Child Kidnapping: A Solution
By: Robert A. Fink, M. D.
The media have been filled recently with stories involving the kidnapping of
young children. A growing number of these kidnappings (Chronicle, September 1,
2002) have been perpetrated by a parent, typically after loss of custody in
Family Court.
In the past, most of the parents who have kidnapped their children have been
fathers; but with the increasing attempts being made by divorced fathers to
remain in the lives of their children, more courts are ruling favorably on
father custody; resulting in the increasing tendency for the kidnapping parents
to be mothers. The recent cases in Southern California, and the use of the
"Amber Alert" in the recovery of these children, are examples of this
changing trend; with both of these cases being related to abusive behavior on
the part of the children's mothers which, in turn, led to custody being granted
to the fathers.
The recent developments, however, are only part of a complex picture. Since
the beginning of the 20th Century, the general legal tendency in cases of
divorce involving children, has been to "award" custody to the mothers
(prior to that time, fathers were often given custody of children since they
were more suited financially to care for them); and, indeed, according to
contemporary studies (Maccoby and Mnookin, Stanford University, 1992), between
79 and 89% of custody rulings are in favor of mothers.
The legal thought governing these tendencies is currently based on studies
done in the 1970's in which social scientists reported that "when divorcing
parents are in conflict", "joint custody does not work", and
primary custody is then given to one parent (usually the mother, even if it is
she who is the source of the "conflict"). In recent years, however,
the data supporting this set of conclusions has been shown to be faulty; and, in
fact, some of the new data debunking the old concepts have been collected by
investigators who actually participated in the older studies.
Currently, the significant research shows that the children of divorce do
much better in later life if they have significant exposure to both parents, as
they did when the original family was intact. Furthermore, contemporary studies
show that reliance on the older concepts of "conflict and joint
custody" is false, and potentially damaging to generations of children who
have been segregated from one of their parents by the legal system. Books such
as "Divorced Dads", by Professor Sanford Braver, contain striking
evidence that the current litigious atmosphere over child custody after divorce
is destructive to families and children; and, as recently shown in the news
media, fuels the current spate of parent- perpetrated kidnappings.
An effective way to deal with these problems is that of changing the legal
protocols and, we believe, well-intentioned but prejudiced views of the Family
Court judges. The current California Family Code contains a number of sections
which recommend joint custody rulings, but ever-changing case law and
special-interest legislation has rendered the entire concept of child custody
confusing and equivocal.
Our group has written a proposed bill which, if passed, would make Joint and
Equal Custody the "default" in marital dissolutions involving
children, this unless there is agreement between the parents to the contrary, or
supportable evidence that one parent is unfit. Such a new law would, like the
"No-Fault Divorce" law passed decades ago in California, reduce the
level and cost of litigation over child custody; and would serve to preserve the
right of children to have both of their parents as part of their lives.
Our bill has been presented to several legislators, but, thusfar, no one has
seen fit to sponsor such. We think that the time has come for such Family Law
reform and we urge the public to put pressure on their legislators for such.
Robert A. Fink, M. D., President California Parents United, Inc. "The
best parent is both parents…"
About the author: Dr. Robert A. Fink is a neurosurgeon who practices in the
East Bay and who has been involved in activities designed to bring about
legislative reform in the area of Family Law in California. During the nineties,
after being a widowed single parent to three daughters, he became a victim of
the current Family Law system and was forced to struggle through a costly
custody battle to preserve the best interests of his fourth child, a product of
a failed second marriage. Dr. Fink founded California Parents United, Inc., in
2001, in order to ameliorate the contention and cost that parents currently must
go through when trying to remain a part of their children's lives after divorce
or separation.
