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October 9, 2000
The Honorable Russell A. Steiner, Judge
Court of Common Pleas, Domestic Relations Division
75 East Main Street
Newark, OH 43055
Dear Judge Steiner:
Thank you for your letter of September 27. Even prior to receiving your letter,
I was planning to write to you with some comments on your testimony; your letter
has encouraged me to expand on what I had planned to say.
First, because your letter to me is on Newark Court of Common Pleas stationery
and is, clearly, typed by a secretary (presumably from the court), I assume that
your letter constituted official business of that court. I am at a loss, though,
to see what the official business was. As a result, I will respond to it as if
it were personal correspondence.
No one is sorrier than I am to adopt an adversarial stance with regard to the
Ohio Association of Domestic Relations Judges and the Ohio Judicial Conference.
I have taught the philosophy of law for nearly 25 years here at the Ohio State
University. Throughout most of that time, I operated under the assumption that
the legal system in Ohio, as in the nation as a whole, was fundamentally just
and sound. Miscarriages of justice, I believed, were rare and, generally,
reversed.
About seven years ago, I received an education myself in the domestic relations
system of Ohio when my then wife and I separated and began the process of
divorce. During my divorce, I attended several meetings of what was then Fathers
And Children for Equality (FACE). I learned there that my own experiences, while
extremely painful and expensive, were among the best one
can have in Ohio's domestic relations courts as they currently operate. While I
faced a system in which many of my parental rights would be summarily suspended
based on affidavits only, I always had my children 40% of the time. I never
faced the charges of domestic violence or child abuse that are so frequently
trumped up in the divorce process for strategic advantage-and, when found to be
baseless, never provoke punishment of the perpetrator of the false allegations.
My ex-wife never hid the children from me or engaged in serious and persistent
parenting time interference. As a result, I never had to face-as so many fathers
have-a court that is serious about child support enforcement but indifferent to
parenting time interference. My ex-wife never sought to move the children away
from me, so I never confronted a court that, because it thought (rightly) that
it couldn't interfere with the freedom of an adult to move concluded (wrongly)
that it could not prevent a custodial parent from taking the children away from
the other parent.
I learned that things were much worse for others. Like the man who complained
that he had no shoes until he met someone with no feet, this made me appreciate
what I had. However, it didn't make me believe that I had been treated fairly.
Instead, I came to realize that others were being treated even more unfairly. I
wish I could say that, right then, I resolved to work to help these other
parents-those falsely accused of domestic violence or child abuse; those whose
children had been hidden from them; those who were unable to provide for their
children directly when the children were in their care because they were ordered
to pay unreasonable child support and spousal support. I did not do this then.
After my divorce was finalized and I had full shared parenting with an equal
sharing of expenses and a nearly equal division of the children's time, I wanted
to get on with my new life. I remarried to a wonderful woman and set about
making our "blended family" as good an experience for our children as
possible. My children are doing well-I believe, in large part, because they have
two committed, loving parents who can provide homes for them. They weren't
subjected to the typical "parentectomy" that sole custody entails.
When my daughter, Katy, was close to being emancipated, I tried to negotiate a
sharing of college expenses with her mother. My ex-wife refused to commit any
funds toward Katy's college-not even any of the child support I was specifically
paying her for Katy. Because our shared parenting agreement was written on a
"per child" basis, I requested that Franklin County CSEA adjust the
child support in accordance with our agreement when Katy was emancipated. That
way, I was able to commit all of those funds and more to Katy directly for her
college expenses. For over three years, I have been the only parent supporting
Katy's college education.
My ex-wife requested that FCCSEA re-evaluate our child support. Despite our
shared parenting
agreement specifically stating that we were both custodial and residential
parents for all purposes except school placement, FCCSEA treated my ex-wife as
the sole custodial parent and me as a noncustodial parent for child support
purposes. At great expense of time and money, I have fought the unfair actions
of FCCSEA through the administrative and judicial process up to the Ohio Supreme
Court and, in the process, have received a "post graduate" education
in Ohio's domestic relations courts. (As I mentioned in response to
Representative Core's question, the Tenth Appellate District Court has now
certified a question in my case for the Ohio Supreme Court. If you are
interested in the issues raised, you can review most of the documents and the
appellate level decisions at the web site www.hubincase.homestead.com.)
My experiences spurred me to rekindle my relationship with FACE. I joined FACE
for the first time in 1997. (I could not afford to join when I was under
temporary orders which required me to live on less
than $1,000 per month while supporting my children with me for 40% of the time.)
One of my first
actions as a member was to vote to unite with the local chapter of Mothers
Without Custody, change the name of our organization to Parents And Children for
Equality (PACE) and become a chapter of the state-wide organization of parents
and grandparents who are fighting to bring fairness to Ohio's domestic relations
courts-who are fighting to make "best interest of the child" not be a
code word for making loving parents "visitors" and
"checkbooks" in their children's lives.
I am proud of my association with PACE. Not since I was an undergraduate student
fighting for an end to the senseless killing in Vietnam and for the advancement
of civil rights have I been involved in a cause more worthy than this.
I've dwelt on this backgound because I want to underscore the misconstrual in
your description of my "decision to assume the position of 'them versus us'
toward the concerns of the domestic relations judges about Senate Bill
180." I am not, by nature an oppositional person. I thought my involvement
in protest rallies was relegated to my undergraduate past. I am, perhaps,
oppositional now, but I do not believe that it was my choice for the
relationship to be oppositional.
PACE is associated with the Children's And Parents' Rights Association (CAPRA).
For years, PACE worked through CAPRA as an active and constructive part of the
system to convince the Ohio Child Support Advisory Council of the need for and
desirability of a parenting time adjustment. The previous Council worked very
hard on this issue and overwhelmingly approved (by a vote of 16 to 2) a
recommendation for a very carefully crafted parenting time adjustment. (I am
informed, though I have no documents to confirm it, that the representative of
the Ohio Association of Domestic Relations Judges voted for this proposal.)
Pursuant to that approval, and in light of a written statement that the Ohio
Association of Domestic
Relations Judges (OADRJ) would not testify either for or against a parenting
time adjustment, Senate Majority Whip Merle Kearns introduced Senate Bill 180
with the parenting time adjustment. (That written statement was, by the way,
signed by you, Judge Steiner. I've enclosed a copy for your convenience.)
But the parenting time adjustment was taken out of Senate Bill 180. As you
reported happily in the
March 23 meeting of the Executive Committee of the OADRJ, Senate Bill 180 was
"not going anywhere" with the parenting time adjustment in it but that
it would be going forward "with only the good parts in it" (your
words).
At the time, we knew that the Judicial Impact Statement produced by the Ohio
Judicial Conference played a role in the decision by Senator Kearns to remove
the parenting time adjustment. This document, which purportedly concerned the
effects on the judiciary of all aspects of Senate Bill 180, was devoted almost
exclusively to questioning the wisdom of a parenting time adjustment. Indeed,
the entire textual portion of the Statement concerned this single provision of a
bill that ran many hundreds of pages and would have made numerous significant
changes in Ohio law. We did not learn until later the extent of the role the
leadership of the OADRJ in this decision.
Candid and confidential conversations with a highly regarded domestic relations
judge in the state helped us to see this. When I spoke with this judge about the
statement of the OADRJ that it would not testify for or against the parenting
time adjustment, the judge said, "Oh, they testified alright. They just
didn't do it in open session before the whole committee. You'd better believe
they
lobbied long and hard against the parenting time adjustment." We do believe
this.
I take seriously your concerns about my ethics and will address them later in
this letter. However, it is worth noting at this point that an explicit
statement by a representative of the OADRJ that it would not testify for or
against the parenting time adjustment was, if not technically violated, clearly
violated in spirit. I fail to see how you can expect our organization to
approach yours in an attempt "to cooperate to arrive at a fair and
equitable 'Parenting Time Adjustment' law" when your organization has been
deceptive about its position on this issue and its actions to influence
legislation.
On the subject of ethics, too, I will remind you that the Judicial Impact
Statement on Senate Bill 180 that was produced by the OJC was fraught with lies,
misrepresentations and omissions.
* The Statement speaks of a "a survey of domestic relations and juvenile
judges in Ohio." As you
know from my testimony before the House Committee on Children and Family
Services, I made a
request under the Ohio "Public Records Law" for all records of this
survey. There are no records
of any survey ever being conducted. There are no survey instruments, no
completed survey forms, no notes of survey results. The only reasonable
conclusion is that no survey was ever conducted. If not, then the assertion that
the Statement was based on such a survey was a lie. (It is not conceivable that
the OJC was merely mistaken about having conducted a survey.)
* The Statement says that the State of Washington "abandoned and/or
modified their PTA program after apparent failure." A review of the records
I received from the OJC under the "Public
Records Law" makes it possible to trace this allegation at least to a
letter from Judge Brigner to Representative Thomas Roberts. (This letter was
written one month after your letter indicating that the OADRJ "will not
authorize anyone on behalf of the association to testify for or against any
pending legislation regarding the issue of parenting time adjustments.") In
that letter, he puts the allegation more boldly:
Family experts there tell me that the parenting time adjustment idea did not
work for the State of Washington. It was not merely a failure, but it was such a
disaster for parents and courts that it was repealed soon after it was adopted.
(Correspondence from Judge V. Michael Brigner to Representative Thomas M.
Roberts, May 19, 1999, copy enclosed.)
However, according the Sarah Cooper of the Bureau of Child Support Policy,
"this is news to the
State of Washington". And, Robert Williams, CEO of Policy Studies, Inc.,
reported at the March
meeting of the Ohio Child Support Guideline Advisory Council that "no state
that had instituted a
formulaic approach to parenting time adjustments has gone back to a deviation
approach." (I realize that you, the OADRJ representative on the Council,
were not at this meeting. If I remember correctly, you were moving your office
and, in any event, you were under the impression that Mr. Williams would be
testifying at the April meeting.) Surely, had the OJC intended to produce a
balanced, accurate report for the legislature to rely on, it could have checked
with experts instead of relying on an unsubstantiated letter from one Ohio
judge. I believe that this constitutes a misrepresentation of the facts in the
State of Washington.
* Under the heading "The Experience of Other States (sic)", the
Statement mentions only the State of Washington-omitting any reference to the 24
states that, according to both Policy Studies, Inc., and the National Conference
of State Legislatures, have a formulaic approach to parenting time adjustments.
The records we have received from the OJC indicate the OJC researchers knew of
the web site of the National Conference of State Legislatures that has a
complete listing of how each of the fifty states deals with parenting time
adjustments. (Knowing
your sensitivity to the error of omitting relevant information, I assume that
this is as troubling to you as it is to me.) An impact statement that sought to
be an unbiased aid to the legislative process would include an accurate and full
discussion of the experience of these other states-especially Arizona, which has
had extensive experience with a parenting time adjustment very similar to the
one in SB180. It would not rely on rumor about one state, reported but not
confirmed to have had a bad experience with a parenting time adjustment.
PACE and CAPRA had worked diligently and responsibly, with a willingness to
cooperate with all
interested parties, to promote a sound and fair parenting time adjustment. PACE
and CAPRA were blindsided by a concerted effort from the OADRJ and the OJC to
work behind the scenes to undermine the legislative process in which we were
participating. We stand ready to cooperate with the OADRJ and any other
interested parties. PACE, through CAPRA, has worked hard to make a constructive
proposal concerning a parenting time adjustment. Our efforts resulted in a
carefully crafted proposal that was overwhelmingly supported by the last
Guideline Council.
If the OADRJ or the OJC has made any constructive proposal about how to handle
the unfairness that we sought to address with a parenting time adjustment-an
unfairness that even the leadership of the OADRJ has admitted is a problem that
has to be addressed-we at PACE and CAPRA are
unaware of it.
Because we have seen no constructive proposals from the OADRJ or the OJC, we
have, I fear, reluctantly concluded that these organizations are "part of
the problem, not of part of the solution." However, we are eager to be
proven wrong about this. We invite you to send us copies of any documents you
have produced (completed or in draft) that offer constructive proposals about
how
to handle this problem. And, we stand ready, willing and able, to meet with you
and other representatives of the OADRJ at your convenience to discuss the
parenting time adjustment and your concerns about it.
At several places in your letter, you construe my actions and my testimony as
being directed against Ohio judges generally. For example, you describe me as
having "embarked upon efforts to vilify judges throughout the state"
and as having the "intention to castigate Ohio domestic relations
judges". I assure you that you are construing the scope of my attention
much too broadly. I am well aware of the fact that there are many excellent
domestic relations judges in Ohio. I have never engaged in a wholesale
condemnation of Ohio domestic relations judges. I think I appreciate as much as
someone who has never occupied that bench can, how extraordinarily difficult it
must be to have to resolve the disputes that come before these courts. I believe
that domestic relations judges are overburdened and that we need more judges to
handle these cases. I applaud the job that many of Ohio's domestic relations
judges are doing. But, I will work hard to help replace those judges who are not
adequately (within the constraints of current law) working to ensure every
child's right to a full parent/child relationship with both parents regardless
of the marital status of the parents.
I admit that over the course of the last few years, I have seen my respect for
Ohio's judiciary decline. (Perhaps my perch in the "ivory tower" had
led me to have unrealistically high expectations.) Here are some incidents that
have contributed to this decline:
* A magistrate in Cincinnati declares before litigants that she has no intention
of following the
binding legal precedent of the First Appellate District Court because she thinks
the decision is
"stupid". One of the parties files a complaint about this with the
Disciplinary Counsel. He receives a boilerplate letter that says that this is an
issue to take up on appeal if he wishes. But the issue is whether a magistrate
violates the Code of Judicial Conduct when she openly declares her contempt to
of the law and her unwillingness to follow it. Apparently, this is not a
violation of the Code.
* A visiting judge attempts to have over 30 Ohio citizens criminally prosecuted
for writing a letter
expressing their opinion that he was behaving in a way that was biased and
calling on him to
disqualify himself.
* A magistrate rules the CSEA erred by declaring the mother in a shared
parenting situation to be
"the residential parent" on the child support worksheet. Her worksheet
handed down with the same ruling declares the mother to be "the residential
parent" on the child support worksheet.
The judge and the appellate court rule this a "harmless error" even
though, had the father been
declared "the residential parent" it would have shifted the
presumptive child support burden by
many thousands of dollars a year.
* Many judges across the state follow the screwy precedent of the Bailey case
with respect to the
computation of incomes for determining presumptive child support when spousal
support is paid.
The Bailey Court apparently didn't understand that "including but not
limited to" means "not limited to" because they ruled that the
inclusion of "spousal support paid by someone not a party to the case"
after the phrase "including but not limited to" had the effect of
limiting what could count as income.
* And then, of course, the incidents surrounding the OADRJ's covert subversion
of the parenting
time adjustment in SB180 further eroded my confidence in the integrity of some
Ohio judges. My respect and admiration of judges-my implicit assumptions that
they were the most knowledgeable
and fair-minded people in the legal system-has been challenged in recent years.
I believe that Ohio judges have some housecleaning to do. But I do not vilify or
castigate all judges in Ohio. (Even if I were doing so, I don't think that
judges would have a particularly strong claim to victimhood in the divorce
system.) Opposition to the positions taken by, and the actions undertaken in the
name of, the OADRJ is not an attack on all judges in Ohio. The leadership of the
OADRJ is not the entire Ohio judiciary. Our opposition is both more narrowly
focused and more warranted than your complaints suggest.
Let me turn now to the issue I was planning to write to you about before I
received your letter. At the hearing before the House Committee on Children and
Family Services, you testified in favor of amending SB180 to make it clear that
spousal support paid to a former or current spouse should be deducted from the
payer's income. This is a welcome change and would further help to undo an
injustice that has resulted from the Tenth Appellate District Court's
ill-considered decision in the Bailey case.
You also testified in favor of an amendment that would remove from Ohio law the
requirement that
deviations in child support amounts must be determined to be in the best
interest of the children. The reason you offered for this proposal was that many
domestic relations judges agree that there are cases in which a deviation is
appropriate and required for fairness for the parents, but don't see how (if I
remember your words correctly) "it can ever be in the interest of the
children to reduce child support."
While I agree that the change in question would be useful given the framework
that these judges apparently adopt, that framework itself must be challenged.
'Presumptive child support' is defined in statute (appropriately) to be total of
both parents' actual annual child support obligation as shown on line 24 of the
current worksheet. The amount the court orders to be paid by one parent to the
other is the transfer child support payment. A deviation in this amount is not a
deviation in child support it is deviation in the presumptive child support
transfer payment.
With this clarification of the concepts, it becomes quite clear how a downward
deviation (in what these judges are mistakenly thinking of as child support) can
be in the best interest of children. Since the downward deviation is actually in
the child support transfer payment and not child support, the deviation does not
leave the child with less support. It shifts the amount of support that child
gets in each home. If the child spends a significant amount of time in the
noncustodial parent's home, this can result in the child being better supported.
If the OADRJ wants to help address the inequity we are trying to address with a
parenting time adjustment in a "fair and equitable way," it could
begin be educating its members that a downward deviation in the child support
transfer payment is not a downward deviation in child support. Only someone who
believed that only one parent is the real parent to the child could think that
reducing the amount of the child support transfer automatically meant that the
degree to which the child was supported would go down.
Perhaps if Ohio's domestic relations judges were educated about these facts
there would be somewhat more deviations in child support transfer amounts than
Dr. Guidabaldi's research shows there to be. But Ohio's judges should not have
to deviate in as many cases as would be necessary to avoid the unfairness to
noncustodial parents and adequately support children while they are in the
noncustodial parent's home. The formula itself should take parenting time into
account appropriately, as the proposal in the original version of SB180 did.
Before closing, I want to address your concerns about my personal ethics and the
welfare of the students I teach.
First, regarding my representation of myself at the meeting of the Executive
Committee of the OADRJ: Because it appeared to me that these meetings should be
construed as open to the public under the Ohio "Open Meetings Law", I
called Judge Nicely's office to ask if this was correct. I had no intention of
representing my interests in any way at all when I did so. I was calling as an
Ohio citizen who was interested in the activities taking place within this body.
I was surprised that Judge Nicely, herself, talked with me and, quite graciously
(and before I had said anything about the basis of my interest in attending the
meeting) invited me to come to the meeting regardless of whether it was open
under Ohio law. After that invitation, she asked me why I was interested in
coming to the meeting. I answered with part, though I concede not all, of the
truth. But I should underscore that everything I said to Judge Nicely was
completely true. I am working on issues of domestic relations law; I have
published work in this area and am currently working on a book on the
philosophical and legal foundations of paternity. (I have enclosed a copy of my
paper, "Parental Rights and Due Process," in case you are interested
in reading it.)
When I arrived at the meeting, I had no expectation of being seated at the
table. I intended to sit quietly away from the group and observe the events that
transpired. I was encouraged by the members of the Committee to sit at the table
and then invited to introduce myself. Again, I indicated one of the reasons I
was there-a reason that was, in itself, sufficient for my presence. But as you
note, I did not indicate my affiliation with PACE.
I apologize for not being completely forthcoming with your committee about my
affiliations. (I do not agree, though, that I represented myself "as only
an Ohio State University professor (with no other affiliations)." There is
a significant difference between positively representing oneself as having no
other-or no other relevant-affiliations and merely failing to represent
oneself as having such affiliations. The first would have been a lie. The second
was the omission
of information that I had reason to suspect you would have wanted to know.) I
mean this apology
sincerely. Perhaps, in light of my comments about my history with the domestic
relations courts of Ohio and the background of the OADRJ's actions with respect
to a parenting time adjustment, you will understand why I was not more
forthcoming. Still, I do not intend that as an excuse-only as an explanation. At
the meeting, I should have said, proudly, that I am a representative of Parents
And Children for Equality-that I am an activist working to ensure that loving
parents aren't demoted to "visitors" in their children's lives-that I
work to ensure that the obvious bias against fathers will one day be removed
from our domestic relations courts. I am not ashamed of my work in these areas,
though I did feel uncomfortable at the Committee meeting- uncomfortable enough
that I didn't want to say those things, especially when I hadn't been prepared
to speak at all.
I can certainly understand how members of the Executive Committee might be
displeased with my conduct. Apparently, someone from the Committee was
displeased enough to call the dean of my college to inform him that I had
attended this meeting without making clear my affiliation with PACE- something
the caller considered dishonest. The caller, whose name the dean could not
recall, assured the dean that I would have been welcome to attend regardless of
my affiliation
with PACE and that the meeting would not have been conducted any differently if
that affiliation
had been known. She just wanted the dean to know of my action.
It is, of course, reassuring to know that my failure to disclose my association
with PACE didn't cause the Committee to conduct its business any differently
than it would have had that association been known. I can't help thinking,
though, that conveying this information was not the
main purpose of the call. In another employment context, the purpose might have
been clear: the call might have been intended to embarrass me or cause me
trouble at my place of employment. However, it seems implausible that a member
of the Committee would be so unaware of the nature of the academic community and
the relation between a tenured faculty member and his dean as to think that the
call would have this effect.
Until I received your letter, no one had contacted me directly about my presence
at the meeting or what you apparently take to be my grievous omission of not
stating my association with PACE. As a result, I did not realize the extent to
which this had troubled you, personally, or other members of the Committee. I
now understand that and, so, I apologize.
I wouldn't worry too much about my students' moral education. I am a very
popular, and I believe very good, teacher of a variety of subjects, including
ethics. But I do not represent myself as a paragon of moral virtue. I have
faults, like any other person. I teach my students to question, to think for
themselves, and not to blindly accept authority-even mine.
What I wish for my students is that they will rise to challenge injustice where
they find it and leave the world a better place than they found it. In those
respects, I believe I am sincerely trying to "live my philosophy". I
fall short at times of course.
In closing, I want to reiterate the willingness of representatives from PACE and
CAPRA to meet with you or other representatives of the OADRJ at your convenience
if your efforts really are to "arrive at fair and equitable
resolutions" of the concerns about a parenting time adjustment.
Please feel free to give me a call at 614-292-2505 to set up a meeting when it
is convenient for you.
Again, thank you for your letter. I appreciate your taking the time to share
your concerns with me.
Sincerely,
Donald C. Hubin, Ph.D.
Director, PACE Columbus
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