Thursday, September 27, 2012
Appeals Court Upholds That Facilitating Child’s Relationship with a Sociopath is More Important than Anything Else in Child Custody
What is the single most important factor in a child custody decision?
a- Primary Caregiver?
b- Child’s bond with a parent?
c- Abuse and Mental Health issues?
d- Past and Future Potential Performance of Parenting Responsibilities?
e- NONE OF THE ABOVE (This is the correct answer)
Yesterday, I received a copy of the Appellate Court opinion on my custody case. I lost and they didn’t even have the courtesy of addressing some serious issues that were raised. Although this ruling was not reasonably unexpected, it just serves to underscore how powerful family court judges really are.
What was the most disturbing thing for me is that the authoring judge made two definitive statements that really reveal the disordered thinking of the legal system.
#1. As noted by the court in Woods v. Tidwell, "the trial court is not obligated to consider all relevant factors in reaching its decision…”
Tenn. Code Ann. $ 36-3-106 provides that custody and visitation determinations are to be made consistent with certain factors. These are called the Best Interest Factors. I am not going to list all of them here due to time constraints, but they are similar to those of other states.
The higher courts have previously held (in multiple cases) that consideration of the “best interest factors” are mandatory and that the court MUST conduct a comparative fitness test to decide which parent is most suited for custody. This was designed to ensure that the best interests of the child are served. Now, it appears as if it is no longer applicable.
#2 Father's relationship with the child would be best served by Father being designated primary residential parent.
This was the sole factor that the judge found to be in favor of the father. I obviously disagree with this opinion. The fact is that I had offered extra visitation, never defied a single court order, and continued to allow supervised contact despite strong evidence of abusive behavior. The only thing I asked for was that my ex undergo the recommended psychiatric treatment.
Listen up people because the court is saying that the father’s relationship with the child is more important than any other consideration. This includes abuse. Again, this contradicts previous case law (Burden vs. Burden, Tn Appeals Court 2007 and others) where the appellate courts held that the courts CAN NOT place a parent’s best interests above that of the child.
In the end, the appeal process was a mistake. It has added to the chaos of the family court system. It sets a legal precedent where it is being said that it is okay for a family court judge to disregard the child’s bests interests in favor of promoting a relationship with a parent, regardless of how bad they are.
The full appeal will appear in a separate tab on the blog for those who wish to read it. One interesting thing about the opinion is that is completely ignores a key component: un contradicted expert testimony as to mental health issues.
There was only one expert witness in my case. It was a psychologist who performed a mental evaluation on the father and found him to be Antisocial (sociopathy). He recommended that contact be supervised and layed out a treatment plan for implementing unsupervised contact. The judge in this case completely disregarded this testimony. He made no reference to it, never mentioned it. Disregarding expert testimony is not an application of the judge’s common knowledge. It is a willful omission of the best interest factors.
Again, the court is implicitly saying that it can consider anything it wishes to, regardless of the law. The judge’s authority is absolute and irrefutable.