Philip’s Blog

Claims for Equal Time

In your opinion, how young is too young for week-about access?

Question posted by Gary Direnfeld, Social Worker, Guest Expert – Radio/TV (family life, marriage, divorce), Media Personality, Writer/Author, Columnist

Discussion on LinkedIn Family Law Professionals, August – September 2013

Linda Hammerschmid:
Not sure what you mean by week-about access, but in my humble opinion, unless contra-indicated, children are NEVER too young! Why? Because intact couples take their newborns out, in numerous cases, the day after the birth—visiting family and sundry. If it is OK then it’s OK anytime for either parent to take THEIR child out and about. The child belongs to NEITHER one of them exclusively.

Philip Marcus:
The answer, of course, is: It depends.
The starting point is the concept of Parental Responsibilities – see my article: Parental Responsibilities: Formulating the New Paradigm for Parent-Child Relationships 

There has to be an assessment of the needs of the individual child, and also of the ability and availability of each parent to supply each of those needs. I agree with Linda, that neither parent has exclusivity, and a few years ago there were some articles in Family Court Review, including one by Richard Warshak, about Blanket Restrictions.

Farley Tolpen
As a mediator and family lawyer, my understanding of an infant is that the infant has no understanding of time. Therefore, the infant should spend the majority of the time with the primary carer and have lots of quality time (4-5 visits/week for 1-3 hours). The reason is that there will be a loss of contact with the primary care-taking parent as well as a loss of a familiar and comfortable environment. Overnights are not recommended with the non-primary carer. After that or around 2-2-1/2, you can start introducing overnights and build to shared care around 4-5 years old. That is the way the Australian law is generally applied with a presumption of shared care with certain requirements. I do not believe shared care works or should be applied for infants and studies at least in Australia shows negative results if tried

Susan Cook:
So here’s the question I’m left with, what do we do about all of the parents who are living together intact and trading nights of work to save on daycare costs. If parents can share custody and get along and be appropriate, what is the difference, or are we telling parents who shuffled their time that they are damaging their children? do we ban intact parents from shuffling their work hours to accommodate the financial savings?

Philip Marcus:
The Norgrove Final Report (at para. 4.40) was very clear that: “Government should find means of strengthening the importance of a good understanding of parental responsibility in information it gives to parents. No legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents”. So I am worried that if the provision in the recommendation is left out of the legislation, Judges will have a hard time fending off claims for equal time.

As I point out in my paper Parental Responsibilities: Formulating the New Paradigm for Parent-Child Relationships  there is no room for formulae which appear to release the parents and the court from a full investigation of the needs of the individual child and the abilities and availability of each parent. Shortcuts, including the assumption that shared parenting means equal time regardless of quality, and the approximation rule, which tries to copy the pre-parental split time divisions, may be attractive to lawyers and busy judges. But they subvert the duty to decide, on the basis of the facts of the individual case, including, as I have pointed out, the personality and sensitivities of the individual child, in the best interests of the child.

So legislation and court judgments must be drafted with great care.

Respect for a Child’s Welfare After Parents Separate

A vegetarian mother who stopped her five year-old son from seeing his father because she feared he might feed him meat must let him see the child or lose custody, a judge ruled.
Source: Vegetarian mother stopped father seeing son in case he fed him meat – Telegraph telegraph.co.uk

Discussion on LinkedIn Family Law Jurisdictional Comparisons, September 2013

Diego Horton:
It’s amazing to see how she got away with it for so long (more than a year). Impeding parental contact in Argentina is a criminal offence, apart from the unrepairable damage caused both to the child and his father.

Philip Marcus:
I like the title Hazel gives to this post. The central issue is the child’s needs, and the obligations and responsibilities of on both parents is to comply with the order of the court relating to those needs when they have not been able to reach agreement.

This does indeed boil down to respect for the child’s welfare.

Bill Eddy’s work seems to indicate that many of the perpetrators in this area have personality disorders, and in my experience, only tough action by the courts will bring them into line.

Diego – is it possible to get a translation into English of the relevant provisions of Argentinian law, and some idea of the penalties usually imposed?

In Israel the matter is sometimes dealt with by imposing a fine, to be paid to the parent whose visit is denied (although where the denying parent is not wealthy, the child may lose out), or imprisonment under the Contempt of Court Ordinance. The threat of imprisonment is in many cases sufficient to ensure compliance.

Justice James R. Williams of the Supreme Court of Nova Scotia, Canada, spoke about his method – on the day following a scheduled visit, the parents are ordered to appear in court at 8:30 a.m., and the denying parent is warned to come with all his/her needs for a week in prison, if the visit did not take place.

I also agree that a year is a long time for a child to be out of contact, and that “flipping”custody needs careful preparation and follow up by mental health professionals, not least so that the parent responsible will not be viewed by the child as a martyr, or, on the other hand, rejected entirely

Impact of Affairs on Children

Knowing how minor children may feel when one of their parents cheats on the other, shouldn’t such things be taken into consideration when parents, their professionals, or judges design parenting plans?
Mark Baer, Lessons I Learned From My Parents: Part II huffingtonpost.com

Discussion on Linked In, August 9, 2013

Philip Marcus:
In my article on Parental Responsibilities, I devote considerable space to what I see as the duty of parents and courts to have children express their views and to give proper weight to them, according to the child’s maturity. Of course, this needs to be done with great care and sensitivity, but Article 12 of the Convention on the Rights of the Child mandates this.
Parental Responsibilities: Formulating the New Paradigm for Parent-Child Relationships

In Israel we have a chapter of the Civil Procedure Rules which provides how the voice of the child is brought before the court. I will be happy to provide an English translation and explanations on request.

Mark B. Baer:
Thank you so much for sharing your wonderful article with us. Many of the concepts I have written about as separate articles are tied together in this one cohesive and thoughtful article.

מחוייבויות הוריות

 ניסוח הפראדיגמה החדשה ליחסי הורים ילדים

מטרת מאמר זה הינה להראות שעל ידי אימוץ הפרדיגמה של מחוייבויות הוריות, הכוללת שימוש זהיר במונחים ושינויים בתהליכים ליישוב משברים וסדרי דין מתאימים, ניתן לחולל שינוי שהשפעתו רבה לטובת ילדים. באמצעות חינוך לקראת שינוי בתפיסות נפוצות, והעמדת שירותים נחוצים לרשותם של משפחות במשבר, ניתן למנוע, או לכל הפחות לצמצם, את סבלם של ילדיהם. כך הדבר כאשר ילד עומד בפני בקשת שירותי הרווחה לשנות את סדרי החיים שלו בשל טענות של הזנחה או התעללות.

הפרדיגמה המוצעת מדגישה את הצרכים של הילד והמחוייבויות של ההורים ומבוגרים אחרים, וכן בתי המשפט ושירותי הרווחה, לפעול למען טובתו של הילד, ומחליפה את הדרך להגיע להחלטות בגינו מהשיטה של עימות לשיטה של שיח והסכמה.

לחץ כאן כדי להוריד את המאמר.

 

Abduction and Relocation Cases

Why Do International Courts and Appeal Courts Get It Wrong in Hague Convention and Relocation Cases?

This is a paper I gave at the 2nd International Family Law Conference at London Metropolitan University on 5 July 2013. Following the work of Professor Linda Silberman, I identify the faults in the decisions of many courts, especially the European Court of Human Rights, in dealing with abduction and relocation cases, and suggest methods of avoiding these mistakes in the future. In particular, I suggest the appointment of specialist Family Court Judges to appeal instances and international courts, training for court administrators, and courses for judges and lawyers.

You can read and download this paper in PDF format here.

Parental Responsibilities: A New Paradigm

I propose a refinement of the paradigm for parent-child relationships, by looking in more detail at the needs of each individual child and at the ability and availability of each parent. But the analysis goes further, and enables the parents to look at their relationship with the child, and their relationship with each other, in terms of sharing some of the responsibilities and dividing others, thereby doing away with the need to litigate about custody, visitation, contact, residence etc.
The new paradigm is also appropriate for same-sex couples, children born by assisted reproduction, and also can soften the blow of child protection proceedings.

You can read and download this paper in PDF format here.

Can Divorcing Parents Share the Nest?

Creative parenting arrangements can take many forms, one of which is nesting. In a nesting arrangement, the children are the ones who “keep the house” while the parents take turns living there. For many families, nesting allows for the least possible disruption at a time when so much is changing in their lives.  But it’s not for everyone.
(Discussion started by Eileen L. Coen, J.D., Mediator, author of divorcethatworks.wordpress.com)

Discussion on LinkedIn Family Law Professionals, June 2013

Philip Marcus:
As a Judge hearing applications for exclusion orders, I sometimes used this technique, which does indeed protect the children from the feeling that one of the parents is all bad and one all good, and from having to move overnight to unsatisfactory temporary accommodation.It also persuades the parties and the children that it is better for the parents to separate. But there need to be clear arrangements so that:

  • the party at home does all home centred care arrangements, or gets someone reliable to do them, including laundry, etc.; this may include use of the family car for transporting the children, and if so the tank should be full on transfer;
  • locked cabinets for private documents, clothing and other non-joint property, and undertakings not to pry (including to pass on letters unopened) and to answer phone calls neutrally -“X is not here right now, you can call on this number….”;
  • the adults do not meet at the changeover, to avoid arguments;
  • that the party leaving has to clean up;etc

It is best to limit such arrangements to a short time, to encourage the parties to work promptly towards a more permanent arrangement.

AJ Johnston:

While it is a good interim solution, children need a stable, permanent solution.

Custody of Children & Sharia Law

When Should the U.S. Return A Child to a Country In Which Sharia Law Might Be Applied?

Discussion on LinkedIn Family Law Professionals Group, June 2013

The Federal Court of Appeals for New York weighs in on whether a U.S. court must order a child returned to a “country of habitual residence” when that country is a signer, with the U.S. of the Hague Convention on child abduction, but which might possibly apply Sharia law to the adjudication of the custody dispute. Thanks and the usual hat tip to Prof.Volokh.
From familylawguy.blogspot.com

Bonnie Riley:
Is there a country governed by Sharia law that is also a party to the Hague Convention? Last time I looked, there wasn’t.

Richard Gould-Saltman:That’s exactly the issue in this case. Singapore is indeed a Hague signator (see p. 9, footnote 4 of the opinion) AND, to my surprise, there is at least some application of “Syariah” (Shariah) law in the family law context in Singapore, though how certain that is, absent consent of both parties, is unclear.See also http://www.law.emory.edu/ifl/legal/singapore.htm

Philip Marcus:
There are many countries (including Israel) where Sharia courts have at least parallel jurisdiction in custody matters.

The scheme of the Hague Convention assumes comity, and therefore the section 13(b) defence is, as the Appeal Court found, inappropriate. It is no part of the courts of one country to criticize in general the proper law in another country.

This said, where in a specific case, the court of the requesting country has made, for example, a custody decision without due process, e.g. not giving a party notice of the proceedings or a hearing, or has determined the matter without obtaining information as to the welfare of the child, it may be that the court should refuse relief on the basis of breaches of the Convention on the Rights of the Child or overarching due process considerations; but these will not fall under article 13 (b).

In my view, and that of many judges around the world, it is the move itself (and not the possible result of legal proceedings) that has to constitute the danger. There is a discussion whether the likelihood of harm being caused to the child by the petitioner parent constitutes a 13 (b) defence; but where suitable orders (mirror orders) can be obtained for protection of the child (and the abducting parent, where necessary), the defence is often rejected.

NIMH withdraws support for DSM-5

The National Institute for Mental Health has withdrawn support for DSM-5

With many mental health organizations questioning the validity of the DSM-5, can it be relied upon in child custody matters? It seems the validity of the DSM has been in question for years.

Discussion on LinkedIn Family Law Professionals group, June 2013

Just two weeks before DSM-5 is due to appear, the National Institute of Mental Health, the world’s largest funding agency for research into mental health, has indicated that it is withdrawing support for the manual. The latest development is a humiliating blow to the APA.
Read the full story: The NIMH Withdraws Support for DSM-5 psychologytoday.com

Susan Cook:
I, for one, am ecstatic that the “bible” is being taken in to question by an authority. I use to do mental health assessments for criminal court and case management for a national mental health association. It was incredibly frustrating to see people with diagnoses that just didn’t make sense but fit the 5 criteria (sometimes very loosely). Active children or children going through troubles at home being labeled ADHD, clients receiving government benefits simply because they knew what symptoms to relate to the doctor. It has gotten out of hand and needs to be reined in some how.

AJ Johnston:
I also am happy that the DSN is being put into question simply because it is important that folks leave their minds open and not accept it as THE ANSWER. Mental Health has so many components. Economics, locale, culture, social moraes (sp?), law are just a few components to name. Jungian, Freudian, etc., are just schools of thought. Emotions are complex. Layer medicine and drugs on too and it is getting to sound like scrambled eggs..

Philip Marcus:
Eitan Schwartz posted this here a few days ago, so it seems that the NIMH and the APA have buried the hatchet, unless I am sorely mistaken.

A good definition of modern psychiatry
The Voice of the American Psychiatric Association and the Psychiatric Community, Lieberman, Insel Issue Joint Statement About DSM-5 and RDoC
“APA President-elect Jeffrey Lieberman, M.D., and National Institute of Mental Health (NIMH) Director Thomas Insel, M.D., issued a joint statement today about DSM-5 and NIMH’s Research Domain Criteria (RDoC) project. In the statement, they acknowledged that along with the International Classification of Diseases, DSM “represents the best information currently available for clinical diagnosis of mental disorders” and that the two publications “remain the contemporary consensus standard to how mental disorders are diagnosed and treated.”

“Yet, what may be realistically feasible today for practitioners is no longer sufficient for researchers,” they said. “Looking forward, laying the groundwork for a future diagnostic system that more directly reflects modern brain science will require openness to rethinking traditional categories. It is increasingly evident that mental illness will be best understood as disorders of brain structure and function that implicate specific domains of cognition, emotion, and behavior,” which is the focus of the RDoC initiative.

“All medical disciplines advance through research progress in characterizing diseases and disorders. DSM-5 and RDoC represent complementary, not competing, frameworks for this goal,” they said. “DSM-5, which will be released May 18, reflects the scientific progress seen since the manual’s last edition was published in 1994. RDoC is a new, comprehensive effort to redefine the research agenda for mental illness. As research findings begin to emerge from the RDoC effort, these findings may be incorporated into future DSM revisions and clinical practice guidelines. But this is a long-term undertaking. It will take years to fulfill the promise that this research effort represents for transforming the diagnosis and treatment of mental disorders.” Lieberman and Insel concluded the statement by saying APA and NIMH “are committed to improving the outcomes for people with some of the most disabling disorders in all of medicine.”

In my experience as a Judge in Family Court, DSM-IV was useful to understand what mental health professionals were talking about when they used certain terms, but the entries in DSM were only part of the story, and had to be combined with all the other evidence in the case and the parties’ submissions and the law, before giving judgment.

International Seminar on Trafficking

Philip Marcus is on the Steering Committee for an International Seminar for Judges entitled: “The Battle against Trafficking in Human Beings in View of the Judicial System”, organized by Mashav in cooperation with the Organization for Security and Cooperation in Europe (OECD), the United Nations Office on Drugs and Crime, the International Organization for Migration, the Institute of Advanced Judicial Studies, and Israel’s Ministry of Justice, to take place in Haifa in August 2013.