The Path to Parental Equality Through Family-Law Reform
Updated: Jul 2, 2020
The family law industry claims that custody disputes and skewed parenting-time arrangements are necessary to protect parents and children in abusive situations. However, the opposite is true. The antiquated legal arrangement of custody disputes is often what increases the conflict in a family and scars them for life.
I have an alternative solution that achieves both the ability to place families before litigation, and protect victims in abusive situations. In my book, titled Broken Through, I discuss my three-pronged approach to preserve parental equality in the best interest and welfare of the child.
For those who are not aware, the term custody stems from the sixteen century England prison system. When a criminal was captured, they were taken into custody by the police. In today’s family-law environment, the term custody means significant “decision-making responsibilities” for a child.
In my state of Oregon, there are four significant decision-making responsibilities encapsulated within custody. They are education, healthcare, religious training, and residence. Also, in Oregon, if one parent demands to be awarded as the sole custodial parent by the court, the court is mandated to rule sole custody for one of the two parents. The state’s logic is that if the parents cannot agree to joint custody, they will not be able to agree on the significant decisions that will need to be made regarding the child. That is often where the litigious battle begins and the child is place in the middle as an award.
One prong of my three-pronged approach to preserve parental equality in the best interest and welfare of the child is to remove the volatile and inflammatory term of custody from family law and replace it with its definition (decision-making responsibilities). We can also empower the court to allocate each of the four significant decision-making responsibilities (education, healthcare, religious training, and residence) to either one, or both parents, in disputed cases. If parents cannot agree to jointly make decisions in the best interest and welfare of the child, the court can allocate the decision-making responsibilities for them. For example, if mother works in healthcare and father works in education, and both parents are Christian, the court can allocate the significant decisions for healthcare to mother and decisions for education to father. Since both parents have similar religious beliefs, the court can allocate the religious training to both parents. The last decision-making responsibility of residence is typically shared, as the child typically spends time in both households (but usually more time in the home of the custodial parent). This approach is the alternative to the zero-sum game of sole custody where one parent is entitled to all the decision-making rights for education, healthcare, religious training, and most overnights with the child in their care. The objective of this prong in my approach is to remove the fight for sole custody from family law, and empower the courts to preserve the involvement of both parents in the child’s life.
In abusive situations, the court can simply allocate all the decision-making responsibilities and parenting time to the non-abusive parent. Nothing is lost to protect victims of abuse.
A second prong of my approach to parental equality for the child is to presume equal parenting time for both parents with the child. There must be something significant and fundamentally wrong (more than a loaded legal argument), before the courts start stripping away parenting time from a parent. Unless there is knowledge of abuse, drug addiction, psychiatric instability, or significant geographical distances between parents, both parents should have equal opportunity to be involved in the child’s life. It is in the best interest and welfare of the child to have equal support from both parents.
Current family law takes advantage of parents who are in crisis and cannot think rationally. Due to the difficulty of a separation, a parent’s thought process can change from the prefrontal cortex of the brain, where they can rationalize nuance of possibilities, to the reptilian aspect of the limbic system where their thoughts change to an irrational fight or flight mentality. The presumption of equal parenting time removes the legal fight for skewed parenting-time arrangements, and places the best interest and welfare of the child (and family) first.
The final prong of my approach to parental equality is to empower children with a legal voice regarding their true environment (at a specified age). Some children are in very difficult situations (abuse) their whole childhood and never have the opportunity to be heard. In Oregon, there is no age where a child can have a legal voice. In California, the age is fourteen years old. Courts spend all the time listening to two parents (and their attorneys), but not the child who is most impacted by the court’s decisions. I have come up with a generic listen of high gain open-ended questions a court may ask a child, either verbally or in writing, and behind closed doors:
· What kinds of activities do you enjoy? How often do you do them? Where do you do them?
· What is your daily routine on a school day? How about on a weekend or during the summertime?
· How often do you eat home-cooked meals? What are your favorite meals?
· How often do you shower and brush his teeth?
· Where do you enjoy doing homework and why?
· Where do you feel happiest and why?
· Do you ever feel anxious or afraid? Is so, what do you think makes you feel this way? What helps you feel better?
If a child has an opportunity to answer these questions above (or similar open-ended questions), the court can have a much better understanding of the child’s environment firsthand.
The anticipated results of my three-pronged approach will achieve the following objectives:
· Eliminate legal battles for sole custody
· Offer equal opportunities to parents and remove bias
· Protect children from abusive situations
· Preserve the integrity and balance within the family unit
· Stop the industry of family law from using the separation of families as a lucrative revenue generator