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Information Supporting a Change in Family Law

A parent's right to “the companionship, care, custody and management of his or her children” is an interest “far more precious” than any property right.  May v Anderson, 345 U.S. 528, 533; 73 S.Ct. 840, 843, (1953).

“a (once) married father who is separated or divorced from a mother and is no longer living with his child” could not constitutionally be treated differently from a currently married father  living with his child.  Quilloin v. Walcott, 98 S.Ct.549; 434 U.S. 246, 255-56, (1978)

The U.S. Supreme Court regards parental rights as fundamental and protected by the First, Fifth, Ninth and Fourteenth Amendments. Doe v. Irwin, 441 F. Supp. 1247 1251 (D. Mich. 1977).

The routine and cavalier deprivation of parental rights takes place in the context of divorce where, during the pendency of litigation, one parent is routinely deprived of significant parental rights without any demonstration that a state interest exists-much less that there is a compelling state interest that cannot be achieved in any less restrictive way. In marked contrast to our current practice, treating parental rights as fundamental rights requires a presumption of joint legal and physical custody upon divorce and during the pendency of divorce litigation. The presumption may be overcome, but only by clear and convincing evidence that such an arrangement is harmful to the children. Doe v. Irwin, 441 F. Supp. 1247 1249 (D. Mich. 1977).  From: Hubin, D.C., 1999, Parental Rights and Due Process. The Journal of Law and Family Studies, V 1, N 2, pp. 123-150.

“More than a quarter of American children - nearly 17 million - do not live with their father.  Girls without a father in their life are two and a half times as likely to get pregnant and 53 percent are more likely to commit suicide.  Boys without a father in their life are 63 percent more likely to run away and 37 percent more likely to abuse drugs.  Both girls and boys are twice as likely to drop out of high school, twice as likely to end up in jail and nearly four times as likely to need help for emotional or behavioral problems”.  U.S. Department of Health and Human Services Press Release, March 26, 1999.
Children who live without contact with their biological father are 5 times more likely to live in poverty, more likely to bring weapons and drugs into the classroom,  twice as likely to commit crime, twice as likely to drop out of school, twice as likely to be abused, more likely to commit suicide, more than twice as likely to abuse alcohol or drugs, and more likely to become pregnant as teenagers.  The best predictor of crime in a community is the percentage of absent father households.  Seventy percent of U.S. citizens believe that the most significant family or social problem facing the U.S. is the physical absence of the father from the home, resulting in a lack of involvement of fathers in the rearing and development of children. There is a social need to reconnect children and fathers.  For the future of the United States and the future of our children, Congress, States and local communities should assist parents to become more actively involved in their children's lives.  Domininci & Bayh, 1999. Introduction to the Responsible Fatherhood Bill (S. 1364)
A two parent family is better even if parents are divorced and living apart. Glover & Steele, 1989. Comparing the effects on the child of post-divorce parenting arrangements.  Journal of Divorce. Vol 12, No. 2-3.
“The research reviewed supports the conclusion that joint custody is associated with certain favorable outcomes for children including father involvement, best interest of the child for adjustment outcomes, child support, reduced relitigation costs, and sometimes reduced parental conflict.  The need for improved policy to reduce the present adversarial approach that has resulted in primarily sole maternal custody, limited father involvement and maladjustment of both children and parents is critical.”  American Psychological Association, Report to the U.S. Commission on Child and Family Welfare, June 14, 1995.
Conflict between divorcing parents did not appear to worsen as a result of the increased demand for interparental cooperation and communication in joint legal or joint residential custody arrangements.  Pearson, J. & Thoennes, N., 1990.  Custody after Divorce: Demographic and attitudinal patterns, American Journal of Orthopsychiatry, Vol 60.
Higher father-child contact was associated with better adjustment, lower self-hate, and lower perceived rejection from the father.  Lower father-child contact was associated with poorer adjustment, higher self-hate and higher perceived rejection from the father.  Lerman, I.A., 1989.  Adjustment of latency age children in joint and single custody arrangements.  California School of Professional Psychology, San Diego.
Children who were able to maintain post-divorce relationships with both parents were better able to adjust to the divorce.  The continuing involvement of divorced fathers in families where mothers maintain physical custody has become recognized as an important mediating factor in the adjustment and well-being of children of divorce.  Frequent contact with the father is associated with positive adjustment of the children. Ahrons & Miller, American Journal of Orthopsychiatry, 1993.
When both parents share the social and economic responsibilities of childcare, children appear to adapt better tot their changed living arrangements than when the mothers bear these responsibilities alone. Seltzer, Journal of Marriage and the Family, 1991.
There is a significant correlation between joint physical custody awards and reduced divorce rates.  Kuhn, R. & Guidubaldi, J., 1997. Child Custody Policies and Divorce Rates in the U.S.. 11th Annual Conference of the Children's Rights Council.  October, 1997.  Washington, DC
87 % of Wisconsin juvenile delinquents are a product of father-absent homes. Wisconsin Department of Health and Social Services, 1994
Children take a long time to get over divorce.  Its most harmful and profound effects tend to show up as the children reach maturity and struggle to form their own adult relationships.  The slightest conflict sends them running.  They look for love in strange places.  Wallerstein, J. The Unexpected Legacy of Divorce, 2000, Hyperion.
Studies have shown that the amount of contact non-residential fathers have with their children diminishes over time due to social rules of father disengagement, lack of skills, societal ambivalence toward fatherhood, geographic mobility, remarriage, lack of access, psychological pain at not being able to see their children, inadequate financial resources, feeling the pain of the artificial nature of visitation, diminished parenting role, unequal custody power and litigation.  Nord, C.W. and Zill, N. (1996).  Non-Custodial Parents' Participation in Their Children's Lives: Evidence from the Survey of Income and Program Participation. Vol II: Synthesis of Literature.  Prepared for the Office of the Assistant Secretary for Planning and Evaluation, U.S. Department of Health and Human Services.
In summary, 30% of the children in the present study experienced a marked decrease in their academic performance following parental separation and this was evident three years later.  Access to both parents seemed to be the most protective factor, in that it was associated with better academic adjustment.  Moreover, data revealed that noncustodial parents (mostly fathers) were very influential in their children's development.  Bisnaire, L., Firestone, P. & Rynard, D. 1990.  Factors Associated with academic achievement in children following parental separation.  American Journal of Othopsychiatry, 60, (1), January.
These findings underscore the vulnerability of adolescents whose parents have divorced within the last five years.  The impact of the marital disruption was most pronounced among girls, who skipped school more frequently, reported more depressive behavior and described social support in more negative terms than did boys from recently disrupted homes.  Frost, A. & Pakiz, B. (1990).  The effects of marital disruption on adolescents: Time as a dynamic. American Journal of Orthopsychiatry, 60, (4), October.
Among teenage and adult populations of females, parental divorce has been associated with lower self-esteem, precocious sexual activity, greater delinquent-like behavior, and more difficulty establishing gratifying, lasting adult heterosexual relationships. It is especially intriguing to note that, in these studies, the parental divorce typically occurred years before any difficulties were observed.  "At the time of the marital separation, when (as is typical) father leaves [is evicted/forced from] the family home and becomes progressively less involved with his children over the ensuing years, it appears that young girls experience the emotional loss of father egocentrically as a rejection of them. While more common among preschool and early elementary school girls, we have observed this phenomenon clinically in later elementary school and young adolescent children. Here the continued lack of involvement is experienced as an ongoing rejection by him. Many girls attribute this rejection to their not being pretty enough, affectionate enough, athletic enough, or smart enough to please father and engage him in regular, frequent contacts.  Finally, girls whose parents divorce may grow up without the day-to-day experience of interacting with a man who is attentive, caring and loving. The continuous sense of being valued and loved as a female seems an especially key element in the development of the conviction that one is indeed femininely lovable. Without this regular source of nourishment, a girl's sense of being valued as a female does not seem to thrive. Kalter, N. 1987.  Long-Term Effects of Divorce on Children: A Developmental Vulnerability Model, University of Michigan, American Journal of Orthopsychiatry, 57(4), October.
Based on our clinical experience with a number of latency aged and adolescent girls whose parents divorced during their oedipal years, we postulate that particular coping patterns emerge in response to the absence of the father, which may complicate the consolidation of positive feminine identification in many female children, and is observable during the latency years. We illustrate both the existence of these phenomena and implications for treatment: intensified separation anxiety; denial and avoidance of feelings associated with loss of father; identification with the lost object; and object hunger for males." "In an earlier study by Kalter and Rembar at [Children's Psychiatric Hospital, University of Michigan], a sample of 144 child and adolescent patients, whose parents had divorced, presented [for evaluation and treatment] with three most commonly occurring problems: 63% Subjective psychological problem (defined as anxiety, sadness, pronounced moodiness, phobias, and depression); 56% Poor grades or grades substantially below ability and/or recent past performance; and 43% Aggression toward parents. Lohr, R., Mendell, A. & Riemer, B. 1989) Clinical Observations on Interferences of Early Father Absence in the Achievement of Femininity. Clinical Social Work Journal, V. 17, #4, Winter.
When the non-custodial parent is perceived as "lost," the young adult is more depressed. When a divorce occurs, the perception of the non-custodial father has been shown to change in a negative direction, while the perception of the mother remains relatively stable.  he continued involvement of the non-custodial parent in the child's life appears crucial in preventing an intense sense of loss in the child.  The importance of the relationship with the non-custodial parent may also have implications for the legal issues of custodial arrangements and visitation.  The results of this study indicate that arrangements where both parents are equally involved with the child are optimal. When this type of arrangement is not possible, the child's continued relationship with the non-custodial parent remains essential.  Drill, R.L., 1986.  Young Adult Children of Divorced Parents: Depression and the Perception of Loss.  Journal of Divorce, V.10, #1/2, Fall/Winter, Harvard University.
The results of the present study suggest that father loss through divorce is associated with diminished self-concepts in children... at least for this sample of children from the Midwestern United States. Parish, T.S., 1987. Children's Self Concepts: Are They Affected by Parental Divorce and Remarriage. Journal of Social Behavior and Personality, V 2, #4, 559-562.
It is ironic, and of some interest, that we have subjected joint custody to a level and intensity of scrutiny that was never directed toward the traditional post-divorce arrangement (sole legal and physical custody to the mother and two weekends each month of visiting to the father.) Developmental and relationship theory should have alerted the mental health field to the potential immediate and long range consequences for the child of only seeing a parent four days each month. And yet until recently, there was no particular challenge to this traditional post-divorce parenting arrangement, despite growing evidence that such post-divorce relationships were not sufficiently nurturing or stabilizing for many children and parents.  There is some evidence that in our well-meaning efforts to save children in the immediate post-separation period from anxiety, confusion, and the normative divorce-engendered conflict, we have set the stage in the longer run for the more ominous symptoms of anger, depression, and a deep sense of loss by depriving the child of the opportunity to maintain a full relationship with each parent.  Kelly, J. 1991.  Examining Resistance to Joint Custody. Joint Custody and Shared Parenting, second edition, Guilford Press.
"Although the dispute is symbolized by a 'versus' which signifies two adverse parties at opposite poles of a line, there is in fact a third party whose interests and rights make of the line a triangle. That person, the child who is not an official party to the lawsuit but whose well-being is in the eye of the controversy, has a right to shared parenting when both are equally suited to provide it.   Inherent in the express public policy is a recognition of the child's right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents' wisdom, judgment and experience.  The child does not forfeit these rights when the parents divorce.” Presiding Judge Dorothy T. Beasley, of the Georgia Court of Appeals, “In the Interest of A.R.B, a Child, July 2, 1993.
The benefits of maintaining contact with both parents exceed any special need for relationships with male or female parents. The empirical literature also shows that infants and toddlers need regular interaction with both of their parents to foster and maintain their attachments...In addition, it is necessary for the interactions with both parents to occur in a variety of contexts (feeding, playing, diapering, soothing, putting to bed, etc.) to ensure that the relationships are consolidated and strengthened. In general, relationships with parents play a crucial role in shaping children's social, emotional, personal, and cognitive development, and there is a substantial literature documenting the adverse effects of disrupted parent-child relationships on children's development and adjustment. There is substantial evidence that children are more likely to attain their psychological potential when they are able to develop and maintain meaningful relationships with both of their parents, whether the two parents live together or not.  Very large research literatures now document the adverse effects of severed father-child relationships as well as the positive contributions that fathers make to their children's research. To be responsive to the infant's psychological needs, the parenting schedules adopted for children younger than 2 or 3 must involve more transitions, rather than fewer, to ensure the continuity of both relationships and the child's security and comfort during a time of great change.  The ideal situation is one in which infants and toddlers have opportunities to interact with both parents every day or every other day in a variety of functional contexts (feeding, play, discipline, basic care, limit setting, putting to bed, etc.). Unfortunately, the concept of location-engendered stability (one home, one bed) has been incorrectly overemphasized for infants and toddlers, without due consideration for the greater significance to the child of the emotional, social, and cognitive contributions of both parent-child relationship.  Living in one location (geographic stability) ensures only one type of stability.  Stability is also created for infants (and older children) by the predictable comings and goings of both parents, regular feeding and sleeping schedules, consistent and appropriate care, and affection and acceptance. There is absolutely no evidence that children's psychological adjustment or the relationship between children and their parents are harmed when children spend overnight periods with their other parents.  Indeed, there is substantial evidence regarding the benefits of these regular experiences.  Kelly, J.B. & Lamb, M.E., 2000.  Using child development research to make appropriate custody and access decisions for young children.  Family and Conciliation Courts Review.  Vol 38  Issue: 3 : 297-311, Sage Publications.  


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