Change In Direction
“Kids Deserve Both Parents”
“The Best Parent Is Both Parents”
“Children Need Both Parents”
“Kids Deserve Dads”
Everyone should recognize those phrases or “marketing” terms that have been used over the last twenty years. Yes, they are marketing terms much the same as those used by all the major companies. The difference is that major corporations will at times change their "slogan" if it becomes stale or the company shifts a direction. The equal custody community has not shifted from these even though they have been ineffective as a whole.
We challenged everyone to make a shift to their approach some years back with what we called The New Mindset and where it was applied it was successful. Sadly as new “groups” have shown up and they have fallen back to old outdated methods that have failed for years with the thought that applying social science as the way to change flawed legal standards is the way to go. More often than not, I wonder if some of these guys have ever read or understood the actual law that they are trying to change. It certainly does not show if they did base on the false perceptions and statements that they make on social media and their repeated failure when testifying on bills.
Illinois testimony on their presumption is a prime example when they failed to shut down a blatant lie by an attorney on the effect of their presumption bill and federal incentives on child support. While I don’t support these presumption bills I certainly have guts enough to stand up to an attorney that is blatantly lying.
Forget What You Have been Taught
As I read social media posts and the responding comments it becomes abundantly clear that today's so-call fathers' rights people have ever bothered to read and research actual law and they fall for the same tired claptrap that they would realize is false if they took the time to read their state’s actual legislative codes and statutes. Take a block of time each week to read a section and make notes so you can refer back later.
It is time to unlearn what you think you know and get to reality and the basics by reading the actual statutes, not what you are being told that it says. Read it from top to bottom and take time to grasp the interrelationship of each section.
The entire foundation of the “movement” needs to be rebuilt from the ground up by getting these so-call advocates to learn how to read the individual statutes of their state. I have maintained for years that you cannot change the law unless you have read your state’s statutes and can find the flaws in the language that currently exists. We need to redirect efforts and go back to the basics and rebuild from that point. This where the older advocates come into play and are loaded with useful information because they have walked the path before.
Much of the confusion on the actual process of what happens within the courts comes from failing to read the Rules of Civil Procedure for the states. These rules lay out the processes and the procedures that are to be followed by the courts of that state. While the major points are based on the Federal Rules of Procedure which layout the basic blueprint, each state has its processes and procedures that are unique to that state. These are the rules of the game that everyone has to follow.
The use of supporting case law to further understand the laws and applications and taking someone else's word for what that case law contains is the basis for how the Courts have interrelated the state statutes and procedures as they apply to certain cases and certain situations. Searching for case law is much easier than most think with the use of tools such as Google Scholar which can provide both state-specific and federal decisions based on "terms" that are commonly used in regular search engines and those listed cases often reference other cases that are sited within that case and decision and how other cases have sited that case for use with another. Google Scholar also allows one to search for articles written on those same relevant terms. Cross citing those papers is becoming more commonly used within case arguments and decisions.
We did a supporting paper for a group out of Arizona on why there was a need to change the evidentiary standard from Preponderance to Clear and Convincing that we use to this day as the basis for that change. It is well supported with case law from numerous court decisions on the Federal level.
We need to teach the basics of legal terminology and the use of the definitions as they are laid out by Black’s Law Dictionary which is considered to be the authority in defining legal terms. Knowing these terms and using them properly will put advocates on an even footing with the members of the BAR that have fought against changes with their form of “smoke and mirrors” for years.
We need to teach jurisdiction and how it not only relates to cases before the court but how it relates to who can change the law. TFRM and others like to claim that Title IV is the root of the problem but fail to understand that that is a federal law that can only be changed on the federal level. The same applies to state custody law which is controlled by the individual states and can only be changed by the states.
Make sure that when you speak to any legislator that they can make the changes that you propose. If you are trying to get a legislator to change a law that they do not have jurisdiction over you have wasted their time and your own.
I have four simple questions that I ask and ask often yet many fail because they don’t understand jurisdiction and attempt to get federal legislators to change state custody laws (see the 10th Amendment as it places the responsibility solely with the individual states) and conversely attempt to get state legislators to change federal law that they claim is flawed. The use of these “boilerplates” responses serves no purpose and only causes further confusion along the way.
1. What do you say to a legislator and how do you explain the problems of your state’s custody law?
2. What changes do you think need to be made to current law and why?
3. Who will oppose the changes and why?
4. Can you name your state representative and state senator?
Those are four simple questions that continue to show the lack of understanding of how the government within a tripartite system of government and how it works within the related framework of both state and federal Constitutions.
We need to teach the history of this movement so that the mistakes of the past are not repeated. This where the wisdom and knowledge of the older advocates come into play, use that to your advantage and learn from them instead of stumbling and fumbling along. This is where failed attempts and changes to the law, the language, and the approaches to those bills become important.
There was a quote that came from an Alabama Appeals court case that is appropriate for this. While this was about the way custody is awarded in Alabama it is easily applied to approaches take to change the law.
“Just because we have been doing it that way for years, doesn’t mean that we have been doing it right.”
The premise that doing small changes to the law will be easier than comprehensive changes is doing nothing but delaying the desired result. It takes just as much effort to do a small change as the more comprehensive changes and will speed the goal to correct the problems completely. By sticking with a small changes approach you completely miss taking full advantage of the ear of the legislators you are working with and reduce, if not eliminate the risk of upsetting them when you come back the next legislative session and tell them you want more changes that could have been handled the last time.
Ask yourself a simple question:
“Do you want your own children and grandchildren having the same problems that exist in flawed law as you did?”
Common sense would say no, but too many want to take what they perceive to be the path of least resistance rather than grab the bull by the horns and deal with it all at once.
Do not try to bluff your way through a discussion with a legislator. Be prepared to answer any question that they may have on the spot or if you can’t, tell them that you will get back to them as soon as possible to answer that question.
And for Lord's sake do not go trying to look the answer up to that question on your Smartphone. You just showed that you have no respect for their office and that you are not capable of answering a simple question.
Any time I speak with a legislator as a show of respect my phone is off and I make direct eye contact and answer truthfully and without pause. I have to be able to refute any misperceptions that they may have on why the law should be changed and that you are not pushing this for your agenda. You have to explain and show that this is for the greater good of the state and that it is the citizens of the state that will benefit in the long run.
I have had legislators throw out scenarios wanting to have it explained what would happen under proposed changes and how judges should react if the proposed changes became law. I have explained that while I am not a judge, the intent of the law is to do such and such that the changes are to fully protect the child and give the judges clear guidance on how to deal with situations before them. After my explanation, the representative agreed with what I was saying and saw that I made my point clearly and concisely.
Think through completely any change to the law that you are proposing and understand the benefits and the faults. Make sure that what you are proposing is not something that cannot be done or would cause more harm than good.
I have to raise this one as I often see the never-married fathers claim that the presumption that a child born to a never-married mother should be removed. They fail with this because they fail to realize what would happen if that was done.
A few years ago the members of the Ohio Commission on Fatherhood had such a discussion and one of their members asked me to explain what the legal effect would be. While this was written with Ohio in mind, it does apply to every state in the nation.
On the flip side, I have used a somewhat cruder and more to the point question to never-married father when I pose a single question and wait for their response.
“Show me proof that that child came out of your body.”
The response is priceless and the cringing look on the face is one that shows that I have made the point.
Learn to watch all legislation in your state. The issues that affect the family go well beyond just custody and child support issues that affect parental rights and the issues of your child’s future. Learn how and where to follow and read all bills that are introduced in your state. If you question a bill and see an outcome that will affect your rights in any way speak up and point out to all sponsors the language that concerns you and why it does.
Changes to laws that are outside of what you are pushing often affect what you are doing and these bills are all too often missed. I’ll use the case of changes that were made to Ohio’s adoption laws that greatly affected putative fathers' rights by shortening the time that these fathers had to register. Those changes shortened the time from what was previously 30 days to 15 days.
Watch for when the Child Support Guideline Review process will take place in your state. Often there are open hearings and meetings that you can attend. Distributed information may be online for you to read that will help you formulate objectives to the changes or breakup proposed changes that may greatly affect the tables that they intend to change to. Make sure that you read any economic reports that are associated with this process and that that information is state-specific and not based on a region of states that surround your own. The long-accepted practice of using regions rather than state-specific data skews the tables for all states in that region. Getting involved in this process is how you can influence changes to the law and state policies.
Child Support Guideline Reviews
Stop calling for action and involving out of state people. While it is often a well come to have a large show of people that support what you are doing and the changes to the law that you propose, more often now the outsiders become uncontrollable whiners that have failed to even read what you are prosing and cause more confusion than help.
The only time you want help from outside your state is if that person is willing to talk directly with the legislator or was the person directly responsible for writing the proposed bill that you want to be introduced. Make sure that their proposed bill is not some generic template-based something that has been attempted elsewhere or is a fall short bill that was passed that is redundant with what is currently in your state’s law.
Often seen are such calls to flood legislators’ email boxes with support. Pro Tip here: Those email floods will find themselves in the deleted box just as fast as you send them. I have personally witnessed it happen and have had legislative aides admit and tell me that they do it all the time.
The same should be applied with these calls to flood legislators with your story. Having seen many personal stories over the years and having been asked countless questions, it is clear that you didn’t understand the law before you got yourself into the problem and cannot explain why it happened. This causes the “deer in the headlights” response and the “OK, I’ll talk to some that I know about this and look at the problem” which is basic dust off and the first person their call is either a judge that they know or an attorney who will tell them that “They are just disgruntled and the court obviously got the decision correct.”
This may go over your head but I challenge anyone to prove me wrong about what is currently going on. Not only have I been active in writing and analyzing bill proposal and bills over the years but have watched as the current crop of young people continue to work backward rather than forward with proposals and approaches. The opposition is so accustomed to what they will say that they can swat them away like a horse using its tail against flies in a barn.
When I need a boost and a refocusing I often turn to the teachings of Sun Tzu’s The Art of War and apply those teachings to history.
Sun Tzu’s The Art of War teaches many principles and tactics for fighting battles. It also has shown a track record of predictability when the principles that are taught are followed.
One of Tzu’s principles is to fight the unconventional war while your opponent is fighting the same old war that he has fought for years.
The American Revolution was won by using what at that time was the unconventional tactic of guerrilla warfare. The norm at that time was to lineup and march directly at your opponent on the open battlefield. The Americans used long shooting rifleman that hid in the tress that could shoot and kill their enemy from a long distance.
In Viet Nam General Westmoreland tried to fight a conventional war with an enemy that fought from underground tunnels and caves. The conventional war tactic would only have worked for him if we had applied the bomb into submission tactics of World War II.
These same unconventional tactics can be applied to the passage of good legislation to correct the problems that have existed in divorce custody law since the early 1980s and remain today.
“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”
At this point, your “enemy” knows you better than you know yourself. The arguments of the past years have been the same claiming that “social data” shows that children are better off with both parents are active in the life of a child. While you will find no counter-argument from me on that your enemy is fighting a far different war than you are and you get your head handed to you because of it.
This is not a “social data” war, this is a “war” based on law and the legal battles that come with custody awards. Attempting to argue social data against law is the equivalent to bring a knife to a gunfight. Your opposition will win every time. Go back at look at the oppositional testimony to every bill that has been posted online and it shows that you are unprepared for the opposition and think that you can charm your opponent with works rather than facts of law. The more they oppose, the further you shrink from the battle in self-defeat and show your weaknesses.
If your enemy is secure at all points, be prepared for him. If he is in superior strength, evade him. If your opponent is temperamental, seek to irritate him. Pretend to be weak, that he may grow arrogant. If he is taking his ease, give him no rest. If his forces are united, separate them. Attack him where he is unprepared, appear where you are not expected.
Speed is the essence of war. Take advantage of the enemy's unpreparedness; travel by unexpected routes and strike him where he has taken no precautions.
Those that oppose changes to the law have heard the same arguments for the last twenty years and know what you will bring. It takes nothing but the well-posed question to defeat your opponent and to show that you are correct in requesting the changes.
When you are ready to change and learn Ohio Family Rights is ready to teach and help you write and get a well-supported bill introduced.
Ray R. Lautenschlager
Ohio Family Rights
National Legislative Director