Lol. Your comments here make it clear that you have NOT read Jim's web site info on PEP, his Texas motion or many of his posts.
Graham: "Firstly this has to be one of your worst explanations of your position you've given anywhere - just a personal opinion obviously, but there are so many things to object to."
I knew you wouldn't like my line of argument here, and that is because you DO object to equal parenting and support mother supremacy. But it isn't my goal to support YOUR views.
Graham (quoting a "Professor" John Wade who is criticizing equality in parenting): "One size does not fit all."
What a brilliant statement. Too bad it doesn't "fit". Here are a few basic comebacks:
1. The current CP/NCP plan is a cookie cutter "standard" that is forced on families, and it is a size that doesn't fit ANYBODY.
2. The equal parenting plans are all REBUTTABLE, so all a parent has to do is show why it doesn't fit their situtation. It isn't forced.
3. If both parents AGREE to an unequal parenting arrangement, that is their call. Again, it isn't forced.
4. There are as many different ways to divide parenting time in half as their are families.
Graham: "We can all see that you can use BIC as your argument for equal parenting just has he has done for the arguments against. That is surely worth bearing in mind when the same premise is so 'flexible' that it can be used 'equally' to support two opposing views."
You are being a bit hypocritical, it seems. You just finished condemning fairness by saying it is too INflexible, and now you are saying that trying to do what is best for the kids is too FLEXIBLE. The truth is that it is in the middle. EP is a "rebuttable presumption" so it guides the court into a favorable model, but there is flexibility built into the law so that parents can always present their case. That's the REBUTTABLE part.
However, the interests of the child concept CAN be too flexible - that's where the PRESUMPTION comes in. Simply saying "best interests of the child" IS too general a statement. The child's interests must be more clearly defined by laws that give a child two things: Regular contact with two loving parents and as little involvement in divorce conflict as possible.
This can be spelled out more clearly with the following rebuttable presumptions: equal parenting or as maximized as can be done under BIC; primary custody granted to the non-moving parent in a move-away situation; maintaining at least minimal contact with excluded caregivers; barring the child from a decision-making role on custody or contact and finally make-up time, court costs and increasing sanctions against denial of parenting time violators.
Some of those are more controversial than others, but the point is that we should DEFINE the child's best interests, not lose it altogether. That way, it is not so much a matter of a judge's personal prejudices.
PRESUMPTIONS make sure that the outcome isn't determined by which judge you get. Rights to REBUTTAL assure that, although the judge has a more structured guideline, it is still a case by case decision (but not judge by judge).
Graham: "and the real point is that BIC can be applied to anyone - it can mean that the court can apply the BIC test to yourself and decide you aren't in your child's best interests."
Yes it can, but I am ready for that test - as long as it is fairly applied. What is needed is fairness, not giving up any attempt at doing what is right for the child involved.
Graham: "Why therefore is it necessary to have a law that might exclude people like you"
Because there are people who are NOT like me, and there needs to be enough flexibility (there's that word again) to account for the very worst of parents or to account for any extreme situations that may arise.
Does that leave the opportunity for error? There will always be SOME possibility of unfairness when a poor decision is made, but the only way to lower that risk is with a law that is based on fairness to both parents equally and to the child.
I'll add that losing the child's best interests principle does NOT prevent you from being excluded. It INCREASES the odds of exclusion. Contact is in the CHILD'S interests, not the CP's interests, which is the legal default if you lose BIC.
One more note: WHY are you wasting SO much effort trying to attack a law that HELPS your cause? Why do you not go DIRECTLY after the SOLUTION, by advocating a rebuttable presumption of contact? If such a law is enacted, it makes no difference if BIC exists or not, and if such a law is NOT enacted, it STILL makes no difference if BIC exists or not, except that BIC give you a fighting chance against a CP-biased court.
Graham: "Family law used to be based on 'assumption' of the parents doing what is in their child's best interests."
No, it was based on the CUSTODIAL parent doing what is in the child's best interests - as the law AND almost all court decisions were clear on. Remember, we are talking almost exclusively about DISPUTED cases, where you really can't use the term "the parents" as a united front. So throw that and any "assumption" out the window.
Graham: "The BIC test has taken that away, so that now even you are forced to make your case for why you might be good for your child."
No, it is up to my x to show that I am NOT good for my child. The burden of proof is on her and she needs clear and convincing evidence of significant circumstance. The court needs an expressed finding of fact to explain why they are deviating from rebuttable presumptions and the least-intrusive government interference.
That way, if I am a severe detriment to my child, there IS an option to show that, but it is a very tall hurdle to leap and there really needs to be some extenuating circumstance to bypass the rebuttable presumption.
Graham: "That is an argument similar to the ones Professor Wade uses when he tries to dismiss parents getting any rights - that they do so for selfish reasons."
You and I know that isn't true, but trying to diminish a child's interests DOES give your opposition the golden opportunity to portray you as selfishly disregarding your child.
Graham: "As far as I know no one wants to stop the courts looking into what is good for the child - I don't and I haven't read anything telling me Jim doesn't."
Despite your subject title "Why BIC Must Go!" and months of debate, you are actually very centrist on this issue.
Unfortunately you are VERY mistaken about Jim's beliefs. He calls it "impermissible" for the court to give ANY consideration to a child's needs in child placement. He MUST be extremist on his stance because he is trying a bass-ackwards way to win equal custody through a pseudo-Constitutional ploy. He does make an exception for abuse, as if it his job to establish exceptions and to rule out any other exceptions yet to be considered.
You can call Jim "right" if you want, but in all these years NO judge has EVER called that argument "right".
He mistakenly believes that if he can create caselaw that runs contrary to ALL existing caselaw, all 50 states guidelines and all common sense, then the court may NOT even THINK about his child. Then he believes that the way is clear to force equality. He would never get that far, but if he did the judge would laugh and say "The law says that I am to find a 'resident parent' based on the stability of the primary caretaker. That person isn't you. Petition denied."
Graham: "What we are against is that investigation or judgement of the court being all that matters."
Again, that may be YOUR belief, but not his. He puts 100% of his faith in the courts that put us where we are today. He won't make any attempt to change the laws as he sees the court as the only answer.
Graham: "Under the changes I call for to family law the courts have to establish whether you are a fit/decent parent - that entails looking at the child interests doesn't it?"
Yes, and according to your own objections, it MIGHT mean that a judge finds that you are not a "fit" parent. You would have to "prove" yourself worthy, right? The court COULD exclude you based on this law. No matter how you cut it, a judge decides your contact with your child if one of two parents petitions the court.
Graham: "Then they can look at whether, even if there were the legal presumption in favour of contact I'm calling for, that enforcing the contact might harm the child (in other words whether the conflict/resistance of the child/mother to allow contact can be overcome without causing actual harm"
Huh? If the CP (you used the word "mother", but I like the gender-neutral terms) is causing harm, then s/he is not a fit parent. I thought we all agreed on that. If s/he is causing that much resistance, then s/he needs to have increasing sanctions to include loss of parenting time, court costs and, if necessary, incarceration. We can't just hand children over to abusers just because they are more forceful and we fear them.
If the child is causing extreme resistence, then it is the same as a child who refuses to go to school or refuses to follow any direction of authority. This kind of behavior is a sign of extreme problems and it is NOT a good idea to REWARD bad behavior by the child... OR by a parent! The best approach when this happens is gradually reducing the parenting time of the emotionally abusive parent, and eventually custody reversal.
Graham: "To misconstrue your words once again - 'break the tie' - that what BIC does isn't it 'breaks' the tie between parent and child!"
No. All it does is focus on the needs of the children in a custody issue. This is a settlement of a parent against parent dispute, so the child is the subject of the battle, but not a part of it.
Graham: "I have kept saying your views are 'mainstream' because you support the BIC test."
You keep bringing up a "test" just like Jim keeps calling it a "doctrine". This is merely a statute that states that the best interests of the child are a consideration in custody determinations. This is common sense, and it is completely fair and right. It is also fortuitous for NCP's because it is the ONLY part of family law that works to the advantage of NCP's.
Graham: "This realise you are not mainstream at all because as you say:- Some state guidelines say something like this: 'The parents are to agree on all matters pertaining to the child in regards to blah blah blah, BUT if the parents do not agree, then the CP prevails.'"
Child custody is a controversial subject with heated opinions on multiple sides. I am fairly centrist between extreme NCP righters and extreme CP righters. I am deliberately LOOKING for happy mediums that could present less conflict, so I am probably on some sort of middle ground. This has a tendency to make enemies on both sides of an issue, but I find it an easily defensible position, even three against one.
Am I "mainstream"? Well, that depends on the aspect of custody you are considering. On the issue of "best interests of the child" I am very much mainstream, but that is almost universal. I would say that, on this note, Jim is NOT mainstream at all and even he admits that.
Graham: "Maybe you hang on to this flexible BIC test so tightly because it is the only thing flexible enough to cover your proposals on equal parenting"
Maybe not. As I stated above, the answer is to make it LESS flexible with presumptions, but maintain SOME flexibility with rebuttals.
I support the interests of the children because it is right. The fact that it also is of HUGE importance to non-custodial parents is an added bonus.
I have not always been a supporter of equal parenting, and in fact I used to debate the owner of this website on the subject (I was against it.) But the more I think about what is best for children, I can't deny that equal parenting gives kids what they need most: two parents and less conflict.
So the truth is undoubtedly the opposite of what you said. I don't support BIC because it favors equal parenting. I support equal parenting because it is in the interests of children.