Why Equally Shared Parenting is Best For Children

http://www.barkuslaw.com/index.php/blog 

OCTOBER 9, 2013 BY LORI BARKUS ESQ 20 COMMENTS

Attorney Lori Barkus explains why equal time-sharing is in the best interest of the children of divorce.

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A parents separation or divorce may end their relationship, but parents must be encouraged to work together to ensure that both remain a part of their children’s lives.

Historically, courts favored mothers having “custody” and fathers having “visitation”. Courts began to recognize how damaging these labels are (and possibly unconstitutional) and lawmakers began rewriting custody laws to reflect the concept of time-sharing. States then began moving in the direction of shared parenting.

Although courts are becoming more receptive to shared parenting, not every court or Judge is on board. Judges must make custody decisions based on a “best interest of the child” standard. This phrase sounds comforting, but, since judges are not required to explain their decisions, many argue the standard is nebulous. Many Judges retain the belief that it’s preferable for children to have one primary residence. Although there is a plethora of research showing this is not the case, many remain unaware or unwilling to acknowledge it.

During Florida’s last legislative session, lawmakers passed an alimony reform bill that included a rebuttable presumption of equal timesharing, with the following exceptions:

• The safety, well being, and physical, mental, and emotional health of the child would be endangered by equal time-sharing
• Clear and convincing evidence of extenuating circumstances justify a departure from equal time-sharing with written findings justifying the departure.
• Incarceration
• The distance between residences makes equal time-sharing impracticable.
• A parent does not request at least 50-percent time-sharing.
• A permanent injunction has been entered or is warranted against a parent or household member.
• Domestic violence

Equal time-sharing never became law because Gov Rick Scott vetoed the bill. As a practicing family attorney, I have seen, all too often, children become pawns in their parents divorce. A shared parenting bill prevents the minimization of one parent, usually the father, from a child’s life. In many of these “every other weekend” scenarios, a child loses out on time with his/her father and 50% of the child’s extended family as well. Additionally, the lesser-earning parent opposes equal time-sharing because it will lower their monthly child support payment. A parent is then forced to try and “buy” time with his/her children, meaning that the parent pays full child support just to get the other parent to agree to equal time-sharing.

Child custody is not a gender issue. Ask any daughter who grew up without a father, any mother of a divorced son, any paternal grandmother, sisters of divorced brothers, stepmothers or others. Groups of women are now starting to assemble to change the system that hurts both them and our children. Leading Women for Shared Parenting (LW4SP) is such a group and I am proud to be a member. LW4SP has one cause: a rebuttable presumption of Equally Shared Parenting in Family Law. While such will help both women and men, we believe the voice of a group of strong women will be required to correct the messaging about current family law practices.

For years, womens’ groups have opposed shared parenting presumptions. What opponents fail to take into account is that presumptions are rebuttable. Presumptions provide a starting point, a leveling of the playing field, removing the winner takes all approach to child custody- a framework that is in no one’s best interest. There are some exceptional cases in which shared parenting is inappropriate or where one parent cannot spend equal time with the children, due to work or other reasons. A judge can order more or less time sharing if an equal time-sharing arrangement is truly detrimental or impossible. There are parents (fathers mostly, as 85% of custodial parents are currently mothers) who are able and willing to spend equal time with their children. No child should be denied the participation of two capable and loving parents and no parent should be forced to bargain for or purchase time with their children.

Parents are presumed equal during the marriage. What changed in the equality equation once the marriage ends? Children need and want both parents in their lives, not as visitors, but as active and equal participants. That’s why shared parenting is best for children.

Photo: Flickr/Lewisha1990

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FILED UNDER: FOR THE LOVE OF MEN TAGGED WITH: DIVORCE AND CHILDREN, FOR THE LOVE OF MEN,LORI BARKUS, LW4SP, SHARED CUSTODY, SHARED PARENTING

About Lori Barkus Esq

Lori Barkus, P.A. is a cum laude graduate of the University of Miami School of Law. She is admitted to practice in Florida, Georgia and the District of Columbia, in addition to the Southern and Middle Districts of Florida and the Eleventh Judicial Circuit Court of Appeals. She is also a Florida Supreme Court Certified Circuit Civil and Family Law Mediator, a member of the International Academy of Collaborative Professionals and the Collaborative Family Lawyers of South Florida. Lori handles matters involving : divorce, custody, child support, paternity, Collaborative Divorce, adoption, parental rights, Labor and Employment litigation and family law and civil mediation. You can find out more about her at http://www.barkuslaw.com/

Commentary on some blog posts critical of shared parenting presumptiosn

Here is a recent series of blog posts critical of shared parenting presumptions:

http://www.highconflictinstitute.com/blog/thoughts-on-shared-parenting-presumptions-part-i

http://www.highconflictinstitute.com/blog/thoughts-on-shared-parenting-presumptions-part-ii

http://www.highconflictinstitute.com/blog/thoughts-on-shared-parenting-presumptions-part-iii

http://www.highconflictinstitute.com/blog/thoughts-on-shared-parenting-presumptions-part-iv

Bill Eddy's response:

http://www.highconflictinstitute.com/blog/response-to-comments-on-shared-parenting-presumptions

Reposting

Arizona dad fights for rights of divorced fathers

2 comments by Alia Beard Rau - Jun. 16, 2012 11:05 PM
The Republic | azcentral.com

Read more: http://www.azcentral.com/12news/news/articles/2012/06/16/20120616child-custody-fathers-rights-battle.html#ixzz2aFtbvwwR

A Response to Arguments Against Shared Parenting

Attorney Bill Eddy offered these Thoughts on Shared Parenting Presumptions – Part I where argues against a shared parenting presumption. His arguments seemed rather poor to me and I entered this response. Since I don't know if this comment is going to be allowed (it hasn't posted yet), I repost it here, so it doesn't get lost:

"Thanks for this post and for raising these issues, which I am currently researching both for personal and scholarly interest. My understanding of them is very much in development. But, based on my understanding of these issues so far, I have these reactions. 

First, a shared parenting *presumption* does not *impose* relatively equal parenting time: that would be for a final judgment. 

But a presumption is just a presumption, and presumptions can be overridden for good reasons. 

My understanding is that now, in most states, there is at least a “de facto” presumption in favor of one parent having the child(ren) most of the time. I do not know if this is an official presumption anywhere (again, my knowledge here is limited) but at least in my state, ‘the system’ is set up that way: e.g., the child support system presumes that one parent will have the child(ren) most of the time.
To deviate from that system, in favor of a 50/50 shared parenting arrangement, is an uphill battle: at least that’s the experience of many parents. This battle results from a defacto presumption against shared parenting. 

How “burdensome” is it to override a 50-50 presumption? How burdensome is it to override a presumption in favor of a non-custodial parent having their child(ren) every other weekend and one night a week? 

How do these burdens compare? Which presumption, at least of these two options, is a better starting place? 

You write that you “have fought for and won 50-50% schedules”. Would that fight have been easier, and less expensive for the client, with a 50-50 presumption? 

You say “it would be a step backwards to now impose such a broad presumption.” But if there is a current presumption in place, would it be a step forward to *reject* it? 

Finally, a presumption of any kind doesn’t “take away” any need for flexible thinking or anything else. A presumption doesn’t have, or needn’t have, any of the bad consequences you suggest: it doesn’t preclude flexibility, doesn’t prevent change, doesn’t prevent the need for teamwork, or anything that you mention in the second half of your essay. 

There are complex issues here, and each case is different, but as a matter of policy, I don’t see good reasons here to recommend strongly against a presumption of relatively equal parenting time since, prima facie and all else being equal, that is the best outcome for all involved, the parents and child(ren).

Again, thank you for posting this. I look forward to your future posts on this issue, and hope to find your past posts."

Parenting Time Deviation

Some good posts on parenting time deviations:
http://www.atlantadivorceattorneyblog.com/divorce/child_support/parenting_time_deviation/

The post notes that ". . The statute, however, gives no guidelines for what the deviation should be."

And here's a case where a parent was denied a deviation:

707 S.E.2d 344 (2011) 

WILLIS v. WILLIS; and vice versa.
Nos. S10F1357, S10F1358.Supreme Court of Georgia.January 24, 2011.
Reconsideration Denied February 28, 2011

Speculations

Creating a legal presumption for shared parenting is much more difficult than making changes so that it is a more readily available option. It seems to me that the current system makes a shared parenting option hard to exercise because of 

(a) the 'primary physical custodian' designation [which is not legally required: the law doesn't require that there be a primary physical custodian] and 

(b) the child support system being built around that person and 

(c)  there being no standardized way to factor parenting time deviations (at least according to what most lawyers say, as far as I know), thus a 'battle' to deviate away from the formula as it currently is with the primary physical custodian receiving a windfall, sometimes. 

It seems to me that a better system would begin by: 

(1) asking what sort of parenting plan or time with the child is sought and presenting some options for parenting plans, ranging from 50-50 with various schedules, to various other options, ending in an 'every other weekend and one night a week' and 

(2) some kind of child support 'formula' that addresses these different scenarios. 

Obviously the state will allow 50-50 shared parenting, but people have to work hard to make it happen. If it were a more readily available option, that would likely make it more readily exercised. 

It sounds like what I am suggesting is that there be no official presumption of any custody arrangement. This would be better, I think, than the current at least de facto presumption that the children be with one parent most of the time.

GA Organizations and Efforts

Recently found!

Fair Family Law Project http://www.familylawproject.org/ 

Guideline Economics: http://guidelineeconomics.com/states/GA.htm 

Rogers Economics: http://www.rogerseconomics.com/ 

Reposting a relevant story

Found on http://www.familylawproject.org/

New Arizona law encourages more joint parenting

BY: The Associated PressPublished: December 26, 2012 at 9:37 am

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An Arizona law that goes into effect Tuesday encourages divorced parents to do more joint parenting.
The law requires courts to adopt plans that increase as much as possible both parents’ time with a child and forbids judges from giving one parent preference based on the parent’s or child’s gender.
The Arizona Republic reports (http://bit.ly/W4NR7W) that, under the new law, judges now must fine any parent who lies to the court or tries to delay court proceedings. Such fines were previously optional.
Physical custody will now be called parenting time and legal custody will now be called legal decision-making authority. Parents with decision-making authority have power over decisions of a child’s health and education and over personal-care matters such as haircuts and ear piercing.
There are stricter reporting requirements for parents to notify the other parent when they move a significant distance away. And the new law still requires judges to make decisions based on the children’s best interest, but their best interest now includes maximum time for both parents.
“We are moving away from the every-other-weekend custody arrangements or Mom automatically being named the custodial parent,” said Mesa family-law attorney Billie Tarascio.
The law is among a handful of new statutes that take effect Tuesday.
The new laws include a measure that increases the continuing-education requirements for real-estate brokers and makes changes to the course requirements.
Arizona is among the states leading the push for shared parenting time.
A handful of other states have passed similar laws aimed at parents in recent years. Unlike Arizona, which gives judges authority to decide exactly how much time each parent gets, many states have minimum requirements. Texas, Florida, Pennsylvania and North Dakota, for example, now require that each parent get at least 40 percent parenting time.
The standard visitation of every other weekend and one night a week adds up to about 20 percent parenting time for the non-custodial parent.
Other states have considered increasing parenting time. The Minnesota Legislature passed a bill this year to give the non-custodial parent at least 35 percent parenting time, up from 25 percent. But the governor vetoed it.
Advocates for mothers’ rights say the laws are a ploy to help fathers. Groups that combat domestic violence are watching the effort closely to assure it doesn’t expose children to an abusive parent.
The Arizona Coalition Against Domestic Violence initially opposed the law but later changed its stance to neutral after lawmakers made some adjustments.
Phoenix family-law attorney Tom Morton said he doesn’t expect a flood of parents seeking changes in their parenting time as soon as the law goes into effect. He said the change will likely be gradual. Courts require that a parent have some sort of change in circumstances before requesting a change in custody arrangements, and a change in law would not apply.


Read more: http://azcapitoltimes.com/news/2012/12/26/new-arizona-law-encourages-more-joint-parenting/#ixzz2YCnALLir

Related Google searches

Some Google searches that bring up material relevant to, but often importantly distinct from, shared parenting include these:

"Georgia joint custody"

Comment: custody is both legal and physical. But "joint physical custody" might not imply equal or close to equal physical custody. 

"Georgia joint physical custody"

Comment: this is better. A barrier to this though is that many documents, including child support worksheets, have a place to enter the "primary physical custodian" or the individual who has "primary physical custody." This concept, which is not a legal requirement, is a barrier to shared parenting, in many ways. This will be discussed later. 

"Atlanta shared parenting"

"Atlanta shared custody"


"Georgia fathers rights"

Comment: many of these results pertain to fathers not married to the mother, or cases where paternity is in question or hasn't been legally established. These factors add an additional  layer of complexity; this page currently won't be exploring those issues. 

About the National Parents Organization

Reposting information about this organization:
https://www.nationalparentsorganization.org/

National Parents Organization is the national voice for family law reform.  National Parents Organization, a nonprofit, 501(c)(3), organization, is reforming the family courts to ensure equal treatment for fathers and mothers which, in turn, further guarantees the well-being of their children; to make shared parenting after separation or divorce the norm; and to ensure that finances after separation or divorce are distributed equitably. 

National Parents Organization recognizes that preserving a strong bond between children and their parents is critically important to children’s emotional, mental, and physical health. Society supports shared parenting in theory, but the practice is suffering from a lack of proactive support by our courts, legislatures, and systems. Our objective is to change the “default” position of laws, court orders, and social attitudes in general to see shared parenting as the best possible outcome for raising all children – whether or not the parents are together.

Our Mission

National Parents Organization improves the lives of children and strengthens society by protecting every child’s right to the love and care of both parents after separation or divorce. We seek better lives for children through family court reform that establishes equal rights and responsibilities for fathers and mothers.

Our Vision

National Parents Organization’s vision is a society in which:

• Children are happier and more successful because their loving bonds are protected after parental separation or divorce;
• Children have a natural right to be nurtured and guided by both parents;
• Society treats fathers and mothers as equally important to the wellbeing of their children;
• Shared parenting after separation or divorce is the norm;
• The courts arrange finances after separation or divorce so that both mothers and fathers can afford to house and care for their children and themselves; and
• Our society understands and respects the essential role of fathers.

Core Principles

Our core principles are:

• Shared Parenting: Shared parenting protects children’s best interests and the loving bonds children share with both parents after separation or divorce.
• Parental Equality: Equality between genders has been extended to every corner of American society, with one huge exception: family courts and the related agencies.
• Respect for Human and Property Rights: The Supreme Court of the United States has found that “the interest of parents in the care, custody, and control of their children... is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

Re-posting from a Georgia Family Law blog

http://sworrall.typepad.com/georgia_family_law/2007/03/georgia_house_s.html#

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March 22, 2007

Georgia House Shared Parenting Study Committee Report

I have written previously and often about the Shared Parenting Bill pending in the Georgia General Assembly, HB 369. This bill was the result of a study committee which was created by HR 1555 in 2006. The committee was charged with the task of investigating whether shared parenting might be the best custodial situation for all children of divorcing parents.

The committee was made up of Rep. Tom Rice, Chairman, Rep. Mark Butler, Rep. Earl Ehrhart, Rep. Ed Lindsey, and Rep. Judy Manning. They met on at least three occasions, in September and October 2006 and the report was issued on December 31, 2006.

I have obtained and reviewed the Study Committee's Report. The entire text of their report appears below. It outlines the reasoning behind the authors of HB 369 and the factors they want the courts to consider in making custody decisions.

I will continue to provide posts about the details and status of the bill as it proceeds through the legislative process. As of today, the bill has been passed out of the Judiciary Committee but has not yet been voted on by the House.

INTRODUCTION

For years there have been efforts to bring change to the child custody laws here in the state of Georgia. The committee was designed to review the situation in Georgia to see if any changes were needed.

The committee's desire is to see children benefit as much as possible from the input and parenting of both parents. Where one parent has sole custody, there is the possibility that over time the non-custodial parent will begin to feel alienated toward the child and will begin to withdraw from a relationship with the child. The resulting alienation can produce severe trauma in the child's life. The same can be true as well where one parent has physical custody, both parents have joint legal custody, but one parent makes all the decisions. When a parent is or can be actively involved in the child's life then the relationship can be better, especially where both parents have an interest in the child's life.

The best interest of the child is that both parents work together to parent their child. The recommendations of the committee seek to provide a balance and to allow those parents who want to have further involvement in the lives the children, the opportunity to do so.

HEARINGS

The Committee scheduled three meetings over the course of two months and heard public comment from all interested parties. These meetings took place September 25, October 3, and October 26, in Atlanta. Testimony was presented by various individuals and groups interested in child custody issues. The meetings were set up so that testimony in favor of making changes to the current law was heard at the first meeting on September 25fh, with testimony given on October 3, by those in favor of the law remaining the same. The meeting on October 26 gave those who had not had a chance to speak, to do so.

COMMITTEE FINDINGS

Joint Legal Custodv

One way to try to include the non-custodial parent or secondary custodian in the decision making regarding their child is for the parents to have joint legal custody. The law currently allows joint legal custody to be awarded, and in most cases it probably is awarded. OCGA 19-9-6 states, "'Joint legal custody' means both parents have equal rights and responsibilities for major decisions concerning the child, including the child's education, health care, and religious training; provided, however, that the court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions." However, it appears that normally the chdd custody order provides that the primary custodian has the "tie-breaker" vote when the parents are not able to reach an agreement. As a result, the non-custodial parent might be able to voice their opinion, but it is no more than that, an opinion. Without a feeling of being able to direct the actions of their child, they can begin to feel powerless and that they have no control over what their child is doing.

The committee recognizes that there must be someone who makes a final decision when an agreement cannot be reached. The committee would encourage judges to divide the major decision making between the parents so that each would feel that they are involved in the lives of the children. The areas that could be divided between the parents would be issues involving the education of the child, extra curricular activities, medical decisions, religious upbringing, and any other area. The court in Frazier v. Frazier, 280 Ga. 687, 631 S.E.2d 666 (2006) ruled that it was within the court's discretion to divide the decisions between the parents.

A statute would require judges to put into writing the reason split decision making between parents would not be possible. The decision they make should be based on the best interest standard.

Judges Orders Regarding Child Custody

The judge's order regarding who has child custody should include "findings of fact and conclusions of law". To foster a continued relationship between the non-custodial parent and the child, it is important that the parent be able to interact and be involved in the child's life. By requiring the judge to list and explain the reasons in their order for the custody decision, the non-custodial parent is presented with an opportunity to make positive changes to allow them to be in a position to be a greater influence on their child. Often the parent who does not get custody is frustrated because the decision was based on the "best interest standard", but they do not know in detail why the judge decided against them.

A statute would require judges to put into writing within 30 days the "findings of fact and conclusions of law" upon which custody was decided.

Best Interest Standard

The statute regarding the standard used to decide child custody states: "

The court hearing the issue of custody, in exercise of its sound discretion, may take into consideration all the circumstances of the case, including the improvement of the health of the party seeking a change in custody provisions, in determining to whom custody of the child or children should be awarded. The duty of the court in all such cases shall be to exercise its discretion to look to and determine solely what is for the best interest of the child or children and what will best promote their welfare and happiness and to make its award accordingly."

The language is general, and if the judge is to list specific reasons in the order as to why custody is awarded to one parent over the other, it would be better to list specific factors to be evaluated by the judge as he or she made the decision. By having specific factors, it should be easier for the judge to put the rationale behind the custody decision in writing. The best interest standard would have the following factors to be considered:

"(1) The love, affection, bonding, and emotional ties existing between each parent and the child;

(2) The capacity and disposition of each party to give the child love, affection, guidance and to continue the education and rearing of the child;

(3) Each parent's knowledge and familiarity of the child and the child's needs;

(4) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;

(5) The degree to which a parent has been the primary caregiver;

(6) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;

(7) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(8) The stability of the family unit of each of the parents and the presence or absence of each parent's support systems within the community to benefit the child;

(9) The mental and physical health of each parent;

(10) A parent's involvement, or lack thereof, in the child's education, social, and extracurricular activities;

(11) Each parent's employment schedule, and the related flexibility or limitations if any, of a parent to care for the child;

(12) The home, school and community record and history of the child, as well as any health or educational special needs of the child;

(13) Each parent's past performance and potential for future performance of parenting responsibilities;

(14) The relative willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;

(15) Any recommendation by court-appointed custody evaluator and/or guardian ad litem;

(16) Any evidence of domestic violence or sexual, mental, or physical child abuse, or criminal history of either parent;

(17) Any evidence of substance abuse by either parent;

(18) Any other factors that the court considers to be relevant to the custody of the child."

With this as a framework, the judge would be able to list the reasons why one parent was not made the primary custodian.

The statute would be changed to include the language listed above.

The right of a child 14 or older to select the custodial parent

The code currently allows a 14 year old child to select the custodial parent. The only way the judge can keep from changing the child's election is if the parent is found to be unfit. A parent is rarely found unfit, so the code should instead focus on what is in the best interest of the child. Testimony was presented that as the child nears the age of 14, a "bidding war" can ensue with both parents offering things to entice the child to remain in their custody, or to become under there custody. This is a decision that should not be placed on a child because they are not yet adults, and may not have their best interest in mind. Children are intelligent enough to know that they can use the situation to their advantage to get what they want. One judge in testifying before the committee noted how in one case in which he presided, the parents were helpless to discipline the child because he continually threatened to have the custodial parent changed.

The committee thinks the decision making regarding custody of a child should be left to the discretion of the judge and be based on the best interests of that child.

The statute would be changed to remove the right of a child of any age to select the custodial parent. Instead their input would be taken into account by the judge, but the best interest of the child would be the controlling factor. When there was a motion for modification, the child could express their desire for which parent should be the primary custodian, but the desire of a child shall not, in and of itself, constitute a material change of conditions or circumstances in any action seeking a modification or change in the custody of that child.

Guardian Ad Litem Report

Judges are limited not only by time, but also by the people they can speak to in order to get the information they need to make a decision about what might be in the best interests of the child. The cases that appear before the judge typically involve high conflict cases where the parents are not able to agree or work together when it comes to the children. In cases where the parties can work together, they typically come to an agreement between themselves.

Guardian ad litems would be a useful tool for the judge to utilize. They are able to take time to talk to the child, teachers, and any other interested party. A guardian ad litem's report would contain information that enable the judge to determine the best interest of the child based on the factors that would be introduced.

A statute would be enacted that would require a guardian ad litem report to be filed with the judge in a contested custody case at some point before the final hearing is held. It would be in the judge's discretion to determine when the report should be submitted before the final hearing.

Parenting Plans

A parenting plan is a form that is submitted either together by the parents or separately by them in which they list a visitation/ physical custody schedule. It lists specifically which days during the week the child will reside with which parent, which holiday will be spent with each parent, and any other detail regarding the living arrangements or transportation of the child.

The parenting plan would give further assistance to the judge by allowing them to see what type of plan the parents could agree on. The judge could use the plan to get the parents to try to agree on a custody arrangement. The intent is to foster cooperation between the parents for the sake of the children. At times an understanding between the parties that if they fill out separate forms the judge could use their form to give custody to the other parent could be used to move both parties toward a more equal time between them. At all times, the judge must measure the parenting plan against the best interest of the child.

The statute would require a parenting plan to be submitted before the final hearing in a contested custody case, but it is within the judge's discretion to determine when it must be submitted in the process. The court should provide a parenting plan form to the parents. A sample parenting plan form should be provided by the legislature to the courts for their use.

Arbitration

The committee heard testimony that some parents would like to agree to use arbitration to settle disagreements between themselves. An arbiter would listen to both sides and make a determination as to how the parents should proceed with their dilemma. The problem is that currently an agreement to go to arbitration is not enforceable under current code. The judge must have the final decision making ability in custody cases.

The committee would recommend that a statute be introduced that would allow parents to agree to binding arbitration when they cannot agree on a decision. They should be allowed to select their arbiter and decide what decisions can be decided by the arbiter.

Attornev's fees

There are times when one parent will continue to bring actions against the other parent for no other purpose than to antagonize or "punish" them. Actions such as these can put a financial drain on the parent that has to defend these actions. One way to preclude actions such as this is to give the judge the discretion to award attorney's fees to the party that succeeds. The judge would be able to decide if they were needed, and if the circumstances merited the award of attorney's fees.

A statute would give judges the discretion to award attorney's fees in cases involving child custody.

Right of direct appeal

There were those who testified in the committee hearings that there is ambiguity in some areas of custody law and that there should be more case law to address those issues. It is also possible that there are judges who are not following the legislature's preference for a relationship between the parents and child as close to equal as is possible under the circumstances. A way to provide more case law and to keep the judges accountable is to allow for the right of direct appeal in child custody proceedings. The example was given that cases involving an amount over $1 0,000 are directly appealable, so cases involving something as important as child custody and issues relating to it should be appealable as well.

FURTHER RECOMMENDATIONS OF THE COMMITTEE

Child Support Commission

During the course of the committee meetings and the study process, the committee became aware that there was a lack of data in Georgia regarding the number of divorces where custody is involved. The Child Support Commission is gathering data already, and the committee would recommend that their duties expand to gather data on the number of divorces involving child custody, the type of agreements made between the divorcing parties, and other data that would prove helpful to make a baseline to determine how the changes are implemented.

Studv Abuse Claims

Testimony was presented during the committee meetings about how false claims are at times used to try to gain leverage in custody proceedings. Testimony was also presented that in numerous cases, abuse is not reported because of fear on the part of the one who was abused.

The committee would urge that a study be made to determine the amount of abuse cases that might be false which are used for the purpose of gaining an 'edge' in the proceedings. The actions of attorneys in using the claims should also be studied. Just as attorneys are gate keepers for frivolous litigation, they should be gate keepers for frivolous claims regarding abuse. Sanctions should be utilized where they actively propose a false claim for the purpose of giving their client a better change of gaining custody.

Governmental/ Quasi-Governmental Definitions of Custody

There may be times where hospitals and schools limit the amount of information that a non-primary custodian can access. The limitation may exceed that to which the parent has the legal right to view. Schools may prohibit a parent from visiting the student at school when a judge has ruled that it is allowable.

The committee would recommend that these entities examine their policies to make sure that legal access is not prohibited where it is allowable. The committee recognizes that each situation is different, but would suggest a policy that allows broad access to the parents, with the ability to prohibit contact if prohibited in a court order.

Judicial Oualifications Commission

The committee would request that the Georgia Supreme Court add custody decisions to the list of areas that can be examined for judicial misconduct by the Judicial Qualifications Commission. Currently, rulings involving, child support, custody and visitation are not examined as judicial misconduct. The committee would like to make sure that judges are doing the best they can to follow the intent of the legislature in child custody cases.

PROPOSED LEGISLATION

1. Require judges in the custody order to write out why it was not in the best interest of the child to order joint legal custody with the parents dividing the decision making for the major areas in the child's life.

2. Require the judge to within 30 days of the final hearing write out "findings of fact and conclusions of law".

3. List specific factors for the judge to use in determining the "best interest of the child".

4. Remove the ability of a child to determine the custodial parent.

5. Require a guardian ad litem report be presented to the judge in contested cases before the final hearing.

6. Require a parenting plan be submitted in contested cases before the final hearing.

7. Allow the parties to agree to seek binding arbitration when an agreement cannot be reached.

8. Give the judge discretion to award attorney's fees.

9. Allow a right of direct appeal in custody cases.

RECOMMENDATIONS

1. Expand the Georgia Child Support Commissions responsibilities to include gathering data on child custody decisions.

2. Study claims of abuse to determine if some are used for leverage.

3. Study whether or not governmental or quasi-governmental entities prohibit acceptable access for a parent.

4. Encourage the Georgia Supreme Court to allow the Judicial Qualifications Commission to add child custody, support and visitation decisions to the list of rules that could be judicial misconduct.

Posted at 10:32 AM in Child Custody | Permalink

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