By Mark David Blum, Esq.

This confounding question was at the crux of a recent bloody dispute in a nearby hick county Family Court. The same issue became a plank in the judicial candidacy of Cayuga County District Attorney James Vargason. Schools now reach into the home and private lives of their students and condemn off campus activities. Congress and several state legislatures have reached way up the birth canal to take control of the life of a fetus. Onondaga County District Attorney William Fitzpatrick has tried to prosecute mothers for consumption of drugs while pregnant.

So tell me … who owns my child?

I am this morning, what one would call an angry and frustrated lawyer. Recovering from a bitter and ugly family court proceeding, I find myself both needing the cathartic healing power of writing as well as putting on the table an issue that has been simmering within me for years. Be patient and bear with me.

Over the years, whenever I would give tours of the Courthouse here in Onondaga County, as I would pass through the sea of humanity that swamps the first floor around the Family Court and Child Support hearing rooms, my comment was always, “this is where you will see the worst of man’s inhumanity to man”. Every time I set foot in any of those Court rooms, I bear witness to a downward spiral into the hell of human narcissism.

Watching Mothers and Fathers tear their children apart for power and control makes you sick. Seeing Mothers or Fathers using the Support and Custody system to continue relationship battles years after the relationship itself is over is a common occurrence. Bearing witness to the violence of parents upon children, of parents on each other, of children upon parents, and crimes committed by children can make you want to rip off your testicles to avoid the chance of ever having to deal with such a horror.

In my professional opinion, based on the near 15 years I have haunted the Family Courts of New York, the trend toward Judges and the system itself assuming superior parenting knowledge and taking for itself the power to set parenting standards has exceeded all reasonable bounds. Best stated to me by a dear friend and law guardian, “Our job is not to assure the parenting is adequate, our job is to assure they are being the best parents they possibly can be.”

Honorable, benevolent, and as welcomed as it may be to have a White upper middle class lawyer or Judge setting an ‘American’ standard as to how a child should be raised; at its core it is the most cruel and ugly of discrimination and invasions of privacy. These same arguments were once used to discriminate against women … “it’s for your own good, honey.” Nowadays, women moreso than men use these same arguments in combat over who has the best ideals for parenting.

Here is a hypothetical situation. Any resemblance to an actual case or person is purely within the paranoia of the reader.

? You are a poor Black man; age 35. Your parents and family are honorable people who have all done well for themselves in life, but for whatever reason, you failed to thrive. Most of your life, you have spent meandering from job to job, woman to woman, and drug to drug. In your wake, you have fathered four children with four different mothers.

One of life’s crueler lessons is that as you age, your ability to find comfort in using a rock for a pillow significantly diminishes. At some point, maturation sets in with everybody and settling down, cleaning up, and focusing on retirement becomes the priority. So, you follow that path, clean yourself up, start working, and get settled into an apartment. Given your history, good paying jobs are not yet available to you, but nothing can stop your forward progress but you.

Your relationship with three of your children is wonderful. You and their mothers get along and many are the days and times you spend with them and do all you can within your limitations to be a good Dad; whatever that means. At your core, you love your children and hate yourself for being unable to be the kind of Dad you know you should be. You trust the children’s mothers to be the better role model and you resign yourself to a non custodial visiting relationship; which you exercise as schedules, time, and finances permit.

One of the women relocates and moves in with another man. Every visit you attempt results in a fist fight. The mother has her own problems with drugs, domestic violence, or malfeasance such that the “system” becomes involved. Suddenly, there is a Judge, Department of Social Services, and a Law Guardian (lawyer) involved. The entire weight and scrutiny of the judicial system surrounds the child. More Loco Parentis.

Let’s make it easy; assume the mother dies. Assume the people the mother was living with decide that the Father should not know of the mother’s death and they decide the child should stay with them and not go back to the Father. They petition for guardianship and adoption. As the child’s father, you petition the Court to force these strangers to surrender the child.

Or assume that the mother is turned in to police by her own mother for “using” drugs. Social services steps in. The child is placed in Foster Care and a plan is put in place for the child to return to the mother. You, the Father petition for custody.?

This is the setting for what is to become a monumental conflict. “It is settled law that, as between a biological parent (parent) and a nonbiological parent (nonparent), the parent has a superior right to custody that cannot be denied unless the nonparent can establish that the parent has relinquished that right because of "surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances" (Matter of Bennett v Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277; see also, Matter of Michael B., 80 N.Y.2d 299, 309, 590 N.Y.S.2d 60, 604 N.E.2d 122; Matter of Male Infant L., 61 N.Y.2d 420, 426-428, 474 N.Y.S.2d 447, 462 N.E.2d 1165; Matter of Merritt v Way, 58 N.Y.2d 850, 460 N.Y.S.2d 20, 446 N.E.2d 776). The nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child (Matter of Male Infant L., supra, at 427; Matter of Merritt v Way, supra.” (sic) as cited in Michael G. B., Respondent, v. Angela L. B., 219 A.D.2d 289; 642 N.Y.S.2d 452 (4th Dept. 1996).

Though the answer would seem simple; because the system itself has become involved, everybody’s eyes are on you, the non custodial but natural parent. That parent is judged as to how they live their life, how they earn their money and how much, and if any monies they gave to the foster families, and how many polyps they have in their colon. Not only does the lawyer for the ‘other side’ conduct this colonoscopic examination, but it is followed by just a thorough reaming by the Law Guardian.

In the end, though the Judge may pretend to draw a Solomon-esque sword; what happens in my experience is that the real standard being applied is that as stated above … “our job is not to assure the parenting is adequate, our job is to assure they are being the best parents they possibly can be.” Otherwise stated, “we demand the best of all possible worlds for the child.”

I cannot disagree with that concept more. Even seeing it written here brings out a rage in me.

In two separate occasions I have witnessed affluent white judges, one male and one female, sit in similar circumstances and render decisions against the Father because the Father did not fit the “the best parents they can possibly be” model. No malice would underlie their decisions and opinions, but you could hear and sense their decision was based on an impossible (and illegal) standard.

This is the one issue that made Hon. David Klim a standout amongst his peers. Usually mocked and criticized behind his back, Judge Klim, himself disabled, was able to see a case from the perspective of someone who has been down and nevertheless fought his way back. You could always tell from how he handled the court room and what he was willing to hear, that he understood the concept of unconventional and non traditional family. Too bad many of his colleagues lack that perspective.

We live in a nation conceived on basic tenets of liberty and privacy. Family privacy is considered amongst our most cherished absolute rights. How we raise our children, the lifestyles we choose to lead, the religions we choose to follow, the jobs we choose to take, and the love interests we take for ourselves are simply not the business of the State. Judges, law guardians and lawyers may not “like” how you choose to lead your life and how you raise your child, but it is an insult to our American ideals for a Court to hold a citizen to some esoteric concept of a white middle class yuppie upbringing for every child.

I grew up in a broken home; the subject of a bitter custody dispute. My mother won custody and my father, rather than pay child support, opted to disappear from my life. Within a couple years, my mother abdicated responsibility for me and dumped me into a series of foster homes where I remained until I dropped out of high school and ran away at age 16. Yet, here I am today an attorney.

Ask me now how I feel about the decisions my mother made. I do not blame her for relinquishing custody if she felt she could not raise her son. My anger and frustration lies in how she never gave my father the chance. He never knew how I was raised; which is his own damn fault. But to me it never mattered how much the foster families “loved me” or made me feel a part of their family. I always knew I was not “family” and lived for the day I could have my family back again. It took a lot of years before I could let go of that feeling.

Many years ago I tried a divorce case with an ugly fight over custody. To the day I die, I will always believe that some kind of fix was in though I have no proof. That aside, a child was ripped from her father, he was falsely branded a pedophile, and he was gone from his daughter’s life forever. With him went his entire extended family. Two years ago at the State Fair, that child now a teenager found me and asked me what happened and if the allegations were true. Remembering how badly I hurt for that family and father, I nonetheless swallowed my anger and told her that her father loved her dearly, missed her, and that he never ever would have hurt her.

It hits home closer than that as I too once fell victim to this scheme. I was the custodial / single parent of my eldest daughter while I was in college. During the summer between college and law school, pursuant to a visitation agreement, my daughter went to visit her mother for the summer in Vermont. I was in the process of moving to Syracuse. Waiting for me when I got here was a petition for custody in Vermont. I was just starting law school and had no financial means to fight an out of state court fight so I had to surrender and accept a visitation schedule.

Within weeks after that agreement was signed, my daughter and her mother moved to California. What was once a five hour drive because a six hour plane flight. Keeping contact with a young child by telephone is an impossibility. Writing letters only goes one direction. I never got a fathers day card or a birthday card; though I never missed a Christmas or birthday. Her mother went through a string of relationships and had several more children. In the end, my eldest got pregnant at 15, dropped out of school, and is now divorced from the father of her two children.

Back while she was young and living in California, she came to New York for a summer visit. If you have ever had a lengthy visit with a child who has no friends, no toys, and knows nothing of the world around her, thirty days can be a very long and tiring visit. A few days before she left, we were out for a walk when she casually remarked that she, “couldn’t wait to get home to her mom and dad.” I did not say a word as I knew what she meant. The tear in my heart has never left. Over time, the distance between us grew and not until she became an adult did we start to heal our relationship and are doing well.

So, when I sit in a court room watching a judge and lawyers and people fighting over who should have custody of a child, I almost have to step outside myself to avoid crashing into the case itself. Hearing a child refer to someone else as “Mommy” or “Daddy” while you, a father or mother, is sitting in the court room will rip you to shreds. Not everybody has the strength of character to sit there and take it. Some just give up and hope that their child has a good life and grows up happy and successful. The hole that remains will always be there but at least you can take comfort that your child is safe.

The story of Solomon and the baby is a terrible standard. If you recall, the real mother of the child offered to surrender the child rather than have it split with a sword. The Wise King is alleged to have taken this benevolence as a sign of a parent really loving their child enough to let go. Perhaps in the world Bible believers this may be a good lesson, but it is horrible in application to the modern world. A Law Guardian yesterday is on the record saying that a father whose car was broken down on the thruway two hours away would walk or crawl to be in court to fight for custody of his child. If true, then Solomon gave the child to the wrong mother. The real mother would have killed Solomon or died trying for threatening to even harm the child.

I have no idea if anybody will read this (or anything else I write). Sometimes I just need to vent. If I leave one message here, let it be this: With very few exceptions, the perception of the Social Services and the Family Court system is that children, once in their grasp, must always remain under their watchful eyes. Parents are required to adhere to rules and conditions to optimize their parenting skills. Privacy and family rights no longer play a role. Judges seem to not care who is called Mommy and Daddy so long as the roles are filled by a female and male, respectively. The blindness that exists on the Family Court bench comes not from malice, but rather from a lack of true understanding of what it means to survive when you are poor or uneducated or have stresses and pressures inconceivable to someone who was raised in a ‘Donna Reed’ environment. It can at times drive a parent to quit an obviously futile fight.

No greater harm can ever befall a child than to have our government drive a parent to the point that they give up on their child. Trust me too when I say that the child will grow up with a disdain and distrust for the very system that over protected the child. As the child matures, he/she will realize that the parent was not as was represented. Then the system becomes a liar and not something to be trusted. Can you imagine a more serious threat to democracy than when a government loses its legitimacy?