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March 08, 2005

Friendly Parent Provisions, And How They Harm Mothers And Children

Washington state attorney Margaret Dore has written a new article entitled "The 'Friendly Parent' Concept: A Flawed Factor For Child Custody." The "friendly parent" concept is described in this manner: "Children are thought to do better when allowed or encouraged to maintain a close relationship with both parents. Therefore, custody should be awarded to the parent most likely to foster the child's relationship with the other parent, i.e., the "friendly parent." Florida's child custody statute, for instance requires courts to consider two "friendly parent" provisions: "which parent is 'more likely to allow the child frequent and continuing contact with the nonresidential parent;" and "[t]the willingness and ability of each parent to facilitate and encourage a close and contuing parent-child relationsip between the child and the other parent."

On the face of it, "friendly parent" provisions sound like a good thing. However, a look at how they operate in practice shows that they are far from good.

This concept, which has permeated many states way of thinking when it comes to child custody, ignores the primary caregiver concept and placed abused mothers and children at risk. It ignores the welfare of the child. In practice, while ignoring these important factors, it examines parental behavior. If mom appears to be "unfriendly," she risks losing custody, even when there are good explanations and reasons for her behavior. Being most often the less well-off parent, she cannot afford litigation expenses, and may be forced into a position to bargain for unwarranted concessions on financial issues to avoid a costly court hearing.

Dore makes an imporant point regarding the paradox created by these provisions. In a child custody dispute, "the parents are in litigation against each other. The purpose of this litigation is to take custody away from the other parent, which by definition does not foster the other parent's relationship with the child. The friendly parent concept, however, requires parents to make the opposite showing, that they will "most likely foster... the other parent's relationship with the child." The friendly parent concept encourages litigation and conflict between parents. Parents subjected to this concept are "unable to protect themselves and their children from abuse, violence, and neglect at the hands of the other parent."

Dore believes that because of these problems the friendly parent concept should be scratched from the books and child custody practice, and I have to agree with her. I'm not the only one - there is a U. S. wide movement that seeks to reject the concept. There is a reward and punishment paradigm to "friendly parent" thinking that has no place in a courtroom.

One example of how the "friendly parent" concept is used is In re Marriage of Wang. Mom lost custody because she placed restrictions on her ex's visitation, including "her insistence that he not be working during visitation and that he actually spend time with the child." Her actions were seen as "unfriendly," and she was punished for it. So dad, who works during visitation and doesn't spend time with his own child, had won custody.

The "friendly parent" concept can be manipulated by parents who seek to create situations where the custodial parent may be deemed "unfriendly." In Ford v. Ford, "[t]he husband... took the couple's Ford Mustang from [the wife]... late one night after they separated, and knew the Ford Explorer left in its place was "probably" going to be repossessed. Indeed, the car was repossessed the day before a scheduled... visit, leaving the wife unable to transport [the child] to the husband for visitation, as she was required to do. The wife telephoned the husband, who agreed to drive to the wife's home in Miami. He appeared at the wife's home with several people and a video camera, explaining he wanted to "prove the [wife] was withholding visitation."

This story reminded me of one I became aware of about seven years ago. This was before "friendly parent" provisions became part of many state's laws, but the manipulative behavior was clearly there. If the states in question has "friendly parent" statutes, they most likely would have played a part in this particular protracted custody fight. An abusive father (who was also the leader of a fathers' rights group) had joint custody with his ex-wife. He had relocated from New York to Maryland. Often, at the end of his visitation time, he refused to return the child to his mother, and made false allegations of abuse against her by calling Child Protective Services. He pulled this stunt at least 200 times. On one occasion, he and some friends drove the child from Maryland to New York in order to hand him over to his mother, during her scheduled time with him. These people had up to ten hours to get the child upset and argumentative. This child already had known behavioral problems. When it came time to hand him over to his mother, he had lashed out and attacked her. One of the friends who came with the father immediately whipped out a video camera and proceeded to videotape the event. It was clear that the father and his friends had purposefully aggravated the child to get the violent outcome that they desired, so that they could record it on tape for possible future use.

I wonder if the recent case I wrote about where a pregnant woman may see her visitation revoked if she is unable to drive the child to the location of the non-custodial parent had "friendly parent" overtones. If she is told by her doctor to not drive due to her health, she forfeits her own visitation, while the father-child relationship is protected. The ex-husband in this case is abusive.

Attorney Richard Ducote explained the paradox that abused women and abused children find themselves in under "friendly parent" provisions. Domestic violence victims often attempt to minimize contact and relationships with their abusers, for good reason. However, those actions may be deemed "unfriendly" by a court, and these women risk losing custody. It is, to use Dore's words, a "Catch-22." Ducote wrote that "[a]fter twenty years in family law courtrooms throughout the country, I confidently say that no woman, despite very abundant evidence that her child has been sexually molested by her ex-husband or that she has been repeatedly pummeled by the violent father of her child, can safely walk into any family court in the country and not face a grave risk of losing custody to the abuser for the sole reason that she dared to present the evidence to the judge and ask that the child be protected."

It is much too easy to engage in manipulation when "friendly parent" provisions are part of the picture. These provisions unfairly advantage non-custodial parents, who are most often fathers. They ignore the primary caregiving status of custodial mothers, and they completely ignore the welfare of the child. They ignore abuse. They encourage litigation and exacerbate conflict. "Friendly parent" provisions do not belong in a court of law.

For more information about "friendly parent" provisions, please go to this link on my web site.

Posted on March 8, 2005 at 10:55 AM | Permalink

Comments

The custodial parent is responsible for transporting the kid? What's up with that? In my agreement my ex was responsible for all transportation. I thought that was the norm.

Posted by: Kathy at Mar 8, 2005 12:04:01 PM

Transportation is meted out differently in each case, Kathy. I've seen it handled all sorts of ways, depending on the situation. My ex handles all transportation since I won a moveaway from Maryland to Massachusetts five years ago, but sometimes parents split transportation costs or pick up the kids when it's their time for visitation.

Here's the post about the pregnant woman, Kathy:

This Is Just So Wrong

It's a press release from the mother's fiance, who is an attorney. She has retained her own attorney to handle her case. Apparently, the judge ruled that mom forfeits her visitation (I believe she's the noncustodial parent) if her pregnancy prevents her from driving. That's just not right.

Posted by: Trish Wilson at Mar 8, 2005 12:11:57 PM

During my divorce and custody fight, I thought that if I was a good girl at all times --cooperative with Ex and unrelentlessly saintly and kind in every way -- that I was sure to get custody against Ex, who obstructed my contact in every way, down to not letting the kid out of the house for an hour or more when I was there to pick her up. In my relatively naive faith in our courts, I thought his "unfriendly" parent tactics would catch up on him. I actually believed that "a child needs a mother and a father" bullshit back then. Didn't matter. Even though our fathers rights friendly evaluator found him "alienating," gosh if they didn't give him custody anyway. So is anybody surprised that he obstructs visitation now? For the sake of my daughter, I have tried to remain relatively friendly. although I find it a lot harder, as there is no institutional support for being "friendly." But it's pretty clear to me that no one cares if you are an "unfriendly" dad who is basically abusive and controlling. Only if you are an "unfriendly" mom who doesn't want the kid exposed to abuse.

Posted by: silverside at Mar 8, 2005 1:40:26 PM

Well done, TW/

Posted by: The Heretik at Mar 8, 2005 7:50:50 PM

Trish,

Ford vs. Ford: You didn't finish the story...surely when the mother made her case to the powers that be, they were understanding. It appears to me that the father in this case (singular) did a stupid thing--I doubt he actually got what he wanted--proof of visitation rights denial-- and very likely his acts will (have) blow(n) up in his face.

In your early example, the mother has made an unjust demand (that the father not work). A man must work to sustain himself. Most jobs require an employee work a fixed set of hours. If the child is placed in any danger by being alone (you didn't mention an age), this danger should be addressed. Otherwise, it is the man's time with the child provided he acts in accordance with the law and (hopefully) common sense.

Regarding abuse: It is the court's duty to ensure that the burden of proof lies with the accuser, lest you trigger a witch hunt. If a parent, gender aside, makes an unfounded allegation, this act should be punished.

Posted by: UAW_republican at Mar 8, 2005 7:50:59 PM

Actually, my Ex pulled similar stunts. Before picking up my daughter, he'd work her into a state of hysteria and then tape record me trying to reason with her, while he said things like, "I wish you could stay with Daddy, but you have to go." The evaluator seemed to see through it for the crap that it was, but it didn't make any difference: he said this moron should get custody anyway, even though he admired how calm I stayed through all of this. These types are absolutely effective in manipulating people in authority.

Posted by: silverside at Mar 8, 2005 8:19:36 PM

"The evaluator seemed to see through it for the crap that it was, but it didn't make any difference: he said this moron should get custody anyway, even though he admired how calm I stayed through all of this. These types are absolutely effective in manipulating people in authority."

I don't think your ex was effective at all...Actually he sounded like he was an obvious moron...What the problem was is that the Evaluator was biased against mothers...this is why I say women must avoid litigation...because no matter what you ex did, he probably was going to win anyway UNLESS you had enough assets to buy him off and stop the litigation...

Actually they are discussing right now whether or not New York should change it's fault divorce law to no-fault and NOW is against it for precisely that reason...it will lead to more litigation and more women getting screwed on issues of child custody/support, marital property issues, etc., precisely because many court personnel in New York ARE biased against women so more litigation automatically works against mothers...the article claims even the court administration has admitted the bias...it appears to be a 10 year trend or something, most of it probably due to listening to these fathers rights idiots and letting get into positions of power the brained-addled female supporters who assist them...

Remember that book "Making a Life" showed us that over 40% of women making over $100,000 have no children...I bet many of them are in the law profession as well...so going into a court where women like this rule is probably already a 'death sentence' for most mothers...

So your mistake or your ex's good fortune was in you not realizing this at the time...

Litigation for women today is usually an error...unless they have an ex who is a total screwup...

Posted by: NYMOM at Mar 9, 2005 12:28:33 AM

Silverside, just so you know, the guy I wrote about who videotaped his ex-wife at the drop off eventually won sole custody due to his manipulations, with the mother having limited visitation. His son eventually ran away several years later. He's over 18 now and as far as I know has no contact with his father. I know more about the story than I will post here (believe me, there's much more), but I will say it is the most tragic case I've ever seen.

Posted by: Trish Wilson at Mar 9, 2005 9:32:52 AM

NYMOM is right about New York having lots of court corruption. An organization called Soft Slip was under investigation for its corrupt ways of making work for itself. Soft Slip was a small group of legal and medical "professionals" who created a conflict-of-interest business. Custody and psych. evaluators and GALs are a big problem in New York.

Posted by: Trish Wilson at Mar 9, 2005 9:41:22 AM