September 10, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

This article is so bad it’s going to take me two posts to deal with it (Newsroom, 9/8/17). It’s yet another one from New Zealand and, like so many from there, lacks the most basic information about its chosen topic. In a nutshell, it seems to be saying that, when children don’t want to abide by a court order requiring them to spend time with Parent A, the court that issued the order should refuse to enforce it and allow the child’s choice to carry the day. What planet writers Melanie Reid and Cass Mason inhabit I can’t guess, but their article is deeply deficient in some fundamental concepts applicable to that topic.

The piece deals with two cases, so I’ll discuss the first one first and the second tomorrow.

Police show up unannounced, during the night, at the home of a 5-year-old girl’s mother. They have a warrant, issued by a Family Court judge, for the removal of the child, by force if necessary - and it is clear the police are not leaving without her.

The child screams, cries for her mother, and tries to escape the officers by hiding behind a couch. Inevitably, she’s caught, lifted into the air and carried through the living room, kicking and wailing. Her mother films the scene, as the girl’s grandfather pleads with police not to hurt her. One of the officers calls the grandfather an “idiot” and as the girl is taken into the night she screams: “I’m going to vomit”.

It’s a scene fraught with emotion which of course is no accident. Reid and Mason want readers to be shocked. They want that because, when we get down to cases, well, they don’t have one.

The little girl in the video lived full time with her mother until the age of 5. Earlier this year, after a custody battle in the Family Court, the child’s father was granted full-time care, and her mother allowed weekend visits.

Hmm. The writers are content to allow that information to stand uninvestigated. Note that they say the child “lived full time with her mother” for five years. They don’t say Mom had full-time custody, only that, in fact, the little girl lived with her for all that time. Did she keep the girl from her father? That’s not clear so, after five years of that arrangement, how is it that Dad was able to be “granted full-time care,” with Mom seeing the child only on weekends?

Reid and Mason aren’t interested in those details, and I think I know why. In order for Dad to completely reverse the parenting order after five years, he must have had some extremely powerful facts to support him. Generally speaking, a court won’t change a parenting order unless there’s been a significant change of circumstances to warrant doing so.

What could those circumstances have been? My guess is that the father managed to convince the court that Mom had been alienating the child and possibly that she’d been in violation of previous court orders granting Dad access. Indeed the judge’s order granting the “uplift,” i.e. the forcible removal by the police of the child from the mother’s home suggests as much.

Having considered recent orders it appears the child has not been returned in accordance with the care provisions.

In other words, the judge has dealt with this before in this case, i.e. issued previous orders that Mom violated. So he/she decided that the next necessary step in the process of enforcing Dad’s rights had to be an uplift.

Meanwhile, the child’s behavior is certainly consistent with an alienated child. After all, the child is five years old and she’s been with her mother exclusively for five years. So clearly, Dad’s order of primary custody is brand new, Mom’s already violated it and the judge isn’t happy. I’ve seen kids act much the same as the girl in the article, only to settle down as soon as they’re out of the alienator’s view.

That’s all reading between the lines, of course, but, with articles like Reid and Mason’s, that’s what we have to do.

For their next act, they offer an “expert,” the dean of the Otago law school, Mark Henaghan.

For Professor Henaghan, the intervention shows that the welfare of children is no longer a priority.

“It’s become a battle of enforcement between the parents, courts, saying we’ve made an order, therefore it has to be enforced otherwise the court’s not carrying out its job.

“But the primary job of the [Family] Court is the welfare of the child. And I think if they saw some of the consequences of some of these warrants they may look at it differently.”

Four things. First, for a lawyer, Henaghan demonstrates a remarkably limited understanding of the need for courts to enforce the orders they issue. If they don’t, as he suggests, what good does it do to issue an order in the first place? If litigants, or in this case a five-year-old, are free to ignore them, the whole concept of the justice system is in jeopardy. Courts need to have the power to enforce their orders and centuries of jurisprudence say they do. Presumably the dean of the law school knows this, but he nowhere mentions it.

Second, as Reid and Mason intended, Henaghan is offended at the scene of the screaming child. He says that such a scene per se indicates that the child’s interests aren’t being served. But children throw tantrums all the time and no one pretends they’re being abused. The imposition of adult authority over children’s autonomy often results in anger and upset on the child’s part, but every sensible person understands that it needs to be done.

More importantly, what is in fact child abuse and not at all in a child’s interests is being deprived of a meaningful relationship with a parent. That apparently is what the little girl’s mother has done and what resulted in the judge’s change of the parenting order. But of course neither Reid and Mason nor their favorite expert notices the fact. In short, they seem fine with real abuse, but the short-term upset occasioned by the police coming to get the child is too much for them to bear. It’s so important in fact that, apparently, family courts should simply stop enforcing their orders. That’s beyond strange.

Third, let’s not forget that the person whose actions they seek to protect from the contempt powers of the court is the wrongdoer, i.e. Mom. Had she simply explained to the girl that she had to go to Daddy’s and not taken ‘no’ for an answer, all of this would have been avoided. So, if Reid, et al are really interested in avoiding uplifts, one sensible bit of advice would be for parents to make kids understand that the court rules, that kids aren’t calling the shots. Needless to say, that commonsense advice appears nowhere in the article.

Finally, as we seem to invariably see in articles like this, Henaghan and the two writers assume that, in some way, parent’s rights and children’s interests are, in some way, antithetical (see Henaghan’s quotation above.). They’re not. Indeed, the overwhelming weight of scientific evidence shows that children need both parents in their lives. If Mom has to be forced to give up the child pursuant to a valid court order that promotes that very end, it’s certainly unfortunate that the child has to suffer, but what’s the alternative? Parents have parental rights. Usually, their rights and children’s interests are in accord. The way to ensure the best interests of the child rarely involves the diminution or termination of the parent’s rights.

Very clearly, it didn’t in this case.

 

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