The responsibility of a legislator in the context of minor children’s residence

The responsibility of a legislator in determining the residence of minor children

(version française ici)

August 22, 2010

“They have not enough bread? But then, let them eat cake “Marie Antoinette would have said in speaking of the demands of the people. This sentence, described in a book for children “Pünktchen und Anton” (1931) by its author, Erich Kaestner, has never been historically verified. There was indeed no procedure in which a scribe would note all the words of the queen.

True or not, this sentence highlights the gap that may exist between a sovereign or high dignitary responsible for the fate of the people and the truth, the suffering experienced by the same people. If it were true, the sentence would have indicated a total ignorance of the suffering, the sad truth of the people. A guilty ignorance since it would have been necessary for such a person to recognize and acknowledge that suffering, the truth. Such a sentence, whether true or not, would allegedly have cost the sovereign’s head and was the catalyst in bringing about what is now the French Republic.

Does it amuse me to bring you this anecdote from history and if not why do I do it? I never intended to improvise the role of de la Fontaine but mean to urge you to think and to explain to you the link with my reality today. Mine and my children’s. Also that of my ex-husband who still lives in the fairytale that he invented for himself and tries to make others believe. The fairytale of the wicked witch who would do anything to remove from him Hansel and Gretel. My nose may be somewhat hooked, but the similarity ends there.

Instead of fairytales and risky anecdotes, let me give you my reality. Facts. Findings. Pray, please take the time to read and let me know what you think. Statistical analysis of a public and external opinion holds a particular interest for me that I now try to look at this matter critically from the outside. But while recounting these facts, please allow me to keep my heart, my mother’s heart because it is difficult for me to rip it out again and tell my truth without any emotion.

Throughout history, rulers have had different attitudes about the responsibility that was theirs. As far as I am concerned, I always felt that it is the responsibility of a sovereign or high dignitary – in the exercise of the responsibility entrusted to him – to know the facts, to analyze all of them, not to stop at the form, the letter of the law but to use the spirit of the law, the intrinsic substance of the law before making a decision.

If we stop at a superficial inspection of a matter, the premises of which we know nothing, it is difficult to offer a fair judgment. Justice. A very heavy task that requires that we take every precaution, that we go beyond the sterile framework supplied to us by the law (general rules, legal considerations) to try to go further into the reasoning, to strive to make a full and complete analysis of the situation. In performing such analysis, it is very important to decouple any bias that one may have against any person, any instinctive categorization that may colour one’s view from the objective analysis of the situation.

To try a case means to be completely familiar with all aspects of the present situation, to weigh the pros and cons of various possible changes in the present situation in accordance with the analysis of dichotomous effects of two diverging decisions before one makes that decision. A static examination of what has been, what seems to have been agreed, what is generally done in such a case, what we personally think is the best choice from a generic point of view absolutely does not give the best results. Far from that, this can sometimes even lead to catastrophic results.

There are today specific criteria determined by law in the review of the situation to guide a judge in the choice when determining the residence of children. This choice that is easy when parents get along well, becomes very difficult when there is discord. The question is somewhat easier when the children are of age (case 1), they simply decide where they want to live and nobody can erode that right. The problem is a thousand times more difficult when children are minors and incapable of discernment (case 2). When they are, instead, capable of discernment while still remaining minor in the face of the law (case 3), the problem is not as acute, but remains a minefield. The legislator has therefore put in place rules which a judge may refer to for help in this difficult task of making a fair decision. This decision would take into account the critical review of a series of elements in the middle of a parental disagreement where, inevitably, each will only support his own theory and accuse the other of being wrong, while trying to evidence this claim.

As far as I am concerned, I will only consider case three that applies to my situation. So what is currently provided by the legislator? I refer you to a website designed to inform people like me who do not know their rights and are, in retrospect, forced to learn about the reasons for decisions that they are handed and do not correspond to what they could expect following human logic or the laws of human nature (the whole article, unfortunately only available in French, can be examined at http://www.avocatsdivorce.com/garde-des-enfants.php ) :

“The choice of residence

For the residence of the children, parents can agree on the location of such residence. Only in cases of disagreement or if the interests of the child are not preserved, the judge decides on the issue.

The judge then decides to award custody of the child to one of the parents, the other retaining the right to monitor the maintenance and education of the children. A visitation and accommodation may be denied only for serious reasons (alcoholism and smoking, parent’s incarceration).

The judge may also determine the residence of the child alternately at the domicile of either parent. ”

The criteria used by the judge

The judge takes into account not only the agreements made between spouses, information gathered by the social investigation and counter-investigation that he may have ordered for but also the ability of each parent to assume his duties and respect the rights of the other. The judge considers, of course, the feelings expressed by the children themselves. Indeed, the minor may be heard by the judge in any proceedings concerning him/her. There is no age requirement but a concept of discernment based on several parameters: age, maturity, level of understanding. When the request comes from the minor himself, his hearing may be waived only by a specially motivated decision from the judge. The child can be heard alone or with a person of his/her choice. He/she can also be assisted by a lawyer. The judge is not bound by the opinion of the child. ”

In applying these generic principles to my specific case, the following items were considered:

1)     An agreement that the other party would like to make believe that it was intended to give custody to the father in 2010. I said in the hearing to the judge that this had been and remained a manipulation of the truth since this agreement speaks only of the children returning to their home, the family home in 2010, i.e. at the scheduled end of my expatriation in Dubai. I also point out that I was forced to sign the agreement and I had no choice, under the pressure of time and not knowing how it would be interpreted and manipulated later on. I emphasize how important it was for me to take the children with me, how I have always argued and sustained that I would never have relinquished the custody of the children to their father because he had neither the desire nor even the actual material time to take care of his children. Such failure to do so had been proven by the actual transitory attempts during my to and fro between Europe and Dubai for my business trips

For the sake of clarity, here are the facts: My husband, senior partner in a large international law firm, therefore fully aware of the meanders and mazes of law, prepared and forced me to sign on July 13, 2007 this agreement while I was preparing my suitcases to go to Dubai on  July 14, 2007 as attested by my employer’s statement. When would I have had the material time to consult a lawyer to verify the possible repercussions of such an agreement? I may have not taken the bar exam like my husband, but I know of a principle that should apply everywhere: When two parties sign a contract that binds them ultimately and that the weaker party (the one who knows less his/her rights) is manipulated by ignorance of his/her rights or constrained by use of a very strong pressure forcing the signature of the contract, such contract should be declared null and void. In my case, this agreement should have simply been discarded because all the premises of undue influence are there: lack of time to get information, ignorance of the implications of this document, careful selection and very clever wording by my husband in order to orient later the understanding of it, a higher knowledge of the party forcing the agreement on the other of the laws and how to manipulate them, etc..

Why was such an agreement validated, although visibly the result of a manipulation, given that the constant and proven intent of the mother as reflected in all the other documents including those filed by the defendant is never to entrust custody to this father who was never present in the past and who does not know and never had time to care for her three children?

Is there review and if there was, how was the review according to this criterion?

You know the decision: custody awarded to the father

2)     Investigation and counter-investigation from a social point of view that a judge could order for: this is not really necessary, because we’re not talking about blatant child abuse in this case but only of negligence.

However, it has to be noted that the last of the siblings suffered from hyperactivity in a diminished form of the acute illness. He needs constant monitoring and attention, needs to be preserved from sudden changes and from emotional duress. The older children are in the difficult phase of preadolescence / adolescence.

In the documents in support of the case, there is a letter from the child psychologist who has been following for some time the last of the siblings. This letter clearly shows the negative effect of summer holidays at his father’s house as this latter does not at all take the necessary precautions to maintain the balance of this child with special needs. The letter also indicates the result of interviews with the older siblings regarding their father’s decision to submit them to a return to France under his care and recommends a continuation of custody with the mother.

This interview of the older siblings, requested by me, was to determine whether they were taking the decision independently and were not, unbeknownst to me, under any kind of emotional pressure. It was designed to determine whether they were truly mature as I personally believed them to be, could objectively look at their situation and decide for themselves, in an independent way, what direction they wanted to give their lives.

Why is this recommendation not at all taken into account in the case? If one had doubts, it would have been useful and normal to ask for a second opinion whether requested by the other party or directly by the judge himself. Nothing done on that side.

Is there review and if there was, how was the review according to this criterion?

You know the decision: custody awarded to the father

3)     « The ability of each parent to assume his duties »

This point must be considered carefully. What does this mean, the ability to assume his duties?

It would seem that this is construed as the ability to pay for tuition in a private school, driving them from one place to another, having money to put them in the canteen every day in the private school and condemning them in advance (even before the custody is actually granted) to stay after school until late within the premises of the private school waiting for the father to fetch them after dusk.

The ability to perform his duties, would be the ability for a partner in a law firm to hurry in running back and forth between the little one’s school in France and the private school in Geneva where the older siblings would be. What time would school have to begin for the father – other than being ubiquitous – to be able to arrive at the same time before the bell rings on both sides?

It seems to be accepted that a senior partner in a major international law firm, who on top of that writes books on a specific topic of law, articles, is a consultant with a Swiss branch of the government is able “to assume his duties”.

Hang on a minute. Let’s look again … Did you mean the ability to perform the duties of a parent or is it the ability of being a good lawyer that we are talking about? We are speaking about practical time and efforts dedicated to children are we not and not just about the ability to give money? Or are we? I wonder…

As for me, I think that performing my duties is what I always did: give time to my children, keep them all in the same school, leaving them in a French schooling system that they have always known, allow them to learn other languages that are those of their mother (English and Arabic), return earlier from work and, if necessary – as I did by resigning – reschedule my working hours further to constant discussion with the child psychologist and realizing that the little one needs more attention, accept being paid less and working as self employed in order to give more time to my children.

Have, me, their mother, lunch with them at home. Allow them in the afternoon to play with the dog to swing in the garden, do homework with them and fill the empty instants in between with a thousand games.

Take the time, me, the mother, to eat a healthy meal in the evening with them. Have time to read stories to the little one before he falls asleep. Then spend time with the two older siblings to discuss problems they might encounter at school or just take the time to watch a movie together until it is their time to sleep.

The father claims to have taken good care in the past of his children during the professionally motivated absences of the mother. Absences that could not be avoided as she was forced to work

The children testify that the father had not dealt adequately with them during this transitional period – that was very small in the life history of this family. The business travels for a total of 163 days between February 2006 and July 2007. Let’s remind that the older siblings were born in 1997 and 1999 and that their mother had sacrificed everything for them, including her career, during all the years before 2005 when she finally resumed interest in a real career – noting that her marriage was sinking despite all her best efforts – realizing that she would have to be able, in the near future, to provide for her children on her own.

Was there a review according to this criterion made with the approach that one should have had? What conclusions should we draw from the side-by-side analytic review of these two situations? Both parents offer different versions as to what the review according to this criterion should be. Who to believe? A third party? Maybe the persons whose lives are in stake themselves: the children? Is the testimony of the children taken into account?

Is there review and if there was, how was the review according to this criterion?

You know the decision: custody awarded to the father

4)     « respect the rights of the other party »

I buy my children a computer so they can freely talk to their father on skype. I buy them cell phones (the older siblings) and give their numbers to their father suggesting that he send them little text messages during the day or to call them whenever he wants. I make aware my ex-husband of all that happens in their life, indicate to him the website of the school where they study, keep him informed of schooling trips, of their evolution, their school records, the subjects they have mastered , those where they would need to put in more effort…

I host my ex-husband in my Dubai home, despite the total lack of affection I feel for him because it is important for the children to have the presence of their father in their lives. I host him without discussion, whether for a week or more, each time he mentions his intent to come over – my daughter’s birthday, the little one’s, or simply a request he makes with no other reason – without question, without being difficult . I believe that my personal feelings are not important in examining whether to accede to his wishes. It is their welfare that counts and I therefore allow him to remain at my home where we take meals as a family, a semblance of normality that I force myself not to deprive them of.

Yet, when the children are with their dad during summer, often my Friday skype appointment with them is forgotten. I suffer from not being able to speak freely with them because the phone does not work on their side for international calls and they cannot call me from there. Often when I call from my end, the phone seems to ring but nobody picks up and the children tell me much later when I have them over the phone that it was not ringing….

Now what did the legislator have in mind when introducing this criterion? What was the spirit in which the legislator brought about this criterion?

Is there review and if there was, how was the review according to this criterion?

You know the decision: custody awarded to the father

5)     The judge “considers, of course, the feelings expressed by the children themselves” but « the judge is not bound by the opinion of the child »

The children, a 11 and a half-year old girl and a boy almost 13, testify that they do not want to stay with their father who is not able to care for them. They testify about a lack of nurturing on behalf of the father, the too little time devoted to them (during holidays so what to say about school time), dirt in their father’s house and cockroaches compared to the clean and well-kept home of their mother, unpleasant conditions of their lives with their father compared to the pleasant conditions that they had with their mother. The children strongly stress that they would like to be with their mother “anywhere” in the world. A clear, limpid request, a plea that any mother would understand and even any woman, waiting to be a mother, would approve.

Was the criterion of taking into account the feelings of the child ever satisfied?

Of course the judge is not bound by the feelings of the child but when we examine this second part of the sentence, in what context should we consider it?

No doubt in the case where a mother is abusive and nonetheless loved by her children who ask for maternal love as this is what all children aspire to. Possibly in a context where the child wants to use his/her influence, in a hollow way, for an unconditional surrender of one of his/her parents. Or in a situation where the child chooses a dangerous situation for him/her because he/she lacks the mental capacity to discern or is under an influence. It is useful to remind that the children have been living for a month with the father (by decision of the judge to delay the hearing, believing the father who is screaming on the rooftops that his wife is manipulating the children) before both giving this strong testimony.

Could one be guided by this sentence in a context where we are faced with a loving mother, free from vices such as drugs, alcohol and even simple cigarette smoking? In a context where the mother did not use the common tactics of manipulation, such as say total isolation of the child, disabling of regular contact with the other party, etc.. All these tactics of manipulation that the father is constantly using whenever he gets the chance. In what spirit, would the legislator have introduced this criterion?

Is there review and if there was, how was the review according to this criterion?

You know the decision: custody awarded to the father

My personal feeling is that no criteria has been met if we follow a clinical review of the facts and even less if we follow a subjective review, feeling the pain of the children in this whole ridiculous process,  not to mention my pain as a mother who never stopped working on herself to ensure the emotional balance of the children despite the difficult gash of divorce.

It appears only too clearly that it does not seem to be the interest of the children that is at stake today, but only the interest of a father to be close to his children. Can this interest be enforced through the outright exclusion of the interests of the children themselves and those of their mother’s?

Is it reasonable to presume that the legislator, when introducing paternal rights, had in mind that it would be the child’s burden to bear the emotional and practical consequences of a negligent father and that it would be for the child to be the parent of his/her father to ensure the emotional development of such father?

I am willing to accept, that the good Christian theory, makes one desperately want to help another in an attempt to redemption – if such attempt is real, which I question. But we should ask ourselves this question: Is it for the minor children to nurture the emotional development of their penitent father or is it for the father to ensure compliance with their claimed right to an emotional development?

Have we become our children’s children to put on them the onus of ensuring our well-being, upon realizing our folly for having neglected them so and wanting – allegedly – to make amends?

Do minor children, capable of understanding and discerning, have, yes or no, the right to decide what their life will be?

To whom else belongs the life of a minor child who is intelligent, capable of discernment, who chooses a happy and healthy life rather than the annihilation of any joyful life?

Is there any hope for a child who is sensitive and intelligent, proud and confident of his/her right to choose his/her life (the elder said “we have the right to choose. This is our life”), and is deprived of this right?

What scars will this leave? What hope of self-assurance and confidence in justice can such a decision leave imprinted in their minds?

The time has come to reconsider the court proceedings in their entirety.

I personally believe it is necessary to review the following four elements, the review of which should lead to better implementation of the spirit of the law and of justice in difficult situations of choice of residence of minor children.

1)      In considering the agreements drawn up by the parents, it is necessary to implement the requirement:

a) that it is stamped by a bailiff or at least by an independent third party in order to prevent tampering or retaliation measures

b) that the rights of both parties are clearly respected and this by providing – in the context of that agreement – the evidence that both the time required for a true reflection on the implications of this document, the Information for making an educated and wise decision, existed at the time of signing the agreement

2)      In considering the criterion of social context, we should not limit the definition to a situation of child abuse, families in difficult social context, but should also include, via integrated legal provisions, the issue of children with problems requiring some sort of special suport (hyperactivity, trisomy 21 or other types, dyslexia, etc..). If the presence of one or other of these symptoms is proven in the documents filed in the case, this latter should, by law, require an extensive investigation regarding the various modalities of childcare provided by both parents.

It is vital that this criterion has a stronger character than the maternal or paternal rights over the child himself/herself or than the rights of the rest of the siblings and this irrespective of the child’s age.

3)      In considering the ability to assume one’s duties and to respect the rights of the other parent, the legislation should not only indicate that it is something other than material or financial obligations, but that it is also very clearly the duty of a loving parent and his/her comparative ability to sacrifice his/her own career to serve the welfare of his/her children. Respect for the rights of the other party should be better documented and categorized to include not only a judicial procedure but also a police procedure to determine whether that right of contact was observed.

For example a hotline or urgent helpline at the service of children deprived of contact with their parents – in the absence of a more sustained follow-up through visits by a social worker for the review of the preservation of the other parent’s rights – could help as extra-judiciary alternative to avoid excesses and power struggles between the parents.

4)      When taking into account the testimony of minor children and the freedom granted to the judge in not taking into account, this last matter should be subject to specific criteria that define in a very clear way when such testimony should not be taken account. Such legislation would provide guidance to judges and would be a useful means of preventing human biases.

Moreover, the law should evolve in order to grant minors the right to choose their life if they produce a plausible testimony and are clearly capable of discernment. This capacity of discernment must be clearly set down in unambiguous legislation.

I also find it necessary to amend the existing legislative provisions to ensure that an informed and reasonable testimony of a mature and responsible child, although not a party to the proceedings but simply a witness, should be a material and important fact in custody proceedings between parents themselves, all other matters being identical

Indeed, we obviously do not want to let the children choose to put themselves “into the jaws of the wolf” but apart from such extreme situations to be taken into account with the necessary safeguards, a greater weight should be given to the testimony of a mature minor child. It would be unwise – or almost inhuman – to force the child to restrict his/her right to a procedure that he/she himself/herself must introduce, while living under the yoke of a parent with whom he/she is unfortunately forced to live and who does not give him/her objective means to maintain his/her free will, independent of any pressure or manipulation – whether physical, mental, or both pressures.

It would be unreasonable to ask a minor child – who has already testified unsuccessfully in the proceedings, that opposed his/her two parents – to rise again and request a review of his/her case.

Indeed, it is unlikely that – under the yoke of the parent that he/she chose not to be with and against the influence of which there is no independent monitoring procedures whether judicial or extra-judicial – a minor child will take the initiative to seek to change his/her position again specially if such child has already been denied the right to choose his/her life.

The only thing that could motivate this child would be an unbearable abuse or intense emotional suffering that is too difficult to live. Would the legislator like to limit the choice of minor children to such extreme cases of agony or can we finally realize that the right to choose one’s own path in life begins when a child is capable of discernment?

To close this difficult debate, I wish to bring to your attention the opinion of a poet that I admire very much, Gibran Khalil Gibran, who said something that is very true about the relationship between parents and children. This poet, like me, claims the right of children to a life of their own. Because that is what it boils down to. The first thing I asked the children before entering into this legal battle is “What do you want to do now that Dad wants you return to live with him.” Their answer was clear: “Mom, we want to live with you, okay. Dubai is nice but if you want to go somewhere else it is not an issue. The important thing is that all four of us are together”:

http://www.youtube.com/watch?v=ByPOnZqICfs&feature=related

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