Compelling Interest

Couldn't Have Asked For A More Eloquent Beginning

It's the 4th of July, the fireworks are over, my two boys and I are winding down for bed. The seven-year-old crashes at about 10:30, but my nine-year-old is a little wound up and wants to read. So, I let him read. At about 11:15 he has sneekily worked his way onto his Gameboy (how do they do things like that right under our nose?). As I'm trying to playfully coax him away from it, I decide it might be fun to reminisce. I start in with our bedtime routine from when he was three and four, and work subtley through the time when I moved out. As I relay some of the steps I took to ensure I remained a daily part of his (and his brother's) life, he interrupts and says:

"I'm going to say this right now: you mean a lot to me, dad."

A few nights ago when I decided to launch this blog, I spent over three hours writing and editing a summation of Parental Rights, clicked briefly over to another page, and discovered upon my return that everything I had written was irretrievably lost. I have been putting off trying to recreate what I had written ever since.

But that one statement from my son says more (and says it better) than anything I can come up with, and so, with his simple little statement, I launch the most important category of this blog site, Family Law.

What my boy said to me tonight, so freely and so sincerely, is truly what it is all about. No, it is not about me feeling flattered and telling everyone what an awesome parent I am. I mean a lot to my boy because he knows he means a lot to me. The key to that statement is that "he knows;" he knows he is loved. That is where self-esteem and self-confidence and self-love begin. He knows, for all his little faults, that he is worthy of being loved. And as he learns to love himself, he can then turn around and love others.

Perhaps this blog category should be "Psychology"? No. Family Law should have as its primary mission the ability to protect what my boys and I have - a strong, healthy, meaningful relationship. Contrary to what many of us who are single parents may have experienced, Family Law is fairly well capable of fulfilling that mission - right now! But there is much that parents do not understand about the law, the system, and their rights as parents. I do not claim to know everything, and [disclaimer] I am not a lawyer and do not offer professional legal advice. But I will share what I know in an effort to take away confusion and the all-too-common ignorance that can make parents and children vulnerable to such unnecessary pain and emotional torment.

Before he fell asleep, my boy said, "You've given me a lot to think about tonight, about how I feel about you way deep down." The feelings are mutual, son. Sweet dreams.

Civil Rights? Really?

This part of my blog is primarily for single, separated, or divorced parents. But if you’re just thinking about becoming one of these, then this is for you, too. It is also for happily married parents, people who have parents, and people who know people who are parents. Okay, this is for everyone.

The first thing that needs to be clear is that, as a parent, you have rights. These rights that you have to parent your children are considered “natural” or “fundamental” rights – rights that are not granted you by any government. These are rights you are born with and that you are free to exercise as soon as your child is born (some would say even before the child is born, which I will not argue). To further the point, your right to parent your children is not a privilege that Uncle Sam bestows upon you, like a driver’s license. It is a right that you possess separate from the government – any government.

Here we need to get into the language of our Declaration of Independence. How did Jefferson phrase it? "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness."

If you are going to parent your children, you must be free to do so; you must not be hindered or restricted in any way. You must have the liberty to parent your children. Liberty is an unalienable right (it cannot be separated from you), recognized in our Declaration of Independence, and protected by our Constitution.

(Before I go on, it seems something should be said regarding child abuse. All forms of child abuse are illegal. For a person, including a parent, to abuse a child is to infringe upon that child’s right to life, liberty, and the pursuit of their own happiness. Under such circumstances, the government has a right, no, a duty, to separate that child from his abuser. In this case, a parent can have their parental rights denied or restricted in some way. The same is true for neglect, endangerment, if a parent has a drug or alcohol addiction, and probably a few other things I haven't mentioned. From here on, let it be understood that the remainder of this discussion pertains only to non-abusive parents and their children, and that the rights of these parents cannot be infringed upon in any way, shape, or form.)

Parental Rights have been described as a “fundamental liberty interest” when cases are brought before a court. Below are quotes from numerous court judgments which uphold and protect the rights of parents – these are from Supreme Court, Appellate Court, District Court, and State Court decisions (citations available upon request). Pay attention – this stuff is good news for all parents:

- No bond is more precious and none should be more zealously protected by the law as the bond between parent and child.

- A once married father who is separated or divorced from a mother and is no longer living with his child cannot constitutionally be treated differently from a currently married father living with his child.

- The parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection. A parent's interest in the companionship, care, custody and management of his or her children rises to a constitutionally secured right, given the centrality of family life as the focus for personal meaning and responsibility.

- A parent's right to care and companionship of his or her children is so fundamental, as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution.

- The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14.

- When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process clause.

- Inherent in the express public policy is a recognition of the child's right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents' wisdom, judgment, and experience. The child does not forfeit these rights when the parents divorce.

So, right here we understand that our court system has figured out what you already know to be true in your heart – that no one has a right to come between you and your children. Not the federal, state, or local government; no law enforcement officers at any level; no lawyer; no school, daycare, family member, friend, or acquaintance; not even the other parent.

The information I’ve put out so far is important because of this: if you find yourself in a situation where you and the other parent need to hash out custody and visitation issues, you must be aware that there really is nothing to negotiate, at least where custody is concerned. You show up in court (with or without representation) and assert your right to joint legal custody. You have every right to continue to help make the major decisions in your child’s life – it should not be entirely up to you, nor to the other parent. It is a responsibility you both should continue to share, regardless of your feelings toward one another. Look at the last quote up above; it is absolutely true. Joint custody should be the default decision by the court. Anything less than that should be aggressively challenged.

One of you may end up with primary custodial care (the children will spend most of their nights with one of the parents), or you may be able to work out a split arrangement (though much care must be taken to ensure that the children are able to adapt to such a schedule – if not, figure out something that does work). But, when it comes to visitation or “parenting time,” neither parent should feel any obligation to resign themselves and their children to the “standard” visitation schedule of “every other weekend and Wednesday nights for dinner.” Standard?! Standard for whom?? Any parent who has more time than that to give should insist upon it in the schedule.

It is plain to see how the courts came up with this “standard” schedule. It is based on the assumption that the parents both work a 9-to-5 job. They are getting home each night at roughly the same time, they both want nothing more than to see their children, but they obviously cannot ask the children to be in two places at once. So parents, be creative! Work out a schedule that will preserve as much time as possible between the children and both parents; change your work schedule to allow for more time; change jobs! Anything you can do (and the younger the children, the more critical this is)!

I happen to be self-employed, so I make my own schedule. For the first three years after my divorce (when my children were two and four), I picked up my children every weekday around 3:00 and spent time with them until their mother got home from work around 6:00. In addition, I had them every other weekend. In the middle of those three years, my ex-wife moved 40 miles away. I felt it important to continue the daily routine with my children, so what did I do? I moved 40 miles. Whatever it takes. The first step in raising your children is being there. In any case, if at all possible, do not be straddled by the so-called “standard” visitation schedule. If there is more time to give, then give. And don’t lose sight of this concept: if the other parent has more time to give, don’t get in their way. Their rights and your rights are the same.

By the way, that three-year routine with my boys was suddenly and drastically reduced to that “standard” schedule because of a loophole in my original divorce settlement. In a future post, I will share how I responded, and the lessons learned. My schedule with my boys is slightly different now, but the loophole is gone and we still see each other virtually everyday.

Every divorce situation is different, and during the process your mind can be in a million different places. But as the two of you negotiate your way out of your formal relationship, do not be vague in any way regarding custody and visitation (get every detail written in black and white), and do not let those issues become bargaining chips. The two of you should leave the marriage with all of your parental rights intact (think about it – your children deserve to have two parents with full parental rights, yes?).

Parental Rights are fundamental rights which cannot be tread upon lightly. The higher the awareness of this fact in our society, the less those rights will be infringed upon by others. Let’s say you have two bigoted real estate agents. One knows Equal Housing law inside and out. The other is completely ignorant of such laws. Which agent will more likely sell houses based upon their biases? The answer is obvious. Although knowledge of the laws may not cure the one of bigotry, they will help keep that agent’s biased impulses in check.

Now, you have two hurt, angry parents. One knows Parental Rights and the other is just mad as hell and is not thinking of rights of any kind. Which one will be more likely to use the children as a weapon against the other parent? Which parent might try to arbitrarily keep the children away from the other parent, even though they will be infringing on the Constitutional rights of that parent? Clearly, the one who is just mad. The parent who knows Parental Rights may be just as angry, or even more so. But knowledge of the rights of the other parent will likely be a key factor in keeping that parent’s vengeful impulses in check (that is, if considering the best interests of the children isn’t enough).

You don’t tell a black man he can’t buy a house "in that neighborhood." You don’t tell the other parent they can’t see their children because you said so. In either case, you are asking to be sued (and rightfully so).

Yes, it actually comes down to this: Parental Rights are Civil Rights. Assert your rights, and do not infringe upon the rights of the other parent. This is truly in the best interests of your children.

Gender Confusion, and the Question of Morality In the Practice of Family Law

There is a reason I avoid using the terms “mother” and “father” when speaking of Parental Rights – I prefer “parent” and “parents.” This speaks to the fact that Parental Rights are gender-neutral. Fathers’ Rights? What are Fathers’ Rights but Parental Rights?

Actually, fathers used to have the right to their children in custody cases back in the day when children were considered to be a man’s property; then the pendulum swung toward mothers with the “tender years” doctrine. Neither approach was truly fair. The rights of one parent were upheld at the expense of the other. The pendulum is swinging more toward the center. But true justice is meted out from balanced scales, not swinging pendulums. So long as Parental Rights activists are backing a gender, there will be animosity, division, and further delay where justice is concerned.

My own experience has taught me that those who are professionally promoting the rights of either gender are using the gender issue as a marketing tool – yes, I’m talking about lawyers and law firms. Let’s see, how’d it go with myself and a nationally known firm which advocates for Fathers’ Rights? Well, there’s the $120 fee just to sit down and tell a lawyer your story; and aren’t we touched by the children’s art adorning the walls, lovingly addressed to “Daddy” in the awkward script of a little hand? That sure is a nice suit that lawyer is wearing. And as I tell my story he is all ears; he is my greatest advocate; he will do whatever it takes for me to find relief. Now, that’ll be $3,000 to get started. When such a sum of money is unavailable, there’s the door. What happened to my advocate? What happened to my relief? What happened to my grief and my children’s stress and confusion? I don’t suppose any of that artwork came from the hands of children you wouldn’t lift a finger to help?

[What follows was supposed to be reserved as its own post, but this might be the best time to bring it up.] I believe that there is something inherently immoral in the practice of Family Law (in our current system). To my mind, let the lawyers who are in it to make a pretty penny practice real estate or business or corporate law. Isn’t that where the big money is, anyway? But to have a desperate mother or father (of great, little, or no means) walk into an office and explain the gut-wrenching specifics as to how his or her family is being torn apart; to have a professional sit there and nod their head in sympathy and offer that parent hope for the future and relief from agonizing, unbearable heartache; and for relief or no relief to be reliant on the availability of thousands of dollars from that person’s pocket, is the height of injustice and cold cruelty. Let Family Law be a part of the Social Services system – it should not dwell in the land of Big Bucks. Lawyers should not profit by keeping parents and children close. Parents and children have a natural right to be close, divorce or no divorce. Let the government stand ready and able to assist in protecting that right when help is needed, just as it stands ready to protect other Civil Rights.

A Family Law lawyer (and let’s not forget doctors) ought to stand in the ranks of social workers, nurses, paramedics, firefighters, police, and teachers – people who are trained to help other people but who do not expect to grow rich and fat off of other people’s problems, shortcomings, or misfortune. Another lawyer I spoke to was ready to go into battle with me, but it was up to me to pull out the “War Chest” (his words) – yeah, my giant cash reserve; everything I had and then some. This man gave me a vision that, for thousands upon thousands of dollars, I could see my kids as often as my time already allowed. Upon learning of my financial situation, he promptly showed me the door.

Do we demand thousands of dollars to help the homeless, to help a battered man, woman, or child, to feed and clothe an individual or family who is down on their luck? A child wants to be with her mom; she wants to be with her dad. A parent wants to be close to his or her children. Should it really take thousands of dollars to protect what is a fundamental right? Does a person have to pay thousands of dollars to gain access to a certain neighborhood, to eat at any restaurant, to sit anywhere on a bus? Wouldn’t that be immoral? Wouldn’t that be unjust?

I don’t have all the answers right here and now, but the questions need to be asked; such things are worthy of our thought and attention. People create injustice; people can stop it.

But, back to the gender issue: so long as we do not forget the place of Equal Rights Under the Law, and Due Process, there is truly no gender issue when it comes to Parental Rights. Judges, lawyers, juries, and parents may have biases, but the nature of justice is that it is unbiased; it is blind. Let the rights of a father be upheld; let the rights of a mother be upheld. Let no one’s rights be upheld at the expense of another.

Any parent whose rights are being challenged must read the following:
The Declaration of Independence
The U.S. Constitution
Your State Constitution
Federal and state laws regarding the rights of parents to be parents without hindrance

You will notice there are no sets of laws and rights for mothers, and another set for fathers. There are only laws and rights regarding parents.

It is in the interest of both genders to recognize that Parental Rights are Civil Rights are Equal Rights. This provides the security to which all parents are entitled.

Clarification, and Children's Rights

I should make clear that I do not think all Family Law lawyers are evil and immoral. I had one come to the aid of my sons and I, and I will always be grateful for her help. The system in which she works, though, is inherently immoral when the system allows money to stand between children and their parents. Lawyers have bills to pay, but so do school teachers. Do school teachers have to extract exorbitant sums of money from their students to pay their bills? As I said, let the lawyers who want to grow fat and rich come to the aid of corporations. Let the lawyers who want to help families be families come to the aid of families regardless of the income of those who need their help, and let the system (state government) aid the lawyers in their work so they can support their own families and pay their own bills. The bottom line is that the Family Law system needs to be made more humane, less adversarial, and needs to not be about money. It needs to stand apart from the other types of law practice.

Now, I have said a lot about parental rights, but what about the rights of children, especially of children whose parents are no longer together? I will not dwell long on this topic because, as important as I believe it to be, I really don’t think there is much to be said about it.

1. Children have a right to life, liberty, and the pursuit of happiness.
2. Children have a “right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents' wisdom, judgment, and experience. The child does not forfeit these rights when the parents divorce.”

There are those whose beliefs pretty well match this sentiment: "He (or she) left me, so I should be able to say when he (or she) sees the kids. I didn’t leave; I didn’t move out; I didn’t leave my children."

While the parent who feels this way may have very strong convictions, this parent needs to realize three things:

1. The children have rights of their own, one of which is the right to maintain a healthy, strong relationship with the parent who moved out. That parent remains their mom or dad, regardless of where that mom or dad sleeps at night.
2. No parent has the right to restrict the other parent’s access to their children without a court order, and no court has that right of restriction without having a compelling interest in doing so.
3. There is a real difference between leaving one’s spouse and leaving one’s children. Some spouses do both upon moving out, which is a shame. Others leave only their spouse, but stick around to help raise their children, which is the honorable thing to do. Why try to hinder a parent who, despite a separation or divorce, is trying to do the right thing by their children? How wicked is that?

It is in the best interest of children to have two parents whose full parental rights are intact. In fact, this is their right. And that’s pretty much all I have to say on this subject.

Custody and Visitation Mistakes I Made

1. I had no representation during my divorce proceedings. If you are able, get input from a lawyer.

2. If you do not have a lawyer and have to go it alone, do not think that the custody of your children is something to be negotiated with the other parent. You have joint legal custody right now.

3. Even without a lawyer, you are better off going to court during the divorce proceedings even though you might feel very intimidated. SHOW UP and retain joint legal custody. DO NOT sign a divorce settlement that states that the other parent should have sole care and custody and that this is in the best interests of the children.

I could not afford a lawyer during my divorce proceedings. I was so intimidated at the thought of showing up in court alone and mistakenly thought that it would be better not to show up than to show up without a lawyer standing next to me. I signed the divorce settlement which stated that the other parent would have sole care and custody. I just wanted to get the whole thing over and done with, and figured I could change that little detail down the road. Big mistake.

4. If the children end up residing with the other parent and you are given visitation or "parenting time," DO NOT sign a divorce settlement that says this or something like it: "[You] shall have reasonable and liberal visitation with the minor children. If the parties cannot agree to a schedule, the following schedule shall apply: every other weekend and Wednesday evenings."

This can be used as a big club against you by a vindictive ex. For three years after the divorce, I was seeing my children every day from about 3:00 to 6:00 in the afternoon, plus every other weekend. This was how we worked out my "reasonable and liberal visitation." It wasn't written down - that's just what we did. Then, I did something that angered my ex-wife, and in a heartbeat she switched the children and I to the default schedule. So, the children went from seeing me about 26 days a month to 8. All she had to do was say, "We don't agree to a schedule," and my hands were tied. It took me a year in and out of court to get the children and I back to at least 95% of what we'd had.

Figure out the maximum time you can give your children from day to day, and write it down in black and white in the divorce settlement. If the other parent works until 6:00, try to adjust your work schedule so that you have a couple hours with the kids everyday before the other parent gets home from work. It is SO worth it. But it must be something you can point to on paper to a sheriff's deputy in case the other parent tries to come between you and the children - write out the days of the week and the time of day you are to be with the children. The vagueness of "reasonable and liberal" cannot be enforced, even if your routine has been unbroken for three years running.

Carmine Baffa Is In Jail

UPDATE, April 29. In addition to the charges he is facing in Gwinnett County, Georgia, Carmine Baffa now also faces nearly two dozen more charges in Cobb County (also in Georgia), including statutory rape and aggravated sodomy.

As a non-custodial parent, I have been fighting since 2004 to keep Carmine Baffa out of my children's lives.

Carmine was taken into custody April 9. When I wrote the following and posted it on the 11th, it was virtually the only site on the web that had anything negative to say about the man. Everything else that came up on a "Baffa" search was the stuff that's been on the web for years - all glowing, all praise, all wonderment. You had to dig pretty deep online to find chatroom conversations from 10 years ago that pointed to what is going on with the man today.

Considering what Carmine had been hauled in for, I thought it would be a good time to share things that he has done to me and my family in recent years, lest his supporters think that what he is now being accused of comes out of a clear, blue sky.

[April 11]
As I write this, Dr. Carmine Baffa is sitting in the Gwinnett County jail (in Georgia) facing charges of child molestation (possibly "aggravated") and rape (it looks like of a minor, and nothing to do with my children, thankfully).

Carmine Baffa began counseling my ex-wife and my boys sometime in 2004, about two years after our divorce. I was fine with it until I asked my ex-wife what Carmine discusses with the children. I was told it was none of my business. Red flag.

It wasn’t long before I started hearing things from my oldest son that indicated attempts by Carmine to divide me and my children (emphasis added):

When my boy told Carmine that I wouldn’t take him to see Star Wars: Episode III because it was PG-13, my son related that “Carmine said he would take me to a PG-13 movie.” Nothing like having your parental authority and guidance undermined.

“Carmine said there is no reason for you to raise your voice at me, and that I don’t have to see you anymore on the weekends if you keep doing it!” What the...?

“Carmine said I don't have to be mad at mommy 'cause it’s not her fault you moved out,” inferring to the 6-year-old the need to assign blame, and if it isn’t mom’s fault, well, who’s left? You always want young children of divorce saying it's one or the other parent's fault; otherwise, how else can you foster animosity between them?

Red flags.

My youngest son reported that Carmine had struck him during an incident at Disney World (yes, Carmine used to take families to Disney World to observe his clients in a “stressful environment” to see how they would interact, as if this dynamic couldn't be observed while taking your kids down the cereal aisle at the local grocery store - ironically, it seems Carmine was the one stressing out at Disney World).

My youngest son also said that Carmine threatened to beat him up just this past August if he didn’t behave. Carmine is 52; my son is seven. Both of these incidents with my youngest son were verified by my ex-wife and treated as if nothing were wrong. Red flags.

Let's review.  Apparently, the wisdom of Carmine would say that it’s not okay (or, not "useful") to raise your voice to a child; that it is, in fact, so harmful that parents who do so should be separated from their children. However, there may be times when it is useful to threaten them with violence, to smack them, or (allegedly) to just out and out rape them. Gosh, I hadn’t thought of that.

For three whole years after the divorce, I had been seeing my boys about 26 days a month, and I'm the non-custodial parent. One day in August of 2005, I e-mailed Carmine and flat told him to stop seeing my children. The next day (and my ex-wife has verified this), Carmine directly influenced my ex-wife to implement the default visitation schedule in our divorce settlement. This instantly limited the boys and I to about eight days a month. (There was a serious flaw in the wording of the settlement that allowed my ex to get away with it.)

For the next year, I had to fight in and out of court to restore about 95% of the time the boys and I formerly enjoyed. The glaring irony is that my ex-wife had told me that the boys were "in therapy with Carmine to help them deal with the separation issues of divorce." I was unaware of any issues along those lines - the fact that the boys were seeing both parents virtually every day since the divorce must have been blinding me to this possibility.

The brilliance of Carmine is that only he could fathom that the way to help children cope with non-existent "separation issues" is to suddenly, drastically, and arbitrarily increase the separation between the children and one of their parents, thereby CREATING separation issues. Does this sound utterly backward to anyone? It did to our court mediator, too.

But let's look it squarely in the face and recognize that Carmine was helping to greatly reduce my parenting time to punish me for openly opposing his involvement with my children. That is family counseling at its finest.

On more than one occasion, I asked my ex-wife and e-mailed Carmine requesting to see his credentials for counseling children, or to counsel parents on parenting issues, or to counsel anyone. My requests were always ignored. (No, I don't wonder why.) And people have been shelling out tens of thousands of dollars for his...I'm not sure what to call it.

After I had heard of the incident at Disney World (which occurred in '04 but wasn't related to me until '05), it became my policy to make a statement to my ex-wife everytime I heard that she and the boys were heading to Atlanta to attend one of Carmine's seminars or to spend a weekend at his house: "I don't want Carmine near the boys, and they are never to be alone with him."

I was sickened to hear that during one of their weekends at Carmine's (within the last year), it was "just us and mom, and another girl was there for the weekend. She was 13 or 14." I asked if the girl's parents were around, too. "No," the boys said, "it was just her. Her parents were in [another state], where they live." Big, red flag.

Amazing that my gut feeling compelled me to make that statement to my ex-wife before they'd go to Atlanta, and yet I had never even met the man. But people who actually worked with him directly were able to be convinced that sending their teenage daughter to spend a weekend with Carmine would be somehow "useful." I have to wonder if his eyes don't become large swirls as he talks to you.

Well, thank you for sharing your incredible wisdom with my children, Carmine. We laughed at your mugshot – it was the first time I had ever seen what you look like. Your involvement with my children over the years has given me the opportunity to teach them the meaning of “a wolf in sheep’s clothing.” You were the object lesson. Hopefully, it is a lesson they have learned well.

By the way, where IS your doctoral degree from? There are so many people who have been asking you that for so many years. Maybe that will come out during your trial. I’m sure a lot of interesting things will.

I'd wish you luck at the trial, Carmine, but I just can't. As far as I'm concerned, you're finally home, and you need to stay there.