Shocked by cheerfully ignorant, arrogant decision-making? Not if you've seen a judge learn family law on the job.
There was a lot of interest on social media in Jesse Singal's analysis of how President Trump deals quickly and authoritatively with issues he admittedly knows nothing about. Singal was thunderstruck at how monstrously dangerous it was to have major decisions made in cheerfully-admitted ignorance, by what the decision-maker thinks is simple common sense. But as a family law attorney, I really couldn't tell any difference between the President's performance and watching a judge who's new to Family Law, trying to puzzle out why the law seems to want both parents involved in a child's life after a breakup, why unwed fathers have the few rights they do have, etc. Or what the Hague Convention on child abduction is for, and what in the world is wrong with a mom taking her children halfway around the world just to get them far away from the father. Or the times I've watched Supreme Court Justices do the same thing as they debate the Hague Convention, or paternity law, assume the validity of wildly wrong speculations about what happens in custody litigation, and snort with equal contempt at the parents in these cases and the Congress that passed such seemingly pointless laws and treaties. Even experienced trial judges sometimes just reinforce their bias and irrational rules-of-thumb over time.
Here's the Trump version of this routine:
SHERIFF AUBREY: And the other thing is asset forfeiture. People want to say we’re taking money and without due process. That’s not true. We take money from dope dealers —
THE PRESIDENT: So you’re saying – okay, so you’re saying the asset-taking you used to do, and it had an impact, right? And you’re not allowed to do it now?
SHERIFF AUBREY: No, they have curtailed it a little bit. And I’m sure the folks are —
THE PRESIDENT: And that’s for legal reasons? Or just political reasons?
SHERIFF AUBREY: They make it political and they make it – they make up stories. All you’ve got to do —
THE PRESIDENT: I’d like to look into that, okay? There’s no reason for that. Dana, do you think there’s any reason for that? Are you aware of this?
[Then-acting Attorney General Dana Boente]: I am aware of that, Mr. President. And we have gotten a great deal of criticism for the asset forfeiture, which, as the sheriff said, frequently was taking narcotics proceeds and other proceeds of crime. But there has been a lot of pressure on the department to curtail some of that.
THE PRESIDENT: So what do you do? So in other words, they have a huge stash of drugs. So in the old days, you take it. Now we’re criticized if we take it. So who gets it? What happens to it? Tell them to keep it?
MR. BOENTE: Well, we have what is called equitable sharing, where we usually share it with the local police departments for whatever portion that they worked on the case. And it was a very successful program, very popular with the law enforcement community.
THE PRESIDENT: And now what happens?
MR. BOENTE: Well, now we’ve just been given – there’s been a lot of pressure not to forfeit, in some cases.
THE PRESIDENT: Who would want that pressure, other than, like, bad people, right? But who would want that pressure? You would think they’d want this stuff taken away.
SHERIFF AUBREY: You have to be careful how you speak, I guess. But a lot of pressure is coming out of – was coming out of Congress. I don’t know that that will continue now or not.
THE PRESIDENT: I think less so. I think Congress is going to get beat up really badly by the voters because they’ve let this happen. And I think badly. I think you’ll be back in shape. So, asset forfeiture, we’re going to go back on, okay? I mean, how simple can anything be? You all agree with that, I assume, right?
See also, for example,
- Study: Judges interpret legal precedent mostly based on parties' personalities, & won't admit it.
- How Bias Actually Works -- Everywhere, Even in Family Courts
- Supreme Court silently ignores clear text of Indian Child Welfare Act, "needlessly demeans parenthood"
- On First Looking Into Posner's Opinions, and Finding One Where He Didn't Exactly Hit a Homer
The headlines are misleading, but the truth behind them is strange and elusive, from a Western perspective. A "right to custody" has appeared in headlines on CNN, in Khaleej Times, and in news links circulated on social media. That wording, at least the way it would commonly be understood in the U.S., is completely wrong.
Just as divorced or separated parents in the U.S. do, Muslim Saudi women who get divorced, or whose children later reach the age for living with their fathers, have the right to ask a court to decide who gets custody, and to have the court consider the case.
What is new this month is apparently a procedural reform: IF the parents have no disputes on child-related issues, the mother can get custody by filing an application with the court, instead of going through a full-scale court case. The Justice Minister's circular says, in part:
A mother may submit a probate application to the competent court for certifying her custody of her children, provided she signs an acknowledgement that there were no existing disputes ...
For granting custody to a mother, the judicial panel considers her capacity for custody and then determines her application in accordance with Sharia and legal requirements, without the need for initiating a lawsuit, as is the case with all probate certifications indicated in Chapter 13 of the Law of Civil Procedure.
Almost all the news stories include that key phrase, "provided there are no disputes," but the headlines and lead sentences, and indeed the rest of the wording of each article, totally ignore it, as if it were a technicality or an unthinkably rare and meaningless exception. This is as bad as the reporting on no-fault divorce laws or covenant marriage laws -- blowing up changes to sound far more drastic than they are, by making crucial exceptions sound like meaningless recitations, and naively ignoring or belittling the role of agreements and disagreements between divorcing spouses.
There is no change in favor of foreign or non-Muslim women, as far as I can tell.
Other substantive changes the Minister announced:
The circular also gives the mother the right to carry out all formalities related to her children at government departments, embassies, education offices and schools, and to apply for and collect her children’s passports.
She will also be able to collect all child support and maintenance from government and civil entities, but may not travel with her children outside the Kingdom without a judge’s permission.
To see what this is a change from, here is what looks like the most up-to-date background on child custody in Saudi courts:
"THEMATIC REPORT ON MUSLIM FAMILY LAW AND MUSLIM WOMEN’S RIGHTS IN SAUDI ARABIA," report to CEDAW, February 2018, by Musawah: For Equality in the Family
Federal "diversity jurisdiction" exists to prevent unfair home-court advantage, so why doesn't it apply to family law?
By Joseph A. Carrol, Dickinson School of Law
ABA First Place Schwab Essay Contest Winner, 2017
We started this blog because of journalism's abysmal failure to exercise basic skepticism, objectivity and diligence when covering family law, and especially hotly contested cases about children. So we are delighted to give credit where credit is due. This story reports the good and bad about both parents, but only as far as it goes, without making assumptions or just buying one parent's story wholesale. And yet it still tells you enough that you feel you know the story as well as anyone who wasn't involved in it could, but with a healthy recognition of, and respect for, the unknowns.
By Jacob Maslow in The Global Dispatch
-- Just one thing: "Custody Battle Nears End" is so often premature. Besides all the appeals, etc. that people can do in any court case, people can go back to court, claiming that something's changed, until the child turns 18. A few people will keep fighting after that, over collection of fee awards, disabled adult children, and other unusual issues.
In some cases, it's pretty simple. The child will still have two parents if one parent gets primary custody, but not if the other parent does. That factor does not outweigh some even more horrible things that sometimes happen to children, but it outweighs most other factors such as which parent and which home does some parenting tasks better, or is what the child is already used-to.
The Australian judge and lawyers in the story below described such a move as "drastic". But it's not that drastic, in my experience in the U.S. Changing custody requires first, a relevant, material change of circumstances, and then a wide-open evaluation of what's in the child's best interests under current conditions. That should include: what example do the parents set for the children about how to treat other people and what to prioritize? Should the children learn that alienating, vicious, deceptive borderline-personality behavior works to meet one's goals? Is it healthy for a parent to lie to kids about the other parent to manipulate their emotions? And most important of all, is it better to grow up with two parents, or one manipulative, shortsighted, selfish, immature parent?
One big caveat: When there are abuse accusations, the time to diagnose and counteract parental alienation is AFTER investigating and resolving the abuse issue. And alienation, likewise, should be proven before it's punished. Fortunately, in most cases it's obvious and the alienating parent doesn't try hard to hide it, and may even proclaim it.
BY KAY DIBBEN in THE COURIER-MAIL, NOVEMBER 29, 2014
Subtitle: SELFISH separated parents who try to stop their children having a relationship with their former partners are having the kids taken off them by courts.
Caption: This is a warning that parents need to be child-focused in every parenting decision they make and not self-focused, says family law specialist Deborah Awyzio.
Cruel realities of "parental" child abduction, 34 years later: stolen from one parent, abandoned by the other
This horrifying story has several elements that I have seen in my parental child abduction cases over the years. Especially, (1) the child was told that the left-behind parent had abandoned him, and (2) the child soon ended up without either parent. As I've seen in many cases, once the abductor has managed to deprive the other parent of the child, he or she loses interest, other priorities intervene, and the child is left with relatives, friends, or worse.
"... The first same sex wedding could take place by as early as summer 2014. The legislation will introduce civil marriage for same sex couples, and enable religious organisations to opt in to conduct same sex marriages if they wish to do so. The Act includes provisions intended to protect religious organisations and individuals from being forced to conduct same sex marriages.
"The Act will also enable civil partners to convert their partnership to a marriage and would enable married transsexual people to gain legal recognition in their acquired gender without having to end their marriage. However this will follow later than summer 2014 as it will take government departments longer to implement all the necessary processes. ..."
A gay spouse has already been approved for a two-year conditional green card based on the partial overturn of DOMA , and another has had his deportation halted, Huffington Post reports.
I've never heard of a nation's government refusing to process a request for return of a child under the Hague Convention on child abduction, and to let the petitioner then go to a court for a decision on whether to return the child. It must happen sometimes, but you don't tend to hear of it. But the U.S. State Department is absolutely right to do that in the case of Anyeli Hernandez, who was abducted from Guatemala over a year before the Convention went into effect there. "Hernandez, now seven, was abducted in November 2006 and wound up, illegally, with an adopting American couple. ... Guatemalan authorities have prosecuted three people for kidnapping and for placing Anyeli Hernandez up for adoption." ("U.S. will not return illegally adopted Guatemalan girl" - Agence France-Presse, Tuesday, May 15, 2012)
The Hague Convention very clearly says that it only applies to cases where the Convention was in effect between both countries at the time of the abduction. But as the State Department points out, the real mother in Guatemala can still go to the local courts where the child lives to enforce her custody order and undo the adoption. That is not just a theoretical cop-out by the State Dept. - it is something that we and other lawyers do all the time, using a uniform state law, the Uniform Child Custody Jurisdiction and Enforcement Act. It helps many parents in cases where the Hague Convention does not apply.