Illustrated Daily; 6041; Dads Against Discrimination

This legislation is proposed to try and limit the potential of one parent using the child against the other parent, and it probably will have some positive effects, but it won't be a wholesale answer to anyone's problems. And like I say, with reasonable parents, there is no problem. With unreasonable parents, no law in the world is going to change the unreasonableness of the parents, and they will find a way to make each other's lives miserable. That I can guarantee.

The illustrated daylight, managing editor Hal Rhodes. Good evening. By the time they have reached the age of 18, one half of all children in this country will have seen their parents divorced. And in the overwhelming majority of cases, child custody and divorce proceedings is granted to the mother. It is a situation which has prompted a growing number of non-custodial fathers to press for changes in the law, and other reforms as well. Reforms designed to permit both parents and active and equal involvement in the upbringing of their children. A look at this complicated issue tonight with Tony Martirelli, director of the governor's office on children and youth. Don Chavez, president of a New Mexico-based

organization, Dads Against Discrimination, and District Judge and Cass, family court judge in Bernalillo County. First, however, this background report by Sandy Garotano. Don Chavez, the president and founder of Dads Against Discrimination, has managed to capture the attention of the media, state law makers, and the courts alike on his crusade for father's rights. In a little over a year, the group has attracted a statewide membership of about 300 men and women. David Coonsley, a divorce father and member of Dads, explains the kind of support the group offers. Many fathers get so discouraged because of the loss of contact with their children and the difficulty and pain involved that they give up and the big losers in that situation are the children. An organization like Dads provides an opportunity for men to really brainstorm together and talk about what they can do, how they can develop a better relationship with their

ex-spass, how they can go back to court and petition for a change in the custody arrangement. And all of those things require some careful thought and encouragement and support. An organization like Dads is a place where fathers who are very discouraged and depressed about their situation can come and get some hope. These parents who want to remain active in the rearing of their children after divorce are also engaged in a campaign to strengthen New Mexico's joint custody and visitation laws. One of the priorities of Dads' cope is to get a good joint custody and visitation enforcement measure through the state legislature. That was done in the last regular session and the governor vetoed both of those bills. I understand that the governor is considering having his own bills sponsored in the short session which is coming up. I haven't seen those. I would like to be able to work

together with the governor on that to come up with the best possible measure for the children. If that isn't possible if we don't hear from the governor then we will go for a veto override in this next session in January and there is from what I can tell a lot of support in the state legislature for just such an override. The joint custody legislation attempted during the last session however appears to some to be seriously flawed. The bill that was vetoed by the governor has one glaring loophole and that is that in New Mexico we have an effective tool when a non custodial parent kidnaps his child and goes to another jurisdiction and in New Mexico there is a specific law prohibiting that so long as custody is defined. If everything happens to be joint custody then the non-physical custodial parent on a weekend and on a whim can rip off the baby

go to another jurisdiction and there isn't a thing the state of New Mexico can do about it. Several government officials and concerned citizen groups are combining their efforts to draft a more comprehensive joint custody bill to be introduced in the upcoming legislative session in January. The draft that's being considered at this point is different from the joint custody bill that was vetoed in the last session in several ways. One it has definitions of what is joint legal custody. What do you mean when you talk about joint legal custody the other bill didn't define it and this one states what what we're talking about and gives some judges guidelines so we like that a lot. Another point is that it stresses parenting plans that parents should come forth with a plan of their own that provides recommendations of how are they going to decide major decisions about this child regarding recreation religion education and residence and medical medical bills and and those are

major decisions and that we're real happy to see that in there. My opinion is that the new legislation proposed here is a valiant attempt to give relief to some people who are in miserable straits but I have graved out that any new legislation is going to materially change anyone's lives. I pointed out before that reasonable parents live very well under the present law unreasonable parents who want to use the child as a tool to get it the other parent will find ways around this law also. A judge who doesn't understand how to apply the concepts that we're putting forward can circumvent any of the provisions of this law. I think that there is a dual process one is educating the judiciary to

understand how to apply what the legislature wants done and two is to make sure that the parents act in a reasonable manner. The court's clinic in Bernalio County plays an important role in helping divorce couples reach a reasonable agreement on a parenting plan through a mediation. I believe the what most people are asking for when they come down here into mediation especially when they're asking for joint custody is I have been father for this child I have been mother for this child all of their life so far I want to continue to be a parent to my child and when you can help them realize and work out the details of continuing to be fully and completely a parent of the child even though they're divorced they like it they do well with it and I think that's what mediation's all about is that you don't quit being a parent just because you got a divorce. So background to this push for equal parental involvement in the

aftermath of divorce and Tony Martirelli perhaps it would help us understand where we are today if we understood what exactly prompted the governor at the after the legislature passed a joint custody measure its last session to veto that major. The governor very carefully deliberated those vetoes he's been hours on them and the governor was very concerned that the issues were very complex and that they needed additional time to get public comment and for us to think about the side issues that we were that we were all involved in in that legislation and the governor also had a lot of doubts that joint physical custody without any kind of definition and clear physical custody was in the best interest of the child without supports in place and without a lot of careful thought going into it first. What are some of the side issues

that you think need greater reflection and study before measures are taken in the new. There are lots of them and one of them of course becomes a child support issue. What will that do to families that have marginal income when you've got joint physical custody. What will it do to enable the mother who very frequently makes a lot less money than the father to keep a household together so that depending on the way the joint physical custody has been determined that there is still a household for that child to come to and we've been looking at those issues at the child support enforcement commission as well as some others during this past year. Another issue. Pardon me could I ask how would joint physical custody that it would be for both parents have physical access to the children as I understand it on some prescribed basis is that right? Yes. How would joint physical custody affect the support system? Well one of the things that we've found when we when in states that have put in joint physical custody is that the next thing that

happens is that the father is back in there frequently it is the father asking for reduced child support payments and if if that happens depending on the income that we're dealing with it it may be very difficult to in fact keep an apartment door a house so that the child has a home to return to. For the mother to keep an apartment or the house and frequently what happens in some cases that is that the mother may end up moving back in with her family and that creates another constellation as well but but it creates some some financial difficulties that's one side issue. All right. Other other issues are what what are we exactly talking about when you're talking about joint physical custody? What are we talking about? I mean what does that mean to you? In the definition that we deal with a lot of times is that it means prolonged periods of time in the in actual physical custody the child is in the home and a prescription for the way that that perhaps that time would be divided and luckily we have some good

judges that are taking that to mean so mean that maybe that means dividing the time having to do with schools and PTAs but unfortunately sometimes it also means that we're asking children to be in one home three days a week or another home two days a week or one home one year in the following home and other year and that may mean two different geographical locations so all those things have to be taken into account because it could mean switching schools churches peers and depending on the age of the child sometimes that can be very disruptive. All right then what is the distinction between joint as you understand it physical and joint legal custody because I suspect a lot of people would find that distinction without a lot of meaning. Joint physical is the child's presence. Joint legal means having something a major say in the major decisions of that child's life and that would be religion, education, sometimes major recreation decisions, major medical decisions so that when

the parents get divorced if you have joint legal custody there's an understanding that you still have responsibility to work out those major events and major changes in a child's life. Is the governor any more satisfied say than he was last spring today that these kind of issues can be resolved and if so is he apt to call upon the short session of the legislation the third day session which meets this January to address this joint custody issue a new. Yes the governor is confident that a new better piece of legislation can be introduced this legislative session. We've worked on it a lot with many different groups throughout the year the Child Support Enforcement Commission, the Governor's Office of Children and Youth, the Commission on the Status of Women, the Family Bar section of the New Mexico Bar have all worked including with dads against discrimination who had membership on the Child Support Enforcement Commission and we have worked

very much with the interim committee on children and youth so there will be a new piece of legislation the issues the definitions will be clarified and I'm hoping that there is a lot of unanimous support for that bill we're trying to gather as much input before that bill is introduced as possible. So you're confident there will be a new major introduced at this next legislature. All right Don Chavez we've just heard Tony Martirelli talk about efforts to address this joint custody issue at the coming legislature. Earlier there had been reports however that your organization might press for a an override of the governor's vetoes of those pieces of legislation out of the last session what's going to happen here? Are you going to be satisfied with new legislation being introduced are you still going to go for the override? I think that our major concern is that some type of measure some type of laws passed quickly because our children can't afford to wait any longer. If there were assurances and I

think that's what I'm hearing from Ms. Martirelli that an improved bill another bill we're going to make it through this next legislature then we wouldn't be as concerned with a veto override. All right joint legal versus joint physical custody do you see a problem here developing an agreeable and enforceable legal definition here along the lines that Tony was talking about? There's always a problem with regard to definitions and assuring that everyone understands what those definitions mean. I think the way that they translate to the practicing law profession the judges and parents most especially is really where where we have to concentrate our education on what does joint physical custody mean and what does joint legal custody mean? All right well the she raised a point the moment ago that joint physical custody can result she fears in a in a situation where one parent notably the

mother who relies upon custody to maintain a home for the child would be without the necessary financial support if joint physical custody meant any kind of adjustment in child support payment systems what's your organization to have say about that? Well there's one thing that's missing there I was I've been told that frequently if judges award fathers for example more time with the children they're going to be absorbing many of those costs if you have the child all day for example on any given day you can't withhold buying meals or providing meals for that child all day since you already sent in your child support payment so my response to that is that that particular rationale doesn't wash. Well she says look mother's ten women tend to make less than man therefore women have a hard time hard time generating the resources necessary

just to maintain a home for the child when it comes their turn to have custody the child physical custody the child now all right child's going to be fed someplace but is there a problem here do you recognize that there's a problem here? Yes I do and the way that I always attempt to to resolve problems of that sort is to try and keep the focus on the children I'm hearing people placing the needs of a given parent in this example the mother over the needs of the child the costs in my opinion to raise children should go with the children and not with any given parent surely if there's a vast disparity between the amount of money that two parents make that some adjustment adjustment can be made to compensate we have to be reasonable but I think we have to be very careful to be sure that the needs of the children are first and foremost and in light when we're making a particular plan all right moment ago

we heard in the introductory statement state senator John Buttigar argue that the real issue may well have very little here to do with the law and legal definitions of joint custody but parents who simply refuse to cooperate if and if that does mean indeed the children suffer and he's got a point it's a good point but it's an oversimplification the the statistics the literature tell us and again this is a matter of education I think that even uncooperative parents will cooperate more once they understand that they too have to follow the law and that they have to place the needs of their children ahead of their own needs where you have sole custody arrangements better than then 50 percent of those are going to go back to court for re litigation and less than half of the joint custody arrangements go back for re litigation now where you

have child support delinquency rates and joint custody arrangements the child support delinquency rate is somewhere between six and eight percent this is nationally by the way the unemployment rate nationally is about seven percent where you have sole custody the child support delinquency rate is better than fifty percent I think those figures are sending a very clear message with regard to which is which is what what is the message the message is that that parents should have the same rights responsibilities and privileges with regard to raising their children after divorce that they had while they were married all right and when you get when you take that away all the incentives are gone and people start playing power games all right another major passed at the last legislature but also vetoed by the governor would have find custodial

parents $200 in the event they denied legally prescribed visitation rights to non custodial parents now I don't know what's going to happen to the next legislature on this measure but again this is one that has been suggested might you might see an override on will you I think that right now there is no equal protection under the law if you take a court order that says you have visitation and you have child support and the child support is not paid then that parent who is entitled to that can go to the child support enforcement bureau the district attorney and have either one of those agencies go to bat for them if you take the same court order and you have denial of visitation and you can't go to any one of those people you have to hire your own attorney at your expense and chances are it's going to be for not anyway in all but the second judicial district court so I think that there

needs to be some type of child support excuse me child visitation enforcement provision so will we seek an override yes or no yes all right judge cast family court let's talk first joint custody what difference would joint custody legislation of the sort we've been talking about here make to the work of the family court divorce proceedings and custody matters well let me say that I think that the the bill as it's been presented to me here the proposed bill the governor's bill I believe is going to make virtually no difference at all in the second judicial district but you have to understand that this is the only district with a family court that has in it three family judges who ran for the court because they were interested in family law problems and you need to understand that that throughout the rest of the state of New Mexico we have general jurisdiction judges who hear civil matters criminal matters workman's comp matters and child custody support children's matters juvenile matters and I think that there's a very great

difference between a general jurisdiction judge and someone who has the time and interest to to focus on only family matters this bill will make no difference in the second judicial district that's right I believe that that basically this is already in place and in operation in Bernalillo County elsewhere on the state I think that if this bill is is changed in certain ways it can make a difference around the state first of all I don't like the definition that they have placed here joint legal custody means I think that that joint legal custody is a state of mind and I think joint legal custody should be defined as the following that neither parent after a divorce may make a decision or take an action that results in a major change in a child's life until it has been discussed with the other parent and agreed to and if after discussion the parents cannot agree one wishes to change the other does not then joint

legal custody means no changes to occur until the matter has been back from mediation or litigation all right what about the joint physical custody issue which was discussed here the moment ago and notably the impact on the income of the mother well first of all the the words joint physical custody I think are silly words and ought to be taken on this bill altogether if you're talking joint physical custody there seems to be some idea that it means equal time basically if you've got legal custody in place as I've defined it to you which means that everybody has an input into the child's life then you're talking about a time sharing plan and each family has to come up with its own time sharing plan because every family has different schedules and I think that's where you need to go to the idea of talking joint physical custody to me is meaningless if you're talking 50 50 half-time a week here a week there a month here a month there in very few cases is that a situation that can work

what about Senator John buttergers argument that except here in Bernalillo County where you have family courts and where you also have court clinics judges are not only not to fully understand family law but to be able to circumvent it if they choose I mean don't you need something in the law that would give them direction be rather specific so that they would deal with problems that Don Chavez has been talking about here he feels he's got on his hands well I think I think that's right I think that if you if you explain to a district judge that this is what joint legal custody means that he'll have a much easier time here she in saying joint legal custody is going to be an effect when you say joint legal custody you you will get a different answer from each of 10 people that you ask what does this mean to you and I think that most of the judges out there have a sense the joint custody means a week here a week there a month here a month there which is not what it's all about

judges I don't believe we're going to try to circumvent this law but you have to understand that when you're a general jurisdiction judge and you have criminal and civil and workman's comp and all of those other cases you cannot possibly have the time available to take it case by case and for the judge to pay attention to each case and act as a mediator all right so if we're going to have this kind of joint legal custody throughout the state of New Mexico we must have mediation throughout the state of New Mexico so that the judges have the underlying support staff that is family counselors who are trained to help parents learn how to communicate with each other the judge can't do that lawyers are rarely trained to do anything like that let's say the legislature is not apt to find it either is it well it's going to take money they clearly is but I suggest that it's the smartest money that we could spend you agree I agree I think that the possibility the governor would call upon the legislature find

us kind of service the statewide we're certainly waiting to hear what we get from the judicial council they've been working on this issue and one of the things they're they're looking at it's perhaps raising fees and they're trying to come up with some other ways of funding it but it's certainly was a recommendation of the child support and force in commission it will certainly be looked at for the upcoming session very very very long time left here judge cast the idea that Don Chavez was talking about they need some method by which to enforce visitation rights the two hundred dollar fine was vetoed by the governor ought to have been yes or no I think that it should be should have been vetoed and should stay vetoed all right well we're going to have to leave it to that folks were all out of time thank you so much for coming by that's it for tonight tomorrow do New Mexico artists get a fair return and the legal protection they deserve meanwhile thank you for joining us I'm Hal Rodz good night You