December 21, 2009

A Father's Fight to Regain Custody after Abduction to Brazil

By BRADLEY BROOKS, Associated Press Writer Bradley Brooks, Associated Press

RIO DE JANEIRO – A New Jersey father has his hopes pinned on Brazil's chief justice, praying he will regain custody of his son after a five-year court battle in time to spend the holidays with the boy — in the United States.

David Goldman also said he would allow 9-year-old Sean's Brazilian relatives to visit with his son if he wins the case.

"It's my hope we'll have ... the holidays and New Year's and a very long, happy, healed life as father and son — at home," Goldman told The Associated Press in an exclusive interview Sunday. "My whole family and Sean's whole family have been waiting, agonizing for over five years to be reunited with their grandson, with their cousin, with their nephew, with my son."

Late Sunday, the Supreme Court said in an Internet statement that Chief Justice Gilmar Mendes would rule Monday on appeals made by Goldman and Brazil's attorney general seeking to lift a stay on a lower court's order that Sean be handed over to his father..

Goldman launched his case in U.S. and Brazilian courts after Sean was brought by his mother in 2004 to her native Brazil, where she then divorced Goldman and remarried. She died last year in childbirth, and the boy has lived with his stepfather since.

The lawyer for the boy's Brazilian family offered to negotiate a settlement, and the family also invited Goldman to spend Christmas with them. Goldman did not say whether he would accept the invitation if the case was not resolved this week.

Asked if Sean's Brazilian family would be able to visit the boy, Goldman said yes. "I will not do to them what they've done to Sean and me," he said.

The case has affected diplomatic ties between Brazil and the U.S., reaching talks between President Barack Obama and his Brazilian counterpart, Luiz Inacio Lula da Silva. A U.S. senator, reacting to the case, has blocked the renewal of a $2.75 billion trade deal that would lift tariffs on some Brazilian exports.

The U.S. State Department pressed for the boy to be returned. But a Brazilian Supreme Court justice on Thursday stayed a lower court decision ordering Sean to be turned over to his father.


The Brazilian family's lawyer, Sergio Tostes, told the AP he would like to see a negotiated settlement, saying he wanted to end the damage being done to Sean and to U.S.-Brazil relations.

"We're raising the white flag and saying: 'Let's get together, let's talk. We're the adults, we have responsibilities, so let's start to have a constructive conversation,'" Tostes said.

Goldman, however, was in no mood to negotiate.

"This isn't about a shared custody — I'm his dad, I'm his only parent," Goldman said. "This isn't a custody case — it's an abduction case."

After many disappointments, Goldman said he was taking nothing for granted.

"Until my son and I are on a plane together and those wheels are up, I'll be no less determined and no less hopeful for that day to come," he said.

He said he can't wait to make up for lost time.

"I have five years of love to give him, so he's going to get an extraordinary amount," Goldman said. "With love and patience, we will heal."

December 13, 2009

Children's Rights Council of Illinois

Michael Doherty of the Children's Rights Council of Illinois was kind enough to write me this weekend to say that his members have been following Illinois Divorce Law Blog. Here is an excellent article about shared parenting in which the Children's Rights Council was quoted:

Sharing Custody By: Sarah Rupp http://www.crisp-india.org/articles/147.html

"Do what's best for the kids."

Everyone says that during a divorce. But determining "what's best" often becomes a mud-slinging tug-of-war where no one wins - especially the children.

Shared parenting plans attempt to diffuse the fighting, putting the children first. Both parents get joint legal and physical custody. The terms "custodial parent" and "visiting parent" no longer apply.

Supporters say joint custody helps fight the "fading father" syndrome, keeping dads emotionally and financially involved.

It makes sense. In a perfect world, children should grow up in a loving, supportive environment with both parents. And in a perfect world, both parents should share equal responsibilities, eradicating "traditional" gender roles where the father's the sole breadwinner and the mother's the sole caregiver.

But in the real world of divorce, the rational, level-headed thinking that joint custody often requires doesn't always seem possible. And that's the biggest barrier.

It's not easy for an ex-husband to drop the kids off at the home of his former wife, who he says lives with a new boyfriend every other month. It's equally difficult for an ex-wife to encourage her kids to see their dad after he walked out on them. And one woman complains that shared parenting keeps her from moving up in her career, since she can't take her dream job across the country without giving up her son. She questions adhering to the rules when, in her opinion, the father ignores the children and doesn't pay any child support.

But David Luevy, an attorney and president of the Children's Rights Council, based in Washington D.C., says that, overall, shared parenting works better than sole custody arrangements.The Children's Rights Council suggests the following custody schedule:

Age Recommended contact with both parents
Under 1 year Part of each day
Ages 1 to 2 Every other day
Ages 2 to 5 Not more than two days w/out seeing parents
Ages 5 to 9 Alternate weeks; "off duty" parent getting a mid-week visitation
Over 9 Alternate weeks

Luevy says studies from the American Psychological Association show that children tend to fare better emotionally when both parents are involved, minimizing the lasting effects of divorce. And fathers who share custody are also more likely to pay child support.

Judith Seltzer at the University of Wisconsin in Madison says that after studying more than 13,000 divorced families, she found that joint custody keeps fathers more involved.
Joint Custody

Advantages:

* Both parents usually stay more involved.
* Child support is fully paid more often.
* Parents share more responsibilities and raise the child together.

Disadvantages:

* It doesn't work as well if the parents don't live in the same area.
* It's ineffective if the parents continue to fight. Children want their parents to get along and divorce is supposed to solve that problem.
* Kids may complain about feeling "unsettled" since they have to switch houses so often.
* It can be a difficult arrangement to uphold when the child becomes a teenager. Luevy says that parents need to be flexible and work with the child to work out a schedule.


The only time shared parenting doesn't work better than other custody arrangements is if the parents continue to fight, says Luevy. Arguing, crying and all the other emotional baggage that's hard to shed hurts the children more than anything else. (Of course, joint custody isn't possible if one of the parents is abusive or unfit in other ways.)


With that said, should fighting parents even attempt 50/50 shared parenting arrangements?

Luevy says yes.

"Even the most contentious parents can make joint custody work with highly structured visitation schedules," he says. "A flexible schedule will not work."

That's why the Children's Rights Council promotes using "drop off points," a neutral setting to transfer the kids, so that parents don't have to see or talk to each other.

"Community centers, churches and day cares make excellent neutral settings," he says.

Joint custody is now the preferred and presumed custody arrangement in 26 states and the District of Columbia. And more than one out of five divorces has shared parenting arrangements, says a 1997 report from the National Center for Health Statistics.

"Considering the fact that for hundreds and hundreds of years, sole custody has been the only acceptable custody arrangement, it's remarkable how quickly shared parenting has caught on," says Luevy.

December 1, 2009

Progress on Illinois Family Law Changes

I spoke with one of the committee leaders from the Illinois Legislature's Family Law Committee today on the progress being made to reform Illinois' antiquated custody and support statutes.

I have been writing for years on the need for Illinois to join the 21st century, and revise its Dissolution of Marriage Act to reflect statutes that exist in other states that create, for example, a presumption of joint legal and physical custody.

A legal presumption of joint custody acts to establish both parents as presumptively fit to share the parenting of their children. Presently in Illinois, mothers and fathers fight over who will "win" the custody of the child(ren). States that have enacted presumptive joint custody take the fight out of these cases. These states, of course, leave open the possibility that one parent may challenge the fitness of the other to have shared custody, but at the every least, unlike Illinois, these states do not presume that one parent is to be a winner, and the other a loser, in the custody war.

What I'm hearing is that there are changes being considered to the way child support will be calculated in Illinois, with both parent's incomes being factored into the support equation. I have not heard much regarding a wholesale change to the custody statutes, and trust that consideration is being given to amending, or tossing altogether, these wrongheaded custody statutes that have engendered so much litigation and bitterness in Illinois.

Good and loving parents should share the parenting of their children, post-divorce.