Friday, April 2, 2010

What Divorce Law is Doing to Marriage Part 49

I’m now on the final chapter called “How to Change Things: Were All In This Together”. This is a 11 page chapter, however I will only cover Jed’s six changes he proposes to the legal system. This makes up 4 ½ of this chapter. (I will cover this chapter in two summaries) If you want to read the other 6 1/2 , I will say again, you can always buy the book.

With that said, more from the words of Jed Abraham

The first law you have to change is custody. The doctrine of parents patriae and the “best interest of the child” standard have been fonts of single-parent family creation for over a century; they must be defanged. No court should have carte blanche to strip you of custody as long as you’re not a danger to your children. Even if your ex is a better mother than you are a father, your kids still need you and you need them, now more than ever.

Instead of choosing a custodian and creating a non-custodian, the court must be charged to preserve as much as possible of the two-parent environment for the children. It must give every divorcing family two related assurances: one, to the children, that their relationship with their parents-both parents-will not be unduly upset; the other, to the parents, that they will both remain full-fledged parents, notwithstanding their divorce from each other. It follows that joint legal and physical custody, which prevailed during the parents’ marriage, should be presumptive vailed during the parents’ marriage, should be the presumptive outcome of post-divorce custody determinations in all states. The court may divorce only parents, not the children. Within this broad rubric, a variety of flexible, shared parenting arrangements may be tailored by the court to meet the diverse and changing needs of the children. The parent who tries to derail the other’s relationship with the children shall forfeit, measure-for-measure, his or her own relationship with them. If the children must lose a parent, it should be the terrorist, not the target.

The second law you have to change is child support. The disastrous development of sole maternal custody would not have been possible without the court’s brute power to push the father away with one hand while pulling on his purse strings with the other. The unnatural bifurcation of custody and support by which a father is forced to finance the filching of his own children by the court must be thoroughly expunged from the law.

Only to the extent that a fit father’s custodial relationship is preserved by the court may the court justly stake a claim to his income for the benefit of the mother’s custodial relationship. By so doing, the court would be correctly reconstructing the father’s rights and responsibilities as they prevailed during the marriage. Conversely, if the court relieves a fit father of his custodial function against his will, it must also relieve him of his support function. Of course, a fit father who rejects the court’s preservation of his custodial function should not be able to reject his support function, too, unless the mother agrees and can adequately support the children on her own.

The guideline approach to setting support must also go. It is simply unjust to base child support on crude average statistical estimates that may have no relevance to a particular divorcing family. Courts must be returned to their traditional task of doing justice in individual cases.

The standard for setting child support should be the reasonable needs of the particular child balanced against the resources and reasonable needs of the parents, not what the abstract guideline number may prescribe. As much support as possible should be spent by each parent directly on the children as well as on third-party providers of services to the children before any funds are ordered transferred from one parent to the other. If fathers were to see their custodial status and function preserved by the court and their support obligation honed to what their children really require, their resistance to court confiscation of their income would vanish.

Just as fathers are held accountable for making payments, so mothers must be held accountable for the expenditure of those payments on the children. Because the State’s current interest in child support is limited to assuring that the mother will not come to it for welfare, it loses all interest in the child the moment the money hits the mother’s pocket. But the State owes the father a fiduciary assurance that the income it expropriates from him, purportedly for the benefit of his children, is actually spent on them and not on anybody else. Recipient accountability would go a long way toward making child support an honest deal.

The third law you have to change is alimony. The current regime makes marriage a sinecure, a risk-free deal for her, but a belly-upper for you. The only justification for alimony today is to smooth the transition from married to single, from supported to self-supporting. Real economic partnerships don’t indemnify partners for lost opportunity-for what they could have made elsewhere had they not joined the failed partnership. Partners in a real economic partnership take their risks and their loses, and move on. Alimony, except for the aged or infirm, should be modest and brief.

I will talk about the other three proposed changes Jed Abraham makes on the next and final summary.