Dividing up money and assets after a marriage falls apart can be a mess, but it's often nothing compared with the agony and emotional torment of a custody battle -- dividing up the children. Money is, after all, only money ...It ought to be that the marriage itself guarantees that the parents will have joint custody of the children. But that is no longer true, and the state courts do not uphold custody agreements.
Engaged couples should enter into a new kind of arrangement, ... With a custody schedule outlined before marriage, children could have a single structure for their new lives from the moment their parents separate. They would know where they will be and when, they wouldn't have to witness their parents arguing about the details, and they might not be subjected to custody evaluations or, worse, be required to testify in court.
In my case, I had a written and signed custody agreement and parenting plan. Judge William Kelsay ignored it, and ordered a custody change based on nothing but his own personal prejudices. He did not even accept any testimony or evidence. After a custody trial proved that he acted in error, Commissioner Irwin H. Joseph ordered another change contrary to the outcome of the custody trial. It took another six months to prove that he was in error, and get back to what our agreement said in the first place.
I appreciate Miller's suggestion that parents try to anticipate parenting and child custody, but his comments are directed at the wrong people. It would take a change in the law to make marital agreements about children to be binding.
Here is how Judge Kelsay treats a fellow judge, in an unrelated matter:
In 2004, Santa Clara County Superior Court Judge William Danser was convicted of eight misdemeanors in connection with a major scandal at his court house. In 2005, the California Commission of Judicial Performance found Danser had engaged in willful misconduct 32 times, and the following year he was convicted of a felony for fixing parking tickets for his friends and members of two street gangs. However, fellow Superior Court Judge William Kelsay later reduced Danser's felony conviction to a misdemeanor on the basis that the felony would hinder Danser from finding new employment.I guess Kelsay figures that Danser can now legally answer No if a future employer asks him if he has ever been convicted of a felony. It seems dishonest to me.
1 comment:
You are absolutely correct that premarital agreements concerning custody of children who are not even born are not enforceable. However, this is not a reason to dismiss such agreements out of hand. In fact, all agreements about child custody can be dismissed on the grounds that they are not in the children's best interest, and that circumstances have changed. This statement also applies to court orders regarding child custody--they can be changed at any time that either party convinces a judge that there has been a change of circumstance and the current order is not in the children's best interest. On the other hand, any settlements and agreements must have some evidentiary value. One could presumably ask the mother to testify about why she initially supported shared physical custody and agreed not to move away with the children. Let's say the mother signed a statement before the marriage indicating that "Both parties believe it is immoral and wrong to move the children away from the other parent. Both parties believe the only moral and correct way to raise children after a divorce is with both parents having an equal amount of time with the children." If after a divorce the mother testifies that she now believes it is moral and appropriate to take a child from his father, one could examine why she has had this fundamental shift in belief about morality.
But the bigger issue is not how well the agreement could be enforced. The greatest value in such an agreement is that it would help to determine who you would be willing to marry. The taking of children from their fathers is a crime against humanity which this country currently accepts as normal. Fathers are not marching in the streets. They are too busy fighting for custody themselves and earning money for child support, and starting new families when the old families don't work out. Politicians are not talking about this criminal situation. So until the laws are changed, men need to do what they can to contractually change their personal situation, and to make sure they don't pick a bad and immoral woman. Would you marry a woman if she insisted on the right to take your children from you and move away? Of course not. The agreement itself could help a man discover whether a woman is fair-minded and a decent human being. If the woman even wants to negotiate about it, if she fusses about signing a document on shared custody at all, you shouldn't even marry her. If she says she can't be sure she wants to live close to you if you have children, to make shared physical custody possible, you really have to doubt whether she is serious about being committed to you. There are lots of woman out there. Some might worry that the discussion, and the open admission that the marriage might not work out, would so undermine trust that the parties might not get married. If the relationship is that fragile, it is probably best that you not marry the woman, because it is doubtful that the relationship could survive all of the challenges that marriage and having a family entail.
The truth is that we don't know exactly what the outcome of such agreements would be because people haven't tried them en mass (although there are anecdotes out there). There is another effect besides individual child custody determinations and selection of a mate. What effect would it have if every young man in America demanded such an agreement? It would sure start to change society's belief that it's okay to take children from their fathers.
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