Newsletters::1999 October
From R-KIDS of MN and GPF
New Child Support Process
The "Expedited Process" (aka ex-pro) for child support took effect July 1. Click here to get a copy of the new interim rules, or go to http://www.courts.state.mn.us/rules/intrules.doc Because they were put together under a tight deadline, they will be reviewed again soon.
In many regards, it’s the same old same old. The major changes your newsletter editor has noticed are as follows: (1) The same old Administrative Law Judges are now called magistrates. (So what?) (2) There is a remedy of appeal to District Court (This is good; I haven’t tried it yet though) (3) The County Attorneys are usually showing up at all hearings, even though that’s probably not necessary. This may work to the disadvantage of the noncustodial parent, since there are now two people (the child support worker and the county attorney) who are there two "represent the interests of the public authority," which is a euphemism for representing the custodial parent (4) Even if the parents have an agreement on visitation, joint legal custody, or tax exemptions, it cannot be included in an order, whereas it could under the ALJ system. (5) It’s moving a lot slower.
New Visitation "Guidelines" Pamphlet Is Introduced
Members should also be informed that Sue Dosal (651/296-2474) of the Minnesota Supreme Court on April 9, 1999, sent a request to all county court houses for them to provide a pamphlet of papers entitled "A Parental Guide to Making Child-Focused Visitation Decisions". We call this "Guidelines" in quotes because they are not supposed to be guidelines; judges are supposed to decide each case on its own merits, rather than using a "one-size-fits-all families" approach. Parents who are having difficulty with visitation, e.g. dealing with obstruction, probably will find this free handout helpful. To download a copy, go to this link. http://www.courts.state.mn.us/cio/visitpamphlet.doc
If your courthouse still doesn't have it persist until they do. E.g. by calling Sue Dosal or letting R-Kids know and we too will work to make this pamphlet available in your county. So far, for whatever reason, numerous counties in the Twin Cities area have "misplaced" this request from the Supreme Court. It has taken prodding from R-Kids for some of these counties to do their job. If you find county courthouses that still are not abiding by the Supreme Court's request, let R-Kids know.
Parenting Plan Task Force
The Cooperative Parenting Task Force usually meets on the 2nd Thursday of the month, 1 to 4 PM, in the Minnesota Judiciary. But call Janet Marshall 651/296-7574 or Tori Wible (or her replacement at 651/297-7587) to be sure of time and place. Ask for a copy of the Task Force members, and to get the monthly mailing. They are writing a report about the pros and cons of mandating that parents mediate a plan how they propose to parent their children. This tends to reduce litigation and its associated hostilities. The opposition’s main argument is that if there has been domestic abuse, parents shouldn't mediate. However, even people who have been violent can mediate by telephone. Child support also is an issue, e.g. if the non-custodial parent has the child a lot of the time.
You don't have to attend to get your input. E.g. some have written their concerns to Tori Wible and she has Xeroxed them and passed them out.
If you want them to fix the wheel, you have to tell them it's broke.
The Task Force has been crippled by one member's harping on domestic violence against women. To counter, here is some information from a report compiled by Revs. Sam and Bunny Sewell, Co-Directors of the Best Self Clinic. The full report may be found on the internet at http://www3.sympatico.ca/kirwood/dv.htm. If you don't have access to the internet, contact R-Kids Secretary for a copy of this 27 page, well documented report.
At the 13th World Congress of Sociology, on July 19, 1994 it was reported that for the U.S. for 1992: For the average of reports by males and females: Husband on wife severe assault occurred at a rate of 2.0%, whereas wife on husband severe assault occurred at a rate of 4.6%. Also reported at the conference was the fact that although male on female violence has been slowly decreasing over the last decade, female on male violence is now increasing sharply.
Comparative data from three national studies
Minor Assaults, per 1000 couples
1975 by husband 98 by wife 98 1985 by husband 82 by wife 75 1992 by husband 92 by wife 94
Severe Assaults, per 1000 couples
1975 by husband 38 by wife 47 1985 by husband 30 by wife 43 1992 by husband 19 by wife 44
Minor violent acts: 1) Threw something, 2) Pushed/Grabbed/Shoved, 3) Slapped or spanked Severe violent acts: 1) Kicked/bit/hit with fist, 2) Hit, tried to hit with something, 3) Beat up, 4) Threatened with gun or knife, 5) Used gun or knife.
The misunderstanding of the domestic violence issue is so pervasive that city and county governments, the courts, law enforcement, prosecutor offices, mental health clinics, and other tax supported agencies are now funding programs based on feminist propaganda rather than responsible scientific studies. These scientific studies reveal a startling different picture of the problem. (This is a direct quote from the report.)
Directors meeting notes Sep 2, 1999
1999-2000 Directors: David Lamb, Robert Carrillo, Ken Schamberger, Chuck Perrin, Knute Gladen, Frank Nellis, and Steve Blake.
1999-2000 Officers: President , Ken Schamberger, Vice President, David Lamb, Vice President, Frank Nellis, Treasurer, Chuck Perrin, Secretary, Knute Gladen
The legal action committee reported that it is two months away from filing a law-suit. The next step is to accumulate studies and raise funds.
Directors Meetings schedule: Thursday October 7, 1999, at 7:00PM, at Frank Nellis' house, 1080 Cedar View Drive, Mpls, Minn. (Announcement will be sent. Watch for any changes).
Members Meetings schedule: Members meetings are held at the Brookdale-Hennepin Area Library, 6125 Shingle Creek Parkway, Brooklyn Center. Meetings are scheduled for:
Thursday, September 23, 1999 at 7:00 PM.
Thursday, October 21, 1999 at 7:00 PM.
Thursday, November 18, 1999 at 7:00 PM.
Thursday, December 16, 1999 at 7:00 PM.
Submitted by Knute Gladen, Secretary
Walter Kuckes Writes
(Aug 11, 1999)
The Child Support Task Force meets about once a month. The next time is from 10 AM to 2:30 PM on August 24th in the Metro Square Building, lower level, Texas room Last time the door was locked, but you can get it opened by asking around (not a very good way to have a public meeting, but the message seems clear. They don/t want us.) You can get more information by calling Jo Beld 651/296-7617 or Nicki Nelson 651/215-5632. Call them and ask for a copy of their minutes, the names and addresses of those on the task Force, and dates and times of the upcoming meetings and to be put on the mailing list when more meetings are scheduled. A few of their recent comments have been :we are paid to get as much money from the non-custodial parent as possible."
Another is "we have to increase the non-custodial income for purposes of figuring child support by the amount the non-custodial parent is getting from their pension plan." The child support formula, by federal mandate, is supposed to consider both parent/s income. In Minnesota the child care and medical expenses are shared, but what is usually the largest amount, i.e. that from the child support guidelines grid only considers only the non-custodial parent/s income. You might ask the task force members why both incomes aren't used in all three parts of figuring the child support obligation.
Those on our mailing list should be encouraged to write their opinions to the two task forces that are writing reports for the legislature. These reports frequently are just put into law. Therefore, it is important for us to get our input into the task forces.
Case Law Review
Supreme Court Says Agreements To Alter Threshold For Custody Modification Are Void
In the case of Frauenshus v. Giese, http://www.courts.state.mn.us/library/archive/supct/9909/c898444.htm, a divided Supreme Court, in a 4-3 decision, held a stipulation to alter the threshold for custody modification, which has been signed by a judge, is void. The parties had earlier agreed that if the custodial parent moved at least 50 miles, custody could be reviewed. (Normally, custody can only be modified upon endangerment, integration, or agreement). Because the legislature has not said parties can agree to a different standard, only the statutory standards apply. (In joint physical custody case, parties can agree to their own standard).
This is something that R-KIDS should really lobby hard to correct. Often times, a parent will agree to give up custody, but wants to say that custody can be reviewed on a lower threshold than endangerment, for instance if the custodial parent wants to move, if the CP is an alcoholic and starts drinking again, or sometimes they want to allow heightened weight to the preference of the child at a certain age. These types of agreements, even if carefully negotiated and approved by a judge, may be worthless unless we can get the legislature to take action.
Senator Murphy Divorces
Senator Steve Murphy, DFL-Red Wing, divorced October 1998. He is the noncustodial parent of two children, and recently his case was before the Court of Appeals in an unpublished decision. Click here to see it. http://www.courts.state.mn.us/library/archive/ctapun/9907/2340.htm
United Way Contributions
When filling out your United Way contribution form, designate R-Kids of MN Charitable Fund as your designated recipient. To do this, check the box next to C. Specific Agency, and fill in the dollar amount (preferably all of your contribution). On the line above Name of Organization write R-Kids of MN Char Fund, Box 24658. Leave the line blank above Agency Number. Above City, write Edina. Above State write MN 55424.
If your United Way is not designated Minneapolis area, or St. Paul area, contact R-Kids Secretary. Leave a message giving the name and address of your United Way on the R-Kids phone at (651) 770-6164, or mail a copy of your United Way Brochure to R-Kids Secretary, PO Box 24658, Edina, MN 55424-0658. The R-Kids Secretary will mail a copy of our 501( c ) (3) validation letter (from the IRS) to your specific United Way chapter.
United Way will then mail your tax deductible contribution to R-Kids of Minnesota Charitable Fund, where it will be used to help children of divorce.
Thank you for your contribution!
Grandparents Preserving Families Notice
Fall meetings, night will be on Monday Nov 8 at 7:00 PM. Meetings are held at Cross of Glory Lutheran Church, 5929 Brooklyn Blvd., Brooklyn Center, MN. For information, call Donna at (612) 533-6447.
Fall meetings, afternoon will be on Wednesday Nov 17 at 12:30 PM. Meetings are held at St. Paul Merriam Park Library, 1831 Marshall Ave., St. Paul. For information, call (651) 646-8311.
Guardian Ad Litem Problems
Douglas Lawson reports that he has filed a legal action against a Guardian Ad Litem for making recommendations and a report without interviewing both parents and children involved.
Douglas is trying to get the Mpls Star Tribune to expose the incompetent actions of Guardian Ad Litems. The interested reporter is Jim Walsh at the Star Tribune. However, the only legal action that the reporter could find was Douglas' action.
If you have had problems with a Guardian Ad Litem, please write or call Doug Lawson or Jim Walsh. Doug Lawson may be reached at 14904 View Crest Lane, Burnsville, MN 55306, phone (612) 435-7963. Jim Walsh may be reached at Mpls Star Tribune, 425 Portland Ave S., Mpls, MN 55488. The phone number for Star Tribune information is (612) 673-4000, or try 1-800-358-3477.
Lawsuits Against Cottonwood County
There have been seven lawsuits filed against Cottonwood County (Windom) Minnesota according to R-Kids member Keith Villa. The social service workers in that county have been particularly abusive to divorced, non-custodial men and to children. It seems like the federal bounty is more important than citizens and taxpayers.
In one case, the social service worker was so eager to collect the bounty that she called and harassed an employer even before the newly hired father had started his job. As a result, the employer promptly terminated the employment. Subsequently, the father found work in South Dakota, rather than in Minnesota.
Battered Men
Swift County (Benson) Minnesota (female) employees responded with consideration and kindness to three battered men who sought help, according to R-Kids member Frank Solchaga. Usually, abused and battered men are ignored and sent away without any assistance from social workers.
Speech By R-KIDS Director Steve Blake On July 25, 1999
Good afternoon and thank you for attending this benefit dance for the R-Kids of MN Legal Action Committee. My name is Stephen Blake, I am a Director of R-Kids and Chairman of the Legal Action Committee.
I would like to explain a little about R-Kids of MN and the Committee. I will then attempt to articulate some of the reasons we feel that an organization like ours is required at all, and why the legal actions planned are necessary.
R-Kids of MN is a non-profit organization registered with the state and dealing with some of the problems associated with children caught in the divorce of their parents, as well as problems experienced by the parents. The Legal Action Committee was formed as a response to repeated
injustices perpetrated by the State of MN against parents. Parents who seem to be mostly fathers!
Despite the claim that R-Kids represents all parents-and we do-the sad fact is that most of our members are fathers. I believe that this reflects a discrimination and bias that is ingrained in the family court system. If the problems were simply ineptitude and negligence (though there is too much of that as well) then our membership would reflect a more even balance of the genders.
That this is not the case, is evidence of an attitude that holds the rights of women and children paramount and the rights of men expendable.
The mantra "best interests of the children" is used over and over to justify actions and decisions that reflect current politically correct attitudes rather than what is actually best for kids.
The overemphasis on domestic abuse allegations is another factor warping the decision-making process in many cases. The assumption that women are such delicate little flowers, that they require the power of the state to protect them from angry looks or a sharp tongue, is actually demeaning to women.
The fact that many studies of family conflict show that rates of assault (defined as any attempt to do violence, slapping, throwing things, etc.) is roughly equal between men and women in a relationship. Studies of crimes show an overwhelming percentage of offenders to be men. Why this discrepancy? Because, it is almost always the man who gets dragged away from a domestic situation.
Many of our members have been ordered from their homes by armed agents of the state; given 30 minutes to collect a few belongings and then leave-often with no provision of where they are to go or even how to get there. (Where have we heard of this happening before?)
Many of our members have suddenly been denied access to their children, often based on false or wildly exaggerated claims of "domestic abuse".
Many of our members have been deprived of their homes, their children, their property and have financially devastated by a family law system that seems to believe that men are inherently dangerous and that angry men are unable to control their anger. Well, who wouldn't be angry after such an experience? Especially if based on lies? Yet, our own anger counts against us in court. I am not talking about men who threaten violence or scream and yell obscenities in the court room (although you need to wonder where does that kind of anger and frustration come from?), I am talking about men whose only crime is to be divorcing or ending any relationship that includes children.
A family court system that seems to forget that women can be angry, vindictive, vengeful, cruel and that they can be willing to lie in order to access that most powerful weapon-the women center advocate, and to misuse the domestic protection laws and have the State of MN wield the club with which they get their revenge.
A family court system that treats flouting of court orders by mothers, especially denial of visitation, sharing of records and information or phone contact with children, as of little consequence, yet vigorously enforces (with police and with jail) violations of OFP (orders for protection, ed.) or Child Support Orders.
As a member of the Star Tribune's Citizen Forum during the Gubernatorial debates, I asked each of the candidates, "What is more important, love or money?" They all answered, of course, that love is more important. I then asked why the state vigorously enforces child support but not child visitation. I did not receive a serious answer. They all hemmed and hawed mentioning things like, "Every case individual", "Possibility of violence" and such.
I believe this illustrates the attitude prevalent in the system. An attitude that says only women really love their children and that men can get along without them.
This attitude says men's hearts cannot be broken by the loss of their children and that even if they can, they should just "get over it" and "get on with their lives".
I'm sorry, but I love my kids just as much as their mother does. Yet the state has forbidden me their company for over 4 years now, in spite of the fact that I never mistreated my children in any way! I miss them every day. Men aren't supposed to cry, but I do and I know other Dads do to.
I am not suggesting that domestic violence is not a problem. Parents who are violent to their partners or children are not welcome in R-Kids and need to change their ways. However, to brand one segment of the population as dangerous and not deserving of civil rights is, itself, a dangerous idea in a free society and those who suggest that one person's safety excuses trampling on the rights of another would do well to remember Benjamin Franklin's comment that "Those who would sacrifice liberty for safety deserve neither".
The damage being done to both the children and the parents currently in the system is enormous. Study after study shows that children need to have both parents actively involved in their lives. R-Kids' motto is the best parent is both parents, yet the family court system typically allows only 28 hours a week for a Dad to be with his kids.
How can one possibly maintain a meaningful relationship with their children in that amount of time? Serious changes need to be made in the system to ensure that all party's rights are respected and if the state must intervene, it is only to ensure that both parents act like adults and fulfill their duties to their children. Because children are God's greatest gift to us, they are our greatest responsibility and we owe it to them to provide the best possible environment in which to grow and thrive. Thank you and have a good time!
R-KIDS Of Bismark/Mandan Reports
"We discovered a memo that verified that for every dollar of child support collected, the Federal Government reimburses the state $3.52. Child support is the mule that carries the welfare state. "
The program is no longer to help children, but to suck federal funds into the state, even at the expense of the children of divorce . Making fathers impoverished hurts all children greatly.
COPY OF A LETTER
Date: August 11, 1999 From Walter H. Kuckes 1000 Hamlet Dr. N Avon, MN 56310 To: Ms. Nicki Nelson Administrative Assistant Minnesota Dept. of Human Services 444 Lafayette Rd. N St. Paul, MN 55155
Subject: If the Child Support Task force is to have meetings that they are gong to say are open to the public they must publicize them and make them accessible.
This is just to confirm our phone conversation of a few minutes ago. I fount out about the Task Force meetings by word of mouth and attended the one in St. Cloud and St. Paul. I had signed the visitors sheet and hoped I would be informed of future meetings, but wasn't. Therefore I made several calls to Job Beld and finally got the schedule. However, not times of day were on it for the August 24th meeting although this had been set, i.e. you were able to inform me of this time. I mentioned several things of concern, e.g.:
- Lack of publicity about the meetings. Since I had signed in several times I had hoped they at least would send me times and places of future meetings.
- I found out about the meeting in St. Paul by word of mouth. I found the Texas room, but there was not even a sign on the door. I tried the door and it was locked. I was uncomfortable, e.g. was this the right room. Should I get someone to open this locked door. If someone opened it and it was the wrong room, would I be arrested for trespassing. Was I really welcome to attend this meeting. Since I had driven a hundred miles to listen to the deliberations I persisted and was lucky enough to find someone to unlock the door. You mentioned I should have gone to the Human Services Dept. I have no idea where that is. You do, but the public doesn't. Did you and the task Force really want the public to attend this meeting? It seems people have to know a low and almost have extra sensory perception to get through all the hoops and hurdles to attend what I think is going to be written up as a meeting open to the public. Only one other person from the lay public was in the audience. Considering the clientele who come into this building I am sure you would have had many more if at least you put a sign on the door with instructions of how to get the door opened. I don't think the public should have to go through so many hoops and hurdles to attend a public meeting. If your meetings are not publicized, do not have a sign on the door, and no instructions of how to get it unlocked, the message is clear "Public, you are not welcome". At the very least, you should have a sign on the door. Also considering the clientele that comes into this building, I think it would be appropriate to put a large sign in the lobby that the public is welcome to listen to the deliberations of a child support task force on such and such a day, with the times, with instructions to listen and not talk, etc. I think if you would put such a sign in the lobby of the Metro Square Building for a week or two before the meeting was to take place you would get good attendance and more meaningful public input. If there is any problem with doing this, e.g. cost, please let me know and I personally will find the funds to do this.
- I obviously think the public should attend these meetings. I have been able to attend only a few meetings, and even the little I have heard at times is reprehensible. For example, recently in St. Cloud, a very overweight bureaucrat said in almost these words "what we are being paid for is to collect as much money from the non-custodial parent as possible." If a similar comment was made at an IRS meeting the public would te outraged. I have made errors with my tax returns that the IRS has corrected and they then sent me money back. Fortunately, IRS staff do not have the orientation of "our job is to collect as much money as possible." Neither should this be the role of anyone in child support. I have difficulty understanding how the many tax paid professionals could sit around the table and not object to this un-American attitude.
- I have heard many of the professionals at the Cooperative Parenting Task Force complain "why do I have to work with so many angry clients." I think if you evaluate the things I have mentioned above you will wonder why the public ins/t angrier. Causing the public to be angry is not the way to get cooperative parents. As I mentioned, I have known many divorced dads, who had been responsible parents until they come in contact with people in the system with the above attitudes. For example, putting unnecessarily hoops and hurdles in people's way and insulting them is a good way to produce dead beat parents.
I just happened to have a copy of the names and addresses of the task Force members, and will send them a copy of this letter. O yes I wonder why you didn't enclose a copy of this. I had asked for all relevant papers. Thank you for the papers you did send me.
Sincerely,
Walter H Kuckes
cc- Child Support Task Force members
Addendum - I am just a member of the lay public, and might be "off base" in writing the above. If so, I would greatly appreciate being corrected. YOU CAN TALK TO THE PARENTING PLAN TASK FORCE
The next meeting is October 14. Call Janet Marshal at 651/296-7570. She will make arrangements for you to speak, and will let you know the time and place of the meeting.
The legislators use these task force reports as gospel when passing new laws. It is very important that concerns of those outside of the system be included at this time. After the report is written, changes will be much more difficult.
The Fatherhood Coalition Files Federal Suit Seeking Overturn of 209A
Restraining Order Law
Federal complaint accuses Massachusetts Family Court judges of violating the Constitution by discriminating openly against males
BOSTON, SEPT. 7, 1999--The Fatherhood Coalition and six individual men today filed a federal anti-discrimination lawsuit against the judges in Massachusetts state courts.
The suit alleges that Massachusetts judges are routinely violating the U.S. Constitution. It specifies violations of the 5th and 14th amendment rights to due process, of the 14th amendment right to equal protection, and of the Second Amendment right to bear arms.
From The Suit
Under public pressure, the Judges of the District Courts punished male litigants in restraining order cases harshly and unfairly. For example, writing a letter or sending a Christmas card to a child can be grounds for two years imprisonment for a 'restraining order violation.'
The suit asks the federal courts to step in and stop widespread anti-male discrimination in Massachusetts Probate courts. The plaintiffs also seek a ruling that the 209A restraining order law violates the U.S. Constitution, ask for an immediate injunction against enforcement of it.
The lawsuit asks for an injunction against the unequal administration of justice in the areas of domestic violence and abuse petitions. It asserts that each of the six individual male plaintiffs and the Fatherhood Coalition have suffered gender-based discrimination by the justices in the Probate and Family Courts and District Courts of Massachusetts.
The lawsuit was filed this morning in Federal District Court in Boston, and announced at a formal press conference on the statehouse steps.
Defendants in the suit are the roughly 40 justices of the Probate and Family Courts. These women and men adjudicate dissolutions of marriage, alimony and child support, child custody and visitation and division of marital assets.
The suit charges that the plaintiffs "and other men similarly situated" have been irreparably damaged by the "customs and rules" of the commonwealth's courts which, in restraining order situations:
- Only allow a perfunctory hearing without full due process and without rules of evidence, after a male resident has been ordered out of his home.
- Permit so called "victim witness advocates" to act as defacto unlicensed lawyers for women who pursue what are often exaggerated accounts of domestic abuse concocted for the purpose of gaining full possession of the homes of the plaintiffs and similarly situated persons.
Summary of Individual Cases
A summary of the individual injustices referenced in the group lawsuit:
- In Carroll v. Carroll, the wife was awarded the husband's entire retirement pension, his marital home, and virtually his entire life savings.
- In Allen v. Allen, the former husband was found in contempt of a court payment order, even though he presented evidence that he was not working and was receiving unemployment insurance, and the counter argument offered by the other side was merely speculation without evidence.
- In Scanlon v. Scanlon, Judge Anna Doherty made no pretense of due process, threatening Mr. Scanlon with imprisonment even before he was allowed to speak in his own behalf. It imposed a payment order on him beyond his ability to pay, and did not give him a meaningful opportunity to be heard.
- In Hunter v. Hunter, Judge Christina Harms imprisoned a husband for his failure to commit a fraud: she wanted him to pay child support from proceeds of a student loan, which would have been a fraudulent misapplication of this loan.
- In Roine v. Roine, where the parties reached a mutually satisfactory separation agreement, Judge Christina Harms on her own advised the wife that she could obtain a better result and need not accept the agreement
The suit asks the Federal Court to find the Chapter 209A law unconstitutional and to forbid the courts from further enforcement of it.
The suit also asks the Federal District Court to "issue declaratory and injunctive relief" and to command the Family Courts "to adopt measures to prevent discrimination against men in the Probate and Family court system."
The suit was drawn up and filed by lawyer David C. Grossack of Hull. The plaintiffs in the suit include: James Nollett, 40 Franklin Street, Woburn; James Carroll of Bedford; David Merchant of Vermont; Donald Roines, of Hull; Richard Scanlon of Duxbury; Earl Henry Sholley of Holliston, and The Fatherhood Coalition, whose members, says the suit, "consist predominantly of persons of the male gender who suffered the kinds of injuries described herein."
Quotes From Text Of Lawsuit
"These and similar examples of discrimination against males are widespread in Massachusetts Probate and Family court system.
This discrimination is shown by:
- A widespread refusal to accept the testimony of male litigants as equal in credibility with female litigants.
- A widespread refusal of the Court to allow males the same opportunities for the society and companionship of their children as are allowed to women.
- Intimidation by Family Services Offices, and coercion into accepting unfair custody agreements, as a consequence of institutional bias.
- In situations in which the parties reach agreements on their own, the court may still intervene on the side of the female in a biased manner."
Children Need BOTH Parents!
The American Coalition for Fathers and Children
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With the pro-feminist groups on one side and male non-custodial representatives on the other it was a Legislative War in West Virginia by Ginger Thompson
Debate over West Virginia's new divorce and child custody law became a gender battle, with women's groups and the state's Bar Association protesting the sweeping changes. Early in the session, bills related to joint custody legislation were introduced in both the House and the Senate. They received little attention from the opposition groups. But as passage became imminent, the West Virginia Coalition Against Domestic Violence, the Legal Aid Society and other pro-feminist groups led the battle against the legislation. Finally, it boiled down to a gender war, with the opponents making unfounded allegations that the new legislation would hurt women and children. Gov. Cecil Underwood vetoed the bill twice before signing it after a special session in May. He called the special session after the West Virginia legislature started a move to collect enough votes to call itself into special session to pass the legislation again. At the end of the special session, the lawmakers recessed rather than adjourn in case they needed to override a third veto. Underwood signed the bill after the legislature watered it down to his liking.
Proponents of the bill were often outnumbered two-to-one. Few father's rights or children's rights advocates showed up at the state Capitol to urge its passage - although the legislators considered the bill a victory for fathers and other non-custodial parents. The charge for change was led by a handful of legislators who are non-custodial fathers, including the West Virginia Senate's majority leader. The chairman of the House subcommittee who authored the bill is a custodial father who is married to a non-custodial mother. It was these powerful fathers - who understand the problems of fathers and non-custodial parents in divorce - who helped push the legislation through despite the horrible odds.
While the new West Virginia family law bill, Senate Bill 2003, isn't everything its proponents wanted, it's much better than the current system, which was defined mainly by case law. The proposed bill was based in part on a model bill published by the Children's Rights Council. That model was incorporated into the Senate version of the bill, which died in conference committee during the regular session of the legislature in March. The House version, based loosely upon the American Law Institute model, prevailed. It is the version that was passed during the regular session in March and was vetoed twice by the Governor. During the special session in May, the bill was reincarnated, changed somewhat, and passed again. It can be found at http://www.legis.state.wv.us/domrel10a.html. West Virginia's current domestic law can be found at http://www.legis.state.wv.us. Click on WV Code, then click on Chapter 48.
Until this law was signed by Gov. Cecil Underwood June 4, West Virginia's custody law was based on West Virginia Supreme Court case law favoring the primary caretaker as the sole custodial parent in divorces. The landmark case, Garska v. McCoy, outlined the duties associated with the primary caretaker and made it nearly impossible for fathers to get custody of their children. The most important part of the new law is the part that restrains courts from using the primary caretaker doctrine to determine custody. Chapter 48-11-603 states that on Jan. 1, 2000, "... the primary caretaker doctrine shall be replaced with a system that allocates custodial and decision-making responsibility to the parents in accordance with this article."
Another portion of the new law gives courts the ability to order shared parenting. They had been prevented from doing this by a WV Supreme Court decision, Lowe v. Lowe. That case said that if one of the parents is opposed to joint custody, the court cannot order it. Under the new law, courts not only CAN order the equivalent of joint custody, but SHALL order it. The new law, Chapter 48-11-207 states: "(b) If each of the child's legal parents has been exercising a reasonable share of parenting functions for the child, the court shall presume that an allocation of decision-making responsibility to both parents jointly is in the child's best interests. The presumption is overcome if there is a history of domestic abuse, or by a showing that joint allocation of decision-making responsibility is not in the child's best interest."
While the primary caretaker duties as defined by Garska are in the new bill(proponents were not successful in getting the legislators to remove this definition) as "care-taking functions," other parental duties are included as "parenting functions." Parenting functions are defined in the new law under Chapter 48-2-1, "(15) "Parenting functions" means tasks that serve the needs of the child or the child's residential family. Parenting functions include care-taking functions, as defined in subdivision (4) of this section. Parenting functions also include functions that are not care-taking functions, including: (A) Provision of economic support; (B) Participation in decision making regarding the child's welfare; (C) Maintenance or improvement of the family residence, home or furniture repair, home improvement projects, yard work and house cleaning; (D) Financial planning and organization, car repair and maintenance, food and clothing purchasing, cleaning and maintenance of clothing, and other tasks supporting the consumption and savings needs of the family; and (E) Other functions usually performed by a parent or guardian that are important to the child's welfare and development."
The Garska points are included in the same section of the new law: "(4) "Care-taking functions" means tasks that involve interaction with the child or care of the child, including the direction of interaction and care by others. Care-taking functions include the following: (A)Feeding, bedtime and wake-up routines, care of the child when sick or hurt, bathing, grooming, personal hygiene, dressing, recreation and play, physical safety, transportation and other functions that meet the daily physical needs of the child; (B) Direction of the child's various developmental needs, including the acquisition of motor and language skills, toilet training, self-confidence and maturation; (C) Discipline, instruction in manners, assignment and supervision of chores and other tasks that attend to the child's needs for behavioral control and self-restraint; (D) Arrangements for the child's education, including remedial or special services appropriate to the child's needs and interests, communication with teachers and counselors and supervision of homework; (E) The development and maintenance of appropriate interpersonal relationships with peers, siblings and adults; (F) Arrangements for health care, including making appointments, communication with health care providers, medical follow up and home health care; (G) Moral guidance; and (H) Arrangement of alternative care by a family member, baby sitter or other child care provider or facility, including investigation of alternatives, communication with providers and supervision."
While to those who would like to see a clear rebuttable presumption of joint legal and physical custody, this does not seem like a victory, it is. By West Virginia standards, this is a huge leap forward. It is being protested like mad by the women's groups, the Bar Association, and by former WV Supreme Court Justice Richard Neely, author of the Garska opinion. It passed anyway, and that is amazing. At the beginning of the session, Del. Jon Amores, D-Kanawha, said there was only a 30% chance any form of joint custody would pass. He was an early sponsor of the effort to change the law. Amores is now a candidate for Congress.
The law completely changes WV's family law system and the way divorce cases are heard. It increases the number of family lawmasters (West Virginia's answer to family court judges) from 14 full-time and 13 part-time to 33 full-time lawmasters. Plus, they are adding 30 case managers who will help people develop parenting plans.
The new process for divorces is based on a pilot project that has been operating in West Virginia's Eastern Panhandle since 1996. That model project requires parent education and mediation in all divorces involving children.
Beginning Jan. 1, 2000 parent education and mediation are mandatory statewide. That is when judges will be able to order shared parenting. Parenting plans will then be mandatory, outlining each parent's responsibilities. If parents are unable to agree to a parenting plan in mediation, each parent will submit one, and the family lawmaster will make a ruling.
The terms custody, visitation, custodial parent, non-custodial parent, etc. are gone with the new law. Judges will "allocate custodial responsibility" and each parent will have the decision-making authority while the child is in his or her care (no more having to get Mom's permission to get Susie's hair cut, etc.).
Divorce cases are restyled. Instead of Smith v. Smith, with Joe Smith, Plaintiff and Susie Smith, Defendant, they shall be styled "In re: the marriage of Joe Smith and Susie Smith. Joe Smith, Petitioner, Susie Smith, Respondent." Custody cases will be styled "In re: the children of Joe and Susie Smith." There is no longer visitation - it is called parenting time. The new law also places restrictions on relocating with the child. In order for a parent to relocate with the child without a court hearing, they must be performing more than 70% of the custodial responsibility. They must give at least 60 days notice and provide the address of the new proposed custodial home and other information. They must also demonstrate that the move is "in good faith with legitimate purpose" and also propose a new parenting plan.
They also beefed up the penalties for contempt and gave the lawmasters contempt powers. Interfering with another parent's parenting time (visitation) can bring financial penalties of $100 for the first offense, $500 for the second offense and $1,000 for the second offense. It also can be a reason to reallocate custodial responsibility.
A change for the worse in the version that passed is limiting factors imposed upon those who wish to reopen an old case under the new law. Under the new law, the old order must be less than 5 years old and the visitation must be based upon "a schedule or guideline." This means those with Schedule A's every-other-weekend orders that were made after 1994 can go back to court and get more time with their kids, but those with more time or older orders cannot. The new law states that they cannot receive more than 50 percent of the child's time, but does state that the new order cannot be based upon the primary caretaker presumption.
West Virginia came a long way in a short amount of time, and those who are fighting the good fight here plan to continue.
ABOUT R-KIDS OF MINNESOTA
- R-KIDS is a non-profit organization dedicated to educating law makers, family law professionals and the public with regard to family law and social services and their effects on children, families, and the consequences to the taxpayer.
- Our main concern is for our community of children of divorced, separated, or unwed families. We believe that children need, want and deserve the love, support and involvement of both parents regardless of marital status.
- Founded in 1985, our membership is comprised of both moms and dads, custodial and non-custodial parents, grandparents, stepparents, and professionals such as social workers, doctors, attorneys, and family law practitioners.
- It is the objective of R-KIDS to develop equitable family law legislation in an effort to improve the lives of all Minnesota children.
"ALL CHILDREN NEED BOTH PARENTS AND ALL GRANDPARENTS IN THEIR LIVES"
- Unless those affected by the current family law system voice an opinion and demand positive change, we and our children will continue to suffer. This change will not occur without your help! Legislators and family law professionals need to hear from; parents, grandparents, and constituents. Until they do, things will not change.
R-KIDS CONCERNS AND ISSUES
- The needs of children to have frequent and meaningful contact with both parents.
- The lack of effective consequences for denied visitation or parental interference.
- Consideration of the financial and emotional responsibility of both parents to provide for their children equally.
- Dissemination of information to the public about current family law issues and the long term consequences for our children, families and the tax payer.
- The harmful impact of out-of-state or long distance relocation on the parent- child relationship.
- Fair and equitable sharing of child support responsibilities which takes into consideration the financial needs of children in second families, as well.
- The negative impact of the adversarial court system and social services upon divorcing families with children.
- Removal of the myth perpetuated in our judicial and family law professional systems that only mothers are nurturing and fathers are financial providers.
- Accountability for the use of child support.
- The impact of the no-fault divorce system on families with children and the need for effective education for parents considering marriage, separation, or divorce.
R-KIDS website is http://www.rkids.org
Do you want to express your viewpoint or share your story in the newsletter? E-mail to ttheisen@bitstream.net, or mail to Tim Theisen, R-KIDS Newsletter Editor, 229 Jackson Street, Suite 105, , Anoka MN 55303. We reserve the right to edit. We will use your name unless asked not to do so. Obviously, viewpoints expressed by readers do not necessarily reflect the position of R-KIDS.
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