Class Action Lawsuit Not The Right Approach To Joint Custody Problem
October 23, 2004
The Children's Rights Council (CRC) has believed these premises since its inception in 1985. Cur bedrock belief, based on research, is that children (and society) do best when there are two active parents involved in a child's life.
CRC also believes in practical ways to bring about this worthy goal of nationwide respect for a child's right for both dad and mom. We have been reluctant to go the federal route, because the federal courts have carved out a"domestic relations" exception to the kinds of cases they rule on, and because there is not enough education on the merits of shared parenting to have reached the federal courts, to assure their intervention in egregious cases of interference in the many state access rights cases we all know about. Cases where the fundamental liberty interest of a parent to have a relationship with their child is mercilessly cast aside by the other parent with acquiescence by an often complaisant court system.
Much progress has been made on the state level. Joint custody is the fastest growing concept in 20th century family law, as noted by Jim Cook, president of the Joint Custody Association in California, whom some consider the father of joint custody. Beginning in California in 1980, joint custody became accepted in all states by the mid-90's (with South Carolina the last state to accept it). In 27 states and the District of Columbia, the pendulum has swung from sole to joint custody even further. In those states, shared parenting is a presumption, preference or first option, although in some states only if both parents agree. The states that make it a preference or often fail to implement joint custody widely within the state, which led writer Gail Sheehy to invent a new word in a famous 1998 New York Times article. She said many parents are "deadbolted" out of their children's lives. Clearly, much remains to be done. But should it be done in state or federal court, in the state legislatures on in Congress. The federal courts have shown no interest in custody issues. In the Newdow case decided last term, the U.S. Supreme Court said that Michael Newdow, a non-custodial father, had no standing to sue to prevent his daughter from having to say the words "Under God" in the pledge of allegiance to the flag in school. Only the parent with custody, the mother, could make the decision, the court said.
In the Galluzzo case, Michel Galluzzo, a non-custodial father, got a federal court magistrate/judge interested in the joint custody issue. Amicus briefs flooded in from all over the country last year, including one from CRC, arguing that joint custody was a federal right. CRC thought there was little chance of a favorable federal ruling, but because Federal Magistrate Michael Merz of the southern district of Ohio seemed genuinely interested, we contributed a brief. Our chapters wanted us to file a brief. After months of review, Magistrate Merz decided that there was no federal right to joint custody. But Merz was so impressed with the merits of joint custody that he told me, in an interview after the decision, that he would be willing to testify in favor of presumptive joint custody in any state of Ohio legislative hearing. Fortunately, Merz's court decision only affects cases in southern Ohio, but the federal suit filed in various federal courts around the country in September by Torm J. Howse and followers of his Indiana Civil Rights Council could have nationwide repercussions.
That is, if a bunch of federal courts (not just the southern district of Ohio) said there was no federal right to joint custody, it could be a huge negative in the joint custody battle.
A widely recognized anti-joint custody ruling on the federal level might even convince some states to rethink their positive advances to shared parenting. We can only hope that does not happen.
The movement to strengthen families in this country must move forward, not back. The issue is significant, the choice of tactics not irrelevant.
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Note: Attend CRC's 15th national conference Nov. 11-13 in Toledo, Ohio and hear more about joint custody, PAS, move-aways and other topics. See conference agenda and register on www.crc2004.org.
Further note: Join CRC for $50 a year (partially tax-deductible) and receive newsmagazines, trends around the country, court cases, discounts on more than 250 books, discounts on conferences, resources, referrals, and the opportunity to be part of a growing movement towards shared parenting in the nation's capitol and with CRC's 60 chapters in 32 states and five foreign countries. See www.gocrc.com
