Today is National Childrens Mental Health Awareness Day which is intended to raise awareness about the importance of children's mental health and that positive mental health is essential to a child's healthy development from birth. I am not going to inundate you with raw facts and figures that may not apply to you or your children. Instead sit back and be ready to hear the realities that I have seen in my practice and what you can do to avoid harming your child's mental health. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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I am going to be blunt in my assessments and suggestions for best practices. If you live in the safety of denial and don't care to provide a least harmful environment for your children then you go back to that and do what you do best – being concerned about only what you want. For the rest of you who are the same but not in denial or who are wanting to improve your child's outcome, thanks for continuing. In this article I will speak in broad terms of population groups [parents, adolescents, etc] which neither acknowledges or discounts individual aberrations.
A significant component of the adversity affecting children's mental health is substance abuse which will relate to much of what I say. Hence today's initiative is part of the effort by the Substance Abuse and Mental Health Services Administration (SAMHSA), an agency of the U.S. Department of Health & Human Services.
To get an instant perspective on substance abuse head to the bathroom. Before opening the door on the wall cabinet over the sink as you already know I want for you to do just take a moment to look in the mirror. What you are seeing is the number one provider and pusher of drugs for children – parents. To understand this look at the world through a child's perspective which at it's root is based in concrete thinking.
When parents try to discuss issues during a parenting time exchange and get in an argument there but don't argue throughout the stage play at the child's school there is only one conclusion to be drawn. That is, from the child's perspective, mom and dad always argue when only around me but not around groups of children or adults. Therefore, I must be the cause of their problems and their divorce. Toss the idea of social graces out the window. Lesson to be learned is don't argue in the perceptive range of the children. I use 'perceptive range' because that is what allows children to key in on the self-fault assessment. The perceptive range is what children can sense. Calling the other parent, walking outside when it starts to get heated, then coming in and slamming down the phone while letting out a big sigh before collapsing in a chair is in the child's perceptive range. It would have been better to let the child hear the argument rather than imagine what was being said “about him” and thus what he did to cause the conflict.
So then how do you become the drug pusher? Have you sat your child down and said, “When you feel pained by our divorce look through our medicine cabinet or go ask a friend for some pain pills or have some alcohol which will numb it for awhile”? Of course you didn't because that is horrible parenting. Do you unwind from a stressful day by consuming alcohol? You see where I am going with that – children learn by example. You are their primary teacher. How about the less obvious? Do you take pain pills while complaining of a stress induced headache instead of eliminating the stressor? In short do you use drugs to treat symptoms rather than eliminate or mediate causes? By doing this you teach children that the method to relieve the pain they experience, the symptom of your interpersonal relationship problems – which they cannot control – is to use drugs.
The hard reality to hear is this – DIVORCE HARMS CHILDREN and is done for the BENEFIT OF THE PARENTS' SELF INTEREST. In only the most extreme cases of mutual marital stress induced abuse of the child is separation of the parents a benefit to the child. In every case I have been involved in the parents expressed self interest as a motivator for separation. In every case I have seen or through forensic examination have observed adverse effects to the children. Overwhelmingly the children express favourable behaviours because “they don't want to see me upset.”
Not just in parental relations but in all aspects of life children need a voice. The concept of 'children should be seen and not heard' is abuse. Giving children a voice does NOT mean letting them decide. It means hearing them. Giving children a voice is asking not telling. Their 'voice' comes in many forms including sitting in silence – that is saying something. It may be through athletic interest, artistic expression [drawing especially for the youngest] clothing selections or the way in which their bedroom is kept or decorated. Ask what the expression means to them or represents. Asking why is the boy in the drawing blue is stifling the child's expression. Instead stay 'tell me about this figure'. You may find out that the 'monster' is blue cause he is sad that no one plays with him. That boy representing a monster says loads, don't ignore it.
I cannot let you escape yet without some acknowledgment of gender differences. Girls may be encouraged to discuss feelings more than are boys, which can help them avoid the sensation that stress is overwhelming. There is no reality to “tough boys don't cry”. Tough boys feel pain. People cry when they are in pain. All children should be encouraged to and provided with healthy outlets for their pain. When Therin's mother left and then tried to reenter his life by engaging in a protracted and hostile litigation process he, at age 3-4 years, took a hammer and pounded on his bed everyday. It's only a bed.
Children process and cope differently than adults. They are NOT miniature adults, they are children. They need time and opportunity to deal with their losses and stressors.
Finally, the most important is that they need acknowledgment of their feelings and that ALL feelings are fine to have while some actions are inappropriate.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions. 
Thursday, May 9, 2013
National Childrens Mental Health Awareness Day
Wednesday, May 8, 2013
Where the Truth Lies
That title is clearly intended to have a double meaning being the position of the truth but also when truth is used to deceive. Everyday we are fed a regular diet of statistics and “facts”, often for the purpose of inducing action or influencing our opinions. But do you always check those statistics for accuracy? Fortunately I do and here are my findings on three statistics that immediately jumped out at me as incorrect when I read them. The first is a press release that I received from the Indiana General Assembly. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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STATEHOUSE – House Speaker Brian Bosma (R-Indianapolis) and House legislators and staff wore sneakers at the Statehouse today in support of the “Suits and Sneakers” challenge to promote awareness of the fight against cancer.
According to the American Cancer Society, last year 35,000 Hoosiers heard the words “you have cancer,” [this is assumed to be a reference to a diagnosis rather than a reminder or an answer to the question, 'Why am I about to die'] and of those, 13,000 lost their lives to the disease. Suits and Sneakers is a program sponsored by the American Cancer Society and the National Association of Basketball Coaches to help raise cancer awareness and support those affected by it.
“We all have either been personally affected, or know of someone who has battled cancer,” said Speaker Bosma. “The toll that this deadly disease has on Hoosiers is staggering. Until a cure is found, we can help raise awareness and show compassion to the families that are involved.”
WOW, a one year mortality rate of 37%? I know Hoosiers are significantly less healthy than the national average in some measures but are we really dying off quicker in the first year of a cancer diagnosis than the national average for five years?
HERE is some data that I obtained from the National Institutes of Health.
Among adults, the 5-year relative survival rate for all cancers combined is now approximately 68%
The 5-year relative survival rate for all childhood cancers combined is now approximately 81%.
There are likely two truths there: 35,000 people in the state were diagnosed as having a cancer; and, 13,000 people in the state died from cancer related illness.
Next I came across this an unbelievable statistic as I was reading a psychology book.
In the textbook “Introductory Psychology: Applications of Theories and Concepts, Fifth Edition - John F Kremer, Ph.D., Jennifer N Brown & Laura D Buccini the authors speaking about physiological changes made a claim about reaction time. The authors write, “Athletic ability clearly decreases with age, although there is remarkable variability in the 'peak' age of many sports. The peak for many competitive gymnasts is in the late teens and early twenties. On the other extremes, long-distance runners mature in their twenties and thirties. One of the prime reasons for this variation in the athletic peak of an athlete is reaction time. Reaction time decreases until about [age] 20 and then starts increasing in the mid-20s.” By calculating their annual rate change they claim that by age 40 that increase is a whopping 1050%
What this is saying is the person age 25 who stepped into the road, got honked at and then stopped his forward movement one-third of a second later did so more than ten times quicker than he would again at age 40 when he will take three and a half seconds. With reaction time that slow I will be surprised if he makes it to age 40.
The findings in one article about reaction time show something much different which appears to be much more consistent with reality.[fn1] Between the age groups of 20's through 50's reaction time consistently increased with age across a range of physical movements. However, none of the increases in reaction time in this study exceeded 50% or about 1/20 of that reported in the psychology book.
I tried various calculations in an attempt to get that 1050% figure lower but nothing came close to getting it any where near 50%.
Finally, I heard this one night in February on a business program.
Nightly Business Report on PBS reported that Federal Reserve Chairman Ben Bernanke testified that the Federal Reserve had no plans to refrain from it's ongoing purchase of “nearly $3B per day” of US Government bonds – approximately $60B per month for the 20 days on average that US Government bonds are traded. However, the testimony I heard, and the ongoing practice of the Federal Reserve, was that usual purchases of $85B each month would continue.
This one is likely explained by the ignorance of the person scripting the news report. Obviously it is someone who knows nothing about how the financial markets operate. When given the raw figure of $85B per month this person likely divided that by 30 [the approximate number of calendar or astrological days in a month] and arrived at the figure of $3B/day. Anyone who is familiar with banking in a general manner or particularly the government bond market know that bonds are not sold on every astrological day of the year. Bonds are traded about 20 days per month: Monday through Friday except federal holidays.
Before you believe the next statistic you read or hear just keep in mind that 84% of reported statics are inaccurate.
1] Kent Linda “What Are the Components of Fitness Reaction Time?” found at http://www.livestrong.com/article/359251-what-are-the-components-of-fitness-reaction-time/
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Monday, May 6, 2013
Death of Richard Lawlor, JD, PhD - Indiana Parenting and Custody Evaluator
In the spirit of 'nothing is off limits' today I discuss the death of long-time custody evaluator Dr Richard Lawlor and more broadly, the concept and effectiveness, if any, of custody or parenting evaluators. Lawlor died on 13 January 2013 but I was a bit busy on another custody evaluation case which, coincidentally, involved a lying evaluator.
To read the obituary one might feel as though Lawlor was an upstanding and accomplished servant to the community. He received his J.D. (Magna Cum Laude) from Indiana University School of Law in 1979. “[H]is passion for teaching was evident with long-standing mentoring of medical residents (including an Arthur B. Richter Scholar), medical students, law students, and undergraduates. His writings were prolific in the field of Forensic Psychology and will help guide the next generation of practitioners. His administrative work included service in various positions such as the Board of Directors for the Indiana Psychological Association, and as Chairman of the Indiana Psychological Association. Richard received numerous academic and professional honors including the Sagamore of the Wabash.” Also listed were positions on various civic groups and the disconcerting statement “His work doing custody evaluations is nationally known.”
In a contrasting tone Indiana Mothers for Custodial Justice in a posting dated 01 July 2010 opens with this statement about Lawlor:
“The more I have dug into this father-loving Whore of the Court, the more I am sickened. During a case Dr. Richard Lawlor was involved in, which a child was taken from the mother and given to the father, he didn't even interview the primary people in the case. His bought-and-paid-for testimony was formed over looking at another therapist's notes. How nice! “
About a year after that posting I was involved in a case helping a mother in which the father had been accused of molesting their young daughter. Although forensic investigators from CPS and the police department as well as the child's regular therapist had substantiated the molestation in came the hired-gun. I personally made no determination myself about the molestation but was coaching the mother during her effort to modify the current parenting time order to suit the best interest of their child based upon a third-party allegation of sexual abuse.
With his parenting time in jeopardy and potential criminal charges facing him the well-financed father did what any parent who wants to bring doubt to these types of allegations – bring in the hired-gun Richard Lawlor.
Depending on litigated outcomes people often express a preference or dislike for a particular judges, attorney or mental health professional such as Lawlor. So it is no surprise to see that some will praise him while others will absolutely malign him. These reporting individuals are not objective but biased based upon their personal circumstances. Complaints however should not be dismissed solely because the accusations are from biased parties. The may still support an objective view.
The problem with the hired-gun Lawlor and his ilk is that his “objective opinions” are not objective even when he was court appointed and the parties split the cost. While reviewing cases and observing Lawlor in court over the past ten years I was able to detect a pattern. Primarily, his opinion favoured whomever hired him, which could be expected but it is the contradictions that confirm this bias. In one case he would propose a theory that supported the position of his client but in another he would discredit the same theory when another MHP was using it against Lawlor's client.
Child custody evaluations are one of the most controversial areas of forensic psychology.[fn1] Some have argued that evaluations lack empirical methods, inappropriate use of psychological tests, and the improper use and interpretation of data. Further, that the evaluation reports are really of no use to the court. Authors of one study suggested a moratorium on child custody evaluations.[fn2]
As for the “independent evaluations” which were court ordered I observed another pattern develop in regards to Lawlor – Lawlor would find that the parent who was most likely to abuse or neglect the child should be awarded sole custody. This wouldn't make sense for someone not being motivated by a paying parent. But getting paid is exactly what Lawlor would anticipate. Not that he would directly get paid by one of the parties but that, instead, another MHP would be hired to perform a subsequent custody evaluation to challenge the absurdity of Lawlor's findings. Additionally, the abused or neglected child would be recommended for counseling sometime during the proceedings. What this does is ensures that MHP's workload stays full. Parents in a different custody case seeking a custody evaluator may come to Lawlor as others are found to be busy. Also using the supply and demand economic model Lawlor ensures that his outrageous fees stay inflated.
One study found that child custody evaluators made physical custody recommendations in 96% of reports. Therapy for parents was recommended in 63% while therapy for children was 40%. Yet mediation, a tactic that reduces conflict and brings resolution to the case, was only recommended in 15% of cases. It appears that evaluators are nearly universally sure as to physical placement of the child(ren) and that, on average, at least one person per case would receive psychological therapy. Parents working together to resolve problems was rarely recommended though.
This is the hidden motivation for which judicial officers and practitioners need to be aware if the best interest of children are to be served. Child custody evaluators' recommendations, if followed, will feed the MHP industry.
1] James N. Bow and Francella A. Quinnell “A Critical Review of Child Custody Evaluation Reports”
2] O’Donohue & Bradley (1999)
If you would like to ensure more positive outcomes for your client when a custody evaluation has been requested or ordered by the court then please visit my website and contact my scheduler to make an appointment to meet with me. There is no charge for initial attorney consultations.
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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.
©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Sunday, May 5, 2013
Just when you thought it was safe to lie on the witness stand
When giving testimony under oath in a court of law witnesses are required to affirm that such testimony will be truthful subject to the penalties and pains of perjury – so says the law. It's okay to stand at a party table and give testimony if the court permits. It's okay to sit at the witness stand or even lay yourself there, although I don't recommend it. Someone needs to let Del Anderson know that it's not okay to lie on the witness stand although he may have good reason to feel that he can testify falsely with impunity. When is the last time that you saw or heard of anyone being charged with perjury in a child custody proceeding? * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Del Anderson is a GAL who works for Indianapolis based Child Advocates, Inc. and was assigned to the case of Moore v Moore 49D12-0810-DR-44790 to provide a report to the court regarding the parents and children as part of mother's petition to modify custody and parenting time in her favour. After about a year Mr Anderson submitted his report to the court. A hearing pursuant to this was held on Tuesday 05 February 2013.
Under examination about the content of his report Mr Anderson made numerous claims as to the content of a three hour interview that he conducted with the father, Brian Moore. Mr Anderson testified that his report was based, in part, on notations he had written during that interview. I won't recite the particular claims here but the essence was that Mr Moore had engaged in bizarre behaviours including a threat to the children's school that resulted in a “lock-down”, and thus was not fit to be a parent.
This creates a difficulty for the parent who has been, to our thinking, unjustly maligned and falsely accused. How do we redeem this client? Attempts on cross may be fruitless with a well organized liar which leaves the judicial officer to weigh the credibility of witnesses – the liar and your client. There does exist an important alternative though which is accomplished through the interview preparation process.
After the outlandish accusations were made Mr Moore then offered into evidence a copy of an audio recording of the three hour interview for the purpose of impeaching Mr Anderson. This immediately drew an objection from Attorney for Petitioner, Jonathan R. Deenik of Cross, Pennamped, Woolsey & Glazier, P.C., who claimed that the recording had not be previously disclosed as required by the rules of evidence. Mr Moore correctly noted that the recording was being introduced not for it's substantive value but for the purpose of impeaching the witness, which is an exception to the prior disclosure rule. Judge Welch over-ruled the objection.
Due to the late hour in the day the hearing was concluded for the day and copies of the recording were made and distributed. Mr Moore then moved the court to issue special findings in regards to the truthfulness of Mr Anderson's testimony. This matter was continued to 05 April 2013 in Marion County Superior Court 5. There the principal of the children's school, the superintendent and the Chief of Police all testified that there had been no 'lock-down'. Mr Anderson explained some of the quotes in the report as being a compilation of words Mr Moore said during the interview. This is where Del Anderson falls afoul of “the truth, the whole truth and nothing but the truth.”
If your client says sentences in an interview like “I want to come to a reasonable parenting time schedule.”; “It's going to kill me to go on seeing my children disappointed like this.”; and “I just don't understand my ex-husband.” that are melded into the quote “I want to kill my ex-husband” that appears in a custody evaluation report then you better be able to redeem your client. One way to do that is to record all contacts between the parent and evaluator.
This is what Mr Moore did when he was interviewed by Del Anderson. Upon the conclusion and receipt of the special findings the testimony of Mr Anderson will be transcribed. The transcript, special findings and audio recording will then be presented to the Marion County Prosecutor to pursue criminal charges against Mr Anderson.
There existed the idea that it was safe to lie on the witness stand. With vigilance and proper preparation that concept will fade from the minds of Del Anderson and other evaluators or “witnesses” like him who concoct their own version of events to suit their demonstrated bias.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Friday, May 3, 2013
Deciding Whether or not to Compare Likes and Contrasts in Educational Desires for your Children when you have Joint Legal Custody
Disagreements among parents relating to the education of their children can produce hostilities leading to court hearings but through rational evaluation this need not be the result. The drawn out title of this post serves a dual function: to broach the issue of resolving disagreements about a child's education, and to reveal the necessity of a thorough examination of the educational opportunities before strictly adhering to a precept about one's preferences. Finding commonality within the position of each parent may reduce the potential for conflict and lead to out-of-court agreements.
The factors in making educational decisions for the children should be clearly described by each parent. This past week an issue was brought to my attention where a parent who shares joint legal custody decided unilaterally that, against the recommendation of the school, the child would not attend a summer school program. That action is contempt of court. The parent to whom the recommendation was delivered by the child decided not to compare educational desires with the other. But the parents should have been able to compare their wishes.
Education of children has been on my radar recently with the Common Core Education Standards being rejected in Indiana and some other issues. In studying those and my other readings I come across the repetition of phrases that evoke a feeling of similarity, similarity that parents should feel. Namely, wanting their children to receive a proper education that includes accuracy in lessons. Particularly, when listing educational desires, parents may choose whether they want their children to be presented lessons based upon common usage or factual accuracy. Notice my usage of “whether” as a neutral term between two explicit options. Thus, a parent may choose whether or not he or she wants his or her child to learn English properly. Another option could be for a parent to choose whether he or she wants his or her child to learn English properly. Before you think I have made an editing error in the last two sentences where I use the neutral term “whether” look at the last sentence where “or not” was omitted. In that sentence the choices being “to do” or “not to do” are not explicitly stated but are implicit in the term's neutrality. Adding “or not” to “whether” is an improper redundancy and demonstrates a lack of knowledge about the English language. Yet, this phrase is often seen in educational institution text. If a child's education is on the parents' radar screen then likely they may find more commonality than differences.
In examining educational institutions or standards parents should delineate what they like and don't like about each option; “compare and contrast” as some would say – such as the Indiana Department of Education's use on the ISTEP. By creating lists of both positive and negative attributes parents can compare notes to find what factors are like, show similarities, and which contrast, show differences. A comparison, examining likes and contrasts, may demonstrate that the parents are in agreement more than they may initially realize. For instance, they may wish for their children to be engaged in correct usage of the English language such as “compare” being used properly. Milton, in Paradise Lost, wrote “To compare Great things with small” demonstrating existing use of “compare” as meaning to show likeness and difference. The desire for a child to attend a legitimate educational institution, ones who don't use the phrase “compare and contrast” should be universal.
When parents who share legal custody make decisions for their children uniformity in language is beneficial as what one intends in speech may not always be what is conveyed or heard as this joke demonstrates:
It's comical but it demonstrates that speaking the same language can be elusive even when speaking the same language.
If you need assistance in ensuring that parents reach agreement of legal custody issues then please visit my website and contact my scheduler to make an appointment to meet with me. There is no charge for initial attorney consultations.
If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.
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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.
©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Thursday, May 2, 2013
Attorneys must assist judges to ensure that Domestic Violence Protective Orders are Child Friendly
While I am in the midst of doing interviews for my Mandatory Mediation proposal being presented later this month I get called to assist on another high conflict custody case that involves Domestic Violence allegations and the issuance of a DVPO. The attorney I met with yesterday understands the dynamics of this and the game that is being played. But too often they don't and neither do the judicial officers. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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This seems like a good time to remind attorneys and parents about their responsibility to ensure that DVPO when issued in domestic relations cases are child friendly. My article, Ensuring that Judicial Officers are Protecting Your Clients' Children in Child Custody Cases when Domestic Violence Protection Orders are Issued, explains why and how to make the argument that DVPO must be child friendly.
I do not delve into the strategy for combating Domestic Violence allegations, seeking stipulations that protect all parties or the process of eliciting the full truth. Those must be developed on an individual basis. This article however should provide a good basis from which to begin developing a comprehensive plan.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Wednesday, May 1, 2013
The Maternal Preference in Child Custody Cases: Harm to Women and Children
The maternal preference in child custody proceedings that evolved from the early nineteenth century[en1] fails to account for the changes in workplace gender dynamics and has led to a double standard contrary to the interest of woman and children of divorce. Concurrent with the Women Liberation Movement was a rise in the rate of divorce filings[en2] as women sought to free themselves from a perceived oppressive social structure.[en3] Based upon the tender years doctrine[en4] mothers were overwhelmingly awarded custody of the children while fathers visited with them on the weekends.[en5] This maternal preference lasted well into the 1990's until a shift in professional opinion and activism by fathers' rights groups began to manifest itself in application of 1970's gender neutral laws.[en6] This change in application of the law was brought about by a compelling proposition that the maternal preference was harmful to children[en7] and violated fathers due process and equal protection rights.[en8] While conflicting sides argued over the harms to children by a maternal preference juxtaposed to fathers' rights as a vehicle to further abuse and control mothers[en9] there was no discussion of the potential harms to mothers from the view of women liberation coupled with the maternal preference. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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The idea that the care of children fall under the purview of mothers is well established in religion[en10], culture[en11], and political ideology. In fact, Hitler described the woman's world as “her husband, her family, her children, and her home.”[emphasis added][en12] He went on to say that women were not inferior to men but that nature provided men and women with different duties. That women maintained and supported a smaller world, based around the home, for which the man relied upon to stand and perform in the larger world. He proclaimed, “Providence has entrusted the woman the cares of the world which is her very own, and only on the basis of this smaller world can the man's world be formed and built up. The two worlds are not antagonistic. They compliment each other, they belong together just as man and woman belong together.”[en13]
The Catholic Church proscribes the role of a mother as to train the children and “pay particular attention to their domestic concerns“ while staying within the home unless needs and the consent of her husband allow her to go elsewhere.[en14] Not inconsistent with Hitler's views is the role of women in Jewish culture where Shalom Bayit proscribes that women are expected to maintain the domicile and hold the family together – maintaining peace in the home.[en15] Hitler placed children in the Providence of woman in a near ownership role saying, “Every child a woman brings into the world is a battle, a battle waged for the existence of her people.”[en16]
As recently as the 19th century children were considered the property of men. By law a man was responsible to provide for the care and support of his wife and the children. The Indiana Supreme Court ruled that it was the “duty of a father to educate and support his children”.[en17]
Laws and courts in the US and parts of industrialized Europe began to hold that mothers had a biological right to custody of their children and that industrialization had placed fathers out of the home and women in the home as caretakers. By the 1920s, the maternal preference in custody determinations became rooted in law and the mindset of society as a whole.[en18] Fathers only gained rights upon a showing of supporting their children.[en19] In Indiana the law specifically negated the maternal preference by statute[en20] but in many aspects maternal rights still supersede those of fathers. Judicial officers are still granted wide discretion in making intuitive child custody decisions[en21] but in only about 17% of cases are fathers considered the custodial parent[en22] which has shown little change since the mid-1990's. Toward the end of the twentieth century a marked shift in custody rulings and agreements resulted in many more children being with fathers on an equal or greater amount of time.[en23] This has been more of a result in a change of attitude about the rights of fathers and the needs of children than it has been about law. Even though, as noted, the gender roles in the workplace have become fluid, in reality there still exist a maternal preference not consistent with the workplace roles that brought it about.
The maternal preference which views the best interest of children as best being served by placement with their mothers is contrary to the findings that sole custody with the mother is the most dangerous for children.[en24] The women liberation movement and subsequent changes in laws, policies and attitudes has resulted in women enjoying roles that, as Hitler said, were under the Providence of men. Simultaneously they are still entrusted and expected to fulfill the obligations and responsibilities of motherhood. Judges I have spoken with now seem much less hesitant to grant equal custody and parenting time rights to fathers as those in the past, but as those in the past they still seem reticent to expect that fathers can fully manage the same obligations and responsibilities of child rearing as mothers. I won't cite any specific example here as there is often an explicit or implicit confidentiality in my conversations with judicial officers. The maternal preference as it still exists may be harming children and depriving mothers of parenting time or custody rights to which they may otherwise be entitled.
To clarify, I provide this explanation of a maternal preference bias based upon my conversations with those judicial officers. One female judge bluntly told me that if women can't manage their jobs and take care of their children properly then the father can have custody [parenting time] of them. She went on to, correctly I believe, denounce women who seek sole custody as retribution saying that if they want to have sole custody then they sure better be able to do everything for that child. Otherwise, she indicated, the father is likely to get the child in a Shared Parenting arrangement. Yet when fathers have difficulty managing to perform all care taking duties concurrent with employment obligations these judges try to fashion plans that shift responsibility, but not time, to the mother or they seek to find resources for the fathers. To me the message is clear; mothers are perceived as being more capable of balancing employment and family obligations than men which is a resounding endorsement of their capacities. But it comes at a cost. When mothers don't manage fully they will have their responsibility of the children shifted to the fathers – men who may be no more be capable than women.
Thus, no deference has been afforded to the dual responsibilities of mothers that is now a reality of our modern culture. Concurrently though fathers are granted latitude in their child rearing misgivings that appears to be based upon the difficulties in adapting to their new roles. What was then our familial practice and rooted in scripture[en25] was articulated in a speech by Hitler. Women's liberation sought to redefine the roles of parents and judicial officers appear to express a bias in custody rulings that says “You asked for this responsibility and now you are going to be held to a higher standard for doing so.”
Father's rights activists have sought to extinguish the maternal preference doctrine from law and thought. They have been only partially successful and faced resistance from the gender feminists who seek the elimination of the family and fathers from the lives of children. The maternal preference still exist however in the minds of many, particularly the gender feminist and those women unduly influenced by their rhetoric. From the anthropological basis a maternal preference is unlikely to change soon. I have heard many mothers rail against others whom they perceive as not adequately providing for the child's best interest and then express a preference for placement with the father – one who they acknowledge may provide no better care than the mother – based upon an emotional response to motherhood. Similarly, while the stigma of adoption had been considered an archaic attitude, that did not alter the emotional base for it.[en26] While the maternal preference may biologically or culturally hold for generations to come it must be abandoned in application of law and the internal biases of judicial officers for the good of the children. Feminists across the range – political to liberating -- would be well served to embrace this concept.
The gender battles over child custody don't appear to be waning as the various advocacy groups continue to influence custody legislation and practice, particularly feminists and fathers’ rights groups, which is likely to continue for some time.[en27] Yet, many have little or no credibility. Many feminist group are illegitimate because they refuse to acknowledge real gender neutrality such as in Domestic Violence or employment. Domestic Violence is committed by both genders but while men recently reported more physical acts of violence against them than did women[en28] advocating for laws to only protect women[en29] will never solve the problem. Outrageous gender based claims have been made about earnings. I have contacted numerous employers and asked about wages and then what is the rate for women. In 100% of the cases employers pay the same rate for the same contribution regardless of gender. Likewise, some fathers' rights groups are no better in advocating for equal parenting time following divorce while ignoring parental roles during marriage or the divorce. One study found that children whose parents shared care taking responsibility during the marriage offered different levels of emotional support following divorce[en30] – mothers being more emotionally connected – which is critical to the child's adjustment.
Women are capable and intelligent managers, CEO's, administrators and workers across a wide swath of disciplines. They are also adept at balancing family life and parenting responsibilities with their professional life. But not every woman is Superwoman, and to expect them to be so is to place an undue burden and stress upon them reflective of a double-standard that does not properly acknowledge the frailties and deficiencies that we all have. To embrace the father who admits to difficulties balancing work and parenting responsibilities as a positive action attributed to good parental character while chastising the mother for the same is not only unacceptable gender inequity but may not serve the best interest of the child.
Notes
1] See 2 and 3 Victoria, 1839. The British Act of 1839 amended the law relating to the custody of infants.
2] 1960: 22%, 1970: 33%, 1975: 48%, 1980: 52%, 1985: 50%. source: 2011 U.S. Census Bureau, Statistical Abstract of the United States: Table 78
3] Napikoski, Linda. “Women's Liberation Movement: Feminism Glossary Definition” found at http://womenshistory.about.com/od/feminism-second-wave/a/Womens-Liberation.htm
4] Oberlin M.S., Loriann Hoff “Surviving Separation and Divorce”, 2nd Ed., 2005. p123.
5]Matthews, Mark D. “Curing the 'Every-Other-Weekend Syndrome': Why Visitation Should Be Considered Separate and Apart from Custody” William & Mary Journal of Women and the Law, Vol. 5, Iss. 2, Art 6.
6] The Uniform Marriage and Divorce Act, 1970
7] Kruk, Edward M.S.W., Ph.D. “Child Custody, Access And Parental Responsibility - The Search For A Just And Equitable Standard” The University Of British Columbia. December, 2008
8] Devine v. Devine 398 So. 2d 686 (Alabama 1981), which held that maternal preference laws were a form of sex discrimination and violated fathers’ equal protection rights under the Fourteenth Amendment.
9] American Psychological Association. Violence and the Family: Report of the American Psychological Association Presidential Task Force on Violence and the Family. Washington, DC. 1996. This report is no longer available from the American Psychological Association. The APA removed the report in 2006 because, according to the APA representative, it is a “very old document” and “several statements in the report need to have a better research analysis.” Communication with Julia Silva, Director, APA Adults and Children Working Together Against Violence Office, January 31, 2008.
10] Nair, Sanjay “Feminism and religion” Found at http://www.rise-of-womanhood.org/feminism-and-religion.html
11] Leibman, Nina “Living Room Lectures: The Fifties Family in Film and Television”
12] Hitler, Adolf, speech to the National Socialist Women's section, 08 September 1934.
13] ibid
14] To train up their children in the practice of virtue, and to pay particular attention to their domestic concerns, should also be especial objects of their attention. The wife should love her home and should not spend her time elsewhere, unless duty requires this and she has her husband's consent. Source: Catechism of the Council of Trent, Part II
15] Jewish Coalition Against Domestic Violence. Obtained from http://jcada.org/www/docs/4
16] Hitler, Adolf, speech to the National Socialist Women's section, 08 September 1934.
17] Ind. S Ct (1857) find case
18] Roth, A. The tender years presumption in child custody disputes. Journal of Family Law (1976-77) 15:423-61.
19] See Casey, 505 U.S. at 853; Lehr, 463 U.S. at 260 n.16 ("The mother carries and bears the child, and in this sense her parental relationship is clear.") (quoting Caban, 441 U.S. at 397); Smith v. Organization of Foster Families, 431 U.S. 816, 862-63 (1977); Mary L. Shanley, Unwed Fathers' Rights, Adoption, and Sex Equality: Gender-Neutrality and the Perpetuation of Patriarchy, 95 COLUM. L. REV. 60, 81-85 (1995)
20] The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. See IC § 31-17-2-8
21] Best v. Best, 941 N.E.2d 499, 502 (Ind. 2011) “Appellate deference to the determinations of our trial court judges, especially in domestic relations matters, is warranted because of their unique, direct interactions with the parties face-to-face, often over an extended period of time. Thus enabled to access credibility and character through both factual testimony and intuitive discernment, our trial judges are in a superior position to ascertain information and apply common sense, particularly in the determination of the best interests of the involved children.”
22] The majority of custodial parents were mothers (82.2 percent), and about 1 in 6 (17.8 percent) were fathers, proportions which were not statistically different from 1994. Source: Custodial Mothers and Fathers and Their Child Support: 2009. December 2011. Found at http://www.census.gov/prod/2011pubs/p60-240.pdf
23] Kuhn, Richard et al, “Child Custody Policies and Divorce Rates in the United States” 1997
24] “Study: Child Abuse by Moms in Army Families Rises When Fathers Deployed”31-07-2007. Found at http://www.foxnews.com/story/0,2933,291602,00.html
25] Titus 2:3 Older women likewise are to be reverent in behavior, not slanderers or slaves to much wine. They are to teach what is good, 4 and so train the young women to love their husbands and children.
26] Charnley, Jean “The Art of Child Placement” University of Minnesota Press, 1955. p108
27] Kelly, Joan B. “The Determination of Child Custody” Children and Divorce Vol. 4, No. 1; Spring 1994
28] 12 Month Prevalence of Physical Violence by an Intimate Partner in 2010 against; Women 4,322,00; Men 5,066,000 source: Tables 4.7 and 4.8, “The National Intimate Partner and Sexual Violence Survey: 2010 Summary Report” National Center for Injury Prevention and Control of the Centers for Disease Control and Prevention.
29] Violence Against Women Act (VAWA), Title IV of the Violent Crime Control and Law Enforcement Act of 1994 (P.L. 103-322), provides for Law Enforcement and Prosecution Grants to states under Chapter 2 of the Safe Streets Act “to assist States, Indian tribal governments, and units of local government to develop and strengthen effective law enforcement and prosecution strategies to combat violent crimes against women, and to develop and strengthen victim services in cases involving violent crimes against women.”
30] Wallerstein, Judith S and Kelly, Joan B. Surviving the Breakup; Basic Books, 1996
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