As a Family Law Attorney and a children’s advocate for 37 years, it angers me that our own government has taken more than three thousand children from their parents at the border. Some have been shipped to locations across the country, while their parents are deported. Separating immigrant children from their parents is cruel and inhumane. It’s a matter of basic human rights. Just imagine the horror of it happening to you and your kids. Today, little 3 and 4 year old boys and girls are being forced to appear in court and represent themselves in deportation proceedings. That makes a mockery of U.S. Immigration Law and our Constitution. Thousands of young children have been traumatized, and many will never find their way back to their mothers and fathers. This is not a Democrat vs. Republican issue. It is not American vs. Immigrant. The only question is whether we, as a society, will countenance child abuse.
May 31, 1985
To My Little Girl (6 months old):
Since you were born, I have undergone a gradual transformation. What has changed is my entire definition of self – the way I view myself. The change is imperceptible to others. I look, dress, and act the same as I always have, but I feel different.
I had a beautiful childhood. I felt safe in the knowledge that my parents loved me. This was, for me, a protective shield. My memories of those days are vivid and happy. I can still remember jumping in bed with my dad on Sunday mornings and the way he would turn and smile and wrap me up in his massive arms. I remember him lifting me gently and carrying me off to bed at night, and clinging to him, my head on his shoulder, pretending to be asleep. I remember our baseball games in the backyard and how proud I was that my dad was the one teaching us how to hit, field, and throw. I remember our man-to-man talks and how important I felt as my dad listened intently to my thoughts. In my eyes, my dad was of heroic proportions, fearless and strong, yet kind and wise. Today I not only remember those times with my dad, I feel them.
Now I walk into your room. It is dark and you are crying. You reach for me and I lift you out of your crib and hold you in my arms. You cling to me. Although you are still whimpering, you smile. I talk to you softly and turn to gaze into the mirror on your closet door. Through the dim light, I look at myself and see my dad.
In 2012 I wrote an article on our law firm’s blog entitled “Say Goodbye to Custody,”, in which I discussed the brand new, and highly debated, revisions to the Arizona Family Law statutes. These laws, which guide the Court in making custody decisions involving children, have given rise to an assumption of equal parenting time and decision-making authority that has become the starting point for the Court’s analysis in every contested custody case. In my opinion, this approach hurts children more than helps them, and is unfair to both mothers and fathers. In this article, I’ll explain why.
Among the changes to the law were the following:
- The word “custody” was replaced with the terms “Legal Decision-Making” and “Parenting Time.” (A.R.S. §25-403)
- A provision was added providing that the court shall adopt a parenting plan “that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time.” (A.R.S. §25-403.02)
- And in determining custody, whereas the Court was previously required to consider which parent had historically been the primary caregiver for the children, that was removed from the list of factors in the statute and replaced with a requirement for judges to consider: “The past, present, and potential future relationship between the parent and the child.” (A.R.S. §25-403 , Emphasis added.)
At the time, there was much discussion as to what these changes would mean. Some experts believed that the revisions were mostly “semantics” and that not much would change. Others argued that the revisions would lead to a “sea-change” in how the courts determine custody (now called Legal Decision-Making and Parenting Time) in the future.
Now, more than five years later, the answer is in. Has there been a big change? Yes. The change has been enormous. It is a seismic shift in the way judges determine parenting time and legal decision-making authority. And, in my opinion, the change is not necessarily a healthy one.
The law still provides that the “best interests of the child” standard should be applied when making “custody” and parenting time decisions, but today, many judges interpret the statutory changes as requiring them to start with the assumption that both parents should be given equal decision-making authority, and equal parenting time. And, in many cases, that trumps the best interests of the child. It wasn’t that way before the law was changed. But, increasingly, it is the reality today.
Why do I think this is not a healthy approach? Well, I’ll get to that in a minute; but before I do, I need to explain a few things: The latest studies show that children do better, and are happier, when both of their parents are loving, active and involved. When a divorce or breakup occurs, the courts should work to make sure that loving, active and involved parents share in decision-making, and that the children get to spend plenty of time with both of them. In fact, Arizona law provides that:
“It … is the declared public policy of this state and the general purpose of this title that absent evidence to the contrary, it is in a child’s best interest: (1) To have substantial, frequent, meaningful and continuing parenting time with both parents; (and) (2) To have both parents participate in decision-making about the child.” (A.R.S. §25-103)
So that’s the policy. And it’s true that equal decision-making and equal parenting time are good for children when both parents are loving and capable caregivers. But here’s the catch: Not all parents are equal. Some parents have never been meaningfully involved in their children’s lives, and never will be. And I’m not necessarily talking about “bad” parents. There are parents who love their children but are just too busy, or maybe not interested enough, to be involved. If a parent isn’t available to spend time with the children; and rarely or never attends doctors’ appointments, or school functions, or extracurricular activities; and if that parent doesn’t know the children’s friends; and isn’t tapped into their children’s likes and dislikes, their strengths and weaknesses; their abilities, or disabilities; their medical conditions; etc., then how can that parent be trusted with making critically important decisions for those children? – But all too often today, these types of parents are awarded 50/50 parenting time and equal decision-making authority. And why? – Because of an unwritten assumption that a parent is entitled to it under Arizona law.
This is where I think the new law, as currently interpreted, goes off the rails and can hurt children. It places “Parents’ Rights” ahead of “Children’s Rights.” It assumes that in every case the Court should start its analysis with the proposition that both parents will receive equal parenting time and decision-making authority. And, by doing this, the best interest of the child has been made secondary to the best interest of the adults. Proponents of the law will not agree with my opinion. They will point out that there is no legal presumption mandating equal decision-making and parenting time — but that argument rings hollow. Because while it is true that overcoming a legal presumption requires a higher level of proof than a mere assumption, there is often little difference between the two in actual practice. Try explaining the difference to a mother or father who has always been the sole caregiver, but whose children will now spend half their lives with a parent who never changed a diaper, never got up with a baby at night, never took care of a sick toddler, or attended a parent-teacher conference, or a school play, or a Little League game.
Those favoring an assumption of equal parenting-time and decision-making will argue that the Court is still required to consider all relevant factors, and that while “equal” may be the starting point in the analysis, a judge can give a parent less time, or no decision-making authority at all, where it is deemed to be in the best interest of the child. And that is true. But I would remind them that Arizona law was also changed in a way that makes such an outcome less likely.
Arizona Revised Statutes, Section 403 contains a list of factors that the Court shall consider in determining Legal Decision-Making and Parenting-Time. Before the law was changed, that statute contained a factor which required a judge to consider whether a parent had historically provided primary care for the child. But that factor was removed from the statute and replaced with this: “The court shall consider all factors that are relevant to the child’s physical and emotional well-being, including . . . (1) The past, present and potential future relationship between the parent and the child.”
So now, in making the all-important decision on where the child lives and who will make major decisions, the judge is required to consider a parent’s unproven “potential.” Instead of giving primary consideration to which parent actually took care of the child throughout his or her life, the Court must give equal weight to the other parent’s “potential.”
But here’s the problem — How many people do you know who never lived up to their potential? How many athletes were top draft picks but never became stars? How many employees were promoted but never became effective managers or supervisors? — How many moms or dads were excited when their baby was born but never became active and involved parents? In my opinion, it is a huge mistake to emphasize “potential” over actual experience, or even to give it equal weight. Because past history is the best predictor of future behavior. Thus, by putting too much stock in “potential,” the danger of a bad outcome is evident. And in the end, when a father or mother is awarded equal parenting-time and decision-making authority and never lives up to his or her potential, it is the children who suffer.
Of course, there will be parents who were stay-at-home moms or dads during the marriage, but will have to work full time after the divorce – and the fact that both parents will now be working should be taken into consideration by the Court in formulating a parenting plan. In that sense, the other parent’s potential to become a competent caregiver would come into play. However, it should be just one of many factors the judge considers in determining what is in the best interest of the child.
Fathers’ rights advocates maintain that an assumption of equal parenting time and decision-making is necessary because mothers were previously favored in custody disputes. Hey, I’m a father, and nothing is more important to me than my children. And, yes, it is true that there was a time when mothers typically received custody of children. But that was during an era when women were faced with societal and social barriers that made it difficult for them to obtain a college education or executive-level employment, or even a decent-paying job, and which practically forced them to be “housewives” and stay-at-home caregivers of children. Today, many of those barriers have been knocked-down, and glass-ceilings are being shattered. Recent studies show that over sixty-percent of all college students today are women. This means that in the future more mothers will be the family breadwinners; and more fathers will become stay-at-home parents. Therefore, for a judge to make a blanket assumption of equal parenting time and decision-making authority is unfair to both Mothers and Fathers.
In Arizona and other states across the country, the growing trend in custody cases is to award the parents equal decision-making authority and parenting time. That’s not a bad thing, so long as the parents are equally involved in raising their children. The experts agree that it is best for children to have both parents actively involved in their lives, and that effective co-parenting helps to ensure that children will grow up to be healthy and productive adults. But to make custody decisions based on a simple assumption that both parents are equally capable – when they may not be – is a colossal mistake. One that can harm the children in the long-run.
The care of children is too important to make broad assumptions, let alone instituting legal presumptions, regarding decision-making and parenting time. In the real world, parents are not always equal caregivers. Sometimes the mother is the more responsible parent; sometimes it is the father who is the nurturer and is in a better position to provide for the children’s needs; and in many cases both parents are loving, capable caregivers who are willing to co-parent their children (that is, obviously, the best scenario).
Rather than making assumptions, the Court should start with a blank slate when crafting a parenting plan. The judge should carefully examine the capabilities of each parent, the factors contained in Arizona’s custody statute (A.R.S. §25-403), and all other relevant factors. The judge should take a close look at who has been the child’s primary caregiver, and also consider the potential future relationship between the parents and the child. But the needs of the child should always come first. By taking this approach the Court can ensure that the best interest of the child is protected.
At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Juncaj are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator, which includes having acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court; and serving on the Governor’s Child Abuse Prevention Task Force. Hanna Juncaj is a highly-skilled attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. In addition, Hanna is an active member of her County Bar Association. We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal maintenance and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. To learn more about our firm, check us out on Facebook, Linkedin-Gary Frank, and Linkedin-Hanna Juncaj. If you are in need of a consultation, please do not hesitate to call our office at 602-383-3610; or you can contact us by email through our website at www.garyfranklaw.com. We look forward to hearing from you.
Gary J. Frank is an Arizona attorney and former Judge Pro Tem with over thirty years of experience in dealing with parenting issues in Family Court. If you are in need of a consultation regarding divorce, child custody, or any other area of Family Law, please do not hesitate to contact us by telephone (602-383-3610) or by email at [email protected], or through our website at garyfranklaw.com. We look forward to hearing from you.
Under A.R.S. §25-403 if the court determines that a parent has abused drugs or alcohol or has been convicted of a substance abuse offense within twelve months before a petition or request for legal decision-making or parenting time is filed, there is a rebuttable presumption that sole or joint legal decision-making by that parent is not in the child’s best interests. What constitutes “abuse” of drugs or alcohol is not defined in the statute. The issue will surely be the subject of much litigation in 2013 and beyond.
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 [email protected]; 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.