Walker & Associates - Family Law Attorneys

The Roar of the Tiger Mother and The Best Interest of the Child Standard (C.R.S. 14-10-124)

Randall Mustain-Wood — Thu, 05 May 2011 20:06:55 +0000

The blogosphere, and emails as well as the NY Times best selling book list are saturated with the parenting model of the Tiger-Mother – no sleep overs; no play dates; no grades lower than an A on a report card; no choosing your own extracurricular activities; and, no ranking in any endeavor lower than No. 1.

Recent results from the world-wide achievement test for children called the Programme for International Student Assessment (PISA) showed in stark detail the measured difference between the Tiger Mother technique of the Chinese – focus on hard work; skills mastery; long hours of study, and the American Model (the Manatee approach emphasizing self-esteem and praise for effort vs. performance) as follows:

Chinese children are #1 in reading, science and math; and
American children are #17 in reading, 23rd in science and 31st in math

As a family law attorney and mediator with Walker & Associates in Centennial, Colorado, I began to wonder how a “Tiger Mother” approach to parenting would be looked at through the lens of the most important criteria in family law set forth in C.R.S. 14-10-124 “BEST INTEREST OF THE CHILD” (BIC).

The BIC Standard is the lynchpin for all child-related issues from parental responsibility (custody) determination, to parenting time (visitation) plans and modifications, to issues of removing the child out of state and to questions of whether non-biological parent figures, (grandparents and other care givers) get to spend time with the children. The core concepts of the BEST INTEREST STANDARD are:

The wishes of the parents;
The wishes of the children;
The child’s (children’s) adjustment to neighborhood, school, etc.;
The ability of each parent to foster and encourage an appropriate relationship between the child and the other parent; and
Other issues which would influence meeting the child’s (children’s) needs and interests.

Let’s assume that female children age 13 and 10 have been raised by a “Tiger Mother” (i.e. performance/mastery based) and that the father’s role has been one of the “Manatee Father” (i.e. supporting the Tiger Mother’s approach and providing “self-esteem” skills). The Family is going through the divorce (dissolution of marriage) process. Each parent wants to be the primary caretaker parent – make all the decisions and limit the other parent’s access to the children. Mom fears a loss of the mastery-performance skills of the children and father thinks the mother’s approach has neglected the children’s self-esteem and social skills development.

Questions to be determined are:

Which parent should the children live with most of the time;
How should decisions be made about the children, particularly with regard to education and extra curricular activities; and
How much parenting time (visitation) should the children have with the non-primary care parent?

The following facts are present in this case:

The children are excelling in school and are at the top of their classes in reading, math and science;
The children do not like the performance-mastery approach of mom and want to live most of the time with dad;
The oldest child (13) excels at the piano while the younger child (10) struggles with the violin;
Mom and dad agree that they have radically different parenting styles and strategies for raising the children.

POSITION #1: Tiger Mother should be primary residential parent, make all decisions about the children’s needs; parenting time with father “Manatee” should be limited so as not to interfere with the children’s exemplary performance in school.

RATIONALE FOR POSITION #1: Continue to emphasize the performance-mastery approach which has been the foundation of these children’s lives.

POSITION #2: Joint parental decision making with a Domestic Relations Decision-Maker (DRDM) appointed to implement decisions when an impasse is reached. Each parent should have equal time (parenting Time) with the children.

RATIONALE FOR POSITION #2: Need to balance mastery-performance emphasis of mother with self-esteem development emphasis of father.

WHAT DO YOU THINK? WHAT OTHER POSITIONS COULD BE TAKEN?

The Purpose of the Walker & Associates Blog

Diana — Thu, 03 Feb 2011 18:42:07 +0000

According to Blogging for Dummies (3^rd Edition), the blogosphere is “an exciting and energetic space online that people are using to reach out, build communities and express themselves…”

With these words as guidance, what follows is an interactive dialogue, sometimes a rant, and always a provocative reaching out regarding the emerging, ever changing world of families in transition and new family patterns.

Family law will be explored in a non-academic but content based format. Members of the Walker & Associates staff and clientele will be the focus of this process. Join us if you want. So let the blogging begin…!!

ABC TV’S Modern Family: What does it say about Family Law in the 21st Century?

Randall Mustain-Wood — Thu, 03 Feb 2011 18:53:56 +0000

One of the only television shows I regularly watch (either cable or network) is Modern Family on the ABC television network. As a divorce lawyers with 32 years of service in the business, we have long been aware that families change at warp speed and the practice and services of the family law system creep ahead to try to catch up – never really making up the distance.

In my youth with TV shows like the Cleavers and the Nelson family; in my young adulthood with the family systems of Archie, Edith and “Meathead”, and the Bill Cosby Show, families tended to always to be intact, heterosexual and father-centered. The new family tends to be none of the above – second marriages abound; global partners (Jay’s Columbian wife) is common; gay relationships are a focus (Mitchell and Cam) with an adopted Southeast Asian daughter, and on and on.

So how does 21^st Century family law deal with the blended families, gay relationships, and globalized family members and values in the current family system? The family law system of today is steeped in the 20^th Century legal jargon of “best interests of the child”, “endangerment standard”, and primary parental decision-making, or custody in a very simple setting. I suggest that family law for the present and future must become less statute-based and more processed based.

What does this mean?

(1) Less emphasis in biological parenting and marital family systems and more emphasis on the quality of parent-family relationships (psychological – emototive – physical).

(2) Greater emphasis on creative access to children from quasi-parent figures, i.e. caregivers, nannies, family members and friends. This need to emphasize relationships is contrary to the current views of Troxell v. Granville, 530 US 57 (Supreme Court 2000), and the recent Colorado case of In re the Parental Responsibilities of Reese, 227 P3rd 900 (Colo. App 2010) which supported an adoptive parent’s rights as superior to the parties who had provided primary physical- emotional care for a number of years while the child had only minimal contact with the legal (adoptive) parent.

Without changes which emphasize process and relationships as opposed to statutory principles, family law will always follow in the wake of the changing realities of society’s ship to the detriment of children, families and social reality.

Domestic Relations Decisionmakers (DRDM) Sheriffs or Judges?

Randall Mustain-Wood — Thu, 03 Feb 2011 18:46:10 +0000

When House Bill 05-1171 (codified as C.R.S.§14-10-128.1 – 128.3 and 128.5) became effective on June 2, 2005, a new day of private adjudication dawned to meet the challenges of crowded dockets, endless continuances, and the escalating lawyer and expert fees which were commonplace.

As with most change, some good and some bad resulted from the enactment of these new statutes: (1) the possibility of timely and competent resolution of family law issues as well as a new level of judicial rulings in the name of “implementation or clarification of existing orders… in a manner that is consistent with the substantive intent of the court order”; and (2) actions on behalf of private adjudicators that challenged due process.

Problems began to surface almost immediately when the Parenting Coordinator (PC) proved to be ineffective and more and more PC’s agreed to serve only if they were also domestic relations “decisionmakers” (DM) with the power to render binding determinations of a sort.

Further problems occurred when the decisionmakers looked to the orders, either stipulated to by the parties or entered by the Court, and found them to be, at times, vague, ambiguous, or unclear. How can the substantive intent of the Court Order be implemented or clarified under these circumstances?

Also, is the decisionmaker prevented from taking into account in implementing or clarifying the provisions of a parenting plan other changes to provisions not in dispute? Is the role of the decisionmaker one of a sheriff—just enforcing and clarifying the language of the agreement – or can the decisionmaker be a “judge-like figure”, taking into account the best interest standard in implementing or clarifying the court order?

A fact pattern best illustrates the tension of this role: “Party A and B create a permanent parenting plan which states: A and B must make all decisions jointly regarding their children in the areas of education, parenting time, and extra- curricular activities. Any disputes shall be resolved by the decisionmaker named in this agreement.”

Father, who lives in Castle Rock, Colorado, wants both twin boys, aged 11, to attend a private military school in Salina, Kansas. Mother, who lives in Centennial, Colorado, does not agree and the decisionmaker is called upon to resolve this dispute pursuant to C.R.S. §14-10-128.3.

The decisionmaker rules that, effective Winter Semester 2011, the twins will attend school in Kansas.

The results of the decisionmaker’s ruling are: (1) Father’s and Mother’s equal parenting time is changed; (2) The children are unable to play competitive ice hockey in Centennial, Colorado; and, (3) the issues of how the tuition, fees, room and board, together with travel home to Colorado are raised and have not been addressed.

The following are questions which must be addressed regarding the decisionmaker’s role in this type of family law dispute:

A. If the decisionmaker acts only as a “sheriff”, i.e. clarifies or implements the educational issues only, and in doing so changes the parenting time, child support, and extra -curricular activities schedule of the children, what are the due process issues raised? or;

B. If the decisionmaker acts as a “judge”, i.e. looks at the clarification and implementation of the education issue as it impacts the parenting time, child support, and extra -curricular activities in light of the issues of best interest of the child, has the decisionmaker acted appropriately according to C.R.S. §14-10-128.3?