Family Law

Guest Post :: Is Family Court Fair to Both Parents?

By J. Benjamin Stevens

The following Guest Post is from Elias Cortez:

Family court is responsible for delegating the custody of children in divorce cases. There is physical custody and legal custody. These two types of custody are then divided into sole or joint. Physical custody pertains to living and visitation. Visitations can be supervised if the court deems the other parent unfit to be left alone with the child or children. With sole custody, the other parent has a right to visitation whereas joint means that the child lives with both parents.

Legal custody refers to having the right to make decisions pertaining to the upbringing of the child. These decisions include religion, school, and medical care. In either case, joint custody is common with arrangements such as spending weekends with the first parents and weekdays with the second, or alternating six month periods with each parent, or months, or years, or holidays. Sole custody is awarded when the other parent has been deemed by the court to be unfit in terms of having a new and unfit partner, alcohol dependency, charges of child abuse, charges of neglect, or drug dependency.

The American Judges Foundation has reported that seventy percent of challenges cases in family court have ended with battering parents receiving sole custody of their children because they were able to display their victim as unfit for custody. There have been cases awarding custody of a child to their abusive parents despite evidence suggesting they were unfit. There is research relating domestic violence to child sexual abuse, but this evidence does nothing to fairly provide custody of children during divorce cases. This has not changed over the past two decades.

It was a pilot study during the 1990s conducted by the Mothers of Lost Children as well as the California Protective Parent Association which found that 54% of cases placed the mother who was non-abusing under supervised custody while 91% of cases awarded partial or full custody to parents whom the children identifies as the sexual abuse perpetrators. Popular theories attribute this to the fact that judges are not as swayed by testimonies of battered women and their children, but by parental alienation syndrome. This is described as the process of one parent making negative comments about the other in order to alienate the child.

Despite evidence of domestic violence or sexual abuse, many court cases place the child with the abuser, as the judge discounts and ignore the testimony or abuse evidence. This has become especially hurtful to the woman who is then facing time in jail for the abuse of the father, or forced to endure embarrassing and limiting supervised visitations with their children. While joint custodies are frequent, this does not make child custody fair.

Considering the handful of cases that have awarded child custody to the abusive parent, joint custody between both parents does not ensure the safety of the child nor does it truly give fair custody to each party with court issues supervision often made necessary. While the legal system is not perfect, the flaws are being rectified one day at a time thanks to groups such as the Mothers of Lost Children working effortlessly to provide striking data and research which will soon change the fairness of family court.

About The Author: Elias Cortez is a freelance writer and the editor of www.topnetbookpicks.com - a website which provides detailed reviews and information for popular netbook models such as the asus eee pc and the hp mini netbook series. You can learn more about him and the world of netbooks at his website.

Full post as published by SC Family Law Blog on March 14, 2011 (boomark / email).