I just came across this, oldie but goodie, which premise still holds true over 10 years after it was written by Professor of Family Law, Mary Ann Mason.
As usual if we 'follow the money' we can see where it leads: courts attempting to give illegitimate rights to men in order to generate child support payments from what are basically recreational sperm donors, who should have no more rights to children then the man in the moon.
The thing that troubles me is that people who presumably can act upon this have known about it for almost a decade and yet I have seen no significant changes in public policy to make any improvements in the situation...
Frankly I feel that if courts are going to rule on custody using a strictly biological relationship to the child then the maternal grandmother should have as much if not more rights then a biological father, since genetically speaking she is more closely related...
Women who can, need to start speaking up on these issues instead of just sitting around on their hands while these attacks on mothers and children are allowed to take place.
**************************
By Patricia McBroom, Public Affairs
Berkeley -- The modern drive to expand fathers' rights in custody cases has resulted in a significant decline in decisions made in the best interest of the child, according to new research by a University of California, Berkeley, professor of family law.
States now give higher
priority to blood ties than to parenting and children can be ordered to live
with biological fathers they have never known, said Mary Ann Mason, a lawyer
and professor of family law at the UC Berkeley's School of Social Welfare.
"An unwed father who
has never seen his child will be given custody in most states in preference
to unrelated individuals who have done the actual parenting," said
Mason. "Unwed fathers now have the same rights as married fathers - a
major historical change of the past two decades."
She added that such
disregard for children's needs also occurs in divorce cases where courts
"have rushed to 'divide the child,' by insisting on joint custody and
ignoring what we know about early child development."
Children are not being
represented in court or given a voice of any kind, Mason says in a
wide-ranging analysis of custody law published this month (February) as a
book.
In "The Custody Wars:
Why Children Are Losing the Legal Battle and What We Can Do About It" (
Basic Books, N.Y.), Mason evaluates the contemporary and historical status of
custody decisions, demonstrating that modern-day courts have regressed in
their concern for child welfare.
This has happened, in part,
because states - now wanting to encourage unwed fathers to pay more
child support - offer unprecedented rights to them as parents based purely on
biology, not actual parenting, said Mason. In another arena, she added,
parental rights have been expanded via joint custody decisions - unwise in
the case of very young children who need stability in their lives.
"Young children's best
interests are largely ignored in joint custody decisions," said Mason.
"If very small children could speak, they would not choose to divide
their lives in half. It is just not developmentally appropriate."
Courts have known this
about small children, ages six and under, since the turn of the century when
the "tender years doctrine" became law. Today, nearly 100 years
later, the doctrine - which favors a primary parent - is being ignored in a
"politically correct" move to joint custody, she said.
But it is in the case of
new rights for unwed fathers that Mason finds the most egregious examples of
a legal system that disregards the welfare of the child.
Until a Supreme Court
decision in 1971, unwed fathers had no rights to child custody based on the
genetic relationship. Now, most states have given unwed fathers all the
rights of a married father.
"In the case of unwed
fathers," said Mason, "states have abandoned the child-centered 'best
interests' test.
Today, it must be shown only that it would be harmful to the
child to live with the biological parent, not merely in that child's best
interest." She said this means that a young child can be taken from an
adoptive parent with whom he or she has a strong attachment, as in the
celebrated case of Baby Jessica, because the biological rights of the father
have become paramount.
In Michigan, four-year-old
Baby Jessica was raised by adoptive parents only to be given in a custody
dispute to her biological father. The father was not married to Jessica's
biological mother and the child had never seen him.
"If our first concern
was truly the best interests of children, we would look at unwed fathers in a
different light," said Mason. "We would look, first of all, to whom
is performing the actual parenting."
In a current California
case, an unwed father was allowed to make a paternity claim for a child being
raised by his former girlfriend and her husband.
In the past, such a claim
would not have been tolerated by courts because their primary intent was to
preserve family stability. This time-honored tradition, in which the married
father was always the legal father, also protected the child.
But no more, said Mason.
By allowing this paternity
claim, the California court "paid little attention to the rights of
Brian, now age four, or even to his needs. His best interests were not
considered at all," she said.
If paternity tests bear him
out, said Mason, the unwed father may sue for custody and sink that family
into dispute, with serious psychological risks for Brian.
"Countless studies,
focusing both on married and divorced families, indicate that conflict
produces serious negative results in children who need the stability of a
primary parent," she said. "We should not be making the rights of
parents, whether the mother or the father, paramount in custody cases."
Mason argues strongly that
children need advocates in court and that most custody disputes should be
settled on the basis of the needs and wishes of the child involved, with
changes depending on age.
Until they are adolescents,
children should be represented not only by attorneys, but by child advocates,
Mason recommends. Currently, psychological evaluations in custody cases test
only the personality fitness of the parents, through tests that detect
psychotic tendencies. They give little weight to who is doing the parenting,
and the evaluators rarely listen to what the children want.
As a result, it is common
for children to be forced to divide their lives or spend time with parents
they don't want to see, said Mason.
"This is not a
child-centered policy. The equal rights of the parents, not the best
interests of the child, are the guiding principle," said Mason. She
recommends that the United States follow the example of English courts which
have provided all children in custody disputes with two advocates -- a legal
and a personal representative -- since passage of the Children Act of 1989.
"The philosophy of the
Children Act is that children are usually the least powerful party in any
dispute and need the greatest protection," said Mason, pointing out that
children get far better representation in U.S. criminal courts than in family
courts.
Mason believes the wishes
of mature children over the age of 13 should prevail in a custody dispute,
unless they are at risk of being harmed by their choices.
In addition, she calls for
regular reviews of custody arrangements to adapt to the changing needs of
children as they grow. And, she urgently endorses a return to the policy of
favoring a primary parent, during the tender years.
"The fundamental
concept of attachment, introduced after World War II by John Bowlby has
withstood a new generation of researchers," said Mason. "For
children under six, it can be very destructive to disrupt their bond with a
primary parent."
"There must be a place
where children are heard and their changing needs are addressed," she
said, "a place where judges are educated in child development; a place
where the rule of law, while flexible, truly promotes the best interests of
the child rather than catering to gender politics."
Added Mason, "Children
are not property to be exchanged."
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Friday, April 12, 2013
Follow the Money..
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