Monday 21 August 2006

Joint Custody Bill - Michigan, USA

EPC COMMENT: do the opposing arguments sound familiar at all? Definitely, but in UK "noncustodial parents" do not even enjoy a presumption of ANY custody or contact!!! As a result, too many UK parents don't even get to see their kids.

Cory D. Mackwood: Joint custody bill should receive speedy approval

The Committee on Family and Children Services of the Michigan House of Representatives soon will debate HB 5267, introduced last October by Rep. Leslie Mortimer, R-Horton.
This proposed legislation would require a "presumption of joint physical custody" after divorce unless a parent is unfit, unwilling or unable to care for their child. It makes an exception if a parent doesn't reside in the child's school district and cannot maintain the child's present schedule.

Michigan Family Courts apply a custody standard designed in 1970 that requires both parents agree to joint physical custody or it is deemed unmanageable. Ask yourself how likely it is that some parent(s) may withhold this agreement solely to deny equal custody to the other parent?
HB 5267 has stirred many organizations to use scare tactics to assert that this bill is wrong for Michigan and its children. They remind us of abusive noncustodial parents that would "gain access" to the other parent. HB 5267 wouldn't support this kind of parent as joint physical custodian.

Critics of HB 5267 claim that noncustodial parents want joint physical custody to reduce child support and to rob our children of needed money.
Forget the vileness of this assertion; HB 5267 makes no change to the current child support formula.

Lawyers opposing HB 5267 assert that it will take discretion from judges. HB 5267 doesn't take discretion from judges; it replaces 1970 standards with 2006 standards. It will, however, reduce litigation since many motions involve enforcing noncustodial parental rights being violated.

These special interest groups misrepresent HB 5267. By playing to the pessimist in mankind, they believe they can scare us into leaving things the same.
They do that not in the best interest of children or even the abused parent they purport to represent. They do that in their own best interest.

HB 5267 creates a standard of equality, and assumes both parents want and deserve to be equal in the child's life even after divorce. It also assumes that our children want and would benefit from this equality, absent evidence to the contrary.
Is this really a revelation? Over 85 percent of Michigan residents asked say joint physical custody should be the standard.

Grown adults who are products of divorce say divorce was made more difficult for them because they didn't have "equal time" with both parents.
Are there bad people who will attempt to take advantage of the system? Yes, there are.
Are there bad people that already take advantage of the present system? Yes, there are.
Children need both parents. Parents deserve the right to equal parenting without having to get permission from the other parent - permission that in all too many cases is withheld as a punishment.

It's not 1970 anymore. HB 5267 would create equality. Equality for our children and equality for parents who never intended and don't deserve to divorce their children.
HB 5267: It's about children; it's about fairness; it's about time.

Monday 7 August 2006

Alienating a Parent is easy to do, says Therapist

Alienating a Parent

10:00 PM PDT on Saturday, August 5, 2006
MITCHELL ROSEN

There is no doubt in my mind that parental alienation exists, especially in cases of divorce. The scary thing is, it is not that hard to accomplish. If I were a mother and wanted to alienate my kids from their father, I would be able to do it in a matter of months. All I would have to do is convince my children that their father was the reason for any pain or suffering we might endure.
Isolating kids from their dad and then feeding them unrelentingly negative statements is all it would take to turn children against a parent they have previously loved.

"Your father is the reason we're not a family anymore. He chose his girlfriend and her children over our family. He doesn't send us the child support like he should; instead he takes his girlfriend on expensive vacations. I can't buy you the clothes you need for school because your father, and his lawyer, has tricked the judge into believing he doesn't have any money. ... Your father never cared about you, in fact, before you were born, he said he wished I would have aborted you. Yes, really, he did. But I'm sure if you ask him he'll deny it. Your father lies and lies and lies. If it wasn't for you kids, I don't know what I would do. You are my rock, my life, my reason for living."

Statements like these result in children beginning to hate their father and wanting to protect their mother. Even in situations where the father has spent an equal amount of time being with and raising the children, even then it is possible to brainwash children into believing their father is a monster.

As a therapist, I will get families referred to me for "reconciliation counseling" where the stated goal is to assist in reunifying the father with his children. Sometimes it is the other way around; it is the mother who is the "hated" parent and the father who is the "loved" relative, but in the majority of cases, the father is the parent who is vilified and demonized.

If both parents follow the orders of the Family Law Court, they know neither is supposed to talk negatively about the other parent or discuss child support. Unfortunately, a judge's order carries little weight with parents who are self-centered and vengeful. If the mother has succeeded in keeping the kids away from the father either by saying he doesn't care enough to try and visit or erasing his voicemails, then the children will settle into a new life where they believe Mom is all good and Dad is all bad.

I know if you are an alienated parent that it is heartbreaking to hear your children say they hate you. What I can offer is this: Never stop trying to see your children even though efforts may be blocked and your legal fees are enormous. Kids aren't stupid. There will come a time when they will mature and wonder why Dad wasn't there. At that time you can discuss how you never stopped trying. But if all you have to offer is, "I got so fed up I went on with my life without you," you run the risk of alienating the children yourself, by your own choice, independent of the mother.

Mitchell Rosen, M.A., is a licensed marriage and family therapist with practices in Corona and Temecula. Contact him at family@PE.com

www.EqualParenting.org

Saturday 5 August 2006

ECHR - Violation of Article 8 Right to Family Life

EUROPEAN COURT OF HUMAN RIGHTS 439 20.7.2006

Press release issued by the Registrar
[emphasis added by EPC - see EPC's comment at bottom]

Chamber judgments concerning
the Czech Republic, Croatia, Greece, Italy, Romania and the Ukraine
Koudelka v. Czech Republic (no. 1633/05) Violation of Article 8

The applicant, Ji?í Koudelka, is a Czech national who was born in 1957 and lives in Prague. In 1990 a daughter was born of his relationship with E.P. The couple separated the following year and custody of the child was granted to E.P.

In 1993 the applicant applied to the court to gain a right of access, alleging that E.P. was preventing him from seeing their daughter. The court-appointed experts did not observe any impediment to contacts between the applicant and his daughter but reported an antagonistic relationship between the parents and a negative attitude of the mother, whose cooperation was in their view essential for the enforcement of a right of access. In a decision of 24 October 1995, which was upheld on appeal, the applicant was granted a right of supervised access: he was to have contact with his child every other Thursday afternoon in a welfare centre with the assistance of a specialised social worker.

That arrangement is still in force, although proceedings brought by E.P. to have it terminated are pending. The applicant has been trying to have his right of access enforced from the outset. The only attempt to establish contact was made in July 2002 at a specialised centre. On that occasion the experts found serious shortcomings in the upbringing of the child by E.P. and observed that contact between the applicant and his daughter would not be possible without prior therapy, as E.P. had been instilling a parental alienation syndrome in the child.

The applicant complained that the authorities had not made sufficient efforts to enforce his right of access in respect of his daughter, in spite of her mother’s resistance. He relied in particular on Article 8 (right to respect for private and family life) and Article 6 § 1 (right to a fair hearing).

Even though it had been aware, from 1995, of E.P.’s obstruction to contact between the applicant and his daughter, the domestic court had for a long time done nothing more than address a formal warning to E.P. in 1996, and that measure had manifestly remained ineffective. Subsequently, it was not until April 1999 and October 2000 that the court had imposed two fines on E.P., for about EUR 70 and EUR 7. Having regard to the circumstances of the case and the reprehensible attitude of the mother, the Court considered that such a measure could not be regarded as sufficient or adequate.

In the circumstances of the case, the Court considered that the non-enforcement of the applicant’s right of access was mainly attributable to the manifest refusal of the mother, and then to that of the child under her mother’s influence. It found, however, that the Czech courts had not taken all the measures that could reasonably have been expected of them, in the very difficult dispute at issue, in order to secure E.P.’s compliance with the applicant’s right of access, and that their action had not been sufficiently prompt or systematic. Moreover, in view of the psychologist’s conclusion in July 2002 that E.P. was not bringing the child up properly, it was legitimate to wonder whether the courts had been acting in the child’s interest.

In the Court’s view, the Czech courts had allowed this dispute to be settled by the mere passage of time, such that the resumption of relations between the applicant and his daughter no longer seemed possible. Accordingly, the Court held unanimously that there had been a violation of Article 8. It did not consider it necessary to examine separately the complaint under Article 6 § 1 and awarded the applicant EUR 13,000 in respect of non-pecuniary damage, together with EUR 2,000 for costs and expenses, less the EUR 701 already received from the Council of Europe by way of legal aid. (The judgment is available only in French.)

EPC COMMENT:

Alienated parents in the UK, who have applied to ECHR in similar circumstances, will be left wondering why their very similar cases were not even entertained by ECHR.

UK continually violates articles 8 (right to family life) and 6 (right to fair hearing) yet ECHR does nothing. Even in this case where it has found against the state, look at the nugatory consequences! This award is pathetic!!

In EPC's view, ECHR is a waste of time and money. It is a court that, in the vast majority of cases, fails to deliver justice.

Please post a comment on this blog - EPC is very interested to hear your views and experiences with ECHR.

www.EqualParenting.org


Thursday 3 August 2006

3rd of Welsh Kids lose contact with a parent, report says

Of course, Equal Parenters well know that this phenomenon is not peculiar to Wales!!!


Up to a third of Welsh divorce kids lose touch with a parent

Aug 2 2006

Darren Devine, Western Mail


UP to a third of children from broken families in Wales lose touch with one of their parents, a new report has revealed.
The findings suggest children are, in some cases, falling victim to the politics of the extended family - disputes between adults when one or both of the separated parents becomes involved with a new partner.
Up to 57% of the Welsh parents surveyed go on to form another family group, compared to the national average of 47%.
Assistant Children's Commissioner for Wales Sara Reid said in some cases, such as where the mother has been a victim of domestic violence, it is in the interests of the child to end contact.
Ms Reid said, "Children have a right to a relationship with both parents and in most cases there are really positive benefits from that.


"The difficulty is that often when a relationship has broken down there maybe particular circumstances, such as if there has been domestic violence, where it's not in the best interests of the child to have that relationship.
"It's sad that contact is lost and it often happens very gradually over a period of time."
But head of Fathers 4 Justice Wales Phil Davies
said fathers are awarded residency in less than 1% of cases where parents split and it is invariably men who then lose contact with their children.
He said, "Usually it's because the mother wants to play happy families with the new partner.
"Sometimes the mother will move around three or four times so the father cannot have contact. We're dealing with one case at the moment where the mother moved from Bedford in the South East to Swansea, to get away from the father."
Child psychologist Dr Pat Spungin, founder of Raisingkids.co.uk which conducted the research, said children find it easier to accept half-siblings than step-siblings when their parents begin new relationships.
But Dr Spungin said blended families are fraught with problems because of the difficulties in trying to find common ground between two separate and established sets of household rules.
She said, "Trying to merge two sets of rules under the one roof is one of the most problematic and stressful situations that children - and indeed their parents - can go through."
But the psychologist said relationships between children and their step-parents often changed after the arrival of grand-children.
She said, "Grandchildren can help re-connect the original parent and child relationship - and with a step-parent involved this can result in quite significant change.
"Someone previously only known to the family as Carol or John can suddenly come to be referred to as Granny or Grandad, and with it they are essentially embraced further into the family, because of their new grandparent status."
Children in Wales fatherhood development officer Tony Ivens said when a child loses contact with its father it also becomes cut off from one side of its extended family.
"Along with the child losing contact with the non-resident parent, who is normally the father, they lose contact with their extended family on that side. It doesn't just mean disruption for the father, but for the set of grandparents, aunts, uncles and cousins on that side of the family."


www.EqualParenting.org

Tuesday 1 August 2006

Pelling - legal victory on publicity

Dr M J Pelling - Litigant in Person
Ms Veronica N. Bruce-Williams – Respondent (did not appear and was not represented)
Hearing date : 14th July 2006
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Wall :
1. This unusual application reaches me as a consequence of a direction by Brooke LJ sitting alone on 9 May 2006. Brooke LJ directed that an application by Dr Michael Pelling to discharge, alternatively to set aside, an injunction made by this court on 20 June 1996, should be listed before a Lord Justice of Appeal who specialises in Family Law matters. The court had previously refused to issue the application, as I understand it, on the ground that Thorpe LJ had taken the view, when the matter was referred to him on paper, that the injunction was spent. Dr Pelling unsuccessfully sought to challenge that refusal in proceedings for judicial review, but succeeded before Brooke LJ on a different basis, namely that, pursuant to CPR 52.16(5) a party "may request any decision of a court officer to be reviewed by the Court of Appeal".

2. In his application notice, Dr. Pelling argued that this court itself had rendered the injunction nugatory by its public judgment of 1 July 2004 in the case of Pelling v Bruce-Williams [2004] 3 FCR 108, which had named the minor and the parties. He also complained that the injunction was made in breach of natural justice, as this court in 1996 had refused to hear him.

3. The circumstances in which the order complained of came to be made were as follows. On 20 June 1996, this court (Butler-Sloss, Peter Gibson and Thorpe LJJ) dismissed an appeal by Dr. Pelling and Mr. Bernard Greenwood from an order of His Honour Judge Goldstein dated 14 March 1996. The latter had refused applications by Dr. Pelling and Mr. Greenwood (who had intervened in Dr Pelling's proceeding on the question of a public hearing) that Dr Pelling's application for residence under the Children Act 1989 be heard in open court. This court's decision was subsequently reported as Re PB (Hearings in Open Court) [1996] 2 FLR 765.

4. In addition to dismissing the appeal, however, this court also made an order in the following terms: -

5. No one shall publish or reveal to anyone (other than the parties to this appeal or the Official Solicitor) the name or address of the minor child who is the subject of these proceedings or publish or reveal any particulars or other information which would be likely to lead to the identification of the said minor.

6. As I have already stated, Dr. Pelling's application to me on 14 July 2006, was for this injunction to be "discharged or set aside". I made it clear at the outset of the hearing that I was prepared to discharge the injunction. Dr. Pelling, however, despite having sought relief in the alternative, wanted the injunction set aside. He argued that it should never have been made. Discharging it, he argued, would imply that it had been properly made, and had remained properly in force.

7. As I had, perhaps unwisely, been expecting Dr. Pelling to take "yes" for an answer, I was unprepared for this submission, and given the pressure on the list on 14 July 2006, I decided to take a little time to consider the matter. This I have now done.

8. Dr. Pelling's dissatisfaction with the order against identification made on 20 June 1996 is multi-faceted. He objects to it, of course, per se. However, his two more focused objections are (1) its terms; and (2) the fact that he was not heard by the court before the order was made. Butler-Sloss LJ (as she then was), basing herself on the case of Re Z (A Minor) (Freedom of Publication) [1996] 1 FLR 191 (Re Z), gave a short ex tempore judgment in which she made it clear that it was the practice of this court to impose a direction against the identification of children involved in proceedings between their parents under the Children Act 1989. This was because such orders were in the best interests of children, and because the welfare of the children concerned prevailed over any parental rights based on freedom of expression.

9. On 20 June 1996, Dr Pelling had come to court armed with a number of authorities, which this court declined to consider. Indeed, when Dr. Pelling asked: "Are you refusing to hear me?" Butler-Sloss LJ replied, with the directness and clarity for which she was well known: "Yes, in fact we are". However, as stated in paragraph 8 above, she went on to explain why. When Dr. Pelling pointed out that the summons had still to be heard, and when he attempted to refer to the case of Mrs. R v Central Independent Television [1994] Fam 192, Butler-Sloss LJ interrupted him to say that it was not appropriate "on this direction at this stage to hear argument".

10. This court refused Dr Pelling permission to appeal to the House of Lords, but as we know, he took the open court / chambers point to the European Court of Human Rights in Strasbourg, where the practice in England and Wales of hearing children's cases in private was upheld by that court: - see B v United Kingdom, P v United Kingdom [2001] 2 FLR 261.

11. Dr. Pelling's continued efforts have, however, borne some fruit. As a consequence of the decision of this court in Pelling v. Bruce-Williams (supra), the practice of the court has changed. Anonymity directions are no longer automatic in children's cases: indeed, anonymity has to be (a) sought; and (b) justified. It was no doubt as a consequence of the judgment of this court in that case (Thorpe, Sedley and Arden LJJ) that Thorpe LJ was of the opinion, when the matter was referred to him on paper, that the order complained of by Dr. Pelling and made on 20 June 1996 had been discharged.

12. Whether or not that is so, the recent decision of this court in Clayton v Clayton [2006] 2 FCR 405, makes it clear that the prohibition against publication contained in section 97(2) of the Children Act 1989 lasts only as long as the proceedings themselves. Dr. Pelling's litigation over his son, who will be 16 later this year, is long since over, and it is, therefore, plainly the case that he is entitled to have the injunction discharged. I am not, however, prepared to set it aside, for the reasons which follow.

13. It is clear, for the reasons I have already given, that an order such as that made by this court on 20 June 1996 would not be made today without full argument. However, in this court in 1996, orders restricting publication of the names of children were the norm. There was, accordingly, nothing unusual in this court making an order against publicity in a case involving a child, particularly where it was one parent's specific wish for the proceedings to be in open court.

14. Dr Pelling criticises Butler-Sloss LJ's reliance on Re Z. He says that this was certainly not a Re Z case in which welfare was paramount, and arguably was not even a Re Z case in which welfare fell to be balanced against freedom of speech. I am not so sure about that. But even if Butler-Sloss LJ was eliding the Re Z type of case with what was then the conventional direction against identification, the fact of the matter is that the court would have made an order against publicity in any event. Dr Pelling had made it clear that he wanted the case heard in open court, and, somewhat unwisely, he appears to have told the court that he did not intend to obey the non-identification order. Accordingly, even if he had been allowed to cite substantial authority to the court, the result, I am confident, would have been the same.

15. Dr Pelling also attacks the wording of the order. He says it is far too wide. The very limit of the court's jurisdiction, he says, would have been to make an order restricting the identification of the child as the child who was the subject of the proceedings. As the order was drafted, Dr Pelling argued, he would have been in contempt of court if, in his son's company, he met a friend in the street and introduced the child by name to that friend.

16. What this argument overlooks, I think, is that in the case of Re R (Court of Appeal: order against identification) [1999] 3 FCR 213, this court (Lord Woolf MR, Butler-Sloss and Evans LJJ) upheld an order made in terms very similar to those of which Dr Pelling complains. Lord Woolf explains why such orders were made, and confirms that the court's practice in making such orders was unobjectionable.

17. The order in the instant case was, of course, made 10 years ago. Fortunately, apart from generating a substantial degree of forensic activity on Dr. Pelling's part (with the clarification and development of the law as a constituent element) nothing appears to have flowed from the particular wording of the order, and debates about its precise wording strike me as academic.
18. In my judgment, therefore, it is appropriate now to discharge the order, rather than to set it aside. It no longer fulfils any function, and is, moreover, now caught by the meaning given to section 97(2) of the Children Act 1989 by Clayton v. Clayton.

19. Another reason for discharging rather than setting aside is that I think it likely that Dr. Pelling would seek hereafter to argue that by setting aside the order I was taking the view that it should never have been made in the first place. As I have already made clear, I do not take that view. To the contrary, I take the view that an order against publicity would undoubtedly have been made in 1996, even if Dr. Pelling had been fully heard. Whilst I understand Dr. Pelling's objection to the precise wording of the order; (a) it appears to have been common form at the time; and (b) I am satisfied that had any adverse consequences been threatened against Dr. Pelling in relation to it, its wording would have been scrutinised and, if necessary, altered.

20. I am also fortified in the view which I take by the fact that Dr. Pelling, who is well aware of the nuances of legal language, sought first and foremost to have the order discharged. He only asked for it to be set aside in the alternative. In my judgment, his first approach is correct.

21. Finally, Dr Pelling referred me to the decision of the Privy Council in Grafton Isaacs v Emery Robertson [1985] AC 97. In my judgment, this decision does not assist Dr. Pelling. It confirms the well established rule that an order which is, on its face, regular, must be obeyed until it is set aside or discharged, even if it was made without jurisdiction: - see also Hadkinson v Hadkinson [1952] P. 285. In my judgment, despite the circumstances in which it was made, the order by this court dated 20 June 1996 was both lawful and in accordance with the practice in place in 1996. Times have, however, moved on, and the continuation of the order is no longer appropriate.

22. For all these reasons, I propose to discharge the order against publicity made by this court on 20 June 1996.

23. By way of footnote, it is clear that the respondent to this application has been served. She did not, however, appear. I note also that she did not appear in March and July 2004 when Pelling v Bruce Williams (supra) was heard and decided. I do not, accordingly, have any difficulty in making the order identified in paragraph 20 above in her absence.