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’50/50′ custody bill gets big changes in committee as ‘compromise’ with bill criticsby Susan Tebben, Ohio Capital Journal After receiving criticism from legal organizations including the Ohio Judicial Conference, a bill to change custody agreements in the state went through some changes in legislative committee this week. House Bill 14, sponsored by Republican state Reps. Rodney Creech and Marilyn John, originally set out to establish a 50/50 parental custody agreement as the standard in Ohio “to the greatest degree possible.” With that standard in place, the bill would require a parent who objected to the “equal decision-making rights and responsibility or equal parenting time” to “bear the burden of proof” as to why 50/50 custody would be “detrimental to the children,” according to the bill’s language. An analysis of the bill by the Legislative Service Commission says the court deciding if a parental agreement shouldn’t include equal custody is required “to consider whether a parent has intentionally misled the court, made false allegations of the other parent harming the child, or communicated false information to gain a tactical advantage.” A stated goal of the bill, according to the analysis, is assuring children have “frequent associations and a continuing relationship with” both parents after separation, divorce or annulment, “or in situations in which the mother is unmarried.” After the bill was introduced in March, various “parents organizations,” both in and out of the state of Ohio, testified in support of the bill. Among the supporters was Arkansas attorney Brian Vandiver, who said he was a part of Arkansas Advocates for Parental Equality, which worked on a similar bill in that state which passed in 2021. Vandiver supported the inclusion of a higher evidence standard in the bill, one that requires “clear and convincing” evidence of the need for an agreement other than 50/50 custody. “The higher burden of proof is appropriate to protect the fundamental rights of children and parents,” Vandiver told the Ohio House Families and Aging Committee in March. But among those opposing the bill were domestic violence advocates and legal coalitions throughout Ohio. This included Paul Pfeifer, former Ohio Supreme Court justice and executive director of the Ohio Judicial Conference, who called the bill “a hot mess,” and the idea of 50-50 custody “unnatural.” Nicole Rutter-Hirth, representing the Ohio Bar Association, also criticized the bill, saying it “sounds well-intentioned but could have destructive consequences.” “Mandating equal time and equal rights may place a child in equal care of a parent with a drug or alcohol addiction or mental health issues,” Rutter-Hirth told the committee. “It may force a victim of domestic violence to co-parent with their abuser.” Since the bill was introduced, the bill’s sponsors have been working to make the bill more acceptable to the bar association and others, according to state Rep. Monica Robb Blasdel, R-Columbiana County, who presented the changes to the bill in Tuesday’s committee meeting. “(The sponsors) believe that this is a good bill that addresses the concerns previously brought up in committee,” Robb Blasdel said. The changes, which were approved as part of a substitute bill, remove that “clear and convincing” evidentiary standard to a “preponderance,” the minimum standard allowed in court cases. The substitute bill also requires a court to “ask each parent if they wish to enter a shared parenting agreement and to put findings in writing if the court’s rule otherwise,” Robb Blasdel explained. The court can also consider other factors in parenting agreements, and “equal parenting time and rights” has been changed to “substantially equal in time and decision-making rights” in the new bill language. The bill will now be up for further public comment at committee hearings. GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX
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Ohio Capital Journal is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Ohio Capital Journal maintains editorial independence. Contact Editor David DeWitt for questions: [email protected]. Follow Ohio Capital Journal on Facebook and Twitter. “Equal Parenting” Legislation. Meanwhile, the Ohio House Families and Aging Committee this week accepted a substitute bill on House Bill 14, the so-called “equal parenting” bill, which the Ohio Bar has strongly opposed on the principled grounds that the best interests of the child should always be paramount in custody cases. Though many changes were made in the substitute bill that the sponsors say were designed to allay our concerns and those of the bill’s 80+ opponents (among them the Ohio Judicial Conference, Ohio Domestic Violence Network and the Ohio Association of Juvenile Court Judges), we remain opposed. Among the changes is a shift in the evidentiary standard for rebutting the bill’s presumption of shared parenting from “clear and convincing” to “a preponderance of the evidence.” Though this provision is better than the as-introduced version, we maintain that the overall dramatic shift in the legal framework in child custody cases this bill prescribes would not be in the best interests of Ohio, our court system and most importantly, the families they serve. You can view all the changes to HB14 and see where the bill currently stands via this comparison document prepared by the Legislative Service Commission.
https://www.nbc4i.com/news/politics/changes-to-bill-presuming-50-50-custody-in-divorce-are-no-compromise-opponents-say/
April 14, 2020 SECTION OF LITIGATION No-Contact Orders in Parental Alienation Cases It is critical to understand why family courts order temporary no-contact periods between the favored parent who has been found to have engaged in alienating behaviors and the child. By Ashish Joshi Share this: ! "
# Parental alienation is not new: The mental condition has been described in the legal cases since the early nineteenth century and in the scientific literature since the 1940s. See, e.g., “Westmeath v. Westmeath: The Wars Between the Westmeaths, 1812–1857,” in Lawrence Stone, Broken Lives: Separation and Divorce in England, 1660–1857, at 284 (1993); David M. Levy, Maternal Overprotection 153 (1943). One of the most widely accepted definitions of the condition is a “mental condition in which a child—usually one whose parents are engaged in a high-conflict separation or divorce—allies himself or herself strongly with an alienating parent and rejects a relationship with the ‘target’ parent without legitimate justification.” D. Lorandos, W. Bernet & R. Sauber, “Overview of Parental Alienation,” in Parental Alienation: The Handbook for Mental Health and Legal Professionals 5 (Lorandos, Bernet & Sauber eds., Charles C. Thomas Ltd. 2013). A Form of Emotional Abuse That Should Not Be Tolerated In defining parental alienation, family courts have focused on behaviors manifested by an alienating parent and the signs of alienation in the affected child: (1) the alleged alienating conduct, without any other legitimate justification, be directed by the favored parent, (2) with the intention of damaging the reputation of the other parent in the children’s eyes or which disregards a substantial possibility of causing such, (3) which proximately causes a diminished interest of the children in spending time with the non-favored parent and, 4) in fact, results in the children refusing to spend time with the targeted parent either in person, or via other forms of communication. J.F. v. D.F., 61 Misc. 3d 1226(A), 2018 N.Y. Slip Op. 51829(U) (N.Y. Sup. Ct. 2018). Courts have also used terms other than parental alienation to criticize the very behaviors underlying the condition but have chosen to call it by another name. For instance, in Martin v. Martin, the Nebraska Supreme Court found a custodial parent to have used “passive aggressive techniques” in undercutting the non-custodial parent’s relationship with the children. Martin v. Martin, 294 Neb. 106 (Neb. 2016). While the words “parental alienation” were not used, the In Meadows v. Meadows, the Michigan Court of Appeals focused on the behaviors of an alienating parent: “The process of one parent trying to undermine and destroy to varying degrees the relationship that the child has with the other parent.” Meadows v. Meadows/Henderson, 2010 WL 3814352 (Mich. Ct. App. 2010) (unpublished). In McClain v. McClain, the Tennessee Court of Appeals focused on the mental condition of the child: “The essential feature of parental alienation is that a child . . . allies himself or herself strongly with one parent (the preferred parent) and rejects a relationship with the other parent (the alienated parent) without legitimate justification.” McClain v. McClain, 539 S.W.3d 170, 182 (Tenn. Ct. App. 2017). In J.F. v. D.F., the New York Supreme Court attempted to define parental alienation by borrowing a chapter from the elements of the tort of intentional infliction of emotional distress and defined the condition to require that Nebraska court’s detailed discussion of the custodial parent’s alienating behaviors and strategies left little room for doubt that the court was addressing the phenomenon of parental alienation. Experts, too, have used different terms to describe these behaviors (see Lorandos, Bernet & Sauber, supra, at 8): [h]inder the relationship of the child with the other parent due to jealousy or draw the child closer to the communicating parent due to loneliness or a desire to obtain an ally. These techniques may also be employed to control or distort information the child provides to a lawyer, judge, conciliator, relatives, friends, or others, as in abuse cases. Id. at 15. Regardless of the varying definitions of parental alienation, or even nomenclature, the consensus among the courts is that “there is no doubt that parental alienation exists.” J.F. v. D.F., 61 Misc. 3d 1226(A), 2018 N.Y. Slip Op. 51829(U). More importantly, courts agree that it “is a form of emotional abuse that should not be tolerated.” McClain v. McClain, 539 S.W.3d at 200. In the For example, Dr. Stanley Clawar, a sociologist, and Brynne Rivlin, a social worker, use the terms “programming,” “brainwashing,” and “indoctrination” when describing the behaviors that cause parental alienation. Clawar & Rivlin, Children Held Hostage: Dealing with Programmed and Brainwashed Children (ABA Section of Family Law 2013). The authors explained that these behaviors Dr. Richard Warshak, a clinical professor of psychiatry, has used the term “pathological alienation” that results from such alienating behaviors: [a] disturbance in which children, usually in the context of sharing a parent’s negative attitudes, suffer unreasonable aversion to a person or persons with whom they formerly enjoyed normal relations or with whom they would normally develop affectionate relations. Warshak, “Social science and parental alienation: Examining the disputes and the evidence,” in The International Handbook of Parental Alienation Syndrome: Conceptual, Clinical and Legal Considerations 361 (R.A. Gardner, S.R. Sauber & D. Lorandos eds., 2006). end, the consensus among the courts, experts, and mental health professionals appears to be that parental alienation “refers to a child’s reluctance or refusal to have a relationship with a parent without a good reason.” W. Bernet, M. Wamboldt & W. Narrow, “Child Affected by Parental Relationship Distress,” 55 J. Am. Acad. Child & Adolescent Psychiatry 571, 575 (July 2016). Temporary No-Contact Orders—Necessary and Warranted in Alienation Cases Alienated children suffer from severe behavioral, emotional, and cognitive impairments. R. Warshak, “Severe Cases of Parental Alienation,” in Parental Alienation: The Handbook for Mental Health and Legal Professionals 5 (Lorandos, Bernet & Sauber eds., Charles C. Thomas Ltd. 2013). Specialized reunification programs (which are radically different from “therapy”) are designed to repair the damaged relationship between alienated parents and the children. They often require a temporary no-contact period between the favored parent and the children, together with the parent’s compliance with some conditions before the resumption of regular contact. Resumption of contact is dependent on the favored parent’s willingness and demonstrated ability to modify his or her alienating behaviors—behaviors that would no doubt sabotage the gains made during the reunification program in an absence of a no-contact order. Also, “optimal timing” to resume regular contact would depend on a number of factors, “such as the favored parent’s ability to modify behaviors that create difficulties for the children, the children’s vulnerability to feeling pressured to realign with a parent, the duration of the alienation or estrangement prior to the Workshop, and the favored parent’s past conduct and compliance with court orders.” Warshak (2010), supra, at note 95. In cases of severe parental alienation, experienced and knowledgeable clinicians recommend “a period of 3-6 months before regular contacts resume” between a formerly favored parent and the child “to allow a child to consolidate gains and work through the numerous issues that arise in living with the rejected parent free from the influence of the favored parent.” Id. While the regular (unsupervised) contact is held off for a limited period, therapeutically monitored contacts between a formerly favored parent and child may occur sooner. Id. It is critical to understand why family courts order temporary no-contact periods between the favored parent who has been found to have engaged in alienating behaviors and the child. When contact resumes, it usually occurs first during sessions with a professional who can monitor its impact on the child who is going through (or has just been through) a reunification program. Such precautions are necessary because research demonstrates that it is very hard for alienating parents to change their behaviors. If contact is restored prematurely or without proper safeguards, the children become “re-alienated,” reverting to their old behaviors and back to rejecting the target parent. Id. at 69. The pathology of parental alienation is so severe that some alienators “chose to go for months “without seeing [their] children or working towards meeting conditions for renewal of contact.” Id. Some refuse to cooperate with court orders and want “no contact with [the] children because [they] take their [the children’s] reconciliation with [the target parent] as a personal rejection.” Id. One “chose to cut off all contact with [the child] and said that when the boy turns 18 he could choose to renew contact.” Id. Repairing the Damaged Relationship Between the Alienated Child and the Targeted Parent Once a court determines a child has been alienated, it must make a decision as to what legal and mental health interventions are mandated in the best interests of the child. In making this decision, courts often face what British Columbia Justice Bruce Preston termed “a stark dilemma.” A.A. v. S.N.A., [2007] BCSC 594 (Can.). More than 10 years ago, Justice Preston wrestled with this dilemma: The probable future damage to M. by leaving her in her mother’s care must be balanced against the danger to her of forcible removal from the strongest parental connections she has . . . I conclude that the forcible removal of M. from her mother’s and her grandmother’s care has a high likelihood of failure, either because M. will psychologically buckle under the enormous strain or because she will successfully resist re-integration with her father. Id. at 84–87. Nonetheless, the Court of Appeals weighed in on the other side of this “stark dilemma,” disagreed, and found that the obligation of the court to make the order it determines to be in the best interests of the child “cannot be ousted by the insistence of an intransigent parent who is ‘blind’ to her child’s interests. . . . The status quo is so detrimental to M. that a change must be made in this case.” A.A. v. S.N.A., [2007] B.C.J. No. 1475; 2007 B.C.C.A. 364; 160 A.C.W.S. (3d) 500, at 8. In contrast to Justice Preston’s “stark dilemma,” family courts around the country, recognizing the severe psychological toll wreaked by parental alienation on the children, are increasingly open to providing aggressive but necessary intervention: That’s what we’ve been doing for nigh on 16 years. We’ve been working on this and working on it and we’ve been to counselors and therapists and doctors and courts In February 2020, an Indiana family court found that a father had engaged in severe parental alienation and domestic and family abuse. Given that the child was over 16 years of age, the court recognized that time was of essence in reuniting the child with the mother, the targeted parent. The court provided immediate and effective intervention: It gave the mother sole legal and primary custody, ordered the mother and the child to participate in a specialized reunification program that is designed for the alienation dynamic, ordered a 90-day no-contact period between the father and the child, and ordered the father to cooperate and comply with the recommendations of the reunification counselors. In re the Marriage of Wright and Wright, No. 53C08-1804-DC000203 (Monroe Cty. Cir. Ct. VIII, Ind. Feb. 6, 2020). In 2017, the Tennessee Court of Appeals affirmed a ruling where the trial court, upon finding severe parental alienation, ordered no contact between the minor child and the alienating parent (the father) “for at least 90 days” beginning with a reunification program. McClain v. McClain, 539 S.W.3d at 183. In addition, the alienating parent’s future parenting time with the child was conditioned on the parent’s compliance with the rules and recommendations of the reunification program counselor and the aftercare professional. Id. As the court found, the seemingly harsh but temporary no-contact period was a necessary step not only to give the child a realistic hope at reunification but also to protect the child from continued alienating behaviors. The court reasoned that the traditional therapy, counseling, education, and parenting coordination had yielded zero results and made a bad case worse: and more counselors and different therapists and more doctors and court. It’s a merry-go-round upon which we have all been for many, many years and it did not work. I have no reason to believe it’s ever going to work in the future.” Id. at 210. The court realized that the temporary, 90-day no-contact period, together with a specialized reunification program, was “most likely to result in a change in the pattern of parental alienation and therefore in the best interest of the children.” Id. at 211. Such a measure was necessary to facilitate reunification of alienated parents with alienated children and to “reduce the potential for sabotage.” Id. at 213. Separating Children from an Alienating Parent Found to Not Be Traumatic Research demonstrates that alienation abates when children are required to spend time with the parent they claim to hate or fear. R. Warshak, “Ten Parental Alienation Fallacies That Compromise Decisions in Court and in Therapy,” 46 Prof. Psychol.: Res. & Practice 235–49 (Aug. 2015). Despite this, lawyers, guardians ad litem, lawyer-guardians ad litem, children’s counselors, and other professionals predict dire consequences to children if the court fails to endorse their strong and strident preferences to avoid a parent. Usually, such predictions “are vulnerable to reliability challenges because the experts cite undocumented anecdotes, irrelevant research, and discredited interpretations of attachment theory.” Id. In dealing with such predictions, a court should consider the following: (1) No peer-reviewed study has documented harm to severely alienated children from the reversal of custody; (2) no study has reported that adults, who as children complied with expectations to repair a damaged relationship with a parent, later regretted having been obliged to do so; and (3) studies of adults who were allowed to disown a parent find that they regretted that decision and reported long-term problems with guilt and depression that they attributed to having been allowed to reject one of their parents. Id. (citing A.J.L. Baker, “The Long-Term Effects of Parental Alienation on Adult Children: A Qualitative Research Study,” 33 Am. J. Fam. Therapy 289–302 (July 2005)). Professionals who attempt to persuade courts not to separate children from an alienating parent (or oppose a temporary no-contact order between the alienating parent and the children) generally cite attachment theory to support their predictions of “trauma” or psychological damage to children. Such arguments are flawed, misleading, and “rooted in research with children who experienced prolonged institutional care as a result of being orphaned or separated from their families for other—often severely traumatic—reasons.” Id. (citing P.S. Ludolph & M.D. Dale, “Attachment in Child Custody: An Additive Factor, Not a Determinative One,” 46 Fam. L. Q. 1–40 (Spring 2012)). A consensus of leading authorities on attachment and divorce shows that this theory does not support generalizing the negative outcomes of traumatized children who lose both parents to a case involving parental alienation, where children leave one parent’s home to spend time with their other parent, under a court order. Id. Further, attorneys for targeted parents should challenge these experts to unpack their evocative jargon if they attempt to dissuade a court from intervening in an alienation case by using terms like “trauma” and “attachment.” Id. When these experts predict that the child will be “traumatized,” what they usually mean is that the child will be “unsettled.” Id. (citing J.A. Zervopoulos, How to Examine Mental Health Experts (ABA 2013)). Such pessimistic predictions not only lack empirical support but are willfully blind to the well-documented benefits of removing a child from an alienating parent whose behavior is considered psychologically abusive. Clawar & Rivlin, supra. Effective interventions provide experiences that help uncover the positive bond between the child and the targeted parent. “These experiences can help [the children] to create a new narrative about their lives, one that is more cohesive, more hopeful, and allows them to begin to see themselves in a new place.” Id. (citing C.L. Norton, “Reinventing the Wheel: From Talk Therapy to Innovative Interventions,” in Innovative Interventions in Child and Adolescent Mental Health 2 (C.L. Norton ed., Routledge 2011)). In Martin v. Martin, the Michigan Court of Appeals acknowledged how alienation behaviors are alarming and psychologically abusive: [T]hese are not minor disputes over contempt and parenting time. These are matters that could have a significant effect on the child’s life, including on her long-term mental and emotional health: having to maintain the perception of hatred and contempt toward her father—which she may or may not share with her mother—will undoubtedly affect her mental and emotional health as well as her long-term relationship with her father. Martin v. Martin, No. 349261, slip op. at 9 (Mich. Ct. App. 2020). Given the significant damage to children who remain alienated from a parent, removing the child from an alienating parent’s custody and entering a temporary no-contact order between the two is ultimately “far less harsh or extreme than a decision that consigns a child to lose a parent and extended family under the toxic influence of the other parent who failed to recognize and support the child’s need for two parents.” Warshak, “Ten Parental Alienation Fallacies” (2015), supra, at 244. A version of this article originally appeared in the February 2020 issue of the State Bar of Michigan’s Family Law Journal. is the owner and managing partner of Joshi: Attorneys + Counselors. He also serves as Publications and Content Officer for the ABA’s Section of Litigation and a senior editor of Litigation, the flagship journal of the Section. American Bar Association | /content/aba-cms-dotorg/en/groups/litigation/committees/family-law/articles/2020/spring2020-no-contact-orders-in-parental-alienationcases Ashish Joshi Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s). |
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