The Immediate Need for Family Law Reform

The Predatory Industry:

The fact that the interests of children are best served when they have a substantive parenting relationship with two cooperative parents is not news.  This has been in the clinical and academic research literature for at least thirty years.

Dr. Linda Nielson of Wake Forest University and The Institute of Family Studies reviewed 54 independent studies and found that, independent of parental conflict and family income, children in shared physical custody families—with the exception of situations where children need protection from an abusive or negligent parent—have better outcomes across a variety of measures of well-being than do children in sole physical custody.

A 2015 study conducted by the Pew Research center found that dads and moms are equally as likely to say that parenting is extremely important to their identity.  Some 57% of fathers said this in a 2015 survey by the Center, compared with 58% of mothers, and as already noted, extensive psychological research shows that children greatly benefit from having a meaningful relationship with both parents. Furthermore, children with active and involved fathers tend to have higher self-esteem and dramatically better life outcomes.

If one wishes to claim that the best interests of children are front and center during custody disputes, why do legislators cling to laws and policies that marginalize or eliminate one parent, and reward uncooperative, selfish, dishonest, and often stunningly ruthless behavior?

The honest answer to that question is this: Existing family has little concern for the well being of children at all, and it has everything do with using children as both leverage and an excuse to harvest money. That’s the truth of it.

If the best interests of children are truly at the center of family law policy, then one would reasonably expect the government to utilize the family court as an intervention to ensure the best possible outcomes for children, de-escalate conflict, and incentivize cooperation between parents.

We're working For the Following Reforms to Family Law:

(1) The Rebuttable Presumption of 50/50 Custody and Parenting Rights for Separated Families:

We are NOT asking for a REQUIREMENT of 50/50, because we still want parents to be able to decide for themselves what works best for their families.

However, in the event that case goes to trial, instead of having a noncustodial parent forced to rise to a high standard to show why they should have time with their children, it’s far healthier (for both parents and children) for the parent contesting this time to be required to show why the noncustodial parent should NOT have equal time.

In 2018, Kentucky passed equal shared parenting law for families and the data coming back already shows remarkable and dramatic reversals in family court case filings and domestic/family violence cases.

Equal shared parenting law works. It reduces conflict, it allows both parents to have an active and meaningful parenting exprience, and it enables better life outcomes for children.

(2) Social Security Act, Title IV, Part D, Section 458 “Incentive Payments To States” (U.S. Residents):

There is no problem, in theory, with states being rewarded for child support enforcement.  However, there is a big problem when states are profiting from the administration of child support pools, and a REALLY big problem with the lack of resources available to noncustodial parents for custody order enforcement.

For little or no cost, a custodial parent can have the state attorney pursue civil or criminal remedies for delinquent child support. However, a noncustodial parent must hire their own attorney if his or her visitation orders are ignored, and often, these orders are not enforced with any conviction by the judges.

If there are going to be Federal incentives for the enforcement of child support orders, there should be equal weighting, importance, and resources available for the enforcement of custody orders.

(3) Reforms to How the Law Deals with Parental Alienation:

There is general consensus amongst psychologists and many legal professionals that parental alenattion is a distinctive form of psychological abuse and family violence, towards both the child and the rejected family members, that occurs almost exclusively in association with family separation or divorce, particularly where legal action is involved (To learn more about the problem of parental alienation click here).

The good news is, other countries have recognized the seriousness of the problem and moved decisively to enact reforms to family law that seek to move parents out of an adversarial frame and incentivize cooperation, while still preserving meaningful sanctions for parents that willfully fail to honor BOTH child support AND custody orders.

Susan Heitler, Ph.D. (Psychology Today Blog – “We Need Changes To How Courts Handle Parental Alienation”) brings to our attention an article in the International Journal of Law and Psychiatry by Judge Philip Marcus that describes a much more effective model for litigating custody.

In his article “The Israel Family Court – Therapeutic Jurisprudence and Jurisprudential Therapy from the Start,” Judge Marcus describes radical innovations that have upgraded family court functioning, making them less adversarial and more psychologically informed.

Heitler writes:

“Data on the satisfaction of families who have been adjudicated in the Jerusalem Family Court system has led to clear conclusions:  Therapeutic jurisprudence works significantly better than a traditional adversarial court system, and results in far less stress, time, and money for everyone involved.  At the same time, it produces wiser decisions, significantly increasing the likelihood that children in divorcing families will get to grow up with healthy parenting, safe from abusive alienation
.”

Contrast this with typical American systems, where immediate responses to blocked visitation rarely occur (if they occur at all) leaving alienated children in the custody of an abusive parent for months or years, causing ever-increasing psychological damage to both the targeted parent and the children. To an alienating parent in the U.S., dragging a divorce and custody battle out for years actually works greatly to their favor. This should not be happening, but the behavior is enabled, empowered, and rewarded by our system of family justice.

Our current system might be lucrative to the family court industry, but it does not protect children from all forms of abuse. In fact, with respect to parental alienation, it enables it. We need to recognize this, accept it, and like Israel, fix it.

(4) Reforms to How the Court Deals With False or Fraudulent Allegations of Abuse:

Victims of abuse and violence need the ability to feel safe and swiftly seek the protection of the justice system, and it is true that divorce proceedings do discover the abuse of children.

However, fraudulent allegations of abuse made during custody disputes continue to spiral out of control, in large part, because there is no downside to making them – They are an immensely profitable tactic for fraudulent accusers that are causing irreparable harm to both children and the falsely accused alike.

There are no remedies available to the victims of fraudulent allegations made in family court – none, and the damage these allegations cause to both children and parents alike is catastrophic and irreparable.

Something needs to be done, because not only are these allegations harming targeted parents and their children, but, and importantly, false accusers are consuming resources that need to be available to protect the welfare of legitimate victims.

One of the great innovations of the Israeli model noted in reform #3 above, is that by bringing experienced and objective evaluation and intervention into every case at the outset, the power of abusers, false accusers, and their legal teams to hide abuse and manipulate the legal system is largely removed.

(5) Reforms to Child Support Calculations:

More specifically, an elimination of financial incentives for minimizing or eliminating a non-custodial parent’s time with their children.

As things sit now, in many states there are two pieces to the child support calculation: (1) An actual physical needs worksheet, and (2) An income redistribution from the noncustodial parent to the custodial parent, with the court establishing the higher of the two as the child support order.

We recognize that parents may need some time to financially adjust after divorce, and have no problems with reasonable alimony/maintenance. However, the alimony portion of child support should to be eliminated.

As things sit now, noncustodial parents are admonished to overcome any income and lifestyle reductions by bettering themselves, which works to the advantage of custodial parents, states, and the family court industry.  Custodial parents on the other hand, are presented with the interesting question of whether it is in their interest to pursue additional employment income at the expense of child support income.

This is a dysfunctional and incompatible system of incentives, and the presumption of 50/50 custody, will all by itself, go a long way to correcting this problem by aligning incentives more productively toward healthier socioeconomic goals while better enabling cooperative child support agreements for custody arrangements that differ from an equal split.

(6) Reforms to Child Support Enforcement:

If one wants to accomplish a goal, it helps establish good or helpful conditions to achieve that goal.

Unfortunately, family court has become accustomed to pathological and often draconian measures for enforcement in which the civil rights of noncustodial parents are systematically ignored or eliminated through administrative procedures.

If a person falls behind on support, it makes no sense to revoke or suspend their driver’s or vocational license, destroy their credit, throw them in jail, or force them into homelessness. A rational person would think the priority should be to keep their income stable and improving, so how do these kinds of reactive and hammers help to ensure the support gets caught-up?  They don’t.

They simply make the problem worse and harder to resolve, setting noncustodial parents up for additional future failures.

Start helping these parents get back on their feet instead of making it harder for them to do so.  This benefits everyone.

Your Action Is Needed!

One might assume that legislators would be eager to implement better family law since the clinical and academic research overwhelmingly supports it, and since Kentucky’s own experience with equal shared parenting provides direct evidence that it produces better life outcomes for children and families.

Furthermore, one might also assume that basic common sense would inform any reasonable person that an adversarial family court environment that incentivizes conflict and rewards uncooperative and often times ruthless behavior is probably not good for the children involved.

Sadly, no, that’s not happening. 

Equal shared parenting bills are introduced every year, and every year they die on the vine under an onslaught of lobbying and collusion from a whole host of self-interested parties who profit from the conflict and the political capital earned off of broken families.

The truth is, family law isn’t about children at all, it’s about the harvesting of money:

    • Money for the court industry.
    • Money for politicians.
    • Money for state government
    • Money for courts.
    • Money for custodial parents.

The best interests and the well being of children has nothing to do any of it, and as a result, the reality we’re facing is that we simply cannot trust government to do the right thing.

It is astonishing; and by that we mean truly amazingly perplexing that government believes it can treat children and noncustodial parents they way they do and have anything good come out of it. And yet, here we are, still fighting them tooth and nail as politicians nod their collective heads, smile, say they understand, and promise to look into it……..and then do absolutely nothing to correct the pathology of the family court environment.

We’re going to have to stop asking elected officials to change law and simply demand they do it, because that’s what it’s going to take.

If you’d like to learn more about equal shared parenting, we encourage you to head over to our new forums and jump into a discussion, or, start one of your own!

Also, if you’re already working with a political action cause, group, or organization; we encourage you to join our network and promote your organization to our members.