Ever since the Arizona legislature passed its new law replacing “custody” with “legal decision-making” and “parenting time” something has been bothering me that I couldn’t quite put my finger on — until today. In reviewing the development of custody law for an upcoming trial, it occurred to me that the history of Family Law in America has always been a battle between “Mothers’ Rights” and “Fathers’ Rights.” . . . But what about Children’s Rights? Who speaks for them?
From the time this country began until the late 1800’s children were, from a legal standpoint, treated as property of their father. Women had few legal rights, and when a divorce occurred, legal custody of the children was almost certain to be awarded to the father (despite the fact that the children had been raised by their mother).
That all changed at the beginning of the 20th Century. It was during this era when courts began accepting the view that children of tender years need the nurturing that only a mother could provide. The vast majority of mothers, during that time period, remained in the home to care for children as their primary responsibility. (Of course, this was not necessarily by choice — social and legal barriers were entrenched in our society and women had few opportunities in the workforce. As late as 1970 only 27 percent of women with children under the age of three were working.) The “Tender Years Doctrine” almost assured that mothers would receive custody of young children in a divorce proceeding. However, it ignored the fact that fathers could be nurturers, too; and that in any particular case, the children’s father might be the better parent.
The Civil Rights and Women’s Rights movements of the 1960’s created a sea change in our society. Barriers that had existed for centuries began to slowly crumble. Women were accepted into college and entered the workforce in increasing numbers. As opportunities for women grew, it became more common to see families with two working parents, and by 1985 more than 50% of mothers with children under three were working at jobs outside the home.
In the 1970’s the concept of “Joint Custody” was introduced into the Family Law lexicon. Joint Custody assumed that divorced parents should share the rights and responsibilities of raising their mutual children. The law provided that, in making its decision, the Court was to consider the “best interests” of the children based on a laundry list of factors contained in the statute. As joint custody gained acceptance and eventually became the norm, fathers were given a greater role in making legal decisions for their children. The “Tender Years Doctrine” was shelved by the courts.
Now it is 2013 and a seismic shift in Family Law has once again taken place. Arizona has amended its statutes to remove the term “custody” altogether. That term has been replaced with the words “legal decision-making” and “parenting time.” This sounds innocuous, but the effect may well be that in every contested “custody” proceeding, a judge will start with the assumption (although not a legal presumption) that the parents should be awarded equal time and decision-making rights with respect to the children. The Court is still required to make its decision based on the “best interests” of the children — but it could be assumed (unless proven otherwise) that it is in the children’s best interests to divide parenting time and decision-making equally between the father and mother.
Is this fair? I say no. Determining what is best for a child does not lend itself to a “template” decision-making process. Every family is unique. Every case is different. Therefore, every case involving children should be determined on its own merits. Mothers should not be favored. Fathers should not be favored. Instead, the Court should look closely into the facts and family dynamics of each individual case to determine the outcome that best meets the needs of the children.
What is in the best interests of THE CHILDREN?
That should be the compass that guides the Court in making its decision.
Gary Frank, has been a courtroom litigator in the Family Law arena for over thirty years, and is a strong and committed advocate for his clients. In addition to being a litigation attorney, Mr. Frank has acted in the capacity of a Judge Pro Tem in the Maricopa County Superior Court. This has given him an understanding of the inner-workings of the court, and a unique perspective that most attorneys lack. He has also acted, for many years, as a professional mediator of Family Law disputes. We handle a full range of Family Law matters, including divorce, custody, spousal and child support, division of property and assets, modification and enforcement actions, as well paternity/maternity cases, grandparent or non-parent custody and visitation actions, and relocation/move-away cases. If you are in need of a consultation regarding any area of Family Law, please do not hesitate to give our office a call today at 602-383-3610; or feel free to contact us through our web site at www.garyfranklaw.com; or by email at email@example.com. We’d be happy to help you.
The Arizona legislature made a number of other important changes, as well, especially in the area of Third Party Rights (such as grandparent and non-parent visitation and legal decision-making); and in the area of Sanctions for Litigation Misconduct.
Arizona’s new approach to what was formerly known as “custody” is groundbreaking. It is at the forefront of a growing national trend which views divorced parents as partners in raising children. But is this view realistic? Will it protect the best interests of children in divorce cases, or will it hurt them? The answers to these questions will be determined as the new law unfolds.
Gary J. Frank is a litigation attorney and mediator with over thirty years of Family Law experience in dealing in divorce, custody, and parenting issues. Mr. Frank has served on the Governor’s Task Force for Prevention of Child Abuse, and has received a Volunteer Lawyer award from the Maricopa County Bar Association for his work with children. For many years he acted as a Judge Pro Tempore in the Maricopa County Superior Court, which gave him an insight into the inner workings of the courts that many attorneys lack. He can be reached by telephone (602-383-3610); or by email at firstname.lastname@example.org; or through his website at www.garyfranklaw.com. If you are in need of a consultation regarding any area of Family Law, please do not hesitate to contact us today.
I know a woman who has a degree in Early Childhood Education & Child Development. She graduated from college with high honors. Yet, she attended parenting classes throughout the entire time she was raising her children – classes on parenting toddlers; young children; “tweens”; and teenagers. She could have taught the class. Why did she join a parenting group and continue to classes go all those years? The reason – because it made her a better parent.
WHAT CAN A PARENTING GROUP OFFER?
There is a common misconception that parenting classes are for bad parents. That couldn’t be further from the truth. People who join parenting groups are generally excellent parents who love their children enough to want to become even better.
I recommend to all my clients that they consider joining a parenting group and signing up for a class. Once they’ve done it, the reaction I usually get is: “I love this group! I’ve met some great new people who have kids the same age as mine. They’re really supportive and we’re becoming friends. And the class is so interesting — and FUN!”
Parenting classes are not like going to school. (No boring lectures. No homework. No tests.) Instead, it’s a chance to get together with other parents who are going through similar experiences with their children. It’s a chance to talk and share ideas.
Many of the best Valley parenting groups meet for an hour or so, once a week or every other week, at times that are convenient for parents. Some classes are held at night. Most of the parenting groups provide babysitting and serve food or refreshments. The groups are generally run by a child development expert. A different topic is covered for each class period (such as how to deal with tantrums, how to get your kids to do their homework, kids and computers, etc. – the range of topics is wide open, and many are suggested by the parents, themselves). The “teacher” will give a brief overview of the topic, and then the rest of the session will be an open-ended, free-flowing discussion with the parents sharing their ideas and input. It’s exciting to know that other families are dealing with the same issues that you are. You can get some excellent tips on what works, and what doesn’t, from other parents – and you can make suggestions of your own. This is a great way to learn new ideas and make new friends. Both Mothers and Fathers are welcome.
HOW A PARENTING CLASS CAN HELP YOU IN A CONTESTED CUSTODY CASE
As a Family Law Attorney, I sometimes have an ulterior motive for recommending a parenting class to a client (even for the ones whom I know are excellent parents). In a contested divorce and/or custody case, the power to decide which parent will be awarded custody rests in the hands of the Family Court Judge. It is the Judge who will determine which parent is the “better parent” for custody purposes, and whether it would be in the best interests of the child to live with Mother or Father. The Judge will decide whether joint custody or sole custody is the best arrangement; whether there should be a “primary residential parent,” or whether the parenting time should be shared equally; whether one parent or both parents should make medical, educational, religious, and other major decisions affecting the child, etc. By joining a parenting group, you are not only going to gain new skills that will make you a better parent – but you will send a message to the Judge that you are a highly motivated parent, and that you care enough about the children to make an extra effort. So, it’s a “Win-Win” situation. You can enhance your chances of impressing the Judge and, at the same time, become a more skilled, competent parent. What could be better?
WHERE DO I FIND A GOOD PARENTING GROUP
There are a number of excellent parenting groups around the Valley. Two of the best, and most well-established, are: