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Asking for Investigation
Because family-court assigned children's attorneys and guardians should work on behalf of the best interest of children and the public good, I am bringing to your attention a custom of guardians and children's attorneys that appears to thwart the intentions of the legislators of Ohio. I ask that you please investigate this concern to ensure that lawyers are not orchestrating pure no-fault divorces in violation of Ohio Revised Code or Constitutional principles meant to ensure the right of due process.
History
Legislation allowing unilateral no-fault divorce, where one spouse can force a no-fault divorce against the other spouse, was never proposed by the voters of Ohio. It was however proposed by a national team of lawyers serving on the National Conference of Commissioners of Uniform State Laws (NCCUSL). The Commissioners began developing model legislation on the subject of Divorce and Marriage in 1965. If the Ohio legislators simply adopted the NCCUSL lawyers' plan, they would have eliminated fault-based grounds for divorce in Ohio Revised Code. The Commissioners' introduction to their plan says:
Serious commentators and experts in this field have concluded that elimination of traditional fault grounds plus streamlining the procedures would be of great benefit in the domestic relations field. These goals are the bases of Part III of the Uniform Marriage and Divorce Act. The Conference feels that it has chosen the most suitable language and the most complete procedural provisions to achieve these goals. Note that the term "dissolution of marriage" replaces, throughout the Act, the term "divorce". [1]Ohio legislators rejected this plan. They never gave court the power to end a marriage when one spouse simply wanted to force a no-fault divorce because they didn't feel like being reconciled. In 1974, Ohio legislators did add a new way for an abandoner to end his (or her) own marriage, but only after being separated from the other for two years (1973 HB 233, SB 348). In HB 233, if both spouses wanted to end their marriage they could also do so with a "dissolution" in which they provide their own separation agreement determining how they would split children and property. In 1989, without fault-based grounds or the required year waiting period, the legislator gave the courts the power to issue divorces with financial support orders and orders for the splitting of children and property. With the passage of HB 129, the court had this power, but only if both spouses stated they were "incompatible."
... If there is a contested proceeding, by a denial of irretrievable breakdown, the court has optional powers. It may make a finding whether the marriage is irretrievably broken, or it may continue the matter. Continuance can be for no less than thirty days, but can be no longer than sixty days. The court may suggest counseling, and it may order a conciliation conference. At the end of the continuance, the court "shall make a finding whether the marriage is irretrievably broken." Again, fault plays no part in the determination. It is a question of the reasonable prospect of reconciliation.[2]
If Ohio legislators adopted the uniform divorce law proposed by the NCCUSL lawyers, one spouse alleging incompatibility would give the lawyers, guardians and judges the power to take over a family and force a split, but Ohio never adopted that plan.
Ohio's One year Separation Requirement
In Ohio, the only simple way to obtain a no-fault divorce, where one spouse is not proven guilty of fault, such as extreme cruelty (defined) extreme cruelty (defined) or adultery, is by mutual consent. Both husband and wife must agree that they are "incompatible," (ORC 3105.01(K) 3105.17(A)(10)). If one spouse does not want a divorce, the spouse wanting to force divorce has to leave the marital home for one year. Capable spouses – who don't want divorce – might be likely to welcome the abandoner to spend time at home with the family. During the year waiting period, abandoners are still obligated to provide their share of the "necessaries" to the marital household (ORC 3103.03). If fault can't be proven, a marriage abandoner has no basis for litigation and no use for an attorney because no ground for divorce exists until they have been living separated from their spouse for one year.
Forty years of research demonstrates that divorce financially devastates children. Multiple social pathologies in children can be traced to divorce, such as depression, high stress, poor academic performance, immoral and criminal behavior, teen pregnancies and the inability to have stable relationships as an adult. When a reliable, capable parent loses the full contribution of their spouse for necessaries in the family household, this parent is obviously financially devastated too. Ohio legislators did not adopt no-fault divorce laws allowing marital abandoners to force children and capable spouses to face such arbitrary consequences.
Abandoners Responsible
During the one year abandonment period, if a bread-winning father wants to live with his new adulterous partner, he is still obligated to provide the necessary financial support to his family. If a "desperate housewife," or a "career woman" wants to be free of the responsibilities of husband and children, she is still obligated to provide her share of the necessaries. This also includes labor (and nurturing) for the children if she had provided it before abandoning her marriage.
According to Ohio law, if either spouse in negligent in providing the necessaries for their household, anyone could sue for reimbursement for having provided for these needs of the family (ORC 3103.03).
Children's right to maintain home routine
During the one year of abandonment, the court has no specified power to force children and the reliable spouse to live on a divorce schedule (ORC 3105.21(B), 3109.04(A)). During the abandonment, if grounds aren't proven, the court must hear testimony before taking over children's lives (3109.04(A)). If testimony demonstrates that no grounds exist, then there is no basis for the divorce complaint and the case should be dismissed. The unreliable spouse must complete the one year of separation first.
Children have the right to not be abducted or neglected. According to ORC 2151.03(A)(2), a neglected child includes one who lacks adequate parental care because of the faults or habits of the child's parents, guardian, or custodian. If the government guardian or court appointed children's attorney is recommending that a child be forced to lose the natural day-to-day parental care provided by the reliable spouse, isn't the guardian recommending that the child be both abducted and neglected?
When the government guardian or children's attorney forcibly separates children from a reliable spouse who never wanted to withdraw from marital life; from the children's perspective, isn't that parent being abducted? When one spouse wants to withdraw from marriage, by what rationale and right does the children's attorney or children's guardian take a child from a reliable spouse? Many capable spouses want to remain undisturbed with their children at home and never wanted to withdraw from marriage.
For example, no Ohio Revised code states that children can be forced to spend overnight visits with Daddy and his new adulterous partner. Children cannot have their father forcibly removed from their day-to-day lives and only be allowed to see him away from home on weekends, just because Mommy wants a divorce.
Lawyers' independent organization FAMAD
The Center for Principled Family Advocacy (FAMAD) is an independent non-profit organization of lawyers and guardians in a five-county area (Cuyahoga, Geauga, Lake, Medina, and Lorain). If they do not inform capable divorce-besieged parents of their right to an undisturbed one year waiting period before court orders exist, they are ignoring the intentions of the Ohio legislators.
On their website they encourage spouses to hire lawyers to create marital dissolutions because litigation is expensive. It may be expensive for a person trying to force a divorce to find a lawyer to prove fraudulent charges of fault. If one's spouse has committed no grave fault, it may be expensive for an abandoner to pay to provide all the necessaries to the family home for one year during the required separation period, plus pay any spousal and child support which would be due after a divorce decree.
If the FAMAD lawyers can convince capable spouses who don't want divorce to give in, and sign agreements just to keep the "costs low," then the FAMAD lawyers have found three customers (mom, dad and children), where there may have been no customers at all if the one year separation period was publicized and practiced. Court ordered children's attorneys or guardians might also find it a harder to convince the public that forced divorce schedules that split all weekends, vacation days and birthdays really help children at all; especially after the children had been surviving for one year, living undisturbed with the reliable spouse who never wanted the family destroyed in half in the first place.
A reliable spouse who does not want divorce could hire no lawyers and simply say, "I want to give testimony asking for the divorce complaint to be dismissed because I am innocent of the charges of extreme cruelty and gross neglect of duty." The capable spouse could say, "If my husband (or wife) wants to separate for one year, I do not want my children forcibly removed from our home. I shall hold my spouse responsible for his obligations to provide his share of our family's necessaries. You could learn from our children that they do not want to be ordered to leave home just to visit the parent who wants to withdraw from marital life. That (abandoning) parent is welcome to spend time with our children at home."
On behalf of voters and taxpayers, elected judges are entrusting to guardians or children's attorneys the role of protecting children and representing their rights. Dedicated, reliable spouses are being ordered to pay the fees of these attorneys who are entrusted to also be the guardians even when the guardian forcibly takes the children from them, against the children's wishes, against reason, and against the marriage contract. Guardians and children's attorneys also coerce capable, non-abandoning spouses to agree to schedules, which they believe hurt, their own children. In practice, these guardian/attorneys appear to make no effort to ensure that children's right to an undisturbed home during the one year waiting period is preserved.
According to the Ohio Revised Code, guardian's and court appointed children's attorneys have no authority to force children to leave home to visit an abandoning spouse unless the abandoner could prove ground for divorce Ñfault based grounds, such as adultery, gross neglect of duty, or extreme cruelty, etc. If grounds don't exist, any unilateral divorce complaint should be dismissed.
Challenging FAMAD, guardians/attorneys
Many reliable spouses don't want divorce and they welcome the abandoning spouse to spend time at home with their children. On behalf of reliable spouses and innocent children we challenge the Center for Principled Family Advocacy (FAMAD) and all court ordered guardian/attorneys to explain themselves to the Ohio Legislators and constituents. When these experts serve the court as guardians and court ordered children's attorneys, they are serving Ohioans.
- How does it serve children or the public's interest to ignore the one year separation period, and coerce capable, dedicated spouses into signing a visitation schedule that is not required by Ohio Revised Code?
- How does it serve children or the public's interest to take children from a reliable spouse, and give custody of children to an abandoning husband or wife against the will of the children and capable spouse?
- How does it serve children and the public's best interest to force children to live on divorce-visitation-schedules which separate them from the reliable (non-abandoning) spouse on half the holidays, weekends and vacations, when the abandoner is welcome home all the time?
- How does it serve children and the public's best interest to abduct stay-at-home moms, from their own children and force them into financial ruin? Or to do the same to capable husbands and fathers?
- How it serving the public's interests or children's best interest to force them to lose a home maintained by two parents and be thrust into a life with two separate houses supported by two separate parents and force young children to lose stay-at-home nurturing from a capable parent?
- How does it serve children and the public's best interest to sell lawyers' services to individuals who want to force divorce on their capable spouse but have no lawful reason to file a divorce complaint? Do FAMAD members, attorney mediators, and attorney/guardians advise such people that there is no grounds for court and attorney involvement until after they have been separated for one year?
- The children's wishes and concerns are facts to consider according to the Ohio Revised Code once grounds for divorce have been established. How do guardians justify their attorney rates by supposedly being the "voice" for the children in court, when the law allows the children to speak for themselves? How do these attorneys justify charging a reliable spouse for an attorney whose purpose is to abduct the children from themÑthe spouse who does not want to withdraw from marital life?
- How does it serve the children and the public's best interest to order children to leave the home they've always known with the reliable spouse who never wanted divorce Ñ just so they can visit the abandoner on half of the children's non-school days? The guardians' practice of coercing people to sign schedules making children leave home on half the holidays and vacations would not be likely to be desired by children.
80 % of divorces are sought by one spouse against the wishes of the other spouse according to a scholarly work published by Harvard University press.[3] A Gallup poll concludes that most divorces are sought against a capable spouse who is not guilty of grave fault.[4]
Secret tactics
Reliable spouses need to have a helpful forum in which to report the coercive tactics used by child guardian/attorneys in their offices or in court hallways. Lawyers may be regularly coercing reliable spouses who do not want divorce to sign "agreed" visitation schedules which they know are hurtful to their own children. Guardian/attorneys might not be forthright with you about whether reliable spouses are ever advised of their rights to defend themselves against fraudulent charges of extreme cruelty or gross neglect of duty.
If the children's own guardian and attorney do not make sure parents understand that there is no Ohio law which forces children to leave the home they've always known because one parent wants to abandon their marital relationship, then who will? If the members of FAMAD, a non-profit organization of lawyers, are neglecting to represent the law to the parties involved, who is responsible to correct the error? If the children's own attorney never explains to all the parties that the children have a right to the full contribution of both parents into one marital household during the one year abandonment period and possibly thereafter, then who will?
Request for Investigation of FAMAD, guardians/attorneys
Please investigate FAMAD and court ordered guardian/attorneys to ensure that their instructions convey the rights of children and reliable spouses to have their lives undisturbed by divorce visitation schedules, when one parent insists on abandoning marriage and has no fault-based grounds. Please investigate to learn if guardian/attorneys are using unethical and coercive tactics to force children to live on disruptive visitation schedules. Take whatever precautionary steps are needed to enforce ORC 3103.03, so abandoning spouses can't slip out of their obligations to provide necessaries to their children and the marital household during any marital abandonment. Take whatever precautionary steps are necessary so reliable parents have their right to due process and a speedy trial respected. Please hold accountable those who make fraudulent fault-based charges and commit perjury. And especially begin to hold accountable those attorneys who recommend making such fraudulent charges.
If these precautionary requests are not given due attention, FAMAD members and their peers, will continue to follow their own customs and practices while disregarding the Ohio Revised Code which specifies that Ohio is not a clear no-fault divorce state.
When these attorneys are working for the court as guardian and children's attorneys, they are essentially working for the public. Court appointed guardian/attorneys and FAMAD members' practices leave all Ohioan's having to live with the social pathologies and financial devastation manifest in children and capable spouses due to unobstructed, unilateral, forced no-fault divorce, even if this practice was never allowable according to the Ohio Revised Code.
Mrs. Bai Macfarlane
co-signers:
Ray Lautenschlager, Director, Akron PACE, Parents and Children for Equality
Karin Roach, Clinical Social Worker, MSSA and LISW, Canton OH
Scott Strohm, Ohio Director, UnitedCivilRighs.org
Christopher Tock, State of Ohio Rep for DADS, Dads Against Discrimination Services, State of Ohio Rep for the United Civil Rights Council of America
Marilyn Heidelman (in my opinion), Secretary of Cleveland Diocese Catholic Parent Teachers League
[1] Statement on the Uniform Marriage and Divorce Act by John M. McCabe, Legislative Director, National Conference of Commissioners on Uniform State Laws. http://www.uniformdivorce.com/McCabe.pdf p. 4
[2] Ibid. p. 5
[3] Furstenburg, Frank, and Andrew Chernin. Divided Families: What Happens to Children When Parents Part. Cambridge, Mass.: Harvard University Press, 1991, page 22. Frank Furstenberg, Professor of Sociology at the University of Pennsylvania, and Andrew Cherlin, Professor of Public Policy in the Department of Sociology at John Hopkins University
[4] McManus, Michael J. Marriage Savers. Grand Rapids, MI: Zondervan. 1995. page 123
