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Parental Rights vs. Children's Welfare

QUESTION: It seems the case, rather than the exception that the needs of the parent or parents out weigh the needs of the children in a custody battle. In our case the court has ordered that my children must spend 8 weeks every summer, and 1/2 the school vacations, and every other weekend at their father's. Their father lives 3 hours (one way) from where my children and I reside. The court has also ordered that we share driving, or milage.

All and all my ex-husband got everything he asked for. The children got nothing they asked for. My son is 12 wants to run cross country and all the other sports... his father has already told him, "tough, guess you'll miss every other weekend!!!" All the meets are on weekends. I have tried to get a lawyer to look into talking to his father, but it is just out of my $$$$$ range.

As for my daughter, she doesn't look at her father as her dad, as she was very young when he filed for divorce. She thinks of my husband as her dad, and doesn't even want to be forced to have to go to see her bio-dad. I am put in the middle, as the court order says I must make them go, or be held in contempt I really encourage them to have a relationship with their father, but he no longer upholds the values that our family believes in... God,family, hard work, and lots of love. Rather when the children are there they are exposed to drinking, and second hand smoking, and told that both are ok.

Do you have any ideas for me, I really would like to be able protect my children..courts seem to think that it is not my job, but theirs....they sure don't have the best interest of my children at heart...nor does their father!! THE CHILDREN AREN'T EVEN ALLOW TO GO TO CHURCH WHILE AT THEIR FATHERS

ANSWER: You have identified one of the most hypocritical situations occurring presently in our legal system. While it is very important that parental rights are protected, it is sometimes at the expense of what is truly in the best interests of the children. And our children's lives are not static! What works for them and for their separated parents at one point in time, may change when outside interests naturally claim their focus. If we insist that children revolve around their parents' lives, separate locales can seriously inhibit their ability to develop independent interests and activities. An overattachment to "fairness" for each parent may become a distortion in which the child's time is divided like a piece of pie, with little respect for the child as a separate entity from the marriage dissolution.

Rigid maintenance of equal schedules that pull children away from involvement in important activities and interests only continues the marital conflict on the backs of the children. This kind of arrangement maintains the children in the middle of parental conflict instead of removing them from it. It is sometimes the case that children become "prisoners" to parental "rights" in the court's attempt to dole out justice.

Equality is not "sameness"! But somehow the courts have not found a way to understand that there is a difference between the "ethics of justice" which our legal system is based upon, and the "ethics of care", which is at the heart of female development. Carol Gilligan in her book, "In a Different Voice" marked the discovery of the very "different" nature of female development, unrecognized and devalued in our society. She elucidates the salient point that our society uses the values of male development based on competition of "rights" to define "justice". Rather than consider the value of nurturing relationships which is at the heart of female development in the evaluation of "fairness".

Please understand that when I am using "male" and "female" I do not mean it to be interpreted as all women have their child's best interests at heart automatically and men do not. This is not the case. There are mothers who exploit their attachment to their children and men who sacrifice their immediate gratification for their children's needs. However it is true that a value of "fairness" in our justice system is commonly miscarrying our children's needs in favor of "rights" (parental) which are based on competition instead of nurturance. And women's and men's development, although coming closer together, remain culturally loaded with divergent perspectives on what constitutes morality.

Perhaps the truth lies in the fact that custody issues are far more complex than our judicial system can handle well. It is a system set up to protect us from criminality, where issues of right and wrong are more clear-cut. Divorce is not criminal, and children require better support than is currently available in this venue. Our justice system is set up to focus on fairness as a matter of "rights" of two conflicting adult parties, rather than ensuring a child's emotional AND economic welfare. The bias our legal system will inevitably result in miscarriages of justice for children. But it is also possible to continue to voice your objections and be heard!

As children mature, they develop their own lives. Their ability to pursue interests and activities should be taken into consideration. It is a current failure of the legal system to not require that parents inconvenience themselves rather than demand that their children give up significant aspects of their lives in order to share and develop a parental-child relationship.

Children are susceptible to exploitation because they have no independent legal rights. However, in some states (such as California) it is possible that you can obtain help from the court at no charge through family court services. In this situation, you would be entitled to request a mediation appointment to bring up the points about your son's truncated athletic development and the negative effects on him of the current implementation of the visitation schedule.

Do not give up on getting help! Oftentimes these situations require that you attempt an agreement that has been set by the court in order to see if it will work out. This possibility of "working out" of course includes the probability that your husband would adapt to his children's needs appropriately over time, without legal intervention. When this is not the case, it is necessary to return to mediation to establish this fact.

Continue to pursue what prevents your husband and yourself from adjustment that ensures your son's participation in programs that are critical to his happiness. Refrain from attempting to control your ex-spouse's environment or parenting relationship with his children, except as it interferes significantly with their pursuit of happiness or health. Respect his relationship with his son and daughter and his rights to teach his values to the children as you do in your home. But do not throw in the towel on your children's needs that are seriously curtailed by deference to locale over appropriate development of independent activities and interests.

Persistence is your best ally!

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Gayle Peterson, MSSW, LCSW, PhD is a family therapist specializing in prenatal and family development. She trains professionals in her prenatal counseling model and is the author of An Easier Childbirth, Birthing Normally and her latest book, Making Healthy Families. Her articles on family relationships appear in professional journals and she is an oft-quoted expert in popular magazines such as Woman's Day, Mothering and Parenting. . She also serves on the advisory board for Fit Pregnancy Magazine.

Dr. Gayle Peterson has written family columns for ParentsPlace.com, igrandparents.com, the Bay Area's Parents Press newspaper and the Sierra Foothill's Family Post. She has also hosted a live radio show, "Ask Dr. Gayle" on www.ivillage.com, answering questions on family relationships and parenting. Dr. Peterson has appeared on numerous radio and television interviews including Canadian broadcast as a family and communications expert in the twelve part documentary "Baby's Best Chance". She is former clinical director of the Holistic Health Program at John F. Kennedy University in Northern California and adjunct faculty at the California Institute for Integral Studies in San Francisco. A national public speaker on women's issues and family development, Gayle Peterson practices psychotherapy in Oakland, California and Nevada City, California. She also offers an online certification training program in Prenatal Counseling and Birth Hypnosis. Gayle and is a wife, mother of two adult children and a proud grandmother of three lively boys and one sparkling granddaughter..

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