The Way the Court Frames your Case is Important. And You Have the Power to Frame it Right. Your attorney is the one that tells the judge what you want him to do.
The book that we are coming out with is going to walk through case law and reasoning that is going bring fundamental changes to the way that custody decisions are made in our family court system.
“The second flaw in the trial court’s analysis in this case was that it focused on whether the children would be harmed should visitation be granted, rather than whether there would be significant harm to the children were visitation denied. See Brooks v. Parkerson, supra, 265 Ga. 194 (“even assuming grandparent visitation promotes the health and welfare of the child, the state may only impose that visitation over the parents‘ objections on a showing that failing to do so would be harmful to the child”); Neal v. Lee, 14 P.3d 547, 550 (Okla. 2000) (reversing trial court decision because “no court has found that … the children will suffer harm without court ordered grandparent visitation”).” (Roth v. Weston, 259 Conn. 202 – Conn: Supreme Court 2002)” – Troxel v. Granville, 2000
Whether you are an attorney, a parent, or a judge, you know that the way that you frame an issue is everything. There are hundreds of studies that show that “when participants…were reminded of their gender identity, their performance suffered” on math exams. In other words, if a room full of women were told that females do not do as well as males on math tests, the females in that room generally did poorer on the exam than if they had not been told anything at all, or had been encouraged to believe in their abilities. And if the males were told that they performed worse than Asians, then they generally performed worse on the math exams.
If you have gone through the process of how custody is decided in divorce, even in mediation, the way the case is framed makes all the difference. In mediation, did you still feel pressured to give in to the other side even though you didn’t feel that side should be any more qualified to be with the children more than you? Were you pressured into believing that worrying about the amount of time you were with the children did not equate to quality time and that it wasn’t something that you should fight over? Were you made to feel that if you were the working parent during the marriage that you should keep everything the same and the other parent, if was staying home with the child, should be supported to continue to stay home? If you have gone through this, or are going through it then you probably asked yourself if there was a better way.
The case could have been framed in mediation differently. The attorneys could have made it clear to both parties that both parents have equal rights to equal time as well as everything else. And that each parent has a right to change their time and relationship with their child and does not have to live according to the agreements and arrangements that the parents had during marriage. It can be explained that during marriage, there are marital benefits, and one of them might have been one of the parents agreed to work and support the other parent to stay home to raise the child. In divorce, however, those benefits stop. Asking one parent to continue the benefits of marriage for one while the other parent is robbed of the benefits with their child that they had in marriage, is crap.
Our new book will explain how to frame the rights we are already supposed to have using Supreme Court cases as well as the same reasoning that has been used to defend other fundamental rights.
In the meantime, ask yourself did you feel that if you and your ex-spouse did not come to agreement that it was the judge’s job to choose between the two of you and to give the one that could prove the other was the least bad to have more time with the children and an unequal ability to exercise their share of the those rights? That is most likely the way your case will be framed if you go to court.
What if your case was framed differently? Would the result be different? What if your case was presented to the judge as needing the judge to protect your rights from attack from the ex-spouse, and needing the judge to create an order that reflects this equal protection of rights? What if you could prove to the judge that he does not have jurisdiction to interfere with your rights and that “best interest of the child” was up to you and not him until the court proved they could intervene as the parent. What if you knew how to argue to restrict the court’s rulings to only deciding issues that cannot be split naturally equally or just deciding things like which one of you has Mondays; then the judge can determine the days that each of you have the child as long as the split is equal. Supposedly the court is not allowed to make determinations on anything that is not being asked of them.
Therefore, what if your attorney objected to your ex-spouse’s pleadings of the judge determining custody of the child unequally based on your fundamental rights, and requesting that the judge restrict his jurisdiction to that only of an equal division of the time and protection of your rights from unlawful attacks that do not meet any cause of action under the laws? What if you requested that the court require that your ex follow the laws required to prove you are unfit in a fitness hearing before the state assume that they have the authority to interfere with your equal rights to decisions regarding how you raise your children which includes your equal time?
If you are an attorney, or a parent that is pro se, you may read this post and say yeah right, that has never worked, and the other side is going to kill me if I don’t fight back gladiator style. Or you just might be afraid to try it. Many attorneys know the judges in their areas, they know that they rule based on their personal beliefs and that they have gotten away with it. They know that if they plead the things that we are suggesting here that the judge might get really angry, so they might steer you away from this. We are not telling you to not fight back in the manner that the courts are requiring of you now as well. We are suggesting from what we have learned that in order to ensure that you preserve being able to argue these as fundamental rights you should first allow your state court to rule on it. That is what the Supreme Court generally requires. And that to do that, you have to be willing to stand up to bullies, and that might also include the judge.
What we are saying is don’t let the way things have always been done deter you. If you feel as strongly as we do about our children and our time for our children. If you have made sacrifices to give your children better lives and you intended on continuing to be a part of their lives, then you just might have to fight. We wish we could tell you there was an easier way. I’m sure that the women that were thrown into jail and their children taken from them by their husbands because they stood up for women’s right to vote; and the slaves who had to leave their children behind in order to get freedom so that they could continue to fight for their children’s freedom; and those that fight in our military for our way of life and to free others, wish that there was an easier way too.
There are lots of things in history that used to be done certain ways that changed because the people stood up for themselves and changed them. Parenting after divorce is one of those situations now. There are enough examples to know that too many people have lost their children. What makes you think that is going to change if you keep doing things the same way? There are lots of parents that have fought until they ran out of money. We all need to fight this fight more effectively. This book changes the fight.
Just because they change up the methods and require some extra steps now like mediation, does not necessarily change the results. If you are stuck with attorneys that frame the case as best interest of the child comes before your rights, or that defending your rights is in conflict and contrary to your child’s best interest, and they have not proven you to be unfit or a danger to that child, you get to decide what is your child’s best interest, not them. And you are being persuaded or bullied out of your rights and equal relationship with your child. This is just a different method than the judge might use, but the result is the same.
Most of the time, most of the parents that I meet after they have settled in mediation, are not happy if they agreed to less than what the other parent has. They felt that they had no choice and that it was going to be too stressful on their children and too costly. Or they have talked themselves into believing that they were the bigger person by giving in to the other one, and that they actually protected their child. These are all methods used to get unequal results that do not have any basis in what is best for your child. Going along with these methods are prohibiting parents from changing the way that the system is handling parental rights and children’s rights.
And as long as we, the parents, go along with it, they will continue to require these things and they can continue to make you battle and beat the other parent up just to have rights with your child, or give in.
And as along as parents go along with these methods, it is difficult for those attorneys that are fighting for equal parental rights. The more parents that take a stand in a meaningful way, the more the courts will start to take notice. Once every parent begins to add their fundamental rights arguments to their pleadings and object to the courts requiring them to jump through hoops or charge them to prove their parenting abilities, the courts will not be able to continue to ignore, and will have to change, or start to be overturned by the higher courts.
Our book guides you through the reasoning and the arguments necessary to frame your argument, your rights, right.
 Tennen, Howard; Suls, Jerry, Handbook of Psychology, Volume 5, Personality and Social Psychology, Hoboken, NJ, 2013.