"I believe this presumption (in favor of shared parenting) will help settle at least 25 to 30 percent of all child custody cases. The attorneys will begin to concentrate on how these two parents will parent their children in two separate homes instead of trying to prove who the better parent is. I rarely had a contested custody case in which both parents weren't good parents and that is why they were contesting custody. I have been involved in over 1,200 divorces. This bill is a step in the right direction."

--A.M. Keith, former chief justice of the Minnesota Supreme Court

Executive Summary:

  1. We are not doing what is in the best interests of our children. Children want and deserve equal access to each parent. 86% of children surveyed nationwide said they no preference at all regarding which parent they would prefer to live with after divorce[1]. Approximately 89% of contested custody cases award sole physical custody to mothers. Accordingly, a National Center for Health Statistics reports that children living solely with his or her mother, compared to living with both parents, are 375% times more likely to need professional treatment for emotional or behavioral problems, They are more likely to be diagnosed as hyper-active, develop a speech defect or stammer, suffer from frequent headaches and/or bed wetting, or suffer from anxiety or depression.
  2. Our current laws are written too broadly and in such a manner that it views fathers through the domestic abuse lens. There are multiple examples in this paper of judges abusing their power, making decisions that favor mothers vs. fathers, and introducing their biases in court decisions. Absent any reason that can be logically and transparently explained, a father and mother should have the same opportunity to raise their children.
  3. We need an affirmative action program in the family court system. We must require custody evaluators, Guardian Ad Litems, and those associated with the divorce industry to report their recommendations and decisions to a 3rd neutral office so we can analyze the data instead of using outdated presumptions. In short, we must keep metrics on the family courts in Minnesota.
  4. There is predominately one group resisting change – lawyers. Their motivation is financially driven. The resistance to a joint physical custody presumption is financially motivated, not based on the best interests of children.

Introduction

Imagine a famous male attorney. He works 90 hours a week and has primary parenting time. He is involved in a case that will make or break his career and he is on television worldwide every day. His former wife, a fit mother, works 40 hours a week. She feels he has no time for their children. She asks for primary parenting time. The male attorney refuses. The male attorney has no time for the children – he’s always on TV. On top if this, he wants child support payment from a woman who makes a fraction of his income. Now imagine a woman – a good mother – being refused temporary primary of shared parenting time. In this instance, I would support the feminists and media decrying the man is an egomaniac with a need to control and a desire to bleed his ex-wife’s pocketbook and deprive her of her rightful place as an equal parent. With two exceptions, this actually happened. The first exception? The male is a female – Marcia Clark; and the female is a male – Gordon Clark. Second, the media and feminists did not condemn the mother, who had no time, for wanting to deprive their children from their father who had time. Nor did they condemn a woman who made more in a one-hour speech than her ex-husband made in a week for wanting him to supply her with money rather than their children with love. This is our divorce industry and the real losers are children.

That is precisely why I am writing this paper. Recently, I read a book by Dr. Warren Farrell. Mr. Farrell is a renowned expert in child psychology. He taught five different disciplines – psychology, women’ studies, political science and sociology at Georgetown, Rutgers, Brooklyn College and the University of California at San Diego; is a frequent guest on the Oprah Winfrey show, and is the only man elected three times to the board of the National Organization for Women in New York City. His research is compelling. He conducted a meta-analysis and longitudinal research spanning over 20 years of children of divorce.

Affirmative Action in Parenting

Women today in the work force talk about the glass ceiling – an artificial imposed barrier to advancement and equal (merit) promotion. Same sex marriage advocates argue equal protection under the law. Today, states are enacting laws designed to treat same-sex marriages the same as those between a man and a woman. Maine, Massachusetts, Vermont, Iowa and Connecticut all have a law enacted guaranteeing equal treatment. In Maine, the Governor stated “it is a question of fairness and equal protection under the law.” How is this any different for father’s rights advocates in divorce? That ceiling has been in existence for decades for fathers in divorce.

We need to keep statistics on each judge, parenting time evaluator, and those who affect custody decisions to ensure they are fair.During the Climate Change debate in 2009, I watched C-SPAN. Legislators debated the merits of the Climate Change Bill introduced by our Congress. During the debate, Legislators discussed the merits of reporting key metrics or data points back to Congress to determine the effectiveness of the proposed bill. Certainly this made sense, but then I began to think about our current process of divorce here in Minnesota. The divorce industry does not want to accept responsibility for decisions they make and more importantly, they do not want to publish statistics that would determine whether or not we have biases affecting the fairness of court decisions. There is only one way to end the debate, once and for all, on whether court decisions and custody evaluator recommendations are baised: publish them and keep statistics on them. This isn’t only my opinion, it is shared by a recent Minnesota Supreme Court Advisory Committee. In a report titled Supreme Court Advisory Committee on Rules of Public Access to Records of the judicial Branch, chaired by Hon. Paul H Anderson, the committee intuitively opined that:

“A small number of the advisory committee believes that: (1) the details of marriage dissolution (except the fact that marriage dissolution occurred and the dissolution’s impact on real estate) are nobody’s business and that the requirement for court intervention to rescind a marriage contract should not change what is essentially private business into a public matter; (2) traditional appellate remedies and freedom of speech are sufficient means to keep judges accountable so further accountability through public access is not necessary; and (3) access to Internet and paper records of marriage dissolution cases should be limited to a certificate of dissolution and a summary real estate title document. Most other committee members, however, believe that limiting Internet access to court-controlled records, coupled with expanded closure of financial source documents discussed above, removes a significant amount of troublesome information from public accessand that some public access is necessary to hold the court system accountable in marriage dissolution cases.”

As a result of the budget deficit in Minnesota, several counties are either eliminating contracts with Guardian Ad Litems and Custody Evaluators or reducing access based on parent’s ability to pay for a private evaluation. Currently in Dakota County, if parents make more than $50,000 per year, they are not entitled to use court appointed custody evaluators and must decide which private custody evaluator to use. In Washington County for example, the Family Court has eliminated contracts with custody evaluators. For future evaluations, parent must decide together or at the advice of their lawyers. Notwithstanding the fact each lawyer knows which custody evaluators favor Mothers vs. Fathers; each parent is now given a choice. Using a business model analogy, if a parent were to consider a particular custody evaluator, wouldn’t he or she be entitled to know statistics of their recommendations to the courts for the past 5-10 years? I am reminded of a recent CarFax history reports commercial. The prospective buyers ask the used car salesman to produce the vehicle’s CarFax, but the salesman attempts to divert attention and not supply the details of the car’s history. If consumers of automobiles can expect car dealers to share car [performance and maintenance] history, is it unreasonable for parents to expect custody evaluators to share their recommendations when something so important such as the future allocation of time spent with their children are involved? How can a parent make an informed decision if custody evaluators do not share results of past decisions to determine whether they have biases or preferences?

My father – a retired Law Enforcement Officer once stated to me that honest people have nothing to fear from the presence of Police Officers. Only those who have something to hide or something to lose, get nervous around the Police. Using that same analogy, lawyers intuitively know they want to hide the facts from Minnesotans. They want to manipulate the law to their advantage in order to not be accountable. They fear transparency. Transparency is exactly what we need for several reasons you will read in the paragraphs to follow.

Reviews of Appellate Court decisions in Minnesota reveal disparate applications of factors that decide child custody. In a divorce that occurred in Rice County, Minnesota appellate court Judge Halbrooksin Popel vs. Popel, case A07-1623, filed October 14, 2008, reversed a prior sole custody decision to the father citing “ [child] is blessed with two loving, competent parents, each of whom brings different strengths and emphasis to the parent-child relationship. As such, it would be extremely detrimental of one parent had sole authority over [child’s] upbringing and the other became a mere occasional presence in [child’s] life.” The district court details the parent’s history and inability to get along. Further, the mother was ordered to submit to chemical-dependency evaluations. In one instance when the police arrived at a domestic abuse call, the mother smashed the telephone and struck the father with a pan. This all occurred in front of their children and her blood alcohol content was 0.116 as confirmed by the police. Compare and contrast this case to Petersen vs. Petersen, case number A06-1801, filed May 1, 2007. In Dakota County, Judge Halbrooks [the same judge in the case cited above] did not follow Guardien Ad Litem David Jaehne’s recommendation of Joint Physical Custody. Judge Halbrooks cited “ I am not King Solomon, we will not cut this kid in half. As far as I am concerned, unless the parties agree, there is not going to be a joint physical custody arrangement….I’m not going to award a joint physical custody arrangement. I am not going to do it.” On May 26, 2006 Judge Halbrooks awarded sole physical custody to the mother. Why the difference? It does not end here.

In Powers vs. Powers, case number A05-551, Judge Randallfrom Winona County, Minnesota in March, 2006 ignored the recommendations of his court appointed Custody Evaluator – Mary Chase Borgen. Ms. Borgen recommended that the father be given sole physical custody because the father “was the psychologically stronger parent, and that the appelant’s [father’s] parenting style presented more structure and predictability for the children than the respondent’s [mother’s] style. Borgen also testified that the children had become adjusted to the fact that appellant [father] had been the children’s primary care giver for the 15 months prior to the study. Next, Judge Randall stated that “although the parties harbor negative feelings towards each other, the parties do not openly exhibit their feelings in front of their children.” He later awarded Joint Physical Custody to both parents despite the very reason other judges cite to award sole custody to mothers: failure of the parents to get along.

In Hennek vs. Hennek, File No. DM-F3-02-384, Judge Ross from Ramsey County, Minnesota ruled in August, 2006 that the child should attend a school in the mother’s school district despite a recommendation from a school placement advisor who advised the child attend a school in the father’s school district. Both the father and mother shared joint legal and physical custody of their daughter. Further, the father submitted data that proved the schools in Mahtomedi were superior to schools in Burnsville. The district court conducted a hearing and ruled from the bench that “the best interests of [the child] require that she go to the school in the district where her mother resides,” adding, “I’m not making this decision by making a judgment as to whether Mahtomedi is not as good as [Burnsville] or that they’re equal or that one is better than the other.” Asked by Hennek’s counsel to specify the findings supporting its decision, the court stated, “I’m doing it in the best interests of the child because I think the child should go to school in the district where the mother resides, and you can put that in as a finding.And I don’t think it requires any other findings.”How arrogant can this judge be? The clear gender bias in and of itself would lead any rational person to conclude our laws must be written to eliminate instances such as this.

A recent case in Kentucky illustrates how some judges are biased against fathers. A central Kentucky family law court judge – Tamra Gormley was suspended 45 days in November, 2009 without pay when she entered a change in custody order that removed a child from the custody of her father but denied the father the right to submit his own evidence. A Commission found that Gormley acted as an advocate for the mother in that case. In another related case that was used to justify her suspension, she violated a father’s due process rights when she held a man in contempt without advance notice and without his attorney present. It was later determined that judge Gormley did not witness the actions that occurred outside her court room that led to the contempt charge.

A similar case in Minnesota occurred in Goodhue and Dakota Counties in 2004. District judge Timothy Blakely was reprimanded for accepting a $63,503 reduction to his $108,876 divorce after appointing his attorney as a custody evaluator in cases he oversaw. Judge Blakely’s attorney, Christine Stroemer, emailed him stating “I hope you continue to refer mediation cases to me.” Judge Blakely’s divorce proceedings ended in December, 2004. Did I mention that his former wife was a stay-at-home mother and that Judge Blakely was awarded sole custody? Can anyone dispute how this does not align with most cases and that it appears the judge was given preferential treatment?

It is important to keep statistics on custody evaluators because they determine in large part, the overall custody decision. In Carroll vs. Boetl, the family-court officer recommended the father and mother maintain their joint legal and physical custody arrangement, but also noted that “given the [appellant] mother’s history of alcohol abuse and knowledge of on-going use, it does appear that it is in the best interests of the children for the [appellant] to completely abstain from the use of alcohol.” The father moved for sole physical custody based on the mother’s continued abuse of alcohol, but the court granted continuation of joint physical custody! This case occurred in Ramsey County with Judge Halbrooks, the same judge in previous cases cited above.

In February, 2005 the American Bar Association published a paper titled Guidelines for the Evaluation of Judicial Performance with Commentary. The improvement of judicial performance was identified as a shared goal. Accordingly, evaluation programs assist judges in indentifying biases, preferences and personal characteristics. One recommendation suggested the use of technology, with appropriate controls, to improve the administration of justice. Examples cited include electronic access to court records, opinions and calendars.[2] For precisely the examples illustrated by Appellate Court judges here in Minnesota and the blatant biases they exhibited, we need to bring transparency to the Family Court System. I feel the media is failing miserably in this regard. Don’t believe me? Google the Spring 2001 Criminal Justice Magazine, Volume, 16 and read how the author exposes gender biases in our courts.

Would it surprise you if I told you that the only relevant research in Minnesota that compared custodial outcomes was conducted in 1986? In the context of child support, a University of Minnesota Study titled Consequences of Minnesota Child Support Guidelines for Children of Divorced Parents, authored by Kathryn D. Rettig & Kerry Kriener-Althen then identified a “trend” of increasing use of Joint Physical Custody between 1986 and 1999. Since 1999, there is no data that holistically addresses this gap! Further, the prior study only sampled a mere six percent of all cases. In January, 2009, Judge Kevin Eide served as a chair of a Study Group directed by the Minnesota legislature. The study was charged to consider the potential impacts of an adoption of a Joint Physical Custody presumption. The Study Group found that there was a lack of data on MinnesotaChild Custody Process and Outcomes. We need to do better. We have known a lack of data existed since 1986 and we have done nothing about it? Is this acceptable to Minnesotans?This posed a major roadblock for the Study Group to complete its work. The group found that: