Monday, January 17, 2011

Equality, Martin Luther King and Child Custody

It's Martin Luther King Day and throughout the country there are memorials, celebrations or other events honoring him. A recurring theme is that of equality and the pursuit of it. As some have sought equality based upon race others seek it based upon gender in child custody cases.

Some advocates of mandated 50/50 custody, joint custody, Shared Parenting or whatever name one wants to apply to two parents having equal parenting rights and time with a child seek an Affirmative Action approach.

I have always opposed Affirmative Action based upon what I see as an error in the approach to racial justice. Affirmative Action seeks to mandate an outcome in employment or contracts awarded based upon the idea of a representative sample of the general population. Thus if a community is twenty percent of a particular minority then the representation of that race shall also be twenty percent in employment or contracts awarded.

The problem I have with Affirmative Action is the mandate. As I play Bringing Out the Dead in the background while writing this I think of emergency services personnel; police and firefighters. To achieve equal racial representation units of government established two different measures of qualification; one for whites and one for minorities.

When it comes to the safety of my community I want the best personnel hired who has applied for the job. Affirmative Action had a different goal. If the positions can be filled by the most qualified applicants, who all happen to be white, then so be it I say. But Affirmative Action says that since the community is, for example, twenty-five percent minority then the most qualified candidates may be all white but only fill the first three-fourths of the positions. Then other higher qualified white candidates are skipped over until the remaining one-fourth of positions are filled by the most qualified minority candidates.

This left many municipalities with hiring quotas that had a two-tiered scale for qualifying candidates. Whites may be required to score ninety percent on a proficiency exam while minorities may only be required to score eighty percent. I firmly believe that is wrong and goes against the message of Martin Luther King which has been perverted by those seeking equality.

In the realm of gender politics I find outcome based standards no less reprehensible. This is where I have run afoul of the so-called father's rights movement. I have debated this issue ad nausea with some of the group leadership which I am convinced will achieve nothing in their quest but a blemish upon the efforts of those of us who advocate, sensibly, for the best interest of the children.

Their ardent position is that the judiciary should be encumbered from awarding child custody to parents in a dissolution proceeding in a manner other than that which would provide equal custodial rights and nearly equal parenting time with the children. This would presumptively remove judicial discretion, the variable by which they claim mothers have unjustly been awarded sole custody of children in about eighty-five percent of cases.

Do I agree that mothers are disproportionately awarded sole custody of the children and that this is fundamentally wrong? Absolutely. Should this be remedied by an Affirmative Action approach? Certainly not.

House Bill 1119 introduced to the Indiana General Assembly by Representative Phyllis Pond provides the framework to ensuring a more equitable approach to awarding legal custody of children in a dissolution proceeding. The bill provides that "[t]here is a rebuttable presumption that an award of joint legal custody is in the best interest of the child."

This does not go so far as saying that both parents are entitled to equally share legal custody of the child but it does elevate the current standard that there is no presumption favouring either parent. In the simplest terms it says that both parents walk into court on equal standing.

This bill does not change the amount of discretion that a judge possesses. What it changes is the legal custody standard towards that of a modification where a showing must be made that the current custody arrangement is not in the best interest of the child.

Although the law says there is no presumption favouring either parent the existing standard practice appears to be otherwise. The mother is cloaked with the presumption that she is best suited to be the custodian of the children and a father must prove his ability to be a valid decision maker for the children.

Following dissolution men have been denied the continuing custody of their children that they had prior to the dissolution based upon this prejudice. Some men's rights advocates seek a remedy in a mandate that the parents will continue to share custody following a dissolution.

Herein lies the correlation to racial injustice and the inequities in seeking an equitable resolution. Just as Affirmative Action says a contract will be awarded or a person hired regardless of qualifications so does a joint custody mandate.

I am an avid supporter of equal opportunity, equality before the eyes of the law but not mandated equality in position or outcome. To mandate that a court give decision making authority over a child to a father or mother who may be a very poor decision maker, whose previous decisions may be the root of the dissolution, could very well go against the best interest of the child. That is something that cannot be allowed.

This is where HB 1119 reconciles the two conflicting standards. It provides the equitable solution to the longstanding inequities in child custody decisions that ensures equal opportunity. It provides that the parents are entitled to maintain custody of the children unless that is refuted by presentation of the evidence. It maintains the judicial discretion necessary in ensuring the best interest of the children. So long as one of the parties makes a Trial Rule 52 request then the judicial officer must make specific findings as to why joint legal custody would not be in the best interest of the children.

HB 1119 must be put into law to ensure that the best interest of children are protected in dissolution proceedings.

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