September 5, 2013
By Curtis Vandermolen, Member, National Parents Organization Model Legislation Committee and Member, Executive Committee, National Parents Organization of California
When parents separate, one of the first questions anyone asks is, “What happens with the kids?” Current law in most states gives judges practically carte blanche authority to issue temporary orders that place children primarily or wholly in the care of just one parent. One situation that is all-too-common is that one parent gets custody of the children, and the other is ordered “visitation” every other weekend.
For a child that has previously been with both parents every day, removing one of those parents and offering her or him a mere four to six days out of the month must be very traumatic. However, this trauma is not considered when making such orders, and the right of both parents to care for and provide for the child is rarely upheld in family court.
This polarizing dynamic is how most families’ are introduced to the family law system. One parent “wins” and the other parent “loses.” Such is the nature of courts of law – they pit one party against another and do little to recommend, encourage, or enforce continued co-parenting after separation or divorce. The only benefactors are family lawyers… everyone else loses, including judges who are placed in the difficult position of making choices about the future of children between two loving parents without having any personal knowledge of the individuals or their family dynamic.
National Parents Organization is committed to reforming the family law system. We believe that one of the first and best places to make an impact is the instant families are thrust before family court. We believe that education, co-parenting, and early professional intervention can help families to arrange schedules that work best for the parents and their child, and can ease children’s transition to living with two households.
When a family first comes before a judge, there is no prior knowledge about the family, no trial of fact to balance the claims of one parent against the other, and in most cases there has been little or no parenting experience post-separation upon which to draw any conclusions about how the children and the family would best be served. We believe that this lack of information requires that family law judges order shared parenting with approximately equal parenting time in the absence of an agreement among the parents.
National Parents Organization has developed a modest reform to family law that will not only ensure parents are treated equally in this absence of information, but will also give parents the help of a neutral third party as they try to put together a plan that will work with their schedules and prevent ongoing custody disputes. Some states have already begun to implement a similar approach to temporary orders. We are working to move this issue to the forefront of family law discussions and to encourage all states to enact laws to protect children and families.
Oklahoma has successfully addressed this problem with a legal presumption of shared parenting during temporary orders when it is requested by one of the parents (§43-110.1). Recently, Alaska enacted similar legislation (AS 25.20.070).
Several of National Parents Organization’s affiliates will be proposing changes in Temporary Custody Orders. For their discussions with legislators they will begin with our Model Legislation. National Parents Organization Model Legislation Committee members are: Don Hubin, PhD; Daniel Lee, Esq; and Curtis Vandermolen.
Temporary Custody Orders
National Parents Organization Model Legislation
- Establish a legal presumption that a child has the right to equal parenting time with each parent.
- Protect the parent-child relationship with both parents as much as possible and practical.
- Encourage parental involvement from both parents during a time of difficult transition for the child.
- Equalize parental opportunity to provide and care for the child.
- There is no existing proof of physical abuse of the child – proof consists of at least one formal written report from a government agency having investigated a reported incident and confirmed that abuse had occurred.
- Parents have not been able to work out a mutually agreeable custody schedule.
- Both parents have a home suitable for habitation by the child, and apparent means to provide adequate care.
Generic Model for Legislation:
CHILD CUSTODY – TEMPORARY ORDERS
- This legislature declares that it is the policy of the state that the happiness and welfare of children is enhanced by frequent and continuing contact with both parents. In furtherance of this policy, upon the filing of an action for child custody and throughout the pendency of that litigation, the parents shall each have the right to shared legal decision-making authority of any minor child of the parties, and an equal share of parenting time. In making an order for temporary child custody, there shall be a presumption that, absent proof of abuse or neglect of the child, or an agreement to the contrary, the parents shall have shared legal decision-making authority and the parents shall share equally in the parenting time of the child.
- For the purposes of this section, “proof of abuse or neglect” means at least one formal written report from a government agency having investigated a reported incident and confirmed that abuse had occurred, or a finding of the court from a preponderance of the evidence that abuse or neglect is likely to exist if shared legal decision-making authority and/or parenting time is ordered. If an order for sole legal decision-making authority and/or parenting time is made, the judge shall include in that order the specific facts and findings supporting the determination that the child would be harmed as a result of shared legal decision-making authority and/or parenting time.
- A lack of suitable residence for habitation by the child, or a lack of apparent means to provide adequate care for the child may be grounds for a temporary order to deviate from the presumption of equal parenting time. If such a deviation is warranted, the court shall construct a parenting time schedule that maximizes the time that each parent has with the child that is consistent with ensuring that the child has a suitable residence for habitation.
- Notwithstanding all other state and federal laws respecting child safety, “suitable residence” means a residence in which each child has the opportunity to sleep in a bed without disruption for a minimum of eight hours, and where ample hygiene, food resources, and clothing are available at any time the child is present.
- Any parenting time or legal decision-making authority schedule that is agreed to by both parties and determined by the judge to provide for the welfare of the child shall become the temporary orders of the court. If a mutually agreeable parenting time or legal decision-making authority schedule is not adopted by the court, the judge shall include in the order the specific facts and findings used for determining that the child would be harmed as a result of the agreed-upon schedule.
- The time, place and manner of exchanges of the minor children, supporting peaceful contact, shall be assigned in any parenting plan or temporary orders.
- A change in the availability of one or both parents to parent a minor child, and/or a change in the developmental stage of a minor child, shall be presumed to constitute a material and substantial change in circumstances for the purpose of seeking to modify a temporary parenting schedule or parenting plan.
- Courts shall provide parents, at no additional cost, adequate mediation services as defined by the Judicial Council, if requested, in an effort to encourage agreement on a parenting plan. Where parties attending mediation are in strong conflict, the court shall provide no fewer than three model parenting plans which incorporate equal parenting time. Mediation shall not be separate mediation without proof of abuse or neglect, as defined in this section.