Father's rights in Louisiana

The area of Louisiana father's rights (and also around the country) has prompted more comments about The Fix Is In article and more discussion in the Family Law Forum than any other family related subject. Feel free to add your own comments at the bottom of this article.

For a list of Louisiana deadbeat parents (it is a long, long, list) go here.
The Fix Is In
No Man Can Count On Justice In Family Court, Argues An Angry Professor

Trevor Gallahan's father is going to jail. He has not been charged with any crime. He is not behind in child support. He has not battered anyone. Yet Ken Gallahan could conceivably remain in jail for the rest of his life. What is his infraction? He does not have $15,000 to pay a lawyer he never hired. He was already jailed indefinitely when he could not pay a psychotherapist he also had not hired and was released only when his mother paid the fees.
Debtors' prisons were theoretically abolished long ago, but this does not stop family court judges from using the bench to shake down fathers who have done nothing wrong and funnel everything they have into the pockets of the court's cronies. In fact the looting and criminalization of fathers like Ken Gallahan is now routine in divorce courts.
Family courts are the arm of the state that routinely reaches farthest into the private lives of individuals and families, yet they are answerable to virtually no one. By their own assessment, according to Robert W. Page of the New Jersey Family Court, "the power of family court judges is almost unlimited." Others have commented on their vast and intrusive powers less charitably. Malcolm X once called family courts "modern slavery," and former Supreme Court Justice Abe Fortas termed them "kangaroo" courts. One father was told by a judicial investigator in New Jersey, "The provisions of the US Constitution do not apply in domestic relations cases, since they are determined in a court of equity rather than a court of law."
The plunder of fathers invariably begins with the taking of their children. Despite formal legal equality between parents, some 85-90% of custody awards go to mothers. This is despite the fact that it is usually the mother who seeks the divorce, and most often without grounds of wrongdoing by the father. In fact a mother can have a half-dozen previous divorces, she can commit adultery, she can level false charges, she can assault the father, in some cases she can even abuse the children, and none of these (except in extreme cases the last) has any bearing on a custody decision.
A mother who consults a divorce attorney today will be advised that her best strategy is simply to take the children and their effects and leave without warning. If she has no place to go, she will be told that by accusing the father of sexual or physical abuse (or even simply stating that she is "in fear") she can obtain a restraining order immediately forcing him out of the family home, often without so much as a hearing. She will also learn that not only can she not be punished for either of these actions, they cannot even be used against her in a custody decision. In fact they work so strongly in her favor that failure to apprise a female client of these options may be considered legal malpractice.
Mothers who abduct children and keep them from their fathers are routinely rewarded with immediate "temporary" custody. In fact this is almost never temporary. Once she has custody it cannot be changed without a lengthy and expensive court battle. The sooner and the longer she can establish herself as the sole caretaker the more difficult and costly it is to dislodge her. The more she cuts the children off from the father, alienates them from the father, slings false charges, and delays the proceedings, the more she makes the path of least resistance (and highest earnings) to leave her with sole custody. In short, the more belligerence she displays and the more litigation she creates, the more grateful the courts will be for the business she provides.
For a father the simple fact of his being a father is enough for him to be summoned to court, stripped of all decision-making rights over his children, ordered to stay away from them six days out of seven, and ordered to make child support payments that may amount to two-thirds or more of his income. Like Ken Gallahan, he can also be forced to pay almost any amount to lawyers and psychotherapists and summarily jailed if he is unwilling or unable.
What is happening to fathers in divorce courts is much more serious than unfair gender bias. An iron triangle of lawyers, judges, and women's groups is finding it increasingly easy - and lucrative - to simply throw fathers out of their families with no show of wrongdoing whatever and seize control of their children and everything they have. Family courts have in effect declared to the mothers of America: If you file for divorce we can take everything your husband has and divide it among ourselves, with the bulk of it going to you. We can take his children, his home, his income, his savings, and his inheritance and reduce him to beggary. And if he raises any objection we can throw him in jail without trial.
The astounding fact is that, with the exception of convicted criminals, no group today has fewer rights than fathers. Even accused criminals have the right to due process of law, to know the charges against them, to face their accusers, to a lawyer, and to a trial. A father can be deprived of his children, his home, his savings, his livelihood, his privacy, and his freedom without any of these constitutional protections. And not only a divorced father or a unmarried father: Any father at any time can find himself in court and in jail. Once a man has a child he forfeits his most important constitutional rights.
The words "divorce" and "custody" have become deceptively innocuous-sounding terms. We should remind ourselves that they involve bringing the coercive apparatus of the state - police, courts, and jails - into the home for use against family members. When we recall that those family members may not even be charged with any legal wrongdoing we can begin to grasp the full horror of what is taking place and how far the divorce machinery has been fashioned into an instrument of terror. As citizens of communist Eastern Europe once did, it is now fathers who live in fear of the "knock on the door."
So what can a father do to escape the fate of Ken Gallahan and millions like him? Very little, and divorce manuals encouraging fathers with advice on how to win custody are not doing them any favors. The latest wisdom informs fathers that the game is so rigged that their best hope of keeping their children is not to wait for their day in court but to adopt the techniques of mothers: If you think she is about to snatch, snatch first. "If you do not take action," writes author Robert Seidenberg, "your wife will. If this advice is sound, the custody industry has turned marriage into a "race to the trigger," to adopt the terms of nuclear deterrence replete with the pre-emptive strike: Whoever snatches first survives.
If you don't have the stomach for this, then you probably should not marry and not have children.

http://www.la-legal.com/modules/article/view.article.php?c4/16

Relocating children after divorce

One of the hardest issues to resolve after a divorce is what happens to the children when a custodial parent wants to, or has to, move? The courts are left in the position of having to decide between the fundamental right of an American to live wherever they choose with the rights of the children and of the ex-spouse to be near the children.

The La-Legal Family Law Forum has several threads dealing with the issue of moving out of state after a divorce or even during the divorce process. Take a look at the issue from the perspective of people who are actually facing the problem at our Family Law Forum and then search on the topics "move" or "moving."

In a recent Louisiana case, the conflicting rights of parents and children were spelled out together with a discussion as to how to arrive at a decision. It has to be admitted that there is no "solution" in these cases. That is, no matter what decision is made there will still be a negative impact on at least one of the parties. However, the Louisiana courts have at least come to some conclusions as to how the problem should be approached.

Children on the move after a divorce in LouisianaIn Hodges v. Hodges (827 So.2d 1271) decided in October of 2002, the court was faced with deciding how to handle the petition of a divorced father ("Dan") who wanted to move from Louisiana to Virginia with his children. The trial court denied his request which meant he would either have to move without the children or stay in Louisiana. In fact, the children had spent much of their time in Virginia and that is where the father's job was. There were many other factual issues in the case, including the mental stability of the mother ("Lily") and, apparently, a great deal of acrimony between the mother and father.

The Third Circuit Court of Appeals reversed the trial court and found that the father should have been allowed to move to Virginia with the children. One of the important features of this case is the way it spells out the existing law in Louisiana and the way the law should be applied. The court said:

This state's "relocation statute" requires a parent with primary custody to give notice to the non-domiciliary parent of the intent to relocate the primary residence of the minor child within their care. The non-domiciliary parent who is given adequate notice then has the opportunity to initiate a hearing wherein he or she can set before the court any objection to the relocation.

The relocating parent has the burden of proving: 1) the proposed relocation is in good faith; and 2) it is in the best interest of the child. La.R.S. 9:355.13. La.R.S. 9:355.12 sets forth the factors a court shall consider when determining a relocation issue. These factors are:

(1) The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate and with the non-relocating parent, siblings, and other significant persons in the child's life.

(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.

(3) The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.

(4) The child's preference, taking into consideration the age and maturity of the child.

(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating party.

(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.

(7) The reasons of each parent for seeking or opposing the relocation.

(8) Any other factors affecting the best interest of the child.

It is evident from our review of the record that Dan carried his burden of proof in both establishing that this proposed relocation is in good faith and that it is in the best interest of the children.

In this particular case, it was found that the trial judge did not properly analyze the facts from the perspective of 1) good faith, and 2) whether the move was in the best interest of the children. Once these two factor are determined, then the considerations contained in paragraphs (1) through (8) should be addressed. In Hodges, the appeals court then found from the evidence and testimony that each of the factors favored the father's petition to relocate.

As an example, when discussing factor (5) as to the conduct of the parties, the court said:

With regard to factor five, it is clear that Dan has attempted to cooperate with visitation. It is equally clear that Lily has been uncooperative and worked at thwarting visitation and has punished the children for her perception that they side with their father. Lily has assigned as error the trial court's determination that Dan is the parent most likely to encourage and continue the children's relationship with the other parent. As noted above, the record supports the trial court's determination.

http://www.la-legal.com/modules/article/view.article.php?c4/33

Grandparent visitation rights

Part two
Damien Cave continues with the article "My grandparents were pioneers in the battle for visitation rights."

It was like that from the start. Before my dad drove east, they offered non-stop advice, sent every baby accessory imaginable, regularly visited and kept every memento they could find. All the earliest pictures of me come from their camera.
Such hovering couldn't have helped my parents' marriage. But once my dad met Colette, my stepmother whom I've always called Mom, the focus shifted. My grandparents no longer sought to augment their daughter's efforts. They aimed to get as much time with me as possible, for my mother and for themselves.
"It was just an insurance policy," Grandpa told me when I asked last week why they sought visitation rights. "We didn't even know we could do it until someone told us. We went for them because up until that time, we had been lied to, often. We just wanted to ensure that we had the 'pleasure' [sarcasm is his] of spending time with you."
What they really feared was a disappearance, Grandma told me. They saw me often before the split, but once Dad took off, the visits became erratic. Dad had become a massage therapist and we moved often. He rarely told anyone where we'd gone.
In Saratoga, about a year after he came East, he filed for divorce, claiming abandonment and seeking full custody. At the time, my grandparents had hired a private investigator. He never found us, but a friend of my grandparents did. He was a lawyer who happened to be in court near Albany on the day of a hearing. He saw my mother's name on the docket, then told the judge that he knew the family. They'd never let Damien go without a fight, he said.
He was right. When the custody battles finally ended, I was 8. Dad said he didn't strongly oppose my grandparents' rights, largely because he didn't take them seriously, and he just wanted the divorce to be over. With my grandparents' help, my mother won broad rights as well, and that concerned him more.
Eventually, however, she drifted further into alcoholism and out of my life. She would often call and promise a visit, then never show, nor even call. Between ages 8 and 18, I saw her less than a dozen times. She's sober now and I see her more often, but in the meantime, my grandparents replaced her. In her absence, they called almost weekly, and made plans six months in advance. Every winter, the three of us would go skiing for a week, and every summer I visited them in Scarsdale. From there we either took a trip, such as to Niagara Falls, or did the New York thing -- museums, plays and Yankees games.
Their consistent presence was exactly what I needed. Combined with the domestic routine my stepmother brought to Dad and me, those visits made me feel like I belonged to a normal family, one that wouldn't disappear or drastically change without warning. Slowly, I outgrew my fears and shame. My emotional muscles relaxed, and I simply grew up. A family, I began to see, was a patchwork of support systems, not a couples-based, genetic flowchart.
My father and stepmother largely encouraged that feeling, and the visits. But tensions often arose over gifts. We lived a frugal, blue-collar life, so whenever I returned to our rundown apartment with the latest Atari game, or the hippest Nikes, they worried. "They're trying to buy your love," Dad would say.
Truth is, my grandparents -- both entrepreneurs who pulled themselves through the Depression -- didn't know any better. The gifts weren't as much about gaining my love as showing their own. Still, I was a brat who was poor but manipulative enough to know how cool those games or sneakers would make me. My dad and stepmother's fears that I would become a stinking materialist were not totally unwarranted.
Sadly though, those fears grew to epic proportions. The result was the cold-war battle I mentioned earlier. To this day, my father and stepmother are convinced that I've gone over to the dark side, fallen in love with a rich, Jewish, sophisticated snobbery, thus snubbing the Christian hard work that they've come to revere. When I asked my dad if he ever felt jealous of my relationship with my grandparents, he said, "No," but admitted that "money is control." The wealth I saw when visiting my grandparents influenced me more than it should have, he said.
By the same token, my grandfather has a hard time believing that my father has taught me anything worthwhile. Like "The Swede" of Philip Roth's "American Pastoral," he is cut from the cloth of a post-World War II era. He didn't understand why my parents got married in the first place, can't fathom the simple, religious life my father now lives and -- above all else -- finds it appalling that my father did not take on debt to help me pay for college.
Ultimately, these issues of class are not relevant to every story of grandparents' rights. But underlying them are several simple truths. First, and this should come as no surprise, grandparents' values often don't coincide with parents'. Second, because of such disparities, fights are inevitable, particularly when grandparents are given a legal foot in the door. And third, a parent-grandparent mix of influence creates a parent-grandparent child. This is not necessarily a boon to a child's development, but judges should have the freedom to decide the issue. Tying their hands, limiting their vision to parents alone, will only hurt the thousands of children who, like myself, need the stability that an older generation offers.
In the long run, that stability is what will last. Without my grandfather, I would never have learned the joy of classical music or the taste of a Brooklyn Danish. Without Grandma, I might never have come to appreciate modern art, nor have been told about the importance of birth control. Together they pushed me to study at Oxford, and trusted my decision to forego law school to become a writer.
But ultimately, their love and consistency have been their greatest gifts. Neither would have been possible without the habit of visits mandated by the courts. There have been problems, but also great moments of strength. In the words of my grandmother: "We're dysfunctional, but so is everyone else. What counts is that we're there for each other."

http://www.la-legal.com/modules/article/view.article.php?c4/39