Family Law Process Harming Children

OKLAHOMA CITY (October 20, 2011) – Oklahoma’s family law is dangerously failing the children it is supposed to protect, leading some lawmakers to consider reform of both divorce statutes and the foster-care system.

Following a recent legislative study, state Rep. Mark McCullough said it is clear that “no fault” divorce is a failed policy.

“I respect the views of those who argue that no-fault divorce creates less havoc than the alternatives, but I question that orthodoxy,” McCullough said. “There is very little in the divorce process that is even remotely connected to the interest of the children.”

State Rep. Jason Nelson, R-Oklahoma City, who grew up a child of divorce, said his experiences with the system were life changing, negative and all too typical.

“When you get down to it, our current divorce system is a racket that enriches attorneys and makes children and communities poorer,” Nelson said. “Divorce scars children and leaves them emotionally disfigured. The current divorce laws are perverse and they are destroying children and our society. If the best interests of children were actually taken into consideration the divorce rate would be considerably less.”

During the study, one legal practitioner estimated that that vast majority of disputed custody cases are due to one parent trying to reduce the amount of child support payments.

James Reid, an Oklahoma City attorney, told lawmakers of the challenges he faced representing a client who sought to have custody modified due to concerns of serious child abuse by the former wife’s new boyfriend. The process drug out for eight years without court resolution and involved nine judges and multiple DHS investigations.

Another individual, Chris Gregory, told lawmakers he has spent over $160,000 on attorney’s fees (including paying for his wife’s lawyer) during a divorce case that has been ongoing for three years.

In cases involving termination of parental rights, Oklahoma Supreme Court rulings have required that that there must be due process, and a clear and convicting standard of proof.

However, Oklahoma is one of only 10 states where the right to a jury trial is part of that process, which can dramatically increase the time involved and turmoil for children.

Furthermore, even when children are removed from the home, state policies often prevent reasonable outcomes.

At McCullough’s study, several foster parents told lawmakers of problems they had attempting to adopt children due to Oklahoma’s convoluted law and continuing problems with the Department of Human Services.

Foster parents Keith and Tammy Winn told lawmakers they were given custody of a child in April 2010, due in part to the mother’s meth addiction.

When the Winns attempted to adopt the child, DHS fought that effort and continued to push reunification with the birth mother who continued to test positive for drug use and had not shown interest in the child.

Floyd McKee, a Baptist pastor who took in three foster children, also told lawmakers of similar problems. When he attempted to adopt the children he took in, the adoption/parental termination process took five years.

“It seems DHS policy is reunification at all costs,” McCullough said. “State law does not require them to do that. That is a policy decision made at the agency level. Clearly, we need to reform the law to prevent such mindless bureaucracy from ignoring the best interest of a child in the future.”

Another problem in the system is that judges are overloaded, officials noted.

Currently, there are five judges in Oklahoma City handling family court. Those five judges have overseen 3,600 cases so far this year.

In Tulsa County, there are over 400 divorces are filed every month and 52 percent involve children.

Mike Jestes, executive director of the Oklahoma Family Policy Council, urged lawmakers to devote more state dollars to prevention of family disintegration and also urged them to fix the foster-care system in Oklahoma.

McCullough said potential reforms should progress along two tracks. First, he called for limited consideration of fault in divorce proceedings. And in cases where a parent is abusing and neglecting children, McCullough said there must be immediate consequences and swift termination of parental rights.

“There need to be penalties that disincentivize courtroom strategies that traumatize children, and there must be swift consequences for the worst cases involving parents who abuse or severely neglect their children,” McCullough said. “Obviously, our first goal as policymakers is to create an environment conducive to family survival. However, when things don’t work out, the legal process needs to be objective, efficient and prioritize the needs of the child. Our current laws don’t meet that standard and innocent children are the ones paying the price.”