BRAKES FOR DIVORCE -------------------- Feedback Box:
Through The Legislature
Causing a divorce to become necessary,
or filing for an unnecessary divorce,
is the Ultimate Child Abuse
(2) The Magic Paragraph that will heal broken families,
(3) Statement of an Appellate Judge concerning what courts need,
(4) How each phrase of The Magic Paragraph meets a need created by an Iowa Supreme Court ruling.
We who serve the Lord have an opportunity to sow Healing in the mindset that has made divorce so easy and respectable. Our Seed is a single paragraph once offered as a bill (SF 398, in the Iowa Senate in 1987 and 1988), which restores public respect for parental maturity and responsibility. This paragraph promises not only to make divorce more fair, but to reduce divorce. The paragraph even offers to draw hearts back to God, since it is not only a fair law, and a law firmly grounded in court precedent, but a righteous law; and laws enforced by police are often able to catch the attention of people grown callous to laws enforced by angels.
The paragraph affects, directly, only how justly child custody is decided in a divorce hearing. But it would also make divorce less enchanting to parents looking into it. Combined with public education, it has the potential of greatly reducing divorce.
(Another section of SF 398 would end the automatic granting of divorce when it is not in the best interests of the children, by defining the legitimate objects of matrimony -- whether they have broken down is the criteria for deciding whether to grant divorce; but they were never defined in law -- as the best interests of the children and as the family finances available for the care of the children.)
A mere handful of people, no matter how informed, dedicated, and in Gods will, wont get very far with the Iowa legislature (Genesis 18:2032: only one righteous was found; that wasnt enough). To some extent, thats the way it should be. A handful should not decide the fate of millions. The fate of millions should be decided by millions. Or if they dont care enough to all speak for themselves, then at least by thousands. But not by a handful. (Believers should never have let a handful of unbelievers tinker quietly with the legal contract upon which their Family Bonds depend!)
At any rate thats the way it is. Significant numbers of the people concerned about divorce law will have to become involved with any significant improvement of it. But dont be dismayed. .5% of Iowa voters writing a note to their legislators would be Hurricane Hippo to todays political climate.
Here is the Magic Paragraph of SF 398. The footnotes after each phrase refer to part 4s explanation how each phrase meets a need created by a Supreme Court ruling:
S.F. (Senate File) 398: Section 598.41, Code 1987, is amended to read as follows:
NEW SUBSECTION. 7. The court shall consider the past record1 of parental efforts to invigorate, nurture and preserve positive inarnage bonds2 and family bonds in general,3 both before and during marriage dissolution proceedings,4 as evidence of commitment to the best interests of the child,5 evidence of support of the other parents relationship with the child,6 and evidence of relationship skills necessary to communicate between the parents regarding the childs needs.7 These qualities shall be recognized as positive attributes of a physical care parent8 The court shall respect efforts of either parent, verbally or by example, in the instruction of the child, to constructively define and support the values of commitment, relationships, and communication.9
Why are these phrases needed? Whats it like in divorce court under present law? The following Statement of an Iowa Appellate Judge answers this in a nutshell. Afterwards a more thorough study of judicial reasoning (in plain, easy to follow language) will explain the need for each numbered phrase of this bill. If you have been through a custody battle, maybe this will help you understand what happened. If you have not, maybe this will inspire you to help us change it, so fewer Iowans will have to go through it.
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STATEMENT OF AN IOWA APPELLATE JUDGE
Why Parental Treatment of the Marriage Bonds
Doesnt Matter to a Judge
(The following statement was given by Iowa appellate judge Leo Oxberger in early 1987. Judge Oxberger graciously let me discuss the situation with him. I made notes of the conversation, edited them, and took them back to him to see whether I had accurately presented his position. He made minor corrections by hand, and then authorized me to distribute it as the statement of an appellate judge.)
Before l970 we had fault divorce. Court records were filled with evidence of fault; of parents blaming each other for wrecking the marriage bonds. Even then this evidence was not particularly considered in deciding child custody. It was only used to decide whether to grant the divorce.
Now we have no fault divorce. It has come to mean we will not accept evidence of fault--of parents blaming each other for wrecking the marriage--for any reason. So we primarily examine parent-child relationships. The importance of evidence about interparental relationships is less clear. It is generally given far less weight because it is so difficult to see in the record of the proceedings.
We are not PREVENTED from considering interparental fault in deciding custody (if we believe interparental relationships are a window to present or future parentchild relationships). The fault we will consider (in deciding child custody) is parental failure in caring for the routine daily needs of the children. A large part of this is the quantity and quality of time each parent has spent with the children, or has spent physically doing things for the children.
Quantity of care is easier for a court to measure than quality of care (which gets into such intangibles as values the parents will raise their children by, including morals and principles that manifest in interparental relationships), and there is probably more societal consensus about childrens physical needs than about their more esoteric, moral and spiritual needs.
I understand this to be the IMPORT of Iowas no fault law, though it does not say so explicitly. This is what society has come to expect--the inalienable right to break up a good marriage by fooling around, arguing all the time, or by any other means. If the legislature wants us to do it differently, it will have to say so. The more explicit the better. I dont like to do a lot of interpreting. I can see some value in opening up the process to the larger considerations, but that is a lot of tradition to buck without some support from the statute, especially since one would have to articulate some new standard in such a controversial, hands off area. it is not for a judge to carry such weight on his shoulders. That is for the legislature.
Judge Oxberger said, regarding 598.41, 3c (In deciding whether to grant joint legal custody to the nonresidential parent, the court shall consider...Whether the parents can communicate with each other regarding the childs needs): (see note #7 in part 4)
When the parents communicate poorly enough, or with extreme hostility, we do not grant joint legal custody to the nonresidential parent. It does not matter which parent might be the primary source of communication problems or hostility. When we start to examine interparental relationships, we have returned to fault. I dont know if Iowa is ready for that; it is up to the legislature. They give us the law to work with, which is essentially public policy. No more and no less.
Iowa vs. Family
Glimpses of Divorce Case Law
And The Changes Needed
(Written about 1988. There are interesting cases since which could be added to this study, although the situation has not essentially changed.)
How do Iowa courts treat devoted spouses being divorced? How is their commitment to the marriage bonds discriminated against? How are affairs winked at, and attempts to discourage them severely punished? How do Iowa courts invite immorality into healthy homes, and legitimize immaturity in broken homes?
Examples follow of important higher court precedents which lower courts follow. A precedent is nothing more than a bit of reasoning used at least once by a higher court (either by the Supreme Court, or by the Court of Appealssort of an assistant supreme court). Flaws in some of this reasoning will be shown, as well as the role those flaws have played in our tragic divorce rate.
Indeed, our enemies are not men. Families war not against flesh and blood, but against philosophies. Bodiless, soulless philosophies that nevertheless take their toll in real bodies and souls. The following numbered points are related to the numbered phrases of SF 398 above, in order to explain how each phrase fits into the plan of attack against the bodiless, soulless enemies of families.
1'The court shall consider the past record... The importance of considering the past record of parental actions is explained by the common sense principle expressed by the Supreme Court: Courts generally have no way of judging parents future conduct but by the past. Harwell v. Harwell, 253 Iowa 413, 112 N.W.2d 868, 873 (1962)
2...of parental efforts to invigorate, nurture and preserve positive marriage bonds... As Justice Oxberger stated, a phrase like this will be necessary before judges are likely to acknowledge any connection between parental handling of marriage bonds and parental maturity.
Specifically, basic morality is not likely to be taken seriously as a factor in selecting the best parent to have custody, or at least any more seriously than it was in the Winter case. In fact, if you ask a judge today dont courts take morality into account at all in awarding custody? he will probably answer Oh, sure we do. Says so right in the Winter case. Indeed, that case lists 12 criteria for awarding custody, and this list has been alluded to in many subsequent cases, and morality is on the list. But how trivialized was the courts application of this criteria!
In the landmark Winter case, (223 N.W.2d, 165, Iowa 1974) mothers 7-month pregnancy by the hired hand at the time she filed for divorce, capping their 7-year affair, was evened out in the courts eyes by fathers evasiveness in court regarding his finances. They didnt even accuse the father of lying about his finances; only of being evasive.
Years of immorality that tear apart the childrens home was not considered nearly as immoral as a fathers reluctance to support that lifestyle through child support payments, or even as immoral as his simple inability to fully shoulder that burden. And of course a father who attempts to physically remove his children from that environment commits the ultimate crime, kidnapping.
3...and family bonds in general,.. All family relationships offer a barometer of, a window to, parental maturity. Parent/parent relationships, parent/child relationships, and even (though to a lesser extent) extended family relationships.
4... both before and during marriage dissolution proceedings,.. See note one. Only future family relationships concern us, says the judicial mindset. But the past record is needed to correctly interpret present behavior, without which we cannot hope to anticipate future behavior.
Courts expect a parent awarded physical care to support the other parents relationship with the child. (See note 6). But the most effective support may be more subtle than courts are willing to understand. Parent-child relationships battered by divorce may need more complicated treatment than merely saying Im OK, youre OK. It may require giving the child a spiritual understanding of the problem. (See note 9)
Ignoring the past record lets courts perceive the parent who is fighting to save the marriage, and who is teaching the children to reverence marriage bonds, as not supporting the other parents relationship with the children (see note #9). What could be more supportive of the other parents relationship with the children than struggling to keep the other parent in the home? Or on the other side, how can a court logically credit a parent with supporting the other parents relationship with the child who is trying to force the other parent out of the childrens home?
Ignoring the past record lets courts condemn parents for their difficulties keeping their balance, unaware of the excellent poise they commanded until 3 months ago, uncaring that they have just been shot, or might still be blocking bullets aimed at their children!
5...as evidence of commitment to the best interests of the child,.. The Iowa Supreme Court has acknowledged many times and in many ways that divorce is bad for children. Just two examples: ...joint custody may mitigate the loss of security and feelings of rejection normally accompanying dissolution by approximating as closely as possible the former family relationship. (Burham, 283 N.W.2d 269, 273. See also Bowen, 219 N.W.2d683, 688: Children are innocent victims of marital bankruptcy. Their welfare is paramount. And Harwell, 112 N.W.2d 868, 873)
Iowa law, which governs the courts, agrees: it defines the best interests of the children as the opportunity for maximum continuous physical and emotional contact possible with both parents (598.l)--which is certainly demolished by divorce!
6...evidence of support of the other parents relationship with the child,.. This phrase is, by law, a factor in deciding whether to award Joint Legal Custody (Joint Legal Custody basically means the parent who does not have physical custody at least has legal access to school, medical and police records, and supposedly an equal voice in important childrearing decisions). Iowa law (Iowa 598.41, 3e) says joint legal custody depends on Whether each parent can support the other parents relationship with the child.
The supreme court expanded on this in the Bolin case (336 N.W.2d at 447 (Iowa 1983): When one parents obduracy makes joint custody unworkable, the trial court in a modification proceeding may find the childs best interests require sole custody in the other parent....Even though the parents are not required to be friends, they owe it to the child to maintain an attitude of civility, act decently toward one another, and communicate openly with each other. One might well question the suitability as custodian of any parent unable to meet these minimum requirements. Thus the Supreme Court has already extended this factor to the consideration of physical care placement. And yet until phrases like this are added to the law, courts will continue ignoring evidence of parental abuse of the marriage bonds as irrelevant to determining which parent is most committed to the best interests of the children!
7... and evidence of relationship skills necessary to communicate between the parents regarding the childs needs. This phrase addresses the problem raised in the final paragraph of Statement of an Appellate Judge above. This phrase is, by law, another factor in deciding whether to award Joint Legal Custody. (Joint Legal Custody is described in note 6.) Iowa law 598.41, 3c says it depends on whether the parents can communicate with each other regarding the childs needs.
Unfortunately, despite the strong statements in the Bolin case quoted in note 6, Iowa courts allow the parent who is such a terrible communicator, that Joint Legal Custody cant possibly work, to remain the courts choice for sole custody! (Sole Custody means the other parent cant even have Joint Legal Custody.)
An example of a terrible communicator whose terrible communication skills were the reason her ex-husband was denied Joint Legal Custody: Gilda Jontz, Ct.App. Sept. 25, 1984. John was characterized as a model parent, but because of Gildas cruelty the court concluded there is clear and convincing evidence in this record that supports the denial of joint [legal] custody. In the Brandt case, Ct.App. Nov. 20, 1984, it was the father who got physical custody and the mother who was denied even Joint Legal Custody because of their communication problems, for which he appeared to deserve more of the blame. When an attorney got divorced, Bruce Foudree, Ct.App. Oct. 23, 1984, he even ARGUED in effect, see how hard I am to communicate with? That proves you would be wasting your time giving Joint Legal Custody to Linda, because I wont let it work! (His line of reasoning was not challenged, but he appeared so amiable to the judges that they made him share Joint Physical Care!)
Iowa is the only state that expressly favors Joint Legal Custody, yet does not take into consideration, in awarding sole custody or physical care, parental communication habits that do not allow it!
As of 1984, only 5 other states had a clause similar to Iowa 598.41, 3c (whether the parents can communicate with each other regarding the childs needs). Indiana had it because they do not even favor Joint Legal Custody except by parental agreement. Minnesota did not expressly favor JLC even WITH parental agreement, but merely offered it as an option. Colorado, Louisiana, and Michigan all had this clause, but they also have a clause that says the preferred sole custodian is the parent...more likely to allow the child...frequent and continuing contact with the residential parent. In other words, JLC can be denied in those three states, but the parent because of whom it was denied risks losing physical care as a result!
8These qualities shall be recognized as positive attributes of a physical care parent Judges shy away from evaluating parents by their morals, their money-handling maturity, or even their intelligence, as Statement of an Appellate Judge touched on, and as following citations (quotes from Appellate Court decisions) will treat in more detail. What does that leave?
Provision of Mundane, routine daily needs, (diapers, feeding, etc.) is the most critical parental criteria in the judgment of Iowa courts! (Leyda, 355 N.W.2d 865 Iowa 1984 and many, many others.)
Unfortunately, babysitters can warm bottles about as well as parents, so this standard fails to help courts distinguish between one parent and another, unless you just count the amount of time spent doing it. Which, basically, is how custody is determined in Iowa!
At least that is how it is determined when the mother is the parent who has spent the most hours with the children. If it is the father who stays home, however, the Iowa Court of Appeals is uncertain whether he would be a good role model for (the child), because in our society it is still accepted that the husband and father is the breadwinner and works and that is the role model that (the child) should have unless he is going to be socially crippled when he is an adult. (Peterson, Ia.Ct.App. Schlegel, P.J., Hayden, and Sackett, JJ., but decided en banc, Mar. 31, 1987) This opinion was literally made public on April Fools Day.
Dale Peterson was at home, by the way, because he lost his job at 3M, because he missed some overtime, because of having to deal with attorneys. The original out of court divorce settlement in June of 84 gave her custody but gave him visitation 55% of the time-so in practice he was the primary caretaker. (Calling her the primary caretaker, however, allowed the court to require him to pay her child support.) But a year later she filed for sole custody which eliminated his Joint Legal Custody and vastly reduced his visitation. It was three months after that that he lost his job. (His child support had been current until then.) Five months later the lower court reduced his visitation to every other weekend. The boys schedule changed from almost equal time between mom and dad to: get up before dawn to go to the babysitter while mom commutes to Des Moines to attend school. Go back to bed. Be taken to school. Be picked up by mom at 6PM unless she works tonight at the drug store. She works on Sunday, too, and up to 10 hours on Saturdays. She had said at the trial that she would soon be through with school and would have unlimited employment opportunity there in Knoxville, but shortly after the trial she moved to a yardless apartment by a highway in Minneapolis. No babysitter. A latchkey kid. 8 years old.
The Court of Appeals couldnt decide this one! It split 3 to 3, letting the lower court decision stand. The Supreme Court refused to consider the case, so it still stands. (The above account of the Peterson case is based on the background published in the Supreme Court decision, and on a public speech Dale Peterson gave at a Fathers Day rally around the Lincoln and Tad statue at the state capitol in 1987.)
In other words, if the mother has spent the most time with the children, the mother should probably get the children. But if the father has spent the most time with the children, and especially if he is not working, then the mother should get the children.
Routine daily needs are so exalted that even in cases where this standard cannot differentiate between the parents, differences by other standards important to the rest of the world are considered inconsequential.
An example: Hagen, 226 N.W.2d 13, oft quoted as a precedent. The opening summary: Where the wife provided adequately for the children, fact that wife had borne child out of wedlock subsequent to divorce and had lived with her current husband prior to marrying him, did not justify a change in custody. The father clearly showed at this modification hearing that he could provide a superior financial and moral environment. (His new wife had a good income too.) There was nothing to mitigate this edge, other than school reports that the children appeared to be developing normally under the mothers care, and the usual reluctance of courts to change custody once it is set.
Dismissing the financial environment as a separate subject from the best interests of the children, the court said the financial picture may be entitled to some consideration, but the first consideration of courts in cases of this kind is to keep an eye single to the best interests of the children. No one explained what is in the childrens interests that precludes consideration of their financial environment, or that is so vastly more important as to reduce finances to insignificance, if not irrelevance. Providing adequately, as defined by this case, does not require the best possible spiritual, moral, OR EVEN MATERIAL environment. Not even when the mothers moral problems were the main reason for her financial problems.
Even if routine daily needs could be defended as all an INFANT needs, how can you justify looking no deeper for mature relationship skills GROWING CHILDREN need on their way to adulthood? Yet courts actually have a rationale for ignoring parental character flaws that are likely to cause grave problems on down the road: Child custody cases are to be decided upon what the evidence actually reveals in each case, not upon what someone predicts it will show in many cases. (Tresnak, 297 N.W.2d 109, 112 Iowa l980)
Thus the Court of Appeals, (Lewis, Nov 20 or Dec 19, 1984, Ct. App. Oxberger, C.J., and Donielson and Sackett, JJ) quoting another case (Kramer, Iowa 297 N.W.2d 359, 361) that quoted this quote (In other words judges are very impressed by this reasoning), concluded There is no evidence in the record that the relationship [living with another man for a year before the divorce] is having a harmful effect on John Jrs emotional or moral welfare. Kellis lifestyle should not be considered a significant factor unless it adversely affects the child. What concrete evidence of emotional or moral harm does one look for in a 4-year-old child?! Wait till hes 14 if you want to see some evidence! Fat chance youll have THEN of getting the court to see its mistake and reverse custody!
When a factory dumps TCE in the river, do you wait till people fall over downstream before you fine the factory? Dont you evaluate the waste as it goes in, and fine according to the harm which you ANTICIPATE? Environmental law sets forth the common sense principle of endangerment, a principle needed by children as much as by rivers. (Ethyl Corp. v EPA, No. 722205 D.C.Cir., Jan 28, 1975) Danger is as real to a child as it is to a river. Children in jeopardy need as much consideration as groundwater.
In the Kramer case, (thats the one that quoted Tresnak, and which was quoted for 4year-old Johnny Lewis), the court ALMOST acknowledged its responsibility to consider a childs future needs, as it tried to resolve the Tresnak philosophy with the Harwell principle in footnote #1: Each (parent) has engaged in conduct which portends [foreshadows, warns of] harm to the children. The children do not yet seem to have been adversely affected. As usual, however, the future can be predicted based only on what has happened in the past. (P. 362)
The destruction wrought by immorality comes down like weed spores rather than like hailstones. To sentence children only by the most superficial, physical, immediately-manifesting criteria is to herd children like cattle. It is the kind of ruthless disregard of the higher human qualities that we have come to expect of tyrants in science fiction novels. If courts are to become warm and kind and human in their judgments regarding children, they simply must return to morality as a primary consideration.
Yet Courts already size up morals well! Courts always express grave concern and serious consideration of moral misconduct and adulterous relationships, (Dawson, 214 N.W.2d131, Iowa 1974 and most others).
What happens, then? Where do these fine judicial principles crash on the rocks of common sense application to real families? How can courts constantly complain about the immorality of a parent, and yet so often give physical care to that same parent? The answer is, that until the law encourages judges to value parental maturity, immorality has to outweigh the routine daily needs nonstandard more than it did in the Morton case (coming up next) before a mother will lose custody.
(Morton, 244 N.W.2d 819.) This mothers moral misconduct even disrupted her 3-year-old daughters sleep schedule, as she rode along while mom scooped the loop past midnight. The beds she slept in were not always familiar, as she was dragged along on moms overnight dates.
The only thing against dad was not trying hard enough to arrange visitation when mom got an unlisted number, and being behind in support payments. The court concluded, (dad) has not demonstrated a consistent and mature sense of responsibility. Being behind in child support, no matter how unavoidable, is Immorality from Hell to a judge.
We dont know what motivated the father, in this case, to be behind in his payments, if indeed it was for him a matter of choice. But generally speaking, judges need to understand that a man who has morals and loves his children, may not consider payments that facilitate the spiritual destruction of his children, to be responsible acts. Any judgment that supports such immorality is an immoral judgment. Perhaps judges feel that as representatives of a secular system they must attempt to make AMORAL judgments. But they should accept the fact that those of their judgments which are immoral will not have the respect of people who respect morals.
For courts hesitant to foist their morality on people, afraid their morality might be subjective, I offer this compromise: dont regard ALL immorality as a reduction of physical custodial ability, but just that immorality which extinguishes Family Bonds. Thats pretty objective. Divorce pretty objectively hurts children, as the court itself has said again and again. (See note #5.)
But until courts receive encouragement in the law, as Judge Oxberger explained, they are not going to step out on their own and start putting value on any higher qualities than the ability to provide those mundane, routine daily needs which we observe in animals. If Iowas children of divorce are to be awarded to parents by judicial criteria high enough to distinguish parents from animals, the law is going to have to say so.
9The court shall respect efforts of either parent, verbally or by example, in the instruction of the child, to constructively define and support the values of commitment, relationships, and communication. Courts now interpret the teaching of values the other parent does not live by as undermining the other parents relationship with the child, even when they are the same values the court affirms!
The Supreme Court said in Zabecki, June 18, 1986, p. 6: Taking the youngster (10 or 11 years old) to the boyfriends home...where he knows his mother is in bed with a man to whom she is not married...is not looked upon...as acceptable social conduct, nor is it considered appropriate parenting. A parents moral misconduct is a serious consideration in custody determinations.
But when dad apparently tried to teach his son the same values, the perceptive social worker said His willingness to foster a positive relationship between (mother and son) is dubious in view of his descriptions of (mom) as unstable and his statements that it is his duty to tell (his son) what his mother is doing is wrong.
And the court agreed, adding, Continued efforts to turn (his son) against his mother might well support an application by (mom) to secure sole custody. (That is, to even terminate dads Joint Legal Custody, which gives dad access to vital records concerning the child and some voice in important decisions concerning the child.)
This thinking was apparently a key reason dad lost the physical care award he had won in the Court of Appeals.
What new MORALITY does this court LEGISLATE, ordering that it is poor parenting to teach a child the difference between right and wrong even within the parameters of what the COURT ITSELF has declared to be right and wrong?! The court rules that THE CHILD SHALL NOT BE TAUGHT THE DIFFERENCE BETWEEN AND WRONG, and enforces it by taking custody away from a parent who tries to do so, and threatening further separation from the child if the parent persists!
Hate the sin, but love the sinner is a cardinal principle among Christians. This is the distinction that allows a Christian to love even his enemies. Without this distinction,, people, children especially, develop an unarticulated, vague aversion to the whole person. Only after understanding this distinction can a child fully love a parent who is doing wrong! It is unfortunate that courts side with confusion in this matter, forcing parents to play the heavy in this necessary education, as well as risking loss of custody.
Many of the phrases in this bill seem so common sense that they seem unnecessary. In fact, a strongest objection of legislators, to going to the trouble to codify this paragraph, is that it makes so much sense that it goes without saying. But these examples of judicial thinking, which are consistent with Justice Oxbergers statement, demonstrate the need. Even a principle so seemingly obvious as this last phrase, #9, dramatically confronts judicial habits of thinking and, made law, will allow responsible parents caught in divorce to breathe a sigh of relief.
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