Appendix E: Paper on the Impact of Shared Parenting on Legal Presumptions and on the Issues of Child Abduction

FOR

NEW YORK STATE

SENATE STANDING COMMITTEE ON CHILDREN AND FAMILIES

SENATOR STEPHEN M. SALAND, CHAIRMAN

By Stewart Rein

on behalf of:

Families Need Fathers Ltd. United Kingdom,

Children’s Rights Council, New York

Children & Human Rights Council Europe

Introduction:

Good afternoon

Senator Saland, Honorable Senators, Esteemed Colleagues, guests, ladies and gentlemen.

I am honored with an invitation to come here today to give testimony and to offer what might be a fresh perspective on the impact of proposed legislative changes to New York State’s rather arcane and medieval custody laws as that change might be reflected against the background of the rather unacceptable high incidence of national and international parental abductions of children.

There is, of course, little doubt, in my experience, that custody laws that are inherently unjust and favor one parent against the rights of the other parent, do nothing other than foster a powerful and destructive climate of anger, pain and frustration which often climaxes in the abduction of children. See Dr. Williams, Dr. Jacobs

Moreover, the obvious causal relationship between the existing sole maternal custody decision making process of the family courts and parental abductions is also reflected in the rising figures of paternal estrangement which culminates in the disappearance of men and their refusal to support children from whom they are unjustifiably separated. This seems to be borne out by the government figures from the National Census correlating access, joint custody and visitation with child support payments. See US Census Figures

It has been my experience as an expert on The Hague Convention on the Civil Aspects of International Child Abductions and as an adviser to the British Government on Social policy issues, that there are distinctions which must be made in reference to the types of abduction which occur as an outgrowth of the destruction of the traditional family structure.

First, because of the extent gender bias of courts, not only here in New York State, but in a great many other states, as well as across the nations of the industrially advanced world, women believe they are empowered to take any action they feel compelled to take without fear of control or consequences. Women, in these circumstances are the predominant parties to Active Abductions of children often removing them to distant states and other countries. See Anomalies in Law Paper 1^st British Conference on The Hague Convention

The rather rare exception to this rule of thumb would be the few cases of Active removals by men to Middle Eastern Countries.

Second, fathers most frequently make Reactive Abductions of their children, largely caused by the systemic abrogation of their natural rights by former wives and girlfriends and by the courts who demonstrate little or no understanding of the complexity of the issues before them, and a shocking absence of common sense and simple human compassion.

In virtually every case that I have researched in England, France, Israel, Australia and other contracting states to the Convention, the same theme predominates.

Women abduct as a right and privilege, men do so only in desperation, when courts do not legitimize their rights and those of their children, leaving them as the disposable parent, and their children fatherless. This process has been referred to by the eminent American Psychiatrist John Jacobs as the “parentectomy” of fathers, cutting them out from the lives of their children.

Moreover, when it comes to the practical application and implementation of The Hague Convention, the anecdotal evidence supports the view that men are far less likely to recover their children from an act of maternal abduction then are women in the reverse circumstances. This in my view is but one of the repercussions of a permissive and pervasive atmosphere of gender bias which has its roots in local and national courts, expressed by the irrational over-identification of the child with its mother, to the exclusion of its psychological dependence on its father.

In the matter before this Committee today, the interests of children and their fathers are truly enjoined, crossing over into a mutual cry for justice. The question this committee must ask itself is this:

What society can call itself civilized when it acts to deprive one or more classifications of its citizens of their human rights, when it encourages, condones, and allows its official agencies, including its judiciary, to participate in the absolute destruction of the emotional lives of its future generations, when it acts to replace several centuries of gender bias against women with gender bias against men, when it practices and oversees the abolition of the rights of the child under both natural and international law?

When this Committee comes to reflect upon and ultimately to report and recommend it’s finding for a bill that would make joint physical custody presumptive, except in the most cogent and draconian circumstances, I think it imperative that it take into consideration the United Nations Convention on the Rights of the Child, that it consider it’s meaning and spirit to which we as State and US citizens are bound in law.

As deep as my concerns are in philosophical and moral terms, they are equally matched by the practical affect of an unparalleled threat to our societal well-being and development as a people.

This circumstance has been caused by a family law system run amok, which began by liberalizing divorce laws in a spirit of enlightened innocence and naiveté. Having seen those divorce rates skyrocket to 50 percent or more, with attendant secondary affect on children which is reflected in crime statistics, mental illness and suicide, teenage pregnancies, lack of educational opportunities, and by the ever increasing numbers of children coming into adulthood absent emotional balance and the means to be productive members of a literate society, it hides its head in the sand and perpetuates the damage. In this respect, I have submitted for your review a copy of my briefing Paper for the Right Honorable Michael Portillo who was then Chief Secretary to the British Treasury, which I believe, is relevant to this issue. See Real Costs to the Nation of Divorce and Fatherlessness

In Conclusion, if this State wishes to reduce the disastrous numbers of abductions taking place annually, if it desires to put an end to the “cycle of emotional and economic deprivation” it has been instrumental in creating, if it is anxious to redress the imbalance and injustice done to children and men, if it wants to take any perceived advantage out of initiating divorce actions, if it is interested in reducing the extraordinary amount of relitigation caused by sole parenting decisions, then it will take swift action NOW, to create a shared parenting Bill. See Ilfeld Study on Relitigation in Joint Custody Cases

And I really must add a cautionary note here, because it has been my sad experience in Europe, that where legislatures have attempted to incorporate such a bill into Family Law and were not careful and particular enough in its language, the various national courts have simply sidestepped the legislation, having in mind The British Children Act 1989 as an example.

The Bill must, to a large extent, circumscribe the discretionary powers of the family courts to prevent them from utilizing the wholly undefined and subjective doctrine of ‘The Best Interests of the Child’ as a vacant means to suppress the effect of legislation.

The Bill must also, incorporate a clause to open the courts to public scrutiny and provide for real accountability. The historical reasons for protecting the interests of children from publicity are no longer valid as there can be no realistic stigmata for a child in a custody dispute where one out of every two children at his or her school are in the same position. In Camera hearings have been used as a cloak to disguise from the public the fact that parental and children’s rights are being ignored. It simply will not do!

The Bill should attempt to create an objective criteria which would define Best Interests doctrine properly, and it might even be wise to include a Bill of Rights for children in keeping with the spirit of the relevant United Nations instruments. If the Committee is interested it might review some other briefing papers I have written on the subject.

I thank you for your time and look forward to the proposed legislation.

Thank you.