Friday, November 19, 2004

Children should be focus of divorce laws, court

I am going to reprint this entire article but you can see it at the source: Concord Monitor Online

In my opinion, at first this sounds like a move in the right direction - but upon reflection really appears to be just another vague use of language guaranteeing very little. There is no mention of the right each parent has to PARENT their child - though there is a reference to "substantial involvement" by each party. How do you quantify substantial involvement unless you equalize the parties?

Children should be focus of divorce laws, court Legislative group seeks a cultural shift

By KATHARINE WEBSTER The Associated Press

The state's divorce laws and new family court system should focus on children's needs instead of parents' rights, a legislative task force says.

The Task Force on Family Law issued a report Nov. 1 advocating a major cultural shift from the present adversarial divorce and child custody system, which focuses on preparation for trial, to a cooperative model that emphasizes mediation, parenting plans and parent education.

The state's recent decision to set up a separate Family Court system provides lawmakers and the state Supreme Court an opportunity to make radical changes that put the needs of children first, the report says.

"The emotional costs of the current process on children have been clearly documented," the report says. "The best interest of the child should be our first and primary consideration."

The report culminates two years of work by the panel of legislators, lawyers, judges, domestic violence experts, men's and women's rights advocates, childhood experts and ordinary citizens who are "experienced consumers" of the state court system.

It dovetails with recent reports on the future of the state court system and help for people who don't have lawyers, recommending the courts employ case managers who can quickly inform parents about alternative dispute resolution.

A report by another legislative task force on child support and custody is due Dec. 1.

Now, only 10 percent of divorce and custody cases end up going to trial, but the courts start scheduling cases from the beginning as if trials are "inevitable," the report says.

Instead, lawyers, the court system and social service agencies should help parents make decisions on their own, with trials serving as a last resort.

Courts are "intruding into the inner workings of the family"rather than "empowering family members to learn to resolve their disputes," the report says.

One early step the report recommends is requiring parents to attend classes on the impact of divorce on children. Another is requiring parents to file "parenting plans" with the court specifying who will make certain decisions and the schedule for each parent's time with the children.

When parents cannot agree on a plan, case workers should schedule temporary custody hearings immediately, the report says.

Parents, the courts and lawyers must recognize that children do better when both parents are "substantially involved" in raising them - while taking into account factors such as child abuse, domestic violence, mental illness, and incarceration.

The report even suggests eliminating words such as "custody,""support" and "visitation" because they are "value-laden terms which denote concepts of ownership and denial." Instead, the family courts should focus on how each parent's rights and responsibilities affect children.

The task force recommends the Legislature give judges the power to order parents into mediation or neutral evaluation, because mediation can improve parental communication, save money and result in agreements that are more likely to hold up.

Mediators help both sides articulate their concerns and arrive at solutions. Neutral evaluators are lawyers who tell both parents about the laws applying to their case and the likely outcome if it goes to trial.

The report also recommends the use of "collaborative law," in which parents and their lawyers sign contracts agreeing they will try to resolve all their disagreements without a trial. If one parent later requests a trial, the collaborative lawyers must resign; they cannot represent the parents in adversarial proceedings.

Concord lawyer Peter McGrath said Tuesday most family law attorneys agree with the report's recommendations, but they're worried the state courts don't have the resources to implement them.

"Where are you going to get the money? Where are you going to get the manpower? How are you going to find the time?" he said.

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