Tuesday, July 18, 2006

ND Fathers' Rights Part One

A few days ago, I mentioned the oh-so-lovely Family Law Reform Initiative. The comments I have received have been interesting to say the least: nothing seems to bring people out like abortion and fathers. (I suppose mail order brides and Real Dolls would do it to).

Rob of SayAnything took offence, because he felt that I was being too harsh on Fathers' Rights Activists, and suggested I look at the Shared Parenting Initiative. I could understand his frustration: I get very irritated when mainstream feminism gets confused with gender essentialists, so I would not like the fringe version of my philosophy be what was most commonly alluded to.

So, this post will be about two separate organizations: first, the Family Law Reform Initiative, and then the Shared Parenting Initiative.

Flri was started by unsuccessful Libertarian candidate for Ronald Riemer (who was convicted of domestic abuse). The flri has 10 parts to it: some parts are less objectionable than others. I will show the complete text and then my argument (if any) to it.

1. Not withstanding any other state statute or common law, the following inviolate rights are hereby establish for all adults and children of North Dakota, and this subsection shall be self activating upon voter approval, and all rights for children, parents and married persons listed in the North Dakota Century Code shall be hereby enforceable as a private right of action against any person or government official, or the state of North Dakota, in either state or federal court, against whoever denies them these rights.

Translation: Here's what we want to make into law (I'm willing to bet one of these guys is a lawyer).

2. All decisions or actions under state law shall be gender and race neutral and, without exception, follow all state and federal constitutional legal and treaty rights, and any state or local official or court or state funded agency who knowingly discriminates shall enjoy no immunity from either personal criminal prosecution or civil suit, and the statute of limitations on such actions shall be 6 years. Any state or local official found to have discriminated shall also be referred to the proper authority for proceedings to either remove them from office or subject them to recall at the next election.

No problems here. Equal protection under the law.

3. All legal actions that affect any family right to children, home, or property for more then thirty (30) days must be accorded the right to a jury trial. This provision shall be retroactive for ten years. Any party not knowingly wavering a jury trial, may, within two (2) years of the enactment of this measure, bring a new action on the issues of property division, support, or child custody. But, if the jury decides that said new action is clearly frivolous or without merit, that party shall be obligated to pay the costs and attorney fees to the prevailing party. Any decision, finding or judgment by any court affecting any family right shall be solely authored by the presiding judge and shall not be delegated to any no-judicial party.

Okay, here's where it gets interesting. Divorce hearings, alimony hearings, and custody hearings are currently by a judge, and not by a jury. The only real objection I have against this is that a jury trial would be much more expensive, but I'm sure what this group is counting on is that a jury would be more sympathetic to not paying alimony and reduced child support.

4. No child shall be denied a right to either parent, without a showing by clear and convincing evidence that a parent poses a real and immediate threat to said child. No time requirements may be made limiting the right to ask for custody or visitation order modifications. And in a divorce, absent clear and convincing proof of an actual threat to the child, joint and equal physical and legal parenting/custody rights shall be the presumed standard. The parents shall agree on a parenting plan, or if they can not agree to such a plan, then the court must produce such a plan for them. To help the parents/courts draft a parenting plan, Child Protection or some other state agency designated by the governor shall draft, within 6 months after enactment of this measure, and updated every two (2) years thereafter, at least ten (10) generic joint parenting plans as a guideline for separated or divorced parents, as well as ten (10) generic parenting plans where the parents do not have joint and equal physical and legal parenting/custody rights.

Ah, here is where it gets a little bit more interesting: shared parenting presumption as opposed to primary caregiver presumption. This is where any actual debate takes place, and I shall write the longer objection further down.

5. No parent may be denied parental rights to his children based on a domestic violence protection order unless there is clear and convincing evidence that the parent poses a real physical threat to said children. In which case that parent shall be allowed visitation in the least restrictive mode that provides protection to the children. A spouse shall have the right to self-defense or defense of his children in any domestic violence dispute. Nor may any parent or spouse gain legal advantage or property by accusing the other parent of domestic abuse. Any parent, advocate or lawyer making or promoting false accusations of domestic abuse is subject to a civil action for damages, as well as costs and attorney fees. Any official, lawyer or judge who knowingly promotes false or frivolous claims of domestic abuse shall be disbarred for not less then one year. A person accused of domestic abuse must be afforded legal representation. All domestic abuse court files shall be open records. Where a pro se litigant is entitled to an award of attorney fees, he shall be entitled to his opponent’s lawyer hourly rate, nor can the pro se litigant be held to the same technical standard of a lawyer, but he may not use this as an excuse for blatant misconduct.

If you hit your spouse, you are a danger to your kids, end of discussion. This shouldn't be something I think I should have to waste space over, but apparently a lot of people don't seem to understand that if Parent A hits Parent B, a person whom s/he supposedly loves, it wouldn't take to long before Parent A "lashes out" on children. And even if Parent A never touches the children in anger, it is still emotionally distressing to witness your parent hit the other (trust me, I know), and it is traumatic for Parent B to be forced to have to see the abuser time and time again. Not to mention, the laws that this advocates for is a) too harsh and b) would take up too much time. A false accusation is already against the law. Think of the practical applications of this law: what would "knowingly promote frivolous claims of domestic abuse" entail, investigating every domestic violence case that doesn't have enough evidence to convict? This would have expensive, and dangerous consequences to our current legal system

6. In joint and equal physical and legal parenting/custody, neither parent shall be obligated to pay child support to the other. But, in non-joint equal physical and legal parenting/custody, child support shall be no more then half of the cost of caring for a child’s basic needs for food, clothing, shelter, education and medical care on an average North Dakota family income as determined by the department of human services, and never more then 25% of the obligor’s actual and normal current taxable income. There shall be no additions for other factors. Nor may the child of divorced parents be entitled to more then a child with married parents, but the support shall be lowered based on the legal or moral needs of the obligor to support himself and other current family members. Child support can only be based on a maximum of a 40 hours work week, and shall not include bonuses, overtime, retirement or one time financial windfalls. The child support obligor shall receive the tax deduction for the supported children. Unless previously contracted for, spousal support shall never be required. Nor shall any obligor ever face jail or loss of other legal rights or benefits for failure to pay a domestic support obligation or debt. Nor shall normal due process and protections be denied for the collection of said obligation or debt. But additional legal/criminal actions may be imposed when it has been proven by clear and convincing evidence that failure to support has resulted in serious child neglect or abuse.

And here is why I think these people just don't want to pay their damn child support. With a presumption of joint custody, and there is no repercussions for domestic violence, that means that you have to be a drug addict not to be able to get custody of your kids. And even if you're a bad parent, the kind who locks their terrified child in the basement, the kind that the child is afraid to speak to without getting hit, the kind that routinely forgets to pick up the child or the kind that makes it impossible to meet any kind of schedule, while the other parent does the bulk of the child rearing are struggling to do the labor of child rearing while trying to make ends meet, you have a clusterfuck that is good for NO ONE, except for maybe the crappy entitled parent.

7. Where child visitation or support is ordered, the courts and the states attorneys must enforce it. Where they deliberately refuse to do so they shall enjoy no immunity from either prosecution or civil suit by the denied parent or affected child. Any state or local official found to have violated these rights shall be referred to the proper authority for proceedings to remove them from office.

No major argument here, just a small quibble: what does he mean by the state attorney must enforce it? That's not really their job. That's kinda a job for law enforcement. So, no, the S.A. shouldn't be able to be sued because you can't pick your kid up on time.

8. Married parties shall be entitled to all property and debts accumulated before, during and after the marriage, and premarital contracts must be enforced under traditional contract law so as to afford each party their full rights. No party shall ever be awarded the premarital or separate property of the other party, and no person shall be obligated to ever pay for the support of another adult human. Unless otherwise contracted for, all savings and pension plans shall be the sole property of the person who has worked or paid into them. And where marital property or documents are ordered exchanged, it must be done within 90 days of the court decree, or the harmed party may ask for a court contempt remedy.

Yeah, no. If you have a pension, your spouse gets half of it, or you had better have been paying for the upkeep of your house. The state has alimony laws because one spouse is supporting the other, and it's not nearly enough (check out how easy it is to get a loan, or a job, if you've been out of the workforce. Not easy at all.)

9. On application for a marriage license, the state shall inform the applying parties of their legal rights and obligations under the marriage laws of North Dakota. The office of the North Dakota Attorney General shall produce this information in a readable form within 3 months after enactment of this measure. Every marrying couple must also agree to a premarital contract at least 60 days prior to marriage. If there are no resulting children/pregnancies resulting from the marriage, then failure to so inform or contract shall make the marriage non-binding at the option of either party if an action for annulment is brought within 2 years of the marriage.

I have no objections to the knowledge of their legal rights before marriage. Too many people get married already, they should know what they're getting into. But, marriage isn't made to have children: marriage is a formal contract of a relationship. So, the two years thing is ridiculous.

10. Because strong families are essential for the well being and happiness of our society, and because of the concern for the ever increasing rate of single parent families and divorce rate, it is hereby establish the state office of Family Advocate. This position shall be elected at each general election. The term of office shall be two (2) years. Candidates for this position shall be a qualified elector of this state and shall be paid $1 per month with no other state benefits other then expenses. The legislature shall budget a minimum of $1,000,000 per year to be used by the Family Advocate for the functions of his office, and these functions may include such things as research, getting public comment, identifying and finding solutions for family problems. Remedial actions could include recommending, submitting and testifying for legislation, performing/advocating public or school educational programs, submitting court briefs, and any other beneficial and effective activity. No Family Advocate shall use this position to advance or advocate his own political, social, or religious agenda, and all his/her public actions must be fair, gender neutral and unbiased. If this office is to be vacant for more then 3 months, the governor shall appoint a qualified interim Family Advocate who shall fill this position until the next general election.

I would have no problem with the family advocate, but I think the rationale that they put out is specious.

Because strong families are essential for the well being and happiness of our society
Sure, whatever. I'll say that having strong families certainly doesn't HURT anything.

and because of the concern for the ever increasing rate of single parent families
I don't have any concern about single parenting, except for the fact that it is very restricting financially.

and [concern for the] divorce rate
I have no concern for the divorce rate. Divorce, as an institution, is great. It means you get to leave a crappy environment. Divorce means that you get to leave a jackass. Divorce is wonderful! The only reason I'm concerned about the divorce rate is it means that too many people are getting married without thinking about what they're doing. Marriage isn't something one should take lightly (and it also isn't something you should do just because you're horny: another reason why I dislike Christianity, but that's another post entirely).

And I'm not even going to get into their reasons (available under News Briefs and April). [channeling William Shatner]So...many...false...premises...so...much....entitlement[/channeling William Shatner].

So, clearly the flri is a bunch of nutcases. These people make my skin crawl every time I talk to them, when I do talk to them (see Me And the Mormons post).

The Shared Parenting Initiative is out later, as this post is getting lengthy.


At 6:43 PM, Anonymous Anonymous said...

Roland Riemers is a part of this? lol.

The guy who ran for President and printed his face on money?

At 6:34 AM, Blogger Noumena said...

Here's bit of personal history to illustrate why paragraph 6 of the FLRI is such a bad idea.

By the time I was born, my dad had a master's degree, and my mom had been forced to drop out after one semester in college before putting herself through beauty school. They divorced when I was in junior high, and my mom was about halfway through earning an AA (it took her about six years, all together, because she usually only had enough time to take two classes a semester); she got full custody, and we spent about a third of each month visiting my dad. If my mom had gone back to work, it probably would've been at a salon in our semirural foothill town, where she might have earned a couple of thousand dollars a month if the customers tipped really, really well. And, of course, most of her income would have gone towards her 50% of the basic care of my brother and I, plus all of the other expenses we incurred beyond what the state determined as this level of care. My dad, meanwhile, had a salary in the low six figures, so his 50% would have been a much smaller percentage of his monthly income. Under the real-life settlement, where he paid about 2/3 of those basic costs, he didn't volunteer one cent more to help pay for our expenses than he was legally compelled to (and, until his paycheques were garnished, didn't even pay that in full sometimes).

So splitting the basic costs 50-50 would have meant denying my mom the chance to finally get an education, requiring her to work full time instead of being home when her kids got home from school and contributing to my brother's gymnastics carpool, and lowering the standard of living for my brother and I. On the other hand, my dad would've been able to keep an extra few hundred dollars a month, which he definitely would have sunk into his boat.

And regarding paragraph 8: The child support payments were so low that, while the alimony settlement was being renegotiated, my mom had to enroll in AFDC. We lived off bean-and-cheese burritos and Kraft macaroni and cheese that summer. A single mother in a similar position wouldn't even necessarily be able to fall back on AFDC today.

At 10:44 AM, Anonymous Collin said...

Really all of this makes much more sense when you start digging into Riemer's divorce records.

Here is a good start:

At 12:53 PM, Blogger Goddess Cassandra said...


My father was abusive, and (unintentionally or intentionally) he isolated my mother from her friends and family.

As an effect, my mom had a difficult time getting her degree. Everytime she'd get close to it, we'd move and she'd have to pretty much start from snuff (not all credits would transfer, that sort of thing).

Even though she was going to class, my mother still was the primary caregiver. She was the one we ran to when we had a nightmare, she was the one we went to if we had a problem at school, she was the one who made our doctors' appointments and did the bulk of the grocery shopping. And the presumption of joint custody ignores all of the labor she did in raising us.

Of course, since my parents decided to stay together, for me it is acedemic: no custody arrangement at all.

At 8:59 AM, Blogger mythago said...

Well, as a lawyer, some really ugly things jump out at me.

One is the 'retroactive jury trial' provision in #3. That seems to suggest that anybody can say "I never waived the jury trial" and go back and start over again. The part about the jury finding the case 'frivolous' and awarding attorney's fees is BS; juries don't rule on whether a case is frivolous. That part is a pretense that the initiative will do anything about harassment suits.

The part about pro se litigants is equally vile. "Pro se" means appearing on your own behalf, without a lawyer. The initiative first pretends that if you appear on your own behalf, you aren't held to the same standard as a lawyer--even, apparently, if you ARE a lawyer. And despite your lesser expertise, you get to ask for fees as if you had the same skills and experience as the other side's lawyer. Whahuh?

At 9:27 AM, Blogger Richard said...

I disagree with you on #5, above. I'm an attorney in Pennsylvania, and here at least, you can get an order for protection from abuse against a ham sandwich. Unortunately, this is especially true when women ask for them against men, rather than visa versa. In my experience at least a third of all protection orders are bogus. Not that there was not conflict in the residence, but rather the person bring the action was never in reasonable fear of serious injury from the alleged perp.

At 3:45 PM, Blogger Goddess Cassandra said...

Then it sounds like you need to make getting protection orders harder to get.

I don't think you are in a position to say what is "frivolous" and what isn't.

And sometimes protection orders aren't just for physical protection: there are mentally and pyschologically abusive and controlling people out there. And that's not good in a spouse, and that's really not good in a parent.

At 10:23 PM, Anonymous Anonymous said...

Men bad. Women good.

At 3:20 PM, Anonymous Anonymous said...

I am a single father of a 4y/o whose mother is living with a registered sex offender and she is denying me any type of visitation with my son. Now so you understand neither one of us has legal custody. Now who has the best interest of our son? His mom who gave up a baby girl to stay with her boyfriend or me the father who is fighting for custody of my son.

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