Sheathing Solomon's Sword
Can a new state law help mend the damage of custody disputes?
By Val Pendergrast
AUGUST 4, 1997: Thursday morning's divorce proceedings in 4th Circuit Court have more the feel of a TV game show than an experiment in family law; host Judge Bill Swann is granting divorces with the split-second timing and congenial charm of Alex Trebec as he tosses lighthearted pleasantries to attorneys and plaintiffs alike. His 10 o'clock docket is sparse; irreconcilable differences are the grounds of the day. Case after case is resolved with the same simple phrases: "Congratulations. You are a single (wo)man. Do you have questions?" Most do not.
Prior to 1900, children were considered property--specifically, the property of their fathers. But modern divorce courts and custody laws have typically favored maternal custody based on what is commonly known as the Tender Years Doctrine, which states: "There is a strong presumption that the needs of very young children are best served by the mother. The child of tender years will be placed with the mother except in extraordinary circumstances."
But the times--and the laws--are changing. As of July 1, 1997, the Tennessee legislature wiped the Tender Years Doctrine off the state's lawbooks--the last of the 50 states to do so. With the experimental enactment of state law HB1140 on July 1, selected counties in Tennessee will be taking a proactive approach to the issues surrounding children of divorce. The revocation of the Tender Years Doctrine is but one of the tenets of HB1140, a pilot program initiated in Knox County's 4th Circuit Court designed to combat the negative effects of divorce on children by focusing on "the best interests of the child" when deciding custody and visitation issues.
Representative Robert D. "Bob" Patton from Johnson City was co-chair of the legislative committee that wrote the experimental law in a hopeful attempt to minimize the damage done to children when their parents divorce. Patton, a divorced father who raised four children, is acutely aware of the painful repercussions of divorce on children. The committee's intention, he says, was to require divorcing parents to put the welfare of their children first.
'I know it's hard," Patton says. "I've been divorced myself. But I would hope that people, when they sit down to talk about this, will realize that children are number one." His personal goal was a protective one. As a professor of public health who did his doctoral research on single-parent families, he's seen the damage first hand.
"I saw so many examples where children were used and abused during the course of divorce. It breaks my heart. It's so sad. You see the child just destroyed."
With divorce rates in Tennessee 40 percent higher than the national average of 4.8 per 1,000, the state has earned the dubious honor of ranking third nationally--only Mississippi and Louisiana were worse--in the percentage of families headed by a single female.
Hundreds of studies conducted by thousands of social scientists make clear that the consequences of growing up in a single-parent household is detrimental to the overall health and well-being of children. Even within the best divorces, children of divorce suffer in myriad ways. From the obvious immediate repercussions--confusion and the disruption of life as they've known it--to the long-term effects--increased susceptibility to drug use and violence and the increased likelihood of experiencing divorces of their own--divorce frequently becomes the proverbial millstone tied around a child's neck. Children not living with both biological parents are at risk of negative health and psychological and educational outcomes.
But is it possible to legislate the negative effects of divorce out of existence?
Letter of the LawThe introductory passage of the new legislation is in itself a far cry from most legal phraseology. Statute HB1140 begins with Findings, Application, and Report:
"The general assembly recognizes the detrimental effect of divorce on many children and...finds the need for stability and consistency in children's lives. The best interests of the child are served by a parenting arrangement that best maintains a child's emotional growth, health and stability, and physical care." The results of the general assembly's findings are carefully constructed guidelines governing the process of divorce where children are involved.
The legislative fine print of HB1140 enumerates parental responsibilities in remarkable detail. The newly-adopted requirements include: that parents attend educational seminars about divorce and its effects on children, that they design a "parenting plan" that will form the basis of their custody agreement, or else agree to mediation or arbitration if unable to devise a workable plan, and that they minimize the child's exposure to parental conflict. The legislation also spells out what the court may and may not take into account when determining which parent and/or parenting plan will provide the most nurturing environment for the child.
Rep. Bill Dunn of Fountain City was instrumental in adding Knox County to the list of judicial districts in which the experimental bill will be tested. He especially appreciates the section of the bill that calls for mediation if parents cannot work out a viable parenting plan on their own.
"It sounded like a really good bill, especially the mediation part which makes the parents sit down and consider the kids first."
Mediation is one aspect of the bill that few can find fault with. Within 90 days of filing for divorce, parents are required to submit a parenting plan to the court addressing how they plan to provide for the child's well-being. If they are unable to come up with a mutually agreeable plan, they are then required by law to seek mediation. If mediation is unsuccessful, they move to arbitration.
Knoxville attorney and mediator Ann Barker says forcing divorcing parents into mediation is, without question, "an excellent idea."
"It's my experience with mediation that even people who are fighting like cats and dogs can sit around the mediation table and work things out. I've seen it many times."
Jan Walden, attorney and president of the Mediation Association of Tennessee, which lobbied extensively for the bill, says she's hopeful that mediation will reduce the contention and hostility of divorce.
"Our process now is a very adversarial process. [Divorcing couples] get lawyers and they go to court and say the worst things about each other." Walden says she'd like to see litigation eliminated from family law.
"If this program is successful, family law attorneys are going to start thinking differently. I personally think that litigation in a family situation should be the very last alternative." Even in cases where the parties can't come to an agreement, Walden says, mediation is still beneficial.
"A lot of times people just want to be heard. In court, their feelings are not heard. In mediation, they can tell their side of the story."
Though relatively untested in his courtroom, Judge Bill Swann says he believes mediation may reduce post-divorce tensions as well.
"Generally, once you run people through the difficult process of a mediated outcome, they acquire a common vocabulary and a common database, and it generally cuts down on post-divorce problems."
Mediation has other benefits as well. It's less expensive than litigation, and for those who don't have the resources, the mediation program in Knox County is being financed by a new $10 marriage license tax. According to Swann, "the money is a-rollin' in."
"Is this a good use of governmental resources?" he asks rhetorically. "It's a lot of money, and the lion's share is going to be used for the mediators."
David Valone, an attorney at Lockridge, Becker, and Valone, says although he thinks the new legislation will be beneficial, there will always be some cases that will go nowhere with mediation alone.
"The good thing about it is that in some cases, it will be beneficial to the litigants. There are also cases that mediation will not be good for because the parties are so polarized." In other words, if after two or three months in mediation a couple has not made any progress, it's better to return to attorneys. Valone himself is not overly optimistic about the effects of the rest of the legislation.
"Quite frankly, in reading it, a lot of it is not going to work."
Critics of the legislation focus primarily on the highly subjective aspects of the bill's intent. While everyone agrees that putting the best interest of the child first is vital, few objective observers can agree on what constitutes the best interest of the child.
The idea behind having parents devise a parenting plan without judicial interference is compliance. People are more likely to adhere to an agreement if they've had some input in the decision-making process. When parents are able to reach a satisfactory agreement regarding their children's care, the court doesn't have to get involved. But when they're unable to agree, important decisions about their child's welfare wind up being decided by a powerful stranger.
Dissenting OpinionsTerri Bowers argues that the new law is only as good as the judge in charge, and she's not happy with either.
"These [guidelines] are all really good if a) you have a good mediator, and b) if you have a really good judge that can cut through all the crap and can see what's best for this kid. You'd like to go in and say, 'We're going to work together.' But if you could work together, you wouldn't be getting divorced!"
Bowers was awarded custody of her daughter Chelsea in Kentucky five years ago, but her contentment was short-lived. When her ex-husband filed for custody in Judge Swann's court, she maintains, Swann was clearly biased against her and awarded full legal custody to Chelsea's father.
"I'll never forget as long as I live when he [Swann] said, 'As much as this pains me, I'm awarding custody to the father.'" She's still fuming.
"[Swann] doesn't look at the kids. He has not looked at my case," Bowers says.
Though she has great visitation--in Oklahoma City--she feels she's lost her daughter for good. Bowers worries that the criteria for determining where a child should live are too subjective.
"It's a mess," she laments. "It's just a mess."
The new law states that in allocating decision-making authority to a parent, the court shall consider "whether the parents have demonstrated the ability and desire to cooperate with one another in decision-making regarding the child in each of the following areas: physical care, emotional stability, intellectual and moral development, health, education, extracurricular activities, and religion." If the parents fail to agree on any of these issues, the court will ultimately decide who wins. Theoretically, it's the child. But as family law attorney Wayne Wycoff notes, "Once a relationship falls apart and there's kids, I can point to lots of losers and it's hard to find a winner in the situation."
Home RulesIn determining "residential provisions"--where the child will live-- the new law says the court may consider any number of factors, most of which are difficult to determine at best and highly arbitrary at worst. For example, the court will examine "each parent's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent." In other words, the parent who is deemed most likely to encourage the relationship between the child and the other parent is most likely to get custody. This clause is being called the Friendly Parent Doctrine.
Ernie Weeks, member of the Society for the Preservation of Family Relationships, as well as DAD (Dads Against Discrimination), and a divorced dad of a 7-year-old son, says he's delighted with the pilot program--he lobbied heavily for it in Nashville--and says it has the potential to be a powerful tool in divorce and custody settlements because it represents a shift in policy.
Because of the inherently adversarial nature of divorce, children frequently wind up as the spoils of war--tools for revenge and animosity, Weeks says. He thinks the Friendly Parent Doctrine will discourage the use of children as "war toys."
"The pilot program very clearly says that a child has a right to relationships. It very clearly delineates something called the 'Friendly Parent Doctrine' as one of the criteria that should be considered in a parenting program. The idea of the Friendly Parent Doctrine is sort of an unusual solution. It's an application of Solomon's sword in divorce."
"This is exactly the opposite of what is normally the case in an adversarial situation, because in the war game scenario, what one wants to do is make sure the other parent hardly ever sees the child," Weeks says. "So it's keeping Solomon's sword sheathed, in effect, in custody decisions."
But Paula Palmer, another mother who lost custody of her two sons in Swann's court, says the Friendly Parent Doctrine is worthless.
"It's hearsay," she says adamantly. "Anybody can appear friendly."
Palmer, who spent two full years unable to see her children, says her ex lied to the court about encouraging their children to visit her.
"My husband said, 'I told them to go visit,' but his demeanor said the total opposite [to the kids]. As far as I'm concerned, anybody can say anything, but if it's not the truth, you're going to wind up back in court motion after motion."
Weeks says he thinks keeping people out of court will be a major benefit of the new legislation, but already there are questions as to whether or not the new legislation will indeed do that. As with any law, some people will comply, and some will not. Enforcing the law means bringing the noncompliant parent back into court, which is expensive and time-consuming and even then doesn't guarantee the guilty party will shape up.
Don Schaefferkoetter's voice is thick with frustration and bitterness. The divorced father says he has spent seven contentious years--not to mention $40,000 to $50,000 in attorney's fees--battling his former wife over issues surrounding their three children. As a noncustodial parent, he was forced to file a complaint with the Department of Education to view his children's grade cards, and despite paying court-ordered medical insurance, he still has no clue who their doctor is. He's become convinced that his ex penalizes his kids for communicating with him by phone.
"I was supposed to have phone contact with my kids daily," Schaefferkoetter says angrily. "I essentially have not spoken to my daughter on the telephone for years. My son will call, but he'll call when he's at someone else's house." Numerous court appearances have done little to assuage the situation.
"I've pretty much just given up," he says with despair. "When the rules of the courts become more or less a joke and there's no leverage, what incentive is there to make a person go along?"
Mandating minimum standards of contact between the noncustodial parent and the kids is a tenet of HB1140 that has parents like Schaefferkoetter cautiously optimistic. The law states that each parenting plan will give each parent the following rights during periods when the child is not in that parent's care: (a) the right to unimpeded telephone conversations with the child at least twice a week at reasonable times and for reasonable durations; (b) The right to send mail to the child which the other parent shall not open or censor; (c) The right to receive notice and relevant information within 24 hours of any event of hospitalization, major illness, or death of the child.
Other provisions include the right to the child's medical records directly from the child's doctor and the right to be free of unwarranted derogatory remarks made about him or her or his or her family by the other parent in the presence of the child. But enforcement is a dicey proposition. Without the witness of a third party, everything comes down to "he says, she says." And only a mind-reader can tell who's telling the truth.
Even Judge Swann, whose duty it is to see that divorcing spouses obey the law, sees the potential for trouble.
"Let's assume we negotiate a parenting plan and somebody comes in and says the other party is not honoring the parenting plan. That's the heart of litigation. If you're suggesting that this may be productive of more litigation, we'll just have to wait and see."
But mediator Barker says attorneys will always be part of the divorce process, mediation or no, and sees attorneys as necessary, but not a necessary evil.
"If the litigants have already obtained legal counsel, the advice they get from their attorneys, and their attorneys' approach to the mediation, can make a big difference. The attorneys can be helpful."
Not everyone is as charitable.
"You know the attorney creed, don't you?" Schaefferkoetter cracks. "Innocent until proven broke."
Whether HB1140 will have its intended effect, and whether it will become a law statewide at the end of its trial period in February 1999, remains to be seen. Patton says that at the end of the trial period, the Legislature will evaluate the bill's effectiveness and either amend it or do away with it altogether.
Swann says law is always an evolutionary process of trial and error, but that this bill "clearly has some merit."
"I've noticed that every time we take three steps forward--a little naively on our part--we take one step back." But hope abounds that the new law will be a constant reminder to divorcing parents that their kids come first. Patton's keeping his fingers crossed.
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