.
31.
i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference. Both of our children have expressed an interest of more time with me and do not think it is fair that they are limited to time with me. At this age the US Supreme Court rulings should stand that a parent cannot loose custody unless proven unfit.
32.
j. Evidence of domestic violence. In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent’s participation as a custodial parent. The court shall cite specific findings of fact to show that the custody or visitation arrangement best protects the child and the parent or other family or household member who is the victim of domestic violence. If necessary to protect the welfare of the child, custody may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court. If the court awards custody to a third person, the court shall give priority to the child’s nearest suitable adult relative. The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent custody. As used in this subdivision, “domestic violence” means domestic violence as defined in section 14-07.1-01. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14-07.1. I have never committed or even been alleged to have committed domestic violence. Cheryl Harlow is the only one to have committed domestic violence in our marriage yet the court does not care to address this. The domestic violence was perpetrated in front of the children which is child maltreatment!
33.
k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests. The court shall consider that person’s history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons. As I have already mentioned the kids have seen a number of men sleeping with their mother some even scaring the kids with arguing going on and Cheryl has used cocoa powder in the kid’s mouths as a punishment. I have not let the kids know of any female companions I may have had due to the custody issues that need to be corrected in this state. Cheryl on one occasion threatened me telling me she was a good shot with a gun!
34.
l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02. No allegations I have made in this divorce are false but many false allegations have been made by Cheryl.
35.
m. Any other factors considered by the court to be relevant to a particular child custody dispute. The court must follow US Supreme Court rulings and not deny equal and physical custody without first finding myself unfit!
36.
SUPPORT FOR EQUALL PARENTING
President Bush and HHS Secretary Tommy G. Thompson have made promoting involved, committed, responsible fatherhood a national priority. The initiative includes encouraging more responsible fathering by non-custodial parents.  U.S. Department of Health and Human Services fact sheet: Promoting responsible Fatherhood (2002). The Defendant is aware or should be aware (due to her sister is a social worker) of numerous official governmental report, studies, and other relevant published data, that children of divorced parent who have two primary parents in their lives do better in school, are better adjusted and happier than children raised by only one primary parent, and that children in joint custody arrangements have less behavior and emotional problem, higher self-esteem, better family relation, and better school performance than children who are subjected to sole custody arrangements.
37.
The research is absolutely clear… the one human being most capable of curbing the antisocial aggression of a boy is his biological father. Children with involved, loving fathers are significantly more likely to do well in school, have healthy self-esteem, exhibit empathy and pro-social behavior, and avoid high-risk behaviors such as drug use, truancy, and criminal activity compared to children who have uninvolved fathers. Excerpts from Horn, W.F. and Sylvester, T. (2002).  Father Facts: Fourth Edition.  National Fatherhood Initiative:  Gaithersburg,
38.
M.D.Kelly, J.B, Current research on children’s post-divorce adjustment. Family and Conciliation Courts Review, 31.29-49, 1993. On child satisfaction:  “Children have expressed higher levels of satisfaction with joint physical custody than with sole custody arrangements; citing the benefit of remaining close to both parents. Joint custody does not create confusion for the majority of youngsters about their living arrangements or about the finality of the divorce, nor does increase loyalty conflicts (Leupnitz, 1982; Shiller, 1986a, 1986b; Steinman, 1981).”
39.
Fabricius, W.V. and J. Hall, (2000) “Young Adults Perspective on Divorce”, Family and Conciliation Courts Review, Vol. 38, 446-461. “Our participants, who have lived through their parents’ divorces and have now entered young adulthood (and college) have given us their ‘expert’ advice.  Seventy percent of them, men and women alike, believe that living equal amounts of time with each parent is the best arrangement for children.”
40.
Division 16, School Psychology, American Psychological Association, Report to the U.S. Commission on Child and Family Welfare, June 14, 1995. This report “summarizes and evaluates the major research concerning joint custody and its impact on children’s welfare.” The report concludes that “The research reviewed supports the conclusion that joint custody is associated with certain favorable outcomes for children including father involvement, best interest of the child for adjustment outcomes, child support, reduced re-litigation costs, and sometimes reduced parental conflict.”
41.
CHILDREN FROM FATHERLESS HOMES ACCOUNT FOR:
63% of youth suicides. (Source: US Dept. of Health & Human Services, Bureau of the Census). 71% of pregnant teenagers. (Source: US Dept. of Health & Human Services) 90% of all homeless and runaway children. 70% of juveniles in state-operated institutions come from fatherless homes (Source: U.S. Dept. of Justice, Special Report, Sept 1988). 85% of all children that exhibit behavioral disorders. (Source: Center for Disease Control). 80% of rapists motivated with displaced anger. (Source: Criminal Justice & Behavior, Vol. 14, p. 403-26, 1978). 71% of all high school dropouts. (Source: National Principals Association Report on the State of High Schools). 75% of all adolescent patients in chemical abuse centers. (Source: Rainbows for all God`s Children). 85% of all youths sitting in prisons. (Source: Fulton Co. Georgia jail populations, Texas Dept. of Corrections 1992).
42.
There is no need for a child custody investigation or guardian ad litem to be appointed in this matter. Unless Cheryl wished to challenge my and her fitness following the US Supreme Courts ruling to first find a parent unfit before any custody may be lost. Then both of us shall be required to be evaluated by the same specialist and all records of counseling past and present be evidence to the court!
43.
Under NDCC 14-09.1-02 the court can grant court ordered mediation with neutral social workers and or councilors that can assist in all cases that Cheryl will not work with me in a reasonable manner to reduce more court costs and wasting this courts time. If this court does not do this it would be enabling Cheryl to continue such unreasonable behavior. Cheryl Harlow has refused to mediate and communicate to work these issues out so I am forced to file with this court to resolve them. I ask this court to order Cheryl to mediate and pay for the costs if she is unwilling to work reasonably with me.
44.
The court should enforce orders equally and gender cannot be discriminated against as stated under NDCC 14-02.4-01.
45.
Both parties shall pay their own attorney fees in accordance with NDCC 28-26-01 and the American Rule with the exception that Cheryl Harlow pay Mitchell Sanderson’s filing fees, lost time from work and any additional cost due to her refusal to mediate or cooperate to come to agreement in compliance with the US Constitutional rulings on parental rights requiring repeated court filings to re-obtain my equal rights as a fit parent! 
46.
The above relief is as well requested under N.D.C.C. §§ 14-05-22 and 14-09-06.1, and is in the best interest of the child(ren). The relief sought is to award all issues in the motion for equal parental rights and for Cheryl Harlow to pay Mitchell Sanderson’s filing fees and time lost from work and any other expenses incurred in this filing. I as well ask this court to declare the current best interest standard to be unconstitutional due to the manner it is implemented in violation of parental rights. Child support be calculated by ND Administrative code for equal custody from the beginning of the divorce.

51.
Any reasonable judge or mother would and should understand that the father needs his children and the children need their father. If no reputable or substantial evidence of abuse to the children or unfitness can be supported, by clear and convincing evidence, I ask that any reasonable judge would grant this motion! I further ask that the presiding judge follow the law!

By: _Mitchell S. Sanderson________
Mitchell S. Sanderson, Pro Se, Plaintiff
P. O. Box 195
Park River, ND 58270
701-331-0410

Click on this web page and watch the Center for Parental Responsibility videos on Shared Parenting.

http://www.acfc.org/site/PageServer?pagename=cprtv

Center for Parental Responsibility
Minneapolis, Minnesota
March 18, 2007

Gordon E. Finley, Ph.D.
Professor of Psychology
Florida International University

The references for the bullet points below can be found in the list to follow.

• “The Best Interest of the Child” standard is, in reality, no standard whatsoever (Finley, 2002).  Given its vacuous status as a standard, it is critical to determine who has the authority to define the best interests of children of divorce.

• Of all who assert such authority, the voices least heard - but simultaneously most impacted and most soundly grounded in the childhood “lived experiences” of divorce - are the young adult voices of the children of divorce (Fabricius, 2003; Finley, 2006b; Finley & Schwartz, 2006; Marquardt, 2005).

• More than a half dozen empirical research studies that ask young adult children of divorce retrospectively to look back on their lives uniformly replicate one other in finding that children of divorce missed their fathers when they were growing up and - if asked - indicated that they would have preferred to have had equal shared parenting, something close to equal shared parenting, or more involvement with their fathers in their lives (Fabricius, 2003; Finley, 2006b; Finley & Schwartz, 2007; Laumann-Billings, L., & Emery, R. E. 2000; Marquardt, E. 2005). 

• Specifically:  “Students themselves believed that the best living arrangement for children is equal amounts of time with each parent, the belief they attributed to fathers.  There was impressive consensus on this question.  Fully 70% of both men and women chose equal amounts of time.  Most of the remaining 30% chose substantial number of overnights with dad.” (Fabricius, 2003, p. 387).  Further, in a national survey of 1,500 young adults, “More than 60% of children of divorce somewhat or strongly agreed that they often missed their fathers, whereas more than 60% of children of intact families somewhat or strongly disagreed.  For both children and fathers, this is the story of divorce.  If there is a public policy change message in this book (Marquardt, 2005) this is it.” (Finley, 2006b).

• In sum, the empirical research cited above supports Family Law Reform favoring the presumption of equal shared parenting.

• Let us also reform family law to establish child support guidelines based on honest empirical research rather than false gender ideology (Bergmann, 2006; Braver, 1999; Braver & O’Connell, 1998; Comanor, 2004; Finley, 2007; Weitzman, 1985).

References

Bauserman, R. (2002). Child Adjustment in Joint-Custody Versus Sole-Custody
Arrangements: A Meta-Analytic Review, Journal of Family Psychology, 16 (1), 91-102.

Bergmann, B. R. (2006).  The law and economics of child support payments.  Feminist Economics, 12 (4), 676-677.

Braver, S. L. (1999).  The gender gap in standard of living after divorce:  Vanishingly small?  Family Law Quarterly, 33 (1), 111-134.

Braver, S. L. and O’Connell, D. (1998).  Divorced dads:  Shattering the myths.  New York:  Tarcher/Putnam.

Braver, S. L., and Cookston, J. T. (2003).  Controversies, clarifications, and consequences of divorce’s legacy:  Introduction to the special collection.  Family Relations, 52 (4), 314-317.

Comanor, W. S. (Ed.) (2004).  The law and economics of child support payments.  Northampton, MA: Edward Elgar.

Fabricius, W. V. (2003).  Listening to children of divorce:  New findings that diverge from Wallerstein, Lewis, and Blakeslee.  Family Relations, 52 (4), 385-396.

Finley, G. E. (2002). The best interest of the child and the eye of the beholder. [Review of C. Panter-Brick & M.T. Smith (Eds.) Abandoned children.] Contemporary Psychology, APA REVIEW OF BOOKS, 47 (5), 629 - 631.

Finley, G. E. (2003). Father-child relationships following divorce. In J.R. Miller, R.M. Lerner, L.B. Schiamberg, & P. M.  Anderson (Eds.).  Encyclopedia of human ecology, Volume 1: A - H.  Santa Barbara: ABC-CLIO, 291 – 293.

Finley, G. E. (2006a).  Joint custody.  In N. Salkind (Ed.) Encyclopedia of Human Development, Volume 2, pp. 745 – 747.  Thousand Oaks, CA: Sage.

Finley, G. E. (2006b).  The myth of the good divorce.  [Review of E. Marquardt, Between Two Worlds:  The Inner Lives of the Children of Divorce]. PsycCRITIQUES--Contemporary Psychology:  APA Review of Books, 51 (no. 35), Article 17. 

Finley, G. E., & Schwartz, S. J. (2006).  Parsons and Bales revisited:  Young adult children’s characterization of the fathering role.  Psychology of Men & Masculinity, 7 (1), 42 – 55.

Finley, G. E. (2007).  Divorce: The rest of the story. [Review of the Book by Clarke-Stewart, A. & Brentano, C.  Divorce: Causes and consequences.] PsycCRITIQUES—Contemporary Psychology:  APA Review of Books, 52, (no. 33), Article 155, August 15, 2007.

Finley, G. E., and Schwartz, S. J. (2007).  Father involvement and long-term young adult outcomes:  The differential contributions of divorce and gender.  Family Court Review, 45, (no. 4), 573 – 587.

Laumann-Billings, L., & Emery, R. E. (2000).  Distress among young adults from divorced families.  Journal of Family Psychology, 14 (4), 671-687.

Marquardt, E. (2005).  Between two worlds: The inner lives of children of divorce.  NewYork; Crown.

Maldonado, S. (2006).  Deadbeat or deadbroke:  Redefining child support for poor fathers.  U.C. Davis Law Review, 39 (3), 991-1022. 

Weitzman, L. (1985).  The divorce revolution: The unexpected social and economic consequences of divorce for women and children in America.  New York:  Free Press.

The 14th Amendment:  Equal Protection

The Fourteenth Amendment, which was ratified in 1868, declares no state shall deny to any person with its jurisdiction the equal protection of the laws.  Please pay special attention to sections 1 & 3 of the 14th Amendment.  We the people have the power to enforce this Amendment!

Equal protection clause:

A clause in the Fourteenth Amendment that forbids any state to deny equal protection of the laws to any individual within its jurisdiction.

Equality of Result:

This intended to eliminate de facto discrimination from occurring in society.  De facto discrimination means discrimination based upon race, sex, religion, ethnicity, and from social economic conditions

What is “compelling state interest?” How does it apply to my personal case?

A “compelling state interest” is used to measure any fundamental right affected by governmental interference.  The argument of “where is the compelling state interest,” allows federal courts in reviewing state statutes, to justify their “opinions” as to the constitutionality of a law. 

Guess what? Parenting is a fundamental right protected by the 5th and 14th amendments. This has been established in Troxel v. Granville, 530 U.S. 99-138 (2000), Santosky v. Kramer, 102 S Ct 1388; 455 U.S. 745 (1982) and Quilloin v. Walcott, 98 S Ct 549; 434 U.S. 246, 255 Q56 (1978), among other cases. Treating parental rights as fundamental rights requires a presumption of joint legal and joint physical care upon divorce and through litigation.

Individuals arguing “where is the compelling state interest” in state court, forces the judge to list under what constitutional basis he/she has the authority to rule on child custody matters.

Meyer v. Nebraska, 262 US 390; 43 S Ct 625, (1923):

Parent’s rights have been recognized as being essential to the orderly pursuit of happiness by free man.

Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925):

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Griswold v. Connecticut, 381 US 479 (1965):

A man has the right 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.

Stanley v. Illinois, 405 U.S. 645, 651 (1972):

The parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection.

Wisconsin v. Yoder, 406 U. S. 205, 232-233 (1972):

The Court took up a challenge to Wisconsin’s compulsory education laws and found that even when claiming a purpose of benefiting the child, the state must demonstrate convincing evidence that its intended policy will actually bring about its professed goal.

Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255 Q56 (1978):

A father who is separated or divorced from a mother and is no longer living with his child could not constitutionally be treated differently from a currently married father living with his child.

Santosky v. Kramer, 102 S Ct 1388; 455 US 745 (1982):

Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs.
[W]hile there is still reason to believe that positive, nurturing parent-child relationships exist, the [state’s] parens patriae interest favors preservation, not severance, of natural familial bonds.  The State registers no gain towards its declared goals when it separates children from the custody of fit parents (quote at 766,767).

Troxel v. Granville, 530 U.S. 99-138 (2000):

The liberty interest at issue…the interest of parents in the care, custody, and control of their children--is perhaps the oldest of the fundamental liberty interests recognized by this Court… [I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children

The Courts cannot take children from fit parents. You have to use the clear and convincing evidence standard when terminating parental rights! Santosky v. Kramer (No. 80-5889) 455 U.S. 745
The constitutionality of Ohio domestic relations court to deprive a biological parent, in a divorce situation, of equal custodial parent status without a finding by clear and convincing evidence that the parent so deprived is an unfit parent. Merz, Michael R., United States Magistrate Judge (Sept, 2002) U.S. District Court for the Southern District of Ohio Western Division at Dayton.  Order Joining the State of Ohio as a Party Defendant.

“[T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents.” Stanley v. Illinois, 405 U.S., at 652

The Fourteenth Amendment’s due process clause has a substantitive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests, “Washington v. Glucksberg, 521 U.S. 702, 720, including parents’ fundamental right to make decisions concerning the care, custody, and control of their children, see e.g., Stanley v Illinois, 405 U.S. 645, 651, Pp. 5-8. Troxel v Granville. U.S. Supreme Court, June 5, 2000.

There is a presumption that fit parents act in their children’s best interests, Parham v. J.R., 442 U.S. 584, 602; there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their children, see e.g., Reno v. Flores, 507 U.S. 292, 304. Troxel v Granville. U.S. Supreme Court, June 5, 2000.

The routine and cavalier deprivation of parental rights takes place in the context of divorce where, during the pendency of litigation, one parent is routinely deprived of significant parental rights without any demonstration that a state interest exists-much less that there is a compelling state interest that cannot be achieved in any less restrictive way. In marked contrast to our current practice, treating parental rights as fundamental rights requires a presumption of joint legal and physical custody upon divorce and during the pendency of divorce litigation. The presumption may be overcome, but only by clear and convincing evidence that such an arrangement is harmful to the children. Doe v. Irwin, 441 F. Supp. 1247 1249 (D. Mich. 1977).  From: Hubin, D.C., 1999, Parental Rights and Due Process. The Journal of Law and Family Studies, V 1, N 2, pp. 123-150.

“Although the dispute is symbolized by a ‘versus’ which signifies two adverse parties at opposite poles of a line, there is in fact a third party whose interests and rights make of the line a triangle. That person, the child who is not an official party to the lawsuit but whose well-being is in the eye of the controversy, has a right to shared parenting when both are equally suited to provide it.  Inherent in the express public policy is a recognition of the child’s right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents’ wisdom, judgment and experience.  The child does not forfeit these rights when the parents divorce.” Presiding Judge Dorothy T. Beasley, of the Georgia Court of Appeals, “In the Interest of A.R.B, a Child, July 2, 1993.

“a (once) married father who is separated or divorced from a mother and is no longer living with his child” could not constitutionally be treated differently from a currently married father living with his child.  Quilloin v. Walcott, 98 S.Ct.549; 434 U.S. 246, 255-56, (1978)

The U.S. Supreme Court regards parental rights as fundamental and protected by the First, Fifth, Ninth and Fourteenth Amendments. Doe v. Irwin, 441 F. Supp. 1247 1251 (D. Mich. 1977).

A parent’s right to “the companionship, care, custody and management of his or her children” is an interest “far more precious” than any property right.  May v Anderson, 345 U.S. 528, 533; 73 S.Ct. 840, 843, (1953).

1. Sigmund Freud once wrote, “I cannot think of any need in childhood as strong as the need for a father’s protection.”

2. It is ironic, and of some interest, that we have subjected joint custody to a level and intensity of scrutiny that was never directed toward the traditional post-divorce arrangement (sole legal and physical custody to the mother and two weekends each month of visiting to the father.) Developmental and relationship theory should have alerted the mental health field to the potential immediate and long range consequences for the child of only seeing a parent four days each month. And yet until recently, there was no particular challenge to this traditional post-divorce parenting arrangement, despite growing evidence that such post-divorce relationships were not sufficiently nurturing or stabilizing for many children and parents.  There is some evidence that in our well-meaning efforts to save children in the immediate post-separation period from anxiety, confusion, and the normative divorce-engendered conflict, we have set the stage in the longer run for the more ominous symptoms of anger, depression, and a deep sense of loss by depriving the child of the opportunity to maintain a full relationship with each parent.  Kelly, J. 1991.  Examining Resistance to Joint Custody. Joint Custody and Shared Parenting, second edition, Guilford Press.

3. Over the last four decades, there has been a dramatic increase in the number of children growing up in homes without fathers. In 1960, fewer than 10 million children did not live with their fathers. Today, the number is nearly 25 million. More than one-third of these children will not see their fathers at all during the course of a year. Studies show that children who grow up without responsible fathers are significantly more likely to experience poverty, perform poorly in school, engage in criminal activity, and abuse drugs and alcohol. HHS supports programs and policies that reflect the critical role that both fathers and mothers play in building strong and successful families and in the well-being of children. President Bush and HHS Secretary Tommy G. Thompson have made promoting involved, committed, responsible fatherhood a national priority. On initiative includes encouraging more responsible fathering by non-custodial parents.  U.S. Department of Health and Human Services fact sheet: Promoting responsible Fatherhood (2002).

4. These findings indicate that children do not actually need to be in a joint physical custody to show better adjustment but just need to spend substantial time with both parents, especially their fathers.  Also, joint custody couples reported less conflict; possibly because both parents could participate in their children’s lives equally and not spend the time arguing over childcare decisions.  Unfortunately a perception exists that joint custody is more harmful because it exposes children to ongoing parental conflict.  In fact, the studies in this review found that sole-custody parents reported higher levels of conflict.  Review by the American Psychological Association of Bauserman, R. (2002).  Child Adjustment in Joint-Custody versus Sole-Custody Arangments: A Meta-Analytic Review.  Journal of Family Psychology, V 16, n 1.

5. The benefits of maintaining contact with both parents exceed any special need for relationships with male or female parents. The empirical literature also shows that infants and toddlers need regular interaction with both of their parents to foster and maintain their attachments...In addition, it is necessary for the interactions with both parents to occur in a variety of contexts (feeding, playing, diapering, soothing, putting to bed, etc.) to ensure that the relationships are consolidated and strengthened. In general, relationships with parents play a crucial role in shaping children’s social, emotional, personal, and cognitive development, and there is a substantial literature documenting the adverse effects of disrupted parent-child relationships on children’s development and adjustment. There is substantial evidence that children are more likely to attain their psychological potential when they are able to develop and maintain meaningful relationships with both of their parents, whether the two parents live together or not.  Very large research literatures now document the adverse effects of severed father-child relationships as well as the positive contributions that fathers make to their children’s research. To be responsive to the infant’s psychological needs, the parenting schedules adopted for children younger than 2 or 3 must involve more transitions, rather than fewer, to ensure the continuity of both relationships and the child’s security and comfort during a time of great change.  The ideal situation is one in which infants and toddlers have opportunities to interact with both parents every day or every other day in a variety of functional contexts (feeding, play, discipline, basic care, limit setting, putting to bed, etc.). Unfortunately, the concept of location-engendered stability (one home, one bed) has been incorrectly overemphasized for infants and toddlers, without due consideration for the greater significance to the child of the emotional, social, and cognitive contributions of both parent-child relationship.  Living in one location (geographic stability) ensures only one type of stability.  Stability is also created for infants (and older children) by the predictable comings and goings of both parents, regular feeding and sleeping schedules, consistent and appropriate care, and affection and acceptance. There is absolutely no evidence that children’s psychological adjustment or the relationship between children and their parents are harmed when children spend overnight periods with their other parents.  Indeed, there is substantial evidence regarding the benefits of these regular experiences.  Kelly, J.B. & Lamb, M.E., 2000.  Using child development research to make appropriate custody and access decisions for young children.  Family and Conciliation Courts Review.  Vol 38 Issue: 3 : 297-311, Sage Publications. 

6. On May 1, 2000, Wisconsin’s new custody, placement and paternity reform legislation went into effect.  In signing this legislation, Governor Tommy G. Thompson (now HHS Secretary) stated, “we need to do more to make sure both parents are fully involved in the raising of their children, particularly fathers… I am confident the provisions I am signing help strike a better balance.”

7. Excerpts from Farrell, Warren Ph.D. (2001).  Father and Child Reunion: How to Bring the Dads We Need to the Children We Love.  Penguin Putnam Inc., NY.

 The “right” for which fathers’ -rights groups are fighting is the right to more responsibility for children.

 When divorce occurs, men’s biggest fear is emotional insecurity; women’s is economic security—men’s biggest fear is typically, losing their children - women’s is poverty.

 A mother who has a true motherhood instinct will be fighting for the father to be involved as if her children’s lives depended on it.

 The amount of time a father spends with a child is one of the strongest predictors of empathy in adulthood.

 The most important factor by far in preventing drug use is a close relationship with dad.

 Few people know that children do better with dads.

 When children live with only their moms, the parents are nine times as likely to have conflict as when children live with their dads.

 Children who live with their dads are likely to have more contact with their moms and feel better about their moms than vice-versa.  Put another way, children who live with their dads are more likely to have, in effect, two parents.

 These forms of play (roughhousing inherent in father-child interactions) seem to improve child development in three major areas: the management of emotions, the development of intelligence and academic achievement.

 The decision to keep the child with the mother is theoretically made in the best interests of the child; however, when children were surveyed later in life, fewer than half felt their mother’s motives had anything to do with their best interests.

 The message to men is clear.  “You are your children’s visitor” and then we wonder why men don’t participate equally in childcare.

 A child’s best interests are served only when everyone’s interests are considered.

 If we expect men to be psychologically involved, we need to give men equal psychological time.  If we expect men to be legally responsible, then close-to-equal time needs to be a legal right.

 Equal parenting begins with equal parenting.  Equal parenting will not begin, though , if men know that the investment of their heart will be treated with contempt by the law.

 Sometimes a dad’s sense of powerlessness makes him withdraw.  We call him a deadbeat.  It’s usually more accurate to call him deadened.

 In states that adopt shared parenting time, divorce rates drop within a few years.

 How can we ask men to be more involved with children when we put them in prison, deprive them of equal access and require them to pay more?

 But when the woman’s right to move away means that the father and children will become strangers, then the woman’s right is no more a unilateral right than is the children’s or the father’s right to each other’s love.

 Thus, a quarter century’s worth of studies showing domestic violence against men to be more than equal to domestic violence against women receive so little publicity as to barely make a dent on the public’s consciousness.

 “The risk of suicide has recently risen only for men—from four times higher than women’s risk to almost five times higher.  And divorce increases his risk of suicide even more, to ten times greater than a divorced woman’s.” — “If he is fighting to be with his and your children, and he loses, I predict we will eventually discover that American men in that position are about fifteen times more likely to commit suicide than their wives; if he feels he has been falsely accused of abusing you, about twenty times greater; if he feels he has been falsely accused of child molestation, about thirty times greater.”

 Shared parent time introduces the child to a century of options and the plurality of life; and to the understanding the while divorce produces change and instability, it also produced the ability to make changes and develop inner resources in times of instability, that the twenty-first century is marked by flexibility, not decisions made as a child that are written in stone for life; that parents can divorce and parents can be good and loving…

8. Excerpts from Horn, W.F. and Sylvester, T. (2002).  Father Facts: Fourth Edition.  National Fatherhood Initiative:  Gaithersburg, M.D.

 One out of every three children will go to bed in a home in which his or her father does not live. The fact is children need their fathers.

 Fathers who live with their children are more likely to have a close, enduring relationship with their children than those who do not.

 Children with involved, loving fathers are significantly more likely to do well in school, have healthy self-esteem, exhibit empathy and pro-social behavior, and avoid high-risk behaviors such as drug use, truancy, and criminal activity compared to children who have uninvolved fathers.

 Over the past four decades, Fatherlessness has emerged as one of our greatest social problems.  Fatherlessness is not the only cause of these things, but our nation must recognize it is an important factor. (President George W. Bush - June, 2001)

 A 25-year follow-up of adults who had experienced parental divorce when they were 2.4 through 6 years of age found that no child who saw his or her father under a rigidly enforced court order or unmodified parental agreement had a good relationship with him after reaching adulthood.

 The research is absolutely clear… the one human being most capable of curbing the antisocial aggression of a boy is his biological father.

9. Bauserman, R., (2002) “Child Adjustment in Joint-Custody Versus Sole-Custody Arrangements:  A Meta-Analytic Review”, Journal of Family Psychology, Vol. 16, No. 1, (2002) 91-102. 
“Children in joint physical or legal custody were better adjusted than children in sole-custody settings, but no different from those in intact families. More positive adjustment of joint-custody children held for separate comparisons of general adjustment, family relationships, self-esteem, emotional and behavioral adjustment, and divorce-specific adjustment. Joint-custody parents reported less current and past conflict than did sole-custody parents, but this did not explain the better adjustment of joint-custody children. The results are consistent with the hypothesis that joint custody can be advantageous for children in some cases, possibly by facilitating ongoing positive involvement with both parents.”

10. Fabricius, W.V. (2003) Listening to Children of Divorce Family Relations Volume 52 Issue 4 Page 385 - October 2003.
“I review new findings on (a) college students’ perspectives on their living arrangements after their parents’ divorces, (b) their relations with their parents as a function of their living arrangements, (c) their adjustment as a function of their parents’ relocation, and (d) the amount of college support they received. Students endorsed living arrangements that gave them equal time with their fathers, they had better outcomes when they had such arrangements and when their parents supported their time with the other parent, they experienced disagreement between mothers and fathers over living arrangements, and they gave evidence of their fathers’ continuing commitment to them into their young adult years.”

11. Kelly, J. B. (2000). Children’s adjustment in conflicted marriage and divorce: A decade review of research. Journal of the American Academy of Child and Adolescent Psychiatry, 39, 963-973.
“Joint custody led to better child outcomes overall. “
Kelly, J., Current research on children’s postdivorce adjustment. Family and Conciliation Courts Review, 31.29-49, 1993

12. On child satisfaction:  “Children have expressed higher levels of satisfaction with joint physical custody than with sole custody arrangements; citing the benefit of remaining close to both parents. Joint custody does not create confusion for the majority of youngsters about their living arrangements or about the finality of the divorce, nor does increase loyalty conflicts (Leupnitz, 1982; Shiller, 1986a, 1986b; Steinman, 1981).”

13. On parent satisfaction:  “A surprising finding in one study was that mothers who share custody are more satisfied than those having sole custody and whose children see their father periodically. However, both groups expressed more satisfaction with their residential arrangement than did sole-custody mothers whose children had no paternal contact.”

14. On conflict situations:  “Dual-residence (joint physical custody) parents had the highest co-operative-communication scores but did not differ from mother custody or father custody parents in the amount of discord. Shared residence did not exacerbate or diminish conflict but did appear to lead to more co-operative communication.”

15. On child adjustment:  “The adjustment of 517 adolescents (aged 10 years, 6 months to 18 years) in three residential arrangements was compared 4.5 years after separation by Buchanan, Maccoby, and Dornbusch (in press). Looking at both family process and status variables, these researchers assessed adolescent adjustment in terms of depression, deviance, school effort, and school grades. Statistically, more boys were in dual-residence and father-residence arrangements, whereas more girls were in mother-residence arrangements. Overall, dual-residence adolescents were better adjusted than were mother-residence adolescents.”

16. According to divorce magazine.com “Fatherless homes account for 63% of youth suicides, 90% of homeless/runaway children, 85% of all children with behavioral problems, 71% of high school drop outs, 85% of youths in prison, and well over 50% of teen mothers.”

17. Fabricius, W.V. and J. Hall, (2000) “Young Adults Perspective on Divorce”, Family and Conciliation Courts Review, Vol. 38, 446-461. “Our participants, who have lived through their parents’ divorces and have now entered young adulthood (and college) have given us their ‘expert’ advice.  Seventy percent of them, men and women alike, believe that living equal amounts of time with each parent is the best arrangement for children.”

18. Christoffersen, M. N. (1998). Growing up with dad: A comparison of children aged 3-5 years old living with their mothers or their fathers. Childhood, 5(1), 41-54. This Danish study used a scientific sample, drawn from national birth records, of 478 single fathers and 532 single mothers, including situations that can be classified as joint physical custody.  Results indicated that children fared better with single fathers, possibly as a result of greater contact with the other parent (i.e. joint physical custody with mother), economic stability of fathers, and more social support, including greater contact with grandparents.

19. Ackerman, M.J. and Ackerman, M.  “Custody Evaluation Practices: A Survey of Experienced Professionals (Revisited)”, Professional Psychology: Research and Practice, Vol. 28, No. 2.  (1997). “Psychologists Becoming More Sophisticated In Their Custody Evaluation Practices, Survey Finds”
More Inclined Toward Joint Custody; Less Likely to Make Judgments Based on a Single Factor than 10 Years Ago This report shows that joint custody is becoming the option of choice among experts:
“While in 1986 more than half of the situations on the list prompted an endorsement of one parent over the other, by 1996, less than a quarter of the items resulted in endorsement of one parent over the other, indicating a greater preference for joint custody over sole- or single-parent custody than in 1986.”
APA announcement:  http://mirror.apa.org/releases/custody.html

20. Adolescents After Divorce, Buchanan, C., Maccoby, and Dornbusch, Harvard University Press,1996. A study of 517 families with children ranging in age from 10.5 years to 18 years, across a four and a half year period. Measures were: assessed depression, deviance, school effort, and school grades.  Children in shared parenting arrangements were found to have better adjustment on these measures than those in sole custody. Joan B. Kelly, one of the most respected experts in the field of children and divorce, summarized the Buchanan, Maccoby and Dornbusch study as follows:  “The adjustment of 517 adolescents (aged 10 years, 6 months to 18 years) in three residential arrangements was compared 4.5 years after separation by Buchanan, Maccoby, and Dornbusch (in press). Looking at both family process and status variables, these researchers assessed adolescent adjustment in terms of depression, deviance, school effort, and school grades. Statistically, more boys were in dual-residence and father-residence arrangements, whereas more girls were in mother-residence arrangements. Overall, dual-residence adolescents were better adjusted than were mother-residence adolescents.” (Current research on children’s postdivorce adjustment. Family and Conciliation Courts Review, 31.29-49, 1993)

21. Division 16, School Psychology, American Psychological Association, Report to the U.S. Commission on Child and Family Welfare, June 14, 1995. This report “summarizes and evaluates the major research concerning joint custody and its impact on children’s welfare.” The report concludes that “The research reviewed supports the conclusion that joint custody is associated with certain favorable outcomes for children including father involvement, best interest of the child for adjustment outcomes, child support, reduced relitigation costs, and sometimes reduced parental conflict.” The APA also noted that “The need for improved policy to reduce the present adversarial approach that has resulted in primarily sole maternal custody, limited father involvement and maladjustment of both children and parents is critical. Increased mediation, joint custody, and parent education are supported for this policy.”

22. More than a quarter of American children—nearly 17 million—do not live with their father. Girls without a father in their life are two and a half times as likely to get pregnant and 53 percent more likely to commit suicide. Boys without a father in their life are 63 percent more likely to run away and 37 percent more likely to abuse drugs. Both girls and boys are twice as likely to drop out of high school, twice as likely to end up in jail and nearly four times as likely to need help for emotional or behavioral problems.” —HHS Press Release, Friday, March 26, 1999.”

23. Children who live without contact with their biological father are 5 times more likely to live in poverty, more likely to bring weapons and drugs into the classroom, twice as likely to commit crime, twice as likely to drop out of school, twice as likely to be abused, more likely to commit suicide, more than twice as likely to abuse alcohol or drugs, and more likely to become pregnant as teenagers.  The best predictor of crime in a community is the percentage of absent father households.  Seventy percent of U.S. citizens believe that the most significant family or social problem facing the U.S. is the physical absence of the father from the home, resulting in a lack of involvement of fathers in the rearing and development of children. There is a social need to reconnect children and fathers.  For the future of the United States and the future of our children, Congress, States and local communities should assist parents to become more actively involved in their children’s lives.  Domininci & Bayh, 1999. Introduction to the Responsible Fatherhood Bill (S. 1364)

24. Found the same correlation between joint physical custody awards and reduced divorce. They conjectured that fathers are more likely to form strong bonds with children if they know that their relationship would be protected through joint physical custody in the event of a divorce. Margaret F. Brinig and F.H. Buckley, “Joint Custody: Bonding and Monitoring Theories,” 73 Indiana Law Journal 393 (1998).

25. There is a significant correlation between joint physical custody awards and reduced divorce rates.  Kuhn, R. & Guidubaldi, J., 1997.  Child Custody Policies and Divorce Rates in the U.S. 11th Annual Conference of the Children’s Rights Council.  October, 1997, Washington, D.C.

26. A study of 517 families with children ranging in age from 10.5 years to 18 years, across a four and a half year period. Measures were: assessed depression, deviance, school effort, and school grades.  Children in shared parenting arrangements were found to have better adjustment on these measures than those in sole custody. Adolescents After Divorce, Buchanan, C., Maccoby, and Dornbusch, Harvard University Press,1996 This study re-confirmed the negative effects of divorce and high conflict between parents (in divorce or marriage), particularly in risk of drug use, lower academic achievement and behavior problems. However, some factors reduced problems:  1) children whose fathers remain involved with their school activities have better outcomes, 2) divorce and custody mediation results in lower conflict between parents, 3) joint custody leads to better outcomes for children. Joan B. Kelly, one of the most respected experts in the field of children and divorce, summarized the Buchanan, Maccoby and Dornbusch study as follows:  “The adjustment of 517 adolescents (aged 10 years, 6 months to 18 years) in three residential arrangements was compared 4.5 years after separation by Buchanan, Maccoby, and Dornbusch (1996). Looking at both family process and status variables, these researchers assessed adolescent adjustment in terms of depression, deviance, school effort, and school grades. Statistically, more boys were in dual-residence and father-residence arrangements, whereas more girls were in mother-residence arrangements. Overall, dual-residence adolescents were better adjusted than were mother-residence adolescents.” Kelly, J. B.. Children’s adjustment in conflicted marriage and divorce: A decade review of research. Journal of the American Academy of Child and Adolescent Psychiatry, 39, 963-973 (2000).

27. tudies have shown that the amount of contact non-residential fathers have with their children diminishes over time due to social rules of father disengagement, lack of skills, societal ambivalence toward fatherhood, geographic mobility, remarriage, lack of access, psychological pain at not being able to see their children, inadequate financial resources, feeling the pain of the artificial nature of visitation, diminished parenting role, unequal custody power and litigation.  Nord, C.W. and Zill, N. (1996).  Non-Custodial Parents’ Participation in Their Children’s Lives: Evidence from the Survey of Income and Program Participation. Vol II: Synthesis of Literature.  Prepared for the Office of the Assistant Secretary for Planning and Evaluation, U.S. Department of Health and Human Services.

28. This report “summarizes and evaluates the major research concerning joint custody and its impact on children’s welfare.” The report concludes that “The research reviewed supports the conclusion that joint custody is associated with certain favorable outcomes for children including father involvement, best interest of the child for adjustment outcomes, child support, reduced relitigation costs, and sometimes reduced parental conflict.” The APA also noted that “The need for improved policy to reduce the present adversarial approach that has resulted in primarily sole maternal custody, limited father involvement and maladjustment of both children and parents is critical. Increased mediation, joint custody, and parent education are supported for this policy.” Division 16, School Psychology, American Psychological Association, Report to the U.S. Commission on Child and Family Welfare, June 14, 1995.

29. “Joint custody is also the preferred option in high conflict situations because it helps reduce the conflict over time - and that is in the best interests of the children.” Bender reviews current and historical research on the ‘myths’ of joint custody, i.e. - that joint custody should not be awarded when the mother objects or in high conflict matters.  The article describes the benefits of joint custody including that children adjust better post-divorce in joint custody as compared to sole custody awards, children’s attachment to both parents post-divorce is essential for healthy child development, joint custody leads to higher levels of financial compliance, relitigation is lower as compared to sole custody, and joint custody leads to the best outcome for children even in high conflict situations because it forces resolution and best leads to reduction of child stress in the long term. Bender, W.N. 1994. Joint custody: The option of choice. Journal of Divorce & Remarriage 21 (3/4): 115-131.

30. “Children have expressed higher levels of satisfaction with joint physical custody than with sole custody arrangements; citing the benefit of remaining close to both parents. Joint custody does not create confusion for the majority of youngsters about their living arrangements or about the finality of the divorce, nor does increase loyalty conflicts (Leupnitz, 1982; Shiller, 1986a, 1986b; Steinman, 1981).” Kelly, J., Current research on children’s postdivorce adjustment. Family and Conciliation Courts Review, 31.29-49, 1993

31. When both parents share the social and economic responsibilities of childcare, children appear to adapt better to their changed living arrangements than when the mothers bear these responsibilities alone. Seltzer, Journal of Marriage and the Family, 1991.

32. Conflict between divorcing parents did not appear to worsen as a result of the increased demand for interparental cooperation and communication in joint legal or joint residential custody arrangements.  Pearson, J. & Thoennes, N., 1990.  Custody after Divorce: Demographic and attitudinal patterns, American Journal of Orthopsychiatry, Vol 60.

VIEWPOINT : Shared parenting initiative helps women, too

http://www.grandforksherald.com/articles/index.cfm?id=11128&section=Opinion
By Mike McCormick and Glenn Sacks,
Published Sunday, September 24, 2006

WASHINGTON - Jane is a successful career woman. She has moved up rapidly in a competitive field and is advancing her career by attending business school at night. Bob works out of their home and does most of the child care.

If Bob decides he doesn’t want Jane anymore, should he be able to take her kids away and push her to the margins of their lives?

The opponents of the North Dakota Shared Parenting Initiative think he should.

Under the initiative, both parents in a divorce will have joint legal and physical custody of their children, unless a parent is unfit. By contrast, the North Dakota Concerned Citizens for Children’s Rights Committee and its allies support the current system of awarding sole custody to the children’s primary caregiver - that’s Bob - and oppose the initiative.
They contend that family courts should not require custodial parents to let noncustodial parents such as Jane to spend substantial time with their children after divorce.
This is wrong - Jane’s children love her. Even though she was not the children’s primary caregiver during the marriage, it’s very harmful to take them away from her. It’s also wrong to punish Jane for pursuing a career and being her family’s primary breadwinner. Yet, this is exactly what sometimes happens to working mothers - and very often happens to fathers - under the current system.
According to a study conducted by Penn, Schoen & Berland Associates and quoted in Time magazine, today more than one-fifth of fathers are their kids’ primary caregivers. While this often is a very beneficial arrangement for families, it leaves women increasingly vulnerable to losing custody and being pushed out of their children’s lives after divorce, just as so often happens to fathers.
There’s a better way than the current win/lose custody system: shared parenting. Under shared parenting, children spend substantially equal time in each parent’s home. According to a meta-analysis published in the American Psychological Association’s Journal of Family Psychology, children in shared custody settings have fewer behavioral and emotional problems, higher self-esteem, better family relations and better school performance than children in sole custody arrangements.

While many women’s advocates have taken a misguided stand against shared parenting, there is a significant, outspoken minority that recognizes its benefits for women. For example, feminist attorney Karen DeCrow, president of the National Organization for Women from 1974 to 1977, says:
“If there is a divorce in the family, I urge a presumption of joint custody of the children . . . it is the best option for women. After observing women’s rights and responsibilities for more than a quarter of a century of feminist activism, I conclude that shared parenting is great for women, giving time and opportunity for female parents to pursue education, training, jobs, careers, profession and leisure.”

Martha Burk, the chairwoman of the National Council of Women’s Organizations who led the effort to open the Augusta National Golf Club to women, concurs. Burk, who was named Ms. magazine Woman of the Year in 2003, explains that shared parenting provides women with greater economic freedoms and opportunities. She calls the current child custody system “mother ownership of children” and says that under this “harmful societal norm,” judges “mindlessly award (sole) custody to the mother,” to the detriment of all parties.
Under the initiative, courts will instruct divorcing parents to develop a joint parenting plan. If the parents cannot agree on a plan, the court will facilitate one that lets both mothers and fathers maintain a meaningful role in their children’s lives.

Shared parenting is advocated by a growing consensus of mental health and family law professionals. The North Dakota initiative has gained the requisite signatures and will be on the November ballot. It is a chance to move North Dakota family law forward from the outdated, mom-as-caregiver/dad-as-breadwinner model toward an updated model which will benefit both children and their parents.

McCormick is executive director of the American Coalition for Fathers and Children, http://www.acfc.org. Sacks is a freelance writer and columnist on men’s and fathers’ issues.

http://www.grandforks.com/mld/grandforks/news/editorial/15320602.htm

Posted on Sun, Aug. 20, 2006

PRAIRIE VOICES: Shared parenting

More and more states tailor their custody laws to recognize that children need both mother, father, Colorado author and psychologist says
By Dorreen Yellow Bird
Herald Staff Writer

Shirley Thomas, author and clinical psychologist

The American Psychological Association referred the Herald to Thomas as a specialist in the psychology of custody issues and divorce. The Herald called the association to talk about those issues in connection with the North Dakota Shared Parenting Initiative, which is likely to be on the state ballot in November.

Thomas, who holds a doctoral degree in psychology from the University of Colorado, directs court-certified divorce education programs in the Boulder, Colo., area and is the author of three co-parenting books.

Thomas lives in Longmont, Colo.

In North Dakota, a parenting initiative is likely to go before the voters in November. It is about the custody of children after a divorce. It declares that “absent a finding of parental unfitness, parents retain joint legal and joint physical custody of their children” and that “parents shall develop a joint parenting plan, or if they can not agree to such a plan, the court shall facilitate production of a parenting plan with them.”

If the initiative passes, what will be the likely result?

Every state is struggling with the issue of responsibilities between the parents and how the needs of the children should be addressed.
You’re using the term “shared parenting.” That means parents have an obligation to put their heads together and develop a plan for how their children are going to be raised once they no longer have a relationship, rather than leave that up to the state. Part of the discussion is the court’s responsibilities versus how much the parents should do themselves.
It sounds like the initiative you’re talking about would require parents to develop their shared parenting plan. That would not bear on how much time each parent spends with the children, but would bear on writing their intentions about much time each one spends and who would make decisions for the children.
Every state, including North Dakota, is trying to turn more responsibility to the parents—and what they file, they’ll be held to.
A majority of parents, in most states, willingly sit down and write out a parenting plan. Seventy percent of all parents can and do that with no problem, but 30 percent of parents argue and disagree about a parenting plan. It’s this 30 percent that everyone is worried about. The initiative, therefore, is telling this 30 percent that they have the responsibility to work out a parenting plan for their children.

So, the word “shared” can mean the child lives in one home 90 percent of the time or in each home 50 percent of time. The amount of time the children spend with each parent is a separate question from the fact they are making up a parenting plan and will file it in court.

In default, when parents cannot and will not, the court then will set up the parenting plan.

When they use the word “shared” in any kind of legislation, they mean that we are working toward a model in our country where both parents continue to take part in children’s lives as opposed to one parent raising the children with the other parent “visiting” the children.

I don’t know if North Dakota still uses the term visitation, but Colorado, does not use this term. We used the word “parenting time.” That means parents do not “visit” their own children, they “parent” them, even if they only have 5 percent of the time with them.

The change we are undergoing is that parents are more and more required to make their own parenting plan, and they are required more and more to get along with one another.
When we called the American Psychological Association for information about custody and divorce, they gave us a list of specialists in those subjects, and your name was on the list. Does the association have an official position on shared parenting?

I believe the association is neutral. There has been a national movement, and the national psychological association is on top of it. They say there is no inherent bias in favor of either parent, but there always is discussion going on as to what is good for children. Every state uses a “what’s best for the children” standard.

How would the North Dakota initiative affect children?

It would affect children to the extent that parents are able to work out a parenting plan. Even though the parents are living separately, the children still have both of them as parents. That is true whether the parents are married and living together or never married and never lived together, but the child knows and has a relationship with each one.

Research has found that the most important thing for children is how the parents get along with one another. That is, in fact, more important than how much time is spent in each home. It is somewhat unrelated to the matter of child support, except that in reality, parents who are left out of the parenting plan tend not to pay their child support because feel they aren’t involved in making the parenting plan. Research shows that, too.

Some critics say the initiative’s supporters simply are trying to get out of paying some child support. Do you think there is any merit in that claim?

It may be that the child support issue is part of why this initiative is being introduced. It balances the amount of payments and the amount of time spent.
As a mental health professional, I usually don’t get into the matter of figuring child support. But, in reality, people do tie child support to time spent with the child. There is no way of separating the two in the view of parents who are disgruntled because they are not included in the child’s life, yet they have to pay.

It long has been believed that women tend to be better caretakers of children. Does research support that?

No. There is a change going on with the roles of fathers and mothers in our country. There is no proof that women and better caretakers than fathers, especially with the redefinition of the roles in which we have many stay-at-home fathers. Many fathers are at home with infants while mothers go back to their jobs. That is part of the change in roles that happened since the 1960s.
Historically, mothers were assigned most of the early-life caretaking duties of babies and infants. That is an extension of the fact that they bore the children. There was some belief that children were born with relationships to mothers. There may be something to the fact that mothers take naturally to motherhood, while fathers have to be shown how to care for infants.
But what we are finding is that when fathers are involved, they are able to do the early-life caretaking just as well as mothers.
The expectations are different, but they are equally important. So, to carry on with the belief that all early-life caretaking should be done by mothers is old-fashioned thinking and not supported by research.

A woman is important to the growth of a female into puberty. The mother becomes an important teacher and role model for this transition. She can help a sons grow into adulthood, too. Can a father do these as well?

Yes, a father can do these as well. There is a line of thinking that agrees with your statement that a mother can help a daughter. But daughters need to relate to their fathers equally as well in order to learn how to talk to the opposite sex and how to enter into relationships as they grow older.

One of the roles of each parent is to interact with the child of the opposite sex in an appropriate way, so the child is comfortable emerging into adolescence.
As far as feminine hygiene and the puberty changes that the bodies go through, especially with girls, girls do need time with their mothers to learn, confide and be shown how to do things. But they don’t need to be in the home full time for that education to take place. In custody situations, they can be told when go to the mother’s home. Sensitive fathers also can talk with girls about menstruation.

So, you’re saying that the proposal for shared parenting sounds reasonable and could benefit both parents and child?

It sounds like a reasonable proposal to me and is in line with what’s happening across our country as far everyone believing and getting on board with the fact that children need both parents.
Any final words?

I would encourage the people in your area to take advantage of parent education programs. Along with the books, there is information out there. It is part of the culture change, and young people should avail themselves to these sources.

Bismark Tribune Letter to the Editor:

The children of divorce are the true victims. Shared parenting not only has been found to be beneficial by numerous mental health professionals, it is generally the children’s wishes. The best interest of the children is often bypassed, and in turn the best interest of the mother takes precedence.

Advocates for children of divorce are coming forward and for good reason. Headway is being made on the topic of shared parenting. Laws can change. There is power in numbers.

Article Link