Reforms Overdue

On last week's NARN, Captain, King and I had an hour-long discussion about the current decay in the institution of the family. It started with the current fad of the mean-nothing wedding vows, and moved on to divorce via Covenant Marriages.

The decline of the family is one of those rare issues where the mainstreams of both the left and right are wrong.

Naturally, the left is wrong for more cynical reasons; as long as the family court system is a cash cow for social "service" bureaucracies, the current "winner take all" system (where one party to a divorce walks away with the house, the kids, and years of child support income) is just fine by them.

The right, on the other hand, idealistically buries its head in the sand, saying "we oughtta make divorce harder to get" - which is naive, impossible, and probably ill-advised in a lot of ways.

Of course, if everyone agreed divorce were a lousy way to settle marital difficulties, it'd go away. And everyone knows it's a lousy thing - right?

Wrong.

Men fear divorce more than women do, and are statistically much more likely to resist divorce. Women are much more likely to find the notion of divorce an acceptable way of dealing with whatever is ailing their marriage.

The reason? Divorce costs men more.

• Women win 90% of contested custody cases; the non-custodial parent ends up playing only a peripheral (and in some cases, legally-hamstrung) role in raising the children.
• The legal uninvolvement ends at the checkbook; child support awards are large, difficult to modify based on circumstance, and if the custodial parent is on public assistance, enforced with savage tenacity by the county authorities; non-custodial parents (usually men) routinely lose drivers and professional licenses if they're unable (not unwilling, mind you) to pay their arrears.
• Custodial parents get the bulk of the couple's community property.
• Most galling of all, in most jurisdictions custodial parents have broad latitude to move out of the jurisdiction, even out of state, without any consequences at all from the other parent. The children can be (and routinely are) ripped from the non-custodial parent's life for, essentially, the convenience of the custodial parent (usually the mother), with no recourse (and no reduction in child support payments).

In last session of the Minnesota Legislature, there was a move to rationalize some of these laws, and make them fairer. Among the bills that came (and went) was Rob Eastlund's bill that would have created a presumption of joint physical custody in the event of a divorce, unless there were a reason not to (and I'm getting sick of having to add that qualification all the time, as if the majority of fathers are base, worthless characters against whom children need to be protected). The bill basically died in committee.

It needs to come back to life.

A "Presumption of joint physical custody" means a number of things:

• Both parents would have equal say in key decisions regarding the childrens' lives; education, religious upbringing, medical care, and all the other decisions in which non-custodial parents' wishes are currently so cavalierly disregarded.
• It would spread the financial burden of raising children more equally, and substitute actual spending on children for "child support"
• It would keep both parents actively, constantly involved in childrens' lives. Study after study has shown that boys who grow up with fathers who aren't a constant part of their lives are vastly more likely to get in trouble (a huge percentage of our nation's prisoners are from single parent households); girls who grow up without fathers are vastly more likely to get pregnant; in short, all other things being equal, single-parent custody is an unmitigated disaster.

Radical feminists oppose this, of course; it inconveniences women (although thankfully some people are starting to see through the lunacy).

Why is this important?

Read Mark Yost's editorial from yesterday.

When writing about the ongoing fight to make joint physical custody the rule instead of the exception in Minnesota (like 37 other "progressive" states), I frequently get e-mails asking why it's such a big deal. I hope to never hear that question again from anyone who reads the tale of Nakia Porter.

His troubles began when Angela Strong wanted to move to Florida with their 9-year-old daughter (they were never married). Porter told Strong that he intended to go to court to block the move.

"My daughter would start crying," Porter said in an interview. "She didn't want to move. She didn't want to have to choose one parent over the other."

He reassured his daughter that "the adults" would work it out. Then on April 7 Porter received a frantic call from his mother. A moving truck was at Strong's New Hope home, taking her and her daughter to the Red Lake reservation in northern Minnesota.

This is painfully common - custodial parents deciding that getting on with their lives is more important than their kids' well-being.

"But doesn't the law protect the non-custodial parent?" Any guesses?

Remember - Mr. Porter has joint custody:

The next day Porter's attorney got a Hennepin County court to issue a temporary emergency order giving him primary residential custody of his daughter. The order gave Strong only supervised visitation because she was deemed a flight risk, but it was too late.

Strong requested a custody order from the Red Lake Tribal Court, but according to a Hennepin County felony warrant issued on June 16, "the Red Lake Nation Tribal Court dismissed defendant's case on May 4, 2005, and directed defendant to return to Hennepin County to address matters of custody and visitation in Hennepin County Family Court."

Porter saw his daughter briefly after the Red Lake hearing.

"You could tell she felt uneasy about the whole thing," said Porter, who noted that Red Lake authorities were in the room throughout the 15-minute visit.

Strong appealed the Tribal Court's May 4 decision. A hearing was scheduled for Monday, but when this column was written the court had not yet ruled.

Porter's attorney expected the court to rule in her client's favor because the grounds for Strong's appeal was, "They don't obey our courts, why should we obey theirs?" the attorney said.

The situation: The joint-custodial father is having to go to serious expense, stress and time loss to get his daughter back where she's supposed to be. If he didn't have joint custody, he wouldn't even get that far.

Some solace:

Strong finally turned herself in last week, the warrant was cancelled and she was released after posting a $15,000 bond, the county attorney's office said. She's due back in Hennepin County court on Aug. 16. If she doesn't appear, the court can issue a bench warrant, but it's not enforceable on the reservation.

Strong has since returned to the Red Lake reservation. Repeated attempts to contact her were unsuccessful.

"We are now looking at a case where it is becoming a very real possibility that we will not be able to get that child back," said Wunsch.

In the meantime, a custody hearing is scheduled for Sept. 27 in Hennepin County Family Court. It's expected that Porter will be given primary custody, but, like all the other court orders in this case, if Strong stays on the reservation the order will be unenforceable.

The "good" news?

While many of you are probably shaking your head after reading this, I'm sorry to report that Nakia Porter is one of the lucky ones. That's because he has joint physical custody of his daughter.

Indeed, ask any dad who doesn't have joint physical custody what his chances are of getting the cops to listen to complaints that he didn't get the kids last weekend. Or the chances of a court keeping the custodial parent from moving the child out of state. "Fat chance" is the likely response.

"Because they have joint physical custody, it's not presumed that she can move," said Lymari Santana, Porter's attorney. "That would fundamentally change the visitation."

Without joint physical custody, getting permission to leave the state is a mere formality for most custodial parents. Critics often say that noncustodial dads are gung-ho for joint physical custody because it would reduce their child-support payments.

But as anyone can see from the sorry tale of Nakia Porter, it's about a lot more than that. It's about having significantly more standing in the eyes of the court. More important, it's about being an integral part of your kid's life.

That, frankly, is all most noncustodial dads want.

"Family" court needs a huge overhaul. And the overhaul could have gotten a good start last session; bills to force a presumption of joint custody and to rationalize child support schedules both came up - and faded quickly away. Reform is anathema to the left - whose pledge seems to be "happy mothers equals happy children" - and for the right, too often, it takes more effort than to say "divorce is bad!", or to believe that raising kids is women's work anyway.

And yet changing the presumption - from "winner takes all" to "presumption of joint physical custody" - would remove one of the key "benefits" to getting divorced; it'd require both parents to remain in some proxity to each other, for the good of the kids, to be sure, but it'd make divorce a lot less convenient. It would reduce the social cost of divorce, including the delayed social costs of depriving children of a parent for most of their childhoods.

It might make people think twice before getting married. Given that 40% of marriages break up these days, that's not a bad thing.

Posted by Mitch at July 27, 2005 12:05 PM | TrackBack