27 February 2006

Is The Child Custody System Biased?

The child custody system, in Colorado and every state, is rife with gender bias. This is nearly inevitable. Hand hundreds of judges nearly absolute discretion to make parenting time decision in a culture with ancient understandings about links between gender and child rearing which have a continuing influence outside the courtroom, and this is virtually inevitable. This happens notwithstanding gender neutral legal standards, the best efforts of judges and others involved in the system to act impartially with regard to gender bias and the best efforts of child and family investigators and other professionals involved in the process who are specifically trained to avoid biases.

It is not a universal bias. Biases vary from judge to judge, from CFI to CFI, and from sheriff to sheriff, and are frequently far more nuanced than simply being "pro-man" or "pro-woman".

But, the incident David Harsanyi discusses in his column today is not a case of gender bias. He discusses a case involving never married parents of a four year old child. One is an office worker. The other is a bank robber. The bank robber parent's parole is revoked and that parent brings along the child while on the lamm. The office worker parent is distraught and obtains an emergency custody order. The Larimer County Sheriff is less than cooperative stating that the child is not a missing person and that the order isn't effective until served upon the bank robber parent. The only element of this not terribly unusual situation is that the bank robber parent is the woman, and that the office worker parent is the man.

The rhetorical question Harsanyi asks is this:

Would a bank-robbing dad who had his parole revoked be allowed to snatch a 4-year-old child from his mom without being hunted down with vigor?

The answer, of course, is that the premise of the question itself is flawed and that the likely reaction would be gender neutral.

First of all, bank-robbing dads who have had their parole revoked are allowed by their fellow parent to snatch 4 year old children from their mothers often, for more or less exactly the same sort of reasons that the dad in this case allowed it. Parents sometimes place more trust in each other than is justified, in part, out of ignorance and in part out of a belief (not entirely wrong) that the law requires a certain amount of trust in custody matters.

Second, the notion that a bank robber who has violated parole is not being hunted down with vigor is laughable. I have absolutely no doubt that a warrant and probably an all persons bulletin are out trying to track down this parole violating mother. The fact that a missing persons bulletin hasn't been issued, doesn't imply that the Sheriff isn't trying to find the mother and in all likelihood, the child is with her.

Third, contrary to Harsanyi's idealized view of "how things work", law enforcement is notoriously uncooperative in dealing with anything that could be characterized as a civil matter, whether it is a criminal fraud or a violation of a custody arrangement that amounts to kidnapping. There are rare exceptions. I have on occasion seen law enforcement stretch to utilize their authority to deal with such cases and it is nice when it happens for the victim, but it is the exception, just as much in the case of mothers dealing with derelict fathers as it is in the case of fathers dealing with derelict mothers. Crabbed views of the law in this area are sadly, the norm.

Now, this doesn't mean that the sheriff's deputy couldn't have been more helpful or creative, or that seeking help directly from a district attorney or another law enforcement officer, as opposed to a sheriff, might not be fruitful.

Violation of a child custody order with intent to deprive another parent of custody is a felony in Colorado. (Section 18-3-304, Colorado Revised Statutes.) And, even if the new emergency custody orders aren't effective, it is likely that any previous set of custody orders was violated by this point, which would provide another grounds for issuing a warrant to apprehend this errant mother (not that this was necessary). It could be that the main problem in this case, however, is that there have never been any formal custody orders until this incident (even though Harsanyi's article seems to imply otherwise), until the emergency order issued in this case. If so, it likely was not either a violation of a child custody order, or contempt of court, or a non-custodial abduction (as defined for missing persons purposes), since there aren't firm guidelines in the absence of such an order.

The sheriff's department could have offered to attempt to serve the emergency custody order on the mother, at which point the order would be effective, even if she didn't receive notice of it in advance (as it is likely in the nature of a temporary restraining order). And, it would likely be possible to get the restraining order into a statewide registry. If the sheriff thinks that an TRO entered ex parte if not effective, even upon service of the TRO upon the person impacted by it, the sheriff is undertrained, not biased.

The Department of Social Services could likely be invoked to pursue an abuse and neglect investigation of the mother. Including your pre-school child in flights from bank robbery and parole violation charges probably constitutes abuse and/or neglect (although, honestly, I'm not sure which is a better fit). An investigator at such a department with time on his hands and a recognition that early action is often most effective, could contact relatives with whom the mother might have left, or might in the future leave the child. The Department of Social Services is also often more skilled at getting the wheels of justice turning with law enforcement than a private individual.

Perhaps both mother and child could be declared missing persons.

None of these suggestions are commonly suggested by a sheriff's deputy, and none of them resolve the fundamental problem, which is that no manner of law can be enforced against someone whom you cannot find. Finding people who have broken the law turns out to be a perennial problem in both civil and criminal law.

Indeed, the very question posed sounds very much like the complaint of a white kid with so-so grades and test scores who complains that affirmative action has allowed a similarly qualified black child to attend some selective college. The white kid is often right in concluding that, but for the factor of race, the black child wouldn't have been admitted. But, the white kid is also sadly deluded if he thinks that in the absence of affirmative action he would have any hope of entering that college himself. The people impacted by affirmative action are the kids with good grades and test scores, with somewhat boring personal backgrounds, who were wait listed and usually end up attending another, slightly less selective institution elsewhere.

In the same way, the problem in this case is not that women would be treated so much better, but that parents who have their children taken away from them by other parents are often treated poorly.

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