Murder-suicide revives custody-rights debate

[Silent_Bob]

http://www.unionleader.com/article/20130818/NEWS03/130819380

A man commits suicide by lighting himself on fire in front of a county courthouse in Keene.

An Amherst doctor who works at the V.A. Medical Center in Manchester drives to Vermont in a rental car and shoots his ex-wife's husband before killing himself.

And last Sunday, a Manchester father fatally shoots his own 9-year-old son and then himself during a supervised visitation session at a downtown YWCA.

These horrific acts of violence all had something in common: They were committed by fathers embroiled in court disputes over child support or custody.

And one lawmaker says it's time for the Legislature to act to prevent the next tragedy.

State Rep. Jeff Oligny, R-Plaistow, submitted 13 bills dealing with parental rights and child custody issues in the last legislative session. All 13 were found inexpedient to legislate.

Among them: A measure that would require the state Department of Health and Human Services to license supervised visitation centers - such as the one where Menahem "Muni" Savyon shot and killed his son, Joshua, and himself last Sunday.

Those involved in the legal system call them "high-conflict" cases, broken families whose battles over child support, custody and visitation rights escalate into outright war.

Oligny, an engineer and a divorced father of two teenagers, contends the system for determining "parental rights and responsibilities" - what used to be called child custody and support - is deeply flawed.

"We are abusing a class of people for profit," he said. "Those people are New Hampshire families that are already in some sort of crisis because they're divorcing, and we're promoting more (chaos) so a dozen people can make a living off of this crisis."

And while most parents abide by court-ordered arrangements even if it feels unfair, a few will "crack," he warned.

A better way, Oligny said, is "joint parenting," something he's been trying to get into New Hampshire law for several years. It's a main reason he ran for office.

The fix is simple, he said: "Government should get out of the family where they're not required.

"If there's no abuse or neglect, then government should not be in that family. If you force Mom and Dad to work things out ... they will."

Another view

It's not that simple, said Patricia Murphy, a Manchester attorney who has specialized in family law for 20 years. She called it "a very Pollyanna way of thinking, that all people are reasonable and all people can come up with their own solution."

And while equal parenting time may sound ideal, it may not be the right solution for every child, she said.

She noted that RSA 461-A requires the court to determine "parental rights and responsibilities" based on the "best interests of the child." The law requires the court to consider such factors as each parent's relationship with the child, the ability of each to provide food, clothing, shelter, medical care and "a safe environment," and potential effects of changes to the child's school and community.

For young children of parents who live in different communities, Murphy said, the best plan may not mean shuttling between the two every few days. "Does the kid have to get up 45 minutes earlier (for school) just to deal with that parent's right to raise a child?"

Murphy said the courts got involved in child custody and support issues to provide a neutral forum to resolve conflicts.

"The system does not create the chaos. What creates the chaos is the couple who comes to the courthouse doors," she said.

In her experience, Murphy said, the most heated disputes stem from parents' inability to put their children first. "Rather than have a child-centered agreement, it's what the parents' rights are."

When she started practicing law, Murphy said, courts routinely awarded physical custody to mothers, and fathers got every other weekend and one night a week with their children.

As fathers have become more involved in bringing up their children, she said, it is "far more common" for parties to share parenting rights and responsibilities.

But Murphy opposes making that the law of the land. "Because every case that comes before the court is as unique as the people who come before the court, and the needs of the children should trump the desires of the parents," she said.

In Murphy's view, what's wrong with the system is a backlog that keeps cases from moving forward quickly. She claims it's an unintended consequence of lawmakers creating family courts around the state, and then cutting the budget for judges and court staff.

Few 'high-conflict' cases

Judge Edwin Kelly is administrative judge of the Circuit Court, which includes the Family Division. He said lawmakers created the first family courts in 1995 so that cases would be heard by judges familiar with this most difficult area of the law.There are now 32 locations statewide.

In the "vast majority" of divorce cases involving children, Kelly said, "there's a presumption that each is a competent parent and that each deserves to have the child at least as much time as the other."

He noted all divorce cases involving children are required to go to mediation first within 30 days of filing. He estimated more than 80 percent are resolved within nine months of filing.

Kelly said it's a very small percentage of cases that are "high conflict."

But he said, "For whatever reason, they become high conflict and particularly when they involve (a parent's) mental illness, they tend to go on for a very long time, and they tend to be intractable."

He'd like to see a separate docket created for such cases, with dedicated judges and staff assigned to try to resolve them more quickly.

For less problematic cases, Kelly favors a new approach, something called collaborative law that involves lawyers for both parties working together to resolve their issues. "I think that's probably the wave of the future," he said.

"The real problem is we put these cases involving the lives of families into an adversarial system," Kelly said. "And so we're basically telling them ... 'I want you to fight, and at the end of the day, I'm going to see who has the best argument.'

"If we were looking at this from a completely humanistic point of view, we'd never do that."

Oligny said he's heard the argument from other lawmakers that the system is working fine for the majority of families and it's only a minority of parents who feel the system has treated them unfairly.

"Well, a piece of that minority is going to crack," he said. "And that's what happened here" in Manchester last Sunday.

"I guess what we're saying is it's OK to lose a couple of kids, it's OK to lose a couple of parents, it's OK to lose a couple of citizens because, in general, we're doing pretty well.

"We're fooling ourselves," he said. "We're not doing pretty well."

[Russell Kanning]

In my case one time I received paperwork that said I got the kids for a chunk of the year and then another time I had restraining orders against me.

[WithoutAPaddle]

Any effort to improve the Circuit Court Family Division system of adjudicating custody and support should start by separating the wheat from the chaff.  A couple of weeks ago, I came across those thirteen legislative proposals and I remember spotting several of them as dead losers.  I think one required that support payments be kept in a dedicated checking account, and another was something like prohibiting a judge from ordering the primary support parent from paying support to the secondary parent under some circumstances.  I may not even be paraphrasing that one accurately because I'm not sure even understood it while I was reading it, but it really looked like the kind of statute that could get drawn up on a napkin by a couple of guys commiserating over some raw deal that one of them got stuck with by a court and figuring out how to use the legislative process to make sure that injustice didn't happen to him again.

It could well be that the Guardian-ad-Litem system has become a cottage industry for bestowing good paying work on liberal arts majors who can't otherwise find gainful employment.  I don't have a dog in this fight, so to speak, but I get the impression from a few letters to the editor I have read in recent years that the way the dynamics of the process work are that, at some point, the Guardian-ad-Litem (GAL) concludes that a certain custody and support arrangement is most beneficial to the child, and one of the two parents disagrees, but by then, the GAL is committed to a "side", much to the consternation of the other parent, and the judge really has to rely on the advice of the GAL because that person is functioning as his ears and eyes.  What makes matters worse is that in some instances, when one parent does something that warrants further involvement of the GAL and may generate fees, that parent who sees himself as getting the short end of the stick might have to pay half or more of the cost of having the pre-committed GAL basically jerk him by not really considering his further advocacy.

Newspaper accounts of legislative proposals probably don't do justice to the merits that they may have, but I think the best way to get some traction in advocating an alternative to the present system is to find another state that does things differently, see if they seem to be getting better results, and model proposed changes that might get similar, improved results.

[Russell Kanning]

I am sure whatever they do next will be worse. Many people I have met in this system are really mean spirited.