A Child's Right to Both Parents - Stop Absolute Judicial Discretion in Family Courts

This issue—a child’s right to both parents—is at the core of ongoing debates in family law, especially concerning custody decisions in family courts. The argument for protecting a child’s relationship with both parents is based on the belief that both parents are essential to a child's well-being and development. At the same time, the concern about absolute judicial discretion speaks to the frustration many parents feel when they perceive the court’s decisions as inconsistent, biased, or overly influenced by the judge’s personal views.

The Child's Right to Both Parents

The idea that a child has a right to maintain a meaningful relationship with both parents is rooted in both legal principles and psychological research. Studies have shown that children who maintain strong relationships with both parents after divorce or separation are more likely to experience better emotional, social, and psychological outcomes. It’s also supported by the idea that children are best served when both parents are actively involved in their upbringing, provided there is no significant danger to the child's safety or well-being (e.g., in cases of abuse or neglect).

Many countries, including the United States, have adopted laws or guidelines that emphasize shared parenting or joint custody as the default arrangement, aiming to give both parents a meaningful role in the child’s life. Yet, in practice, family courts often lean toward one parent having primary custody, while the other may have visitation rights or some form of partial custody.

Judicial Discretion in Family Court

Judicial discretion refers to the power a judge has to make decisions based on their interpretation of the law and the circumstances of a particular case. Family courts have wide discretion in determining custody arrangements because they are tasked with determining the best interests of the child. In theory, this allows judges to consider the unique facts of each case, such as the parents’ relationship with the child, the child's preferences, the parents’ ability to provide care, and the child's safety.

However, when judicial discretion is absolute or exercised without proper guidelines or oversight, it can lead to inconsistent, biased, or unfair outcomes. Some of the concerns regarding judicial discretion in family courts include:

1. Inconsistent Rulings: Different judges may make radically different decisions in similar cases. For example, one judge might grant shared custody, while another judge, faced with similar circumstances, may grant one parent full custody with minimal visitation for the other parent.

2. Bias: There is concern about gender bias, with some parents, particularly fathers, feeling that family courts disproportionately favor mothers in custody decisions. Similarly, judges may have personal biases about the roles of mothers and fathers, or about certain parenting styles, that can skew their decisions.

3. Lack of Transparency: Family court decisions are often made behind closed doors, and the reasoning behind a judge’s decision may not be fully explained or available for public scrutiny. This lack of transparency can lead to feelings of injustice or mistrust in the system.

4. Parental Alienation: In cases where one parent attempts to alienate the child from the other parent (through manipulation, false accusations, or emotional manipulation), family courts may be slow to intervene or may make decisions that inadvertently enable the alienating parent to succeed in undermining the relationship between the child and the other parent.

5. Limited Accountability: Some critics argue that family court judges are not held accountable for their decisions, particularly when those decisions have long-lasting, negative effects on the child or parent. Since many custody cases are decided at the trial level without a thorough review, there can be a sense that judges are not always held responsible for biased or arbitrary decisions.

Reforming Judicial Discretion in Family Courts

The call to stop absolute judicial discretion and ensure more consistent, transparent, and fair custody decisions is rooted in a desire to make the family law system more predictable and equitable. Here are some ideas that have been proposed or are already being implemented in some places to address concerns about judicial discretion in family courts:

1. Shared Custody as the Presumed Standard: One reform that many advocates support is making shared parenting or joint custody the default in all custody cases unless there is a compelling reason not to. This would reduce the variability in decisions and send a clear message that both parents are expected to remain actively involved in the child's life post-divorce or separation. In cases where joint custody is not feasible due to safety concerns or extreme conflict, there could be specific criteria for explaining why this is not in the child’s best interests.

2. Clear Guidelines for Judges: Some jurisdictions have implemented guidelines or parenting time models to give judges clearer direction in making custody decisions. These guidelines may include recommendations for equal parenting time or specific criteria for determining which parent should have primary custody. The idea is to reduce the judge’s ability to make arbitrary decisions and ensure consistency across cases.

3. Accountability and Oversight: Advocates argue for more oversight of family court decisions to ensure fairness. This could involve the creation of independent bodies to review custody decisions, particularly in cases where there is a pattern of bias or inconsistency. Judges could also be required to provide more detailed reasoning for their decisions, especially when they deviate from the default joint custody model. This transparency could help ensure that parents are not left feeling that their rights are being arbitrarily stripped away.

4. Mandatory Training for Family Court Judges: One proposed reform is to require judges to undergo mandatory training on issues related to family dynamics, child development, domestic violence, and parental alienation. This would help ensure that judges have a deep understanding of the impact their decisions can have on children and parents, and that they make decisions with the child’s long-term welfare in mind. It would also help mitigate the risk of bias.

5. Parental Alienation Prevention: Family courts are increasingly recognizing the issue of parental alienation, where one parent manipulates the child to reject or avoid the other parent. Legal reforms could be made to provide more protection for the targeted parent in such situations, including creating procedures for identifying and addressing alienation more effectively.

6. Mediation and Conflict Resolution: Family courts could prioritize mediation and conflict-resolution processes over adversarial litigation. This approach would allow parents to work together to create parenting plans that are in the best interests of the child, while reducing the animosity that often accompanies court battles. In cases of high conflict, courts could require parents to undergo co-parenting counseling or parenting coordination.

The Importance of Protecting Parental Rights

The fundamental right of parents to raise their children is enshrined in legal frameworks around the world, and protecting the relationship between both parents and their children is essential for a child’s healthy development. However, when courts are given unchecked discretion, the risk is that one parent’s rights could be disproportionately diminished, leaving the child with limited access to a parent who may have just as much to offer in terms of care, love, and stability.

Reforming family law to ensure more predictable, consistent, and fair outcomes in custody disputes could help restore trust in the system. This is especially critical when it comes to fostering positive, long-term relationships between children and both parents, which, in the vast majority of cases, is in the child’s best interest.

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Final Thoughts

The notion of stopping "absolute judicial discretion" reflects a desire for a more transparent, consistent, and fair family court system—one that prioritizes the child's right to both parents while holding the legal system accountable. By advocating for shared custody as a presumptive standard, clearer guidelines for judges, and mechanisms for addressing parental alienation, reforms could go a long way toward ensuring that parents' fundamental rights to maintain meaningful relationships with their children are protected, and that children benefit from having both parents involved in their lives.

What are your thoughts on these potential reforms? Do you think shared custody should be the default, or is there a more nuanced approach that would better address the diversity of family situations?

How many broken fathers will it take before “we” reform Family Law?

"As a woman, as well a mental health professional, a human rights advocate and the mother of a son, I refuse to be silenced about the overlooked side of social justice. As someone who used to identify as being a progressive, I believe it is time for all social justice-minded activists, professionals, and citizens to ask how they can call themselves champions of human rights if they are overlooking very real human rights issues, ignoring human suffering in half of the population, and inadvertently preventing the healing of our human family. It is time to allow a fearless and honest critique of feminist theory, especially that which minimizes sexual and domestic violence against males, minimizes violence by women, and advocates for anything other than compassion and equality in healing these tragedies. To do anything less is colluding with institutional and socially-sanctioned sexism." ~  

A Critique of Feminism: A humanitarian woman won’t be silenced about sexual and domestic violence. 

Judge Manno-Schurr is my 8 year-old Paternity – Family Court Case presiding Judge. The 5th Judge to preside over my simple case; an unwed…Read More

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COPY THE FOLLOWING:  Dear Honorable Chief Judge Bertila Soto:  I am disturbed about the injustice perpetrated on Mr. David inguanzo. I am further disturbed about the anger directed at this innocent man by Circuit Court Judge Valerie Manno-Schurr, captured…Read More

Help find a Qualified Monitor (LMFT, LCSW, or Dr. of Psych, etc.) to facilitate “Supervised Visitation” with his daughter Zoraya. 

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An Alienated Child and Targeted Parent are desperately trying to maintain a meaningful relationship

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Leon Koziol.Com

TO:          ALL  PARENTING/CHILD  ADVOCATES

FROM:       PARENTING  RIGHTS  INSTITUTE AND NATIONAL  LEAGUE  OF  FATHERS,  INC.

RE:           PARENTING  RIGHTS  CONVENTION  REPORT LITIGATION  UPDATE

As promised at our national Parenting Rights Convention held in upstate New York on April 15-17, 2011, a Report has now been completed for review by attendees, supporters and various government agencies. Issued in the form of a formal “Complaint” filed this morning with the New York Commission on Judicial Conduct, copies are being furnished to the U.S. Justice Department, United Nations, legislative leaders and various human rights organizations. We expect to complete this process on June 17, 2011 in Washington D.C. (Father’s Day weekend).

A copy of the 25 page “Complaint” is available for viewing atwww.leonkoziol.com. Copies are also being sent to our followers. It incorporates the testimony and contributions of those who attended the April convention. However, names and personal details…

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