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devilmunchkin
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first circle of the inferno
Jul 2001
time: 05:19
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by the time the baby is born, the daughter will be a legal adult. can her dad force her to give up her child?
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devilmunchkin
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first circle of the inferno
Jul 2001
time: 05:19
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at least permanently. she has run away twice in the past 2 months and he always says that if she leaves, she can't come back...but in the end, he always lets her..and thus she obviously never learns.
chances are he won't..and then i'm assuming that everyone is **** out of luck?
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Dr Strangelove
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quote:
Originally posted by KrazyHorse
I don't think he should have to pay if he makes his wishes known and the conception was not voluntary on his part. |
How could the conception not be voluntary? Are you still having that problem with women trying to rape you KH?
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blackice
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Canada where else...
Sep 2000
time: 00:19
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Part #2
Joint v. Alternating Custody Analysis
One of Childs Best Interest's most substantial effects has been educating the legal community and public on constitutional law as it applies to parents, which have resulted in real improvements.
In the case Cranston v. Combs a parent v. parent custody case, a Tennessee trial judge said; "And it's that failure to recognize his equal rights as father to have a relationship with these children. That's the problem." There it was acknowledged by the trial judge fathers have equal rights, which by definition means moms do too.
In the case Poore v. Poore a parent v. third party custody case, theappellate justices wrote; "A biological parent's interest in the care, custody, and control of his or her child is among the oldest of the judicially recognized fundamental liberty interests. It is protected not only by the Due Process Clause of the Fourteenth Amendment, but also by Tenn. Const. art. I, § 8. Accordingly, biological parents have a constitutionally protected interest in raising their children free from unwarranted state intervention." This statement directly applies to parent v. parent custody cases also, and could be written word for word into one.
A little analysis of Poore will help us understand what's happening. There a trial judge had given custody to a man who while married to the mother at the child's inception, was not the father. The appellate court reversed this,
WHEN THE MOTHER INVOKED HER CONSTITUTIONAL RIGHTS TO PARENT HER CHILD.
That was a proper outcome, and what might happen next is the man who lost custody may have to financially support a child that he has no rights to and isn't his. While that is unfair to him, he has no fundamental right to keep his money, and his only recourse is legislative change in the state legislature.
But this is not true with our children, because those do contain fundamental rights. But these only kick in when they are invoked. Previously it was explained how if a parent didn't assert their rights at trial, they were waived. This isn't exactly correct because parental rights are inherent, and not waivable by simply failing to assert them. In post-trial actions they can be invoked.
What happens in all parent v. parent custody cases is the parents aren't waiving their rights, THEY VOLUNTARILY SUBMIT THEM TO THE JUDGE TO BE REAPPORTIONED. The attorneys are unaware or simply failing to inform their clients that they don't have to do this, but can invoke constitutional protections and state that they are not submitting their rights to the judge
to dole out as he or she wishes. If parents do that a special process kicks which places very tight restrictions on the judge from ordering any limits on parenting at all. But the key is, parents must first invoke their rights and tell the judge they are not submitting the issue of custody to the
state.
Today this would generate a backlash from most attorneys and trial judges, but that is only because this is an evolving area of law most are not yet familiar with. Also other legal professionals will fiercely oppose ceasing the practice of pitting parents against each other, because this generates income for attorneys and social workers, and is a source of power for judges.
When parents assert their rights in a parent v. parent custody case, and the state follows the proper procedure, the outcome will probably be an equal and alternating primary residential schedule. This would meet the due
process requirement of minimal intrusion into their relationships, and the equal protection one that parents be treated equally.
Joint custody laws do not pass constitutional muster, as they are neither the least intrusive remedy, nor do they result in an equal outcome for parents. These laws allow for parents to battle over who will be the permanent primary residential parent, and receive the corresponding financial and social benefits. Once shared parenting activists understand the constitutional and practical differences between an alternating primary residential law and a joint custody one, if they continue to support joint custody this places a spotlight on their motives.
If they consider joint custody to be a stepping stone to alternating custody, that may be a good strategy depending upon the circumstances in a particular state. If they consider it an end result, then they haven't grasped the critical differences between it and alternating custody, or they are intentionally derailing reform.
Daniel Lee
CBI President
ACFC Associate Director
CRC Member
http://childsbestinterest.org
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asleepathewheel
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listening too long to one song
Mar 2002
time: 00:19
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quote:
Originally posted by blackice
Depriving a child of life or of their biologic father is wrong. It is clearly not in the best interest of the child I disagree with your thoughts entirely. Too many children wake up to find "dad" is no longer in their lives. This is good? Why? Try to explain to a 5 year-old that loves their dad why they can not see him anymore… |
If the father isn't around the child, it is probably his fault. Rarely will a court forbid visitation rights, indeed, the right of visitation of the noncustodial parent is generally considered to be constitutionally grounded.
quote:
Originally posted by blackice
Taking out the “money” driven “adversarial” court system and using other means which are truly in the best interest of the children is the only way. |
I'm curious as to how you are supposed to decide who gets primary custody of the child without an adversarial system. Don't you have to weigh the benefits of each against the other? Isn't this an inherently adversarial system?
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asleepathewheel
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listening too long to one song
Mar 2002
time: 00:19
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I don't know the person who composed this "treatise" but he needs to do a bit more research.
quote:
Originally posted by blackice
In the case Cranston v. Combs a parent v. parent custody case, a Tennessee trial judge said; "And it's that failure to recognize his equal rights as father to have a relationship with these children. That's the problem." There it was acknowledged by the trial judge fathers have equal rights, which by definition means moms do too. |
this is great stuff, but what he doesn't say is that the trial court was reversed by the appellate court. The appellate court evidently didn't find the argument of the father to be very convincing.
I don't think that anyone is saying that a father does not have the right to have a relationship with his child. A relationship does not necessarily equal joint visitation (or whatever you want).
quote:
Originally posted by blackice
In the case Poore v. Poore... |
What's ironic about this case is that the father is given primary custody of the two biological children. But I thought this was about joint custody? Seems the author only cares about the father's rights. Shouldn't he be arguing joint custody, or alternating custody for the mother? Talk about a double standard!
quote:
Originally posted by blackice
A little analysis of Poore will help us understand what's happening. There a trial judge had given custody to a man who while married to the mother at the child's inception, was not the father. The appellate court reversed this,
WHEN THE MOTHER INVOKED HER CONSTITUTIONAL RIGHTS TO PARENT HER CHILD. |
First of all, it was vacated and remanded for further proceedings on the issue, because the trial court applied the wrong standard to the case, (quite different than just being reversed) so the father may end up with the child (this is a Feb. 2002 case, so quite recent) depending on the harm to the child. Second of all, is it suprising that the biological parent would get custody of a child over a legal stranger? I hope not, though this issue is somewhat murky at this point.
quote:
Originally posted by blackice
it was explained how if a parent didn't assert their rights at trial, they were waived. This isn't exactly correct because parental rights are inherent, and not waivable by simply failing to assert them.
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You CAN waive parental rights by not asserting them. This mostly occurs in adoption cases. Check out the putative father registries. They are in most states. They require suspected out-of-wedlock fathers to register within a certain time period. some states, its like 24 hrs, my state, Missouri doesn't have a definitive date, though its most likely within a few weeks of birth. If the father doesn't register, the child can be adopted without his consent. What can the father do to overcome this presumption?
"If he grasps that opportunity [to develop a relationship with his child] and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie."
Lehr v. Robertson, 103 S.Ct. 2985, 2993 1983), (sorry to use case law.)
quote:
Originally posted by blackice
What happens in all parent v. parent custody cases is the parents aren't waiving their rights, THEY VOLUNTARILY SUBMIT THEM TO THE JUDGE TO BE REAPPORTIONED. |
The parents can come to a custody agreement, which, while the judge is not bound to follow, generally will. If there is disagreement, who should decide what should be done? A mediator? FWIW, I'm a trained mediator in the state of Missouri, and I have seen such mediations, and they can be very difficult, even for an exellent mediator to handle appropriately.
quote:
Originally posted by blackice
are not submitting their rights to the judge to dole out as he or she wishes. . |
the use of hyperbole here really weakens the argument. The cases you cited above refer to the appellate process, which would indicate that this is an exaggeration. If the trial judge's ruling is unfounded, it will probably be overturned.
quote:
Originally posted by blackice
If parents do that a special process kicks which places very tight restrictions on the judge from ordering any limits on parenting at all. But the key is, parents must first invoke their rights and tell the judge they are not submitting the issue of custody to the
state. |
A "special process"? Nice and vague. Not sure what is meant by that, what do you mean? Mediation? Again, the parents don't have to submit this issue to the state, since the judge will almost always agree to their custody agreement.
quote:
Originally posted by blackice ]
When parents assert their rights in a parent v. parent custody case, and the state follows the proper procedure, the outcome will probably be an equal and alternating primary residential schedule. |
So I get johnny for 6 months, then he lives with his mother for 6 months? So what about school, if in different districts? what about his friends? what about little league? What if I or my ex want to move out of town or state? How is being shuffled around like that what's best for the child? Why can't i (or she) see him on vacations for a few weeks a year and on every other weekend?
quote:
Originally posted by blackice
Joint custody laws do not pass constitutional muster, as they are neither the least intrusive remedy, nor do they result in an equal outcome for parents. |
Joint custody laws do not pass constitutional muster? Under what constitution? Under the US constitution they are quite acceptable. Can you show me a case to prove otherwise?
This post has gone on long enough. I enjoyed the sparring. 
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asleepathewheel
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listening too long to one song
Mar 2002
time: 00:19
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quote:
Originally posted by blackice
A far cry from “PARENTING RIGHTS” heh I can visit my child but have no rights nor does the child…This is in the best interest of the child…Tell that to the five-year-old… |
Why do you equate visitation with no rights? When I was a six year old kid, (when my parents got divorced) did I want to see my father? Hell yes I did. And did I? yes, every other weekend, as much as he could possibly see me. Would I like to have been shuttled between his house and mine (about 2 hrs away) every other month, so that I wold miss my friends? Of course not. visitation was ok for me, I can't imagine this alternating custody thing of yours. Six months at a time in one place then six in the other, is not much of a life, in my opinion. I wanted to play little leage, how could I do that in that scenario?
quote:
Originally posted by blackice
? Aha the father is to blame… I see]…… |
If the father has the legal right to visit the child, which I assume you agree he does, then whose fault is it if the father never sees the child?
quote:
Originally posted by blackice
Why do you need “primary custody”? Seems to me that a child needs both “PRIMARY” parents. Again where is the “CHILD” in the equation? Why do you have to weigh the benefits of each against the other? The child is biologically both…Seems to me the child would benefit from both “for better or worst”. I see a lot of the “parents” none of the child why? |
You really need someone with primary custody to have some continuity in the child's life. Primary custody with visitation for the other parent provides that. Stability is so important in a child's development. Alternating custody would just continually turn the child's life upside down.
quote:
Originally posted by blackice
The alternative would be to hire a go between for the parents. It is being done to great success. This person hired for less than the “court system” smoothes the way for proper parenting. They smooth the rough times and it allows the parents time to get over it. The end result with a good go between is the “child comes first” mentality. |
Are you referring to the use of a mediator? Have you actually seen a mediator in action? Its true that they can be helpful. I thinik the percentage is 50% success rate, with the rest going to court. So thats decent, I would say, helps work the easy problems out. Ironically the percentage of settled court ordered mediations is about equal to that of volunatary mediations, go figure. But to say that a go-between can solve the problems inherent in a divorce are somewhat farfetched. What about the couples where one wants nothing to do with the other? how is that supposed to end well, regardless of the forum?
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blackice
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Canada where else...
Sep 2000
time: 00:19
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quote:
Why do you equate visitation with no rights? |
Why do you equate it with rights? The average “primary custody” order states that one parent has all rights with regards to the decisions about the child. The other parent has no say.
quote:
Six months at a time in one place then six in the other, is not much of a life, in my opinion. I wanted to play little leage, how could I do that in that scenario? |
That simply can not work and does not work and is not part of today’s joint custody orders. Exception being where for the stability of the child parents have been ordered to remain within a close proxsimity to the school, each other etc...
quote:
If the father has the legal right to visit the child, which I assume you agree he does, then whose fault is it if the father never sees the child? |
It depends? The mother the court or the father pick one they all are reality…Again you blame the father exclusively.
quote:
You really need someone with primary custody to have some continuity in the child's life. |
Why? You assume both can not do it…apart or together if the focus is the child “continuity” is a given…
quote:
Primary custody with visitation for the other parent provides that. |
Visitation is that, parenting is quite different than visitation. The first thing you need to understand is exactly that. Reminds me of people who say they baby sit their own children lolol.
quote:
Stability is so important in a child's development. |
It certainly is now tell me how is ripping a child from their biological father/mother is stability?
quote:
Alternating custody would just continually turn the child's life upside down. |
I would agree it is not the way to go unless they lived near each other by order and the child enjoyed the same friends and lifestyle with both parents. After all that would be in the children's best intreset would it not?
quote:
Are you referring to the use of a mediator? |
Not at all a complete waste of time….
quote:
But to say that a go-between can solve the problems inherent in a divorce are somewhat farfetched. What about the couples where one wants nothing to do with the other? How is that supposed to end well, regardless of the forum? |
View this instead of paying a lawyer, both lawyers. You have a person who does the picking up of the kids for visitation. They are impartial and act in the best interest of the kids. They relay concerns and KEEP the peace until the human factor fades.
The kids are safe the parents are safe and the parents have a go between they can learn to trust. They are exclusively there for their kid’s best interest and maintain that reality.
After time and people move on with their lives a peaceful solution can be reached. It is extremely successful here in Ontario, and other cities, states… for those that do not want to waste money fighting because the system says to...
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asleepathewheel
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listening too long to one song
Mar 2002
time: 00:19
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quote:
Originally posted by blackice
quote:
Why do you equate visitation with no rights? |
Why do you equate it with rights? |
I thought vistation was a right. Its not something the govt can take away without due process. Isn't that what a right is?
quote:
Originally posted by blackice
The average “primary custody” order states that one parent has all rights with regards to the decisions about the child. The other parent has no say. |
Thats just not true. Even when one parent has primary legal custody, the non-custodial parent has some rights with regard to decisions about the child. Ie: if the custodial parent has to move, he/she has to give notice to the other within a certain amount of time. The parent can fight this if s/he chooses. If there is no notice, will possibly be overturned. or the custodial parent may have to share the new expenses with the other parent.
Also, if the mother joins a cult or something similar, the court can step in and modify the custody. If the mother (or father) was gay then the non-custodial parent would likely win custody. The father can oppose the changing of the child's surname.
etc, I could go on about the rights the father does have even though he does not have legal custody.
quote:
Originally posted by blackice
That simply can not work and does not work and is not part of today’s joint custody orders. Exception being where for the stability of the child parents have been ordered to remain within a close proxsimity to the school, each other etc... |
I'm glad we are in agreement.
quote:
If the father has the legal right to visit the child, which I assume you agree he does, then whose fault is it if the father never sees the child? |
quote:
Originally posted by blackice
It depends? The mother the court or the father pick one they all are reality…Again you blame the father exclusively. |
As it is the father's right to see his child, I do blame him. If the mother refuses visitation, shouldn't the father care enough to go to court and fight back? I would. I agree that mothers sometimes are to blame for visitation problems, but why sit around feeling sorry for yourself when you have a remedy. And if the mother is such a *****, don't you think that would exponentially increase your odds of getting joint custody at least?
quote:
You really need someone with primary custody to have some continuity in the child's life. |
Why? You assume both can not do it…apart or together if the focus is the child “continuity” is a given…
quote:
Primary custody with visitation for the other parent provides that. |
quote:
Originally posted by blackice
Visitation is that, parenting is quite different than visitation.
The first thing you need to understand is exactly that. Reminds me of people who say they baby sit their own children lolol.
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I don't see the need to be condescending.
quote:
Originally posted by blackice
quote:
Stability is so important in a child's development. |
It certainly is now tell me how is ripping a child from their biological father/mother is stability? |
What are you supposed to do with a divorce, keep the couple under the same roof? Because that's what you're saying. Obviously the child can be with only one parent at a time. Is that your true purpose here, to argue against divorce?
quote:
Originally posted by blackice
quote:
Alternating custody would just continually turn the child's life upside down. |
I would agree it is not the way to go unless they lived near each other by order and the child enjoyed the same friends and lifestyle with both parents. After all that would be in the children's best intreset would it not? |
So are you saying that alternating custody is only useful to a limited extent, limited circumstances?
quote:
Originally posted by blackice
quote:
But to say that a go-between can solve the problems inherent in a divorce are somewhat farfetched. What about the couples where one wants nothing to do with the other? How is that supposed to end well, regardless of the forum? |
[QUOTE] Originally posted by blackice
View this instead of paying a lawyer, both lawyers. You have a person who does the picking up of the kids for visitation. They are impartial and act in the best interest of the kids. They relay concerns and KEEP the peace until the human factor fades. |
You're right, where people agree to such a situation, it would possibly cost less money. But the caveat is that it requires the couple to agree to it, which I never see a majority of people doing. After all, as we both know, children are so often used as pawns in messy divorces. And now you will say "That's what I'm trying to say!" to which I will respond, "for a lot of peopl, its far easier for them to handle the situation by going through lawyers to settle than to deal with their ex-spouse. If my wife cheated on me, would I want to talk with her and a mediator? Hell no, I would want to make her pay, and I just don't see anyone being able to lessen that pain.
quote:
Originally posted by blackice
The kids are safe the parents are safe and the parents have a go between they can learn to trust, is there for their kid’s best interest. |
I don't see how they would be any safer this way. After all, if one parent violates the court order, s/he can be held in contempt, your method the children could be used as pawns more easily.
quote:
Originally posted by blackice
After time and people move on with their lives a peaceful solution can be reached. It is extremely successful here in Ontario, and other cities, states… for those that do not want to waste money fighting because the system says to... |
Anything is successful if people want it to be, for those people this is not a problem.
Is it really the system saying they have to fight, or is it the people. You would say the system, I would say the people. I would say the people are fighting because people have always fought about such things, break ups, children, the legal system just allows it to be done in a more civil setting.
Ps. thanks for the fun, need to get some sleep now.
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28-04-2002 10:07
I didn't say that, I was saying casual sex is reckless. 
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