"Family Law Is Not 'Civil': The Faulty Foundation of
The Domestic Relations Exception To Federal Jurisdiction”
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.
International Family Law News & Analysis: Implementing abduction treaty in Japan no piece of cake - will violence issues devour it?. A very thoughtful and insightful article from Prof. Colin P. A. Jones of Doshisha University Law School.
One issue he discusses is domestic violence claims in Hague Convention cases. But those have not even been raised as an issue in 99% of the Hague Convention cases I have handled or know of. Second, the Convention already has exceptions for situations where return would mean a grave risk of physical or psychological harm to the child. Case law varies on whether this exception applies to cases of spousal abuse. But even when there are abuse allegations, the Convention lets the court send the child back to the home country with the abductor instead of the petitioner. So it is a doubly rare case in which return to the home country, by itself, would endanger the child or the abducting parent.
[This is the relocation part of my state bar Family Law News article, "RICHMOND CONFERENCE GIVES A VERY YELLOW LIGHT TO FAMILIES ON THE MOVE"]
Lawyers, judges and law students from all over Virginia joined family law experts from all over the country September 13-15 for the annual “State of the Family” conference sponsored by the National Center for Family Law at the University of Richmond School of Law. The program focused on relocation cases and all manner of other complications that happen when people move from one state to another. It was presented in cooperation with Virginia CLE and moderated by Chesterfield lawyer and former VSB Family Law Section Chair Ed Barnes.
. . .
Relocation
Child psychologist Joan Kelly, Ph.D. of Corte Madera, California, known for her four decades of work and publications on custody issues and on how children cope with divorce, presented her latest research on the impact of relocation on children. Few studies have been done in this area, and none involving very young children. However, there is a lot that the existing research on relocation generally, and on young children’s development, parental relationships, and divorce, can tell us. Dr. Kelly brought those threads together to examine their implications for child-parent relationships after relocation.
She began with studies on relocations of intact families: the number of moves correlates with worse behavior, adjustment difficulties, and poorer academic performance, even when children have two parents to help them adapt. Regardless of family structure, children who moved three or more times are twice as likely to have emotional and behavior problems as children who had never moved. And of course children in separated and divorced families moved more. In Virginia-based studies by Prof. Mavis Hetherington, custodial mothers averaged four moves in six years, and poorer mothers averaged seven moves in six years. In other studies, 17% of children moved to another area within two years after divorce, and 25% changed schools.
Dr. Kelly warned that we should also remember that children in divorcing families are experiencing other unsettling transitions as well, and the effect is cumulative. Parents often cohabit with a new partner. Half these cohabitations end within a year, and only 10% of them last five years. Custodial mothers have a median of three to five new relationships before they remarry, but one-third of mothers had more than ten. The risk of academic and behavioral problems increases with each such change.
Studies of the aftermath of divorce and relocation
One retrospective study of college students who had been children of divorce reported that 25% had moved far away with their mothers, and an equal number had fathers who moved far away from them. Only 39% had parents who stayed in the same area as each other. Fathers’ moving away was reported to be just as detrimental as children’s moving away with the mother. The “children of relocation” comparatively reported more distress about the divorce, more hostile personal relationships, less financial and emotional support, a worse view of their parents as role models, worse health and less satisfaction with life. When the data were re-analyzed to control for pre-separation conflict and violence, relocation still had the effects listed above, independently of other variables.
Infants and toddlers
Generally, studies based in attachment theory have shown that the younger children are, the more frequently they need to interact with a parent to form and maintain a relationship. By ages two to three, children need to have “broad and meaningful interaction at least once every month” if they are to maintain the relationship. One study shows that by far the weakest attachments between children and noncustodial parents are in families that separated before the children were age five.
In international cases or where parents are poor, relocation can end the parent-child relationship or reduce it to one visit a year. Since that is too infrequent to sustain an infant or todder’s attachment to the parent, it can make those visitations very stressful.
Dr. Kelly noted that cases vary; unfortunately a significant number of children (though definitely fewer than in the past) already have little interaction with their fathers even before relocation, and there are a few toxic relationships which one could conscientiously say are appropriately ended by a relocation. But most parents and children can and should continue to be deeply involved with each other, and Dr. Kelly said that judges needed to take a hard look at whether that relationship would be likely to survive a relocation given the children’s ages, both parents’ ability to adapt and continue parenting in changed circumstances, and the parents’ economic and other resources to make visitation happen.
Myths
Dr. Kelly cited several myths which, in her in-court experience as a forensic child psychologist and from her studies of custody cases, are still widely accepted in the judiciary. Many are based on old and outmoded psychological theories, or cultural biases:
- A relocation that benefits a parent will benefit the child. (Studies show no automatic “trickle-down” of happiness. Parent often psychologically benefits from doing what she has chosen to do, but children feel it was chosen for them. As they get older, they want to be heard, and they have divergent interests and ties. Parents don’t share children’s feelings of loss about what is left behind.)
- Time with the non-custodial parent is not time spent with one’s family
- Stability only comes from the “family unit” of the custodial parent. (Actually it primarily comes from having strong relationships with both parents, who both constituted the family unit the child came to know and love, regardless of exact time-sharing or location.)
- Moving back near family of origin always helps. (Don’t assume grandparents are always a healthy influence: check out their histories, substance use, psychological well-being, and whether they will provide child care.)
- Parents should have a chance to relocate to try out cohabitation with potential spouse. (Again, not necessarily. Cohabiting families have much more child & sexual abuse, violence, and harsh discipline than married, or divorced/single, parents.)
Factors making relocation riskier for children, according to Dr. Kelly:
- Younger age
- Involved non-custodial or joint-custodial parent
- Close relationship with left-behind parent
- High conflict between parents
- Custodial parent has adjustment and social problems (these can get much worse for the children without the other parent and other longstanding relationships there to mitigate them)
- Long geographic distance
- Limited economic means for visitation
- Moving parent not cooperative
- Moving parent doesn’t see benefit to child from other parent’s role
Factors making relocation less harmful for children, according to Dr. Kelly:
- Older age
- Other parent not very involved or interested
- Other parent violent; abusive; coerces other adults
- Both parents parent effectively
- Parents cooperate and communicate well
- Low conflict
- Economic resources for frequent contact with other parent
- Child has good psychological, social & academic adjustment
- Move is less than 100 miles
Why is the other parent opposing relocation?
Dr. Kelly offered two different combinations of traits that commonly occur when a parent opposes relocation. Many of them are in the eye of the beholder, but the ways in which they commonly combine may provide clues to what is really going on in a case.
Good dads:
- Enjoy parenting and close parent-child relationships
- Had and exercised significant time share (30-45%, but often much less in states with a strong preference for minimal levels of visitation.)
- Think children benefit from their nurturing, discipline, shared activities
- Experience intense pain & anxiety about the move
- Worry that long-distance move will be detrimental to children
Bad dads:
- Feel that move is unacceptable exercise of autonomy by mom
- Still exert inappropriate control over mom’s behavior and parenting
- Exaggerate their importance to children
- Often intermittently involved, or troubled relations with kids
- Sometimes were violent in relationship
- Sometimes have severe antisocial personality disorder
What visitation is appropriate after relocation?
Dr. Kelly believes that most visitation orders after relocation do not allow enough time, nor a healthy distribution of that time between school and non-school days so that the child gets to interact with each parent playing both workday and leisure-time roles. But by the same token, Dr. Kelly said she was also disturbed by judges who allow a relocation but then give the father virtually all vacations and holidays to compensate. She emphasized that adequate visitation is a significant expense and costs should be shared, in proportions based on the parties’ economic resources. She believed that the following is what is important for long-distance visitation with younger children:
-At least 3-4 times/year; but monthly is much better.
- Missing some days of preschool is just fine.
- People, not places: A motel is just fine as long as the father has the time and the most basic equipment for child-care. (Especially if the hotel has a swimming pool!) If he’s flying, it may make sense for the mother to supply the high chair or playpen and a few favorite toys, etc.
- Phone calls with custodial parent every few days.
- Written info on sleep/eat schedules, food preferences, medicine. (Even married fathers can't remember a lot of this ever-changing body of information when it is administered orally!)
- 3-5 days is better, before age 3, BUT longer is good if with parent who shared caretaking before move.
- Up to around age 8, 5-6 weeks of summer should be broken into shorter periods.
- Technology is not a good substitute for visits at preschool age; but webcam with skype is much better for these ages than phone.
Conclusion
The bottom line on long-distance relocation, from Dr. Kelly’s research and experience, is that with very young children, whatever visitation is feasible is usually not sufficient to maintain the relationship with the non-custodial parent; but with older children, it usually is sufficient. Others present largely seemed to agree.
Juvenile Court Judges George Fairbanks of King William and George Varoutsos of Arlington formed a panel to comment on Dr. Kelly’s presentation. They discussed many relocation cases and indicated that they were generally cautious about allowing relocations in many cases, and willing to change custody in an appropriate case if a custodial parent was dead set on moving.
Betty Thompson and Sharon Lieblich, Ron Tweel and Larry Diehl performed an informative and entertaining simulation of client interviews in a relocation case. The detailed fact pattern was designed to be in equipoise, to “go either way”. It involved a custodial mother who had an opportunity to move from Richmond to Boston, becoming chair of a department at Harvard Medical School, more than doubling her salary — but as the panel of judges pointed out, the money wouldn’t go as far in Boston and she certainly wouldn’t get more spare time to be with the children. The father in the case did not seem especially involved with the children, and regularly skipped some visitation to pursue a hobby. The children were not very small and regular visitation looked feasible. And yet the audience voted about 90-10 against allowing the relocation, even if it meant transferring custody to the father.
From a longer article, "RICHMOND CONFERENCE GIVES A VERY YELLOW LIGHT TO FAMILIES ON THE MOVE", by John Crouch, Virginia State Bar Family Law News, Vol. 29, No. 4, p. 26.