Parents Organize Fight Over Custody Laws
by Joe Mandak, Associated Press, Oct. 8, 2004

PITTSBURGH - John Cihon lost custody of 6-year-old Andrew when he and his wife divorced. Now, father and son spend two weekends a month together and try to talk on the phone nearly every day. Cihon, of Pittsburgh, contends some 25 million parents in the United States - 22 million fathers and 3 million mothers - are just like him, not allowed to live with their children because of unfair custody laws.

Last week, Cihon became part of a nationwide effort to reform those statues when he signed on as lead plaintiff in a federal lawsuit against the state of Pennsylvania.

Led by the Indiana Civil Rights Council, like-minded groups such as the American Coalition for Fathers and Children plan to sue all 50 states and U.S. territories. At least 40 suits have already been filed, according to the council.

The lawsuits use a wide range of constitutional grounds to argue that a child's natural parents both have an equal right to custody, but that right for one parent is too often trumped by a swell-sounding but ill-defined legal standard known as "the best interest of the child."

Generally, children's advocates and family lawyers say, courts find it is in the child's best interest to give physical custody to the primary caregiver. Living with one parent minimizes shuttling a child - especially a younger one - between homes. The "noncustodial" parent is ordinarily the breadwinner, still frequently the man, who spends more time away from the child.

"As children progress (in maturity) they're better able to handle those types of situations," said Chris Zawisza, director of the Child Advocacy Clinic at the University of Memphis Law School.

The lawsuits seek $1 million in damages for any plaintiffs who may sign on to each class action, meaning the potential damages run into the trillions nationwide. But what the groups really want are changes in the laws, such as a bill being proposed for Pennsylvania by state Rep. Thomas Stevenson.

Stevenson's bill would set a "presumptive standard" that physical custody should be split 50-50 unless one parent can prove that there's a good reason for a different arrangement. Legal custody, which gives both parents a say in issues such as religion, health and education, can be shared equally even when physical custody is not.

But many of the experts say legislating a 50-50 standard is a bad idea.

"This is one more attempt to say that every case that goes into court should start with the assumption that it's 50-50 time - even if they haven't been putting in 50-50 time before that," said Lynne Gold-Bikin, a family law attorney and past chair of the American Bar Association's family law section. "And why do they want 50-50 (custody)? Some people want it because they know they can reduce the support they pay to their wives" as a result.

That may be, but advocates say it's discriminatory not to equally protect both parents' full rights until and unless the facts show that one parent has forfeited them.

And they say the deck is stacked because the time a wage-earner spends making money to feed, clothe and shelter children isn't given equal weight to time spent with the child, even though it's just as necessary as nurturing.

"The many are suffering because of the reputation of a few - the deadbeat dads and deadbeat moms," said Torm Howse, president of the Indiana Civil Rights Council. "Each parent has certain rights and the states have been taking away the rights of one parent."

Copyright 2004 Associated Press

The United States Supreme Court already ruled, way back in 1982: "The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the Fourteenth Amendment." Santosky v. Kramer, 455 U.S. 745 (U.S. Supreme Court 1982). Indeed, combined with similar holdings under numerous other Supreme Court decisions, these protections must extend to all natural parents absolutely equally, or else the deprivations thereof, in themselves, inherently become two other classes of civil rights violations under federal law - one under Equal Protection, and the other under (Gender) Discrimination... i.e.,

The currently rare 'Full Joint Custody' (Joint Physical and Joint Legal Custody), otherwise better known as 'Shared [Equal] Parenting', has ALWAYS been the Federally-protected legal RIGHT of every fit natural parent since at least 1982...

Indiana Civil Rights Council