There are a lot of myths surrounding parenting, divorce, and parenting after divorce. These myths are propagated by our culture and carried into our court rooms. These myths need to be removed from our judgement as a society. They often encourage bad behaviour that is contrary to the the stated goals of creating new family units that everyone can thrive in. They encourage decisions that just might not be right if it weren’t for these myths. I am not using statistics for this discussion. We all have had enough people in our lives experience divorce or raising kids in separate households to know what the outliers are. Stop assuming that there is some society so different from the one you live in that exists in the USA that is so divergent that these behaviors are allowed to thrive. There really isn’t one, and the few places that might turn a blind eye are not representative of the norm. I originally planned on this being a single post, but it became way too long. I have made it a series. One that I will likely be adding to over time. I will try and remember to update the links below for all parts of the series.
The Best Interest Of The Child
This is definable and a real thing, and the court should have a role in determining what this is for children who are a part of a divorce case. Most states use this standard for determining custody and other decisions regarding children. They usually have a vague set of standards on how to determine what this is. They also give wide leeway to the officials given the task of defining this for the particular case. Depending on the state and court, this can be per child or the children can be treated as a single entity. Sometimes this is up to the officials making the determination.
The idea is that the children are not able to legally speak for themselves, so someone is assigned to speak for them when the parents don?t agree. In this case both parents have been determined to be unable to determine what is best for their children, so the court will do so. Please understand that if you don?t agree, the state is now deciding what is best from that point on, whether it is at the time of the divorce or at some point later. The state is the de facto legal guardian of the children now.
These officials will evaluate the physical and mental well being of the children, and make decisions based on their determination. The official in most jurisdictions are lawyers who have taken a state provided course in being a GAL and then maintained some form of continuing education. The other type of official that is used is a custody evaluator. These guys can be one person with no specific training or a very comprehensive group of people in a firm with multiple disciplines and training who look at all aspects of the children. Its hard to find out what you are getting if you have no prior experience with the particular firm.
This is not a real thing. This is legal mumbo jumbo for whatever the judge, GAL, or other official wants it to be. Even in the best of circumstances, this is a means of crippling one parent so they cannot effectively continue to fight the case, and the case can be decided with some finality. By the time the process is over, it is common for one parent to be viewed as the Patron Saint of Parenting, and the other to be the just barely shy of a child abuser, and they should be lucky to see their kids at all, let alone have them under their control.
What is really being decided is who gets to control decisions about the kids. One parent will be given full control of the kids, and all the resources that the couple has to do do so in the form of child support. It uses the the process to effectively determine that one parent is legally the abandoning parent, so that the other parent gets child support. Current doctrine favors the mother. Maternal aspects of parenting are viewed as more important to the well being of child than paternal aspects. Divorce in the modern era uses this principle to effectively strip children of one parent, and that parent is more often than not, the father. Once child support is granted, especially in the USA, the ability for the parent paying child support to use their finances to inject their preferences in raising the child is removed. They rarely have the means to fund things themselves, and in the cases where they would have the funds to do so, they are paying enough in child support that the other parent can effectively nullify them using the funds the receive.
The legal right generally remains to make certain decisions, but it is only enforceable through the courts, so the it is really not a right that matters. The parent who has the children more and has the right of residency for the children effectively gets to raise them as they see fit with little interference, and the court will generally support that parent over the other without some overwhelming state interest in not doing so. The court does not decide what is in the best interest of the children, but who has the right to decide what is in the best interest of the children.
This principle overrides all other agreements. Anything that was agreed on in a prenuptial agreement is null if this principle can be applied correctly. Certainly certain assets will still be handled by the agreement, but anything that this principle can be used on can be changed by the courts. This includes how the home or homes will be divided, and how other assets that are utilized for the children?s benefit in marriage. If one parent gets the kids, then anything that benefits the kids will also go to that parent. Its pretty amazing the things the courts can include into this doctrine to get the results they want.
The questions that stand out in my mind every time I hear this phrase is ?Why does this matter?? and ?Why is it the courts business?? Now understand that most parents ask themselves all the time what is best for their children. Then they balance that with what is best for the family as a whole. It is the parents job to figure out how to raise their child. The standard used by the court not only puts them in the position of the parents, but it also makes the childs rights higher than the parents. I know many people who will argue that as a parent you have given up your rights by having children, but this isn?t really the legal truth, well its not supposed to be anyway. A good parent puts their desires aside for the sake of their children. The paradigm created by the court is one where we are raising spoiled and immature children, because helicopter parenting and indulgence is regarded as being better for the children. A parent making tough choices regarding the balance the family needs will be judged harshly and possibly as unloving. The children being raised in homes that measure the best interests of the children in the same way the courts tend to will be ill equipped to enter the world on their own at 18. In generations past, most children were prepared to care for themselves by age 14, and continued to develop as young adults under their parents tutelage. Now they remain children until the harsh realities of the real world smack them in the face.
This is a club for the legal system to use to get the determinations they want. There are certainly courts that use this in favor of fathers, but that is not the norm, nor does it make it any more right. Its a way for the courts to avoid ruling on evidence, and thus protect themselves from appeals. The family courts are not a court of law, though lawyers run them. They are a means to control the population. Once you are in front of them, the case doesn?t end until the kids are grown. Unlike any other area of law, the family court keeps its hands in your life, once you have come before them. Honestly, even if you haven?t been in the courtroom, because divorce is granted through the courts.
No one can define what this means, but when you say things about the best interest of the child, and can paint what the other party is doing as not being in the best interest of the child, you then sound like a good guy. People who have not been through the system feel good about legislation that is intended to take care of kids, and everyone knows that divorce is horrible for kids. The continuation of the decline of results of kids in divorced households supports that these laws just aren?t good enough, and thus they are given more power. Those of us that have been through the system, know that these principles are by no means in the best interest of the children, and are often the main drivers of these poor results. Its a twisting of the language that isn?t understood until you live it.
This principle is also a key tool for one parent to control the other parent. The parent that the court favors is giving full leeway to behave as they see fit, while the other parent is often saddled with rules that make no sense. In my case, the step siblings cannot be left in the care of my kids, even though I have two kids that have babysat on their own. My kids cannot be left in my care while I work from home, though she can leave them home alone while I work from home and go on a multiple hour road trip. I cannot watch them, because I am working, so they have to be left alone or go with her. Either option for her is acceptable. She got to make these rules up. The GAL gave her all the ammunition she needed to do so. I have also effectively been told that I cannot ask my children to do chores around the house, because they feel like slaves in my home. Without going into details, the core of the chores they have been asked to do revolve around the principle of clean up after yourself, and put things back where you got them.
The end result is my authority is crippled. My children report on me to their mother who takes it to the court. They know that there is very little I can do, and state as much to others, though they still don?t want to face me with those words. In the long run, undermining one parents authority in such a way will also undermine the other parent?s authority. The kids will realize that parental authority is not a right of either parent, and will they will act accordingly with both parents, not just the lesser parent. My ex cannot continue to undermine my authority, and expect me to be effective in handling my sons when they don?t want to respect her authority. When they reach the age that fathers have to take over and lay down the realities of becoming a man, there is no man there for them to respect as they come of age. This creates so many problems in our society.
Things don?t change for two reasons. One half of the people are the beneficiaries of these laws. Why would they want them changed. The system seems reasonable to them. Making the other parent out to be a monster justifies all of their actions, and in the long run they really saved the children from the other parent who would have surely done harm if left to their own devices. The other half of people are so beaten down and tired from trying to just have a normal relationship with their children that they don?t have anything left to try and fix the system. The few that do usually had such horrible results that they see no other alternative than to go after the system.
This is the single worst thing in family court. It is used to do whatever the court wants, and it needs to be changed. I encourage all men and women to get rid of this. This is a tool that as it leaches farther and farther into our society, it will be used to make our children the states. We will not have any freedom in raising our children. There are no societies that have thrived for long that did not allow mothers and fathers to raise their children without interference from the government. Societies that have allowed the government to raise their children directly or by proxy have fallen and often very quickly.
The Supreme Court of the U.S. has stated that being married has no impact on your parental rights, and thusly you do not lose rights by not being married or divorcing. It is antithetical to the American legal system that there should be one parent who is given the full rights of parenthood, while the other parent is stripped of their rights and turned into a second class citizen. The changes to the status of the non-custodial parent extend beyond that of their parenting. They are held to different standards and face different punishments. In many cases actions that the custodial parent takes are not regarded by the court at all, but the very same actions can be used to hold a non-custodial parent in contempt of court. Other ?administrative? actions can be taken against the non-custodial parent without the court even getting involved. Understand that once you walk into court with a child custody issue, you are relinquishing your rights to the court. You may end up with title non-custodial parent, and you are now a second class citizen. Also understand that if you win the title of custodial parent, its not permanent, and you could be sitting on the other side of things later, if the court decides it should be so.