No Fault of Their Own

Posted Thursday, February 18th, 2010 by Gregory Forman
Filed under Child Custody, Law and Culture, Mediation/Alternative Dispute Resolution, Not South Carolina Specific, Of Interest to General Public

Interesting op-ed piece by Ruth Bettelheim, a marriage and family therapist, in today’s New York Times criticizing the way child custody cases are handled forty years after the institution of no-fault divorce:  No Fault of Their Own.

She’s correct that turning children into child support generators fuels much of the fire of custody litigation though it is unclear how the “fixed formulas” she suggests for setting child support would differ from the current guidelines and thereby reduce acrimony.   She’s also correct that that favoring mediation over litigation is especially important in child custody disputes.  However, in 2010, few parents and even fewer attorneys prefer litigation over mediation.

7 thoughts on No Fault of Their Own

  1. Jay Elliott says:

    Greg: Her observation about revising child support formulas to exclude consideration of time shared with each parent is interesting. As one of the architects of South Carolina’s original guidelines, I fought that adjustment, successfully, for years. The domestic relations bar eventually got that revision through D.S.S., after I resigned from their committee. I anticipated that change would auger a lot of litigation over joint or shared custody, in attempts to avoid paying significant child support. Which it did.

  2. MJ Goodwin says:

    Another thought provoking article, Greg. I agree that the child support issue is a thorny one. The writer of the article seems to think that “intelligent legislation” is the answer to that problem. My concern would be that when the issue really is that the custodial parent does not want to pay the money, that parent usually doesn’t have the child’s best interests at heart. I have represented countless parents whose former spouse wanted to be sure the order reflected the required 110 days and worksheet C, only to never see the child and leave the custodial parent holding the proverbial (empty) bag. I don’t really understand how “intelligent legislation” could fix that. If we could legally force people to be better parents, that would be great. But I don’t think it’s possible.

  3. MJ Goodwin says:

    I would add that I see few true child support disputes where both parents are involved, contributing parents.

  4. California observer says:

    I live in a county in California where the courts actively encourage mediated divorce, so I got one. (Well, that’s not the *only* reason….) Was far, far better than going through the courts: cheaper, faster, less stress, and far more opportunity for each parent to be heard at length, and to dive into the nuances of what’s really happening and what really matters as the two principals directly speak.

    It seems like such an obviously good choice, I have no idea why all courts don’t encourage mediation. Ideas?

  5. Derek says:

    >> My concern would be that when the issue really is that the custodial
    >> parent does not want to pay the money, that parent usually doesn’t
    >> have the child’s best interests at heart.

    Certainly this happens, just like there are parents who seek primary custody to create and maintain an income stream. I think this is just as much about setting parental expectations; post divorce you will be paying $X and having Y% of custody unless you both agree differently. Its about taking the jockeying for position out of the process and all the acrimony that is brought along with it.

    Good parenting can never be legislated, and I don’t think the “binding – can’t ever be changed” aspect flies. Kids grow up and their needs change. Parents’ personal situations change. One parent may fail to live up to their responsibilities. But the intent here is right on – kids need both parents and the laws and legal practices that get in the way of having that happen as easily as possible need to change. It says a lot that one of the main groups that have opposed such changes to custody laws across the nation is … you guessed it – divorce lawyers. This is ALL about money and not just between the parents.

  6. John says:

    I am a single Dad and I got the every other weekend plus Monday’s and Wed. during the day. I always pay my child support. I want more time with my daughter. So I get more time with her sometimes 6-8 more days a month, but I still have to pay at the rate that I only get 4 overnights a month in actually I avg. 12-16 overnights. I thikn a lot of women go for sole custody and they don’t realize how hard it is going to be on their social life.

    Civil court is supposed to be punitive in nature, when your children get taken away it is injurious.

    Many people only use the worst case of Dad’s that don’t pay as an example. Then develop blanket policies only on worst case scenerio’s. Not all Dad’s run leaving Mom holding the bag. However, after getting the reeming they get in court I understand why some do this now.

  7. Marina in Texas says:

    I live in Texas. Last summer (2009), my ex decided to file for full custody of our daughters ages 17 and then 14. My younger daughter was about to start boarding school and he wanted to stop paying child support and a change in her visitation schedule to reflect this. Instead of either talking to me, or filing a petition for modification based on those changes, he decided to instead accuse me of being a danger to the children.

    He took the girls to see a family therapist with the hope of having her
    write a negative report on me. The therapist refused to do so and even said that the girls should spend as much time with me as possible. Despite this setback, and even though I agreed to the end of child support payments and an equitable visitation schedule, he filed the petition. In Collin County where I live, when you accuse the other parent of being a danger, the court will grant a hearing quickly (2-3 weeks) versus the 5-6 months wait.

    I cannot tell you how horrific it is to be accused unjustly like this. My
    kids suffered during the process and it has created an environment of
    hostility that this allegation creates. Basically, my ex engaged in emotional abuse (the reason I wanted a divorce in the first place), and used the petition as a means of bullying and intimidating me. The sad thing is that the court system enabled this abuse.

    We settled fairly out of court and I got the agreement I wanted but the
    damage was done. If the court would have consequences for false allegations, then this could have easily been avoided. Instead, the legal system seem to be happy to have procedures which ultimately enrich aggressive attorneys and harm the very innocent people that they claim to act in the best interests of, the children.

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