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Save Shared Parenting in Louisiana
Ladads email ^ | May 12, 2010 | Nicholas James

Posted on 05/12/2010 7:32:47 PM PDT by Pikachu_Dad

Dear ALL,

Okay guys and gals, the clock is running.

The hearing in the House Civil Law and Procedure Committee on SB236 has been set for Wed, May 19th at 9:00 am.

We have one week to get the word out. We have one week to get the phone calls in to the Legislature. We have one week to get on the Radio Talk shows. We have one week to get the emails, the letters, the articles written and sent.

We will have to fight for air time because of the oil spill disaster. That is a much more important topic.

We should not have to be defending our rights to parent our children yet again, but we do.

We need your help. Please, take the ball and run with it.

These are the legislators we need to convince:

============================= Name Address Phone Fax Abramson, Neil C. 365 Canal Street Suite 2740 New Orleans, LA 70130 (504) 275-8051 (504) 568-3342

Burford, Richard T. 671 Hwy. 171 Suite E Stonewall, LA 71078 (318)925-9588 (318)925-9590

Burns, Timothy G. 1 Sanctuary Blvd., Ste. 306 Mandeville, LA 70471 (985)624-4492 (985)624-4496

Cromer, George Gregory P.O. Box 2088 Slidell, LA 70459 (985)645-3592 (985)645-3594

Edwards, John Bel P.O. Box 160 Amite, LA 70422 (985)748-2245 (985)748-2247

Hines, Walker 5500 Prytania Street #626 New Orleans, LA 70115 (504)756-4675 (504)553-5324

Johnson, Robert A. P.O. Box 467 Marksville, LA 71351 (318)253-8891 (318)253-6377

LaBruzzo, John 3331 Severn Ave., Ste. 204 Metairie, LA 70002 (504)833-7788 (504)212-7644

Landry, Nancy 109 South College Road Lafayette, LA 70503 (337)262-2252 (337)262-2254

Lorusso, Nick 3535 Canal Street Suite 103 New Orleans, LA 70119 (504)483-4711 (504)483-4713

Mills, Fred H. Jr. 1010 Martin Street Parks, LA 70582 (337)845-4240 (337)845-4095

Richardson, Clifton R. P.O. Box 78280 Baton Rouge, LA 70837 (225)261-5739 (225)261-5741

Schroder, John M. 222 N. Vermont Suite K & M Covington, LA 70433 (985)893-6262 (985)893-6261

Willmott, Thomas P. 2002 20th Street Suite 204-A Kenner, LA 70062 (504)465-3479 (504)465-3481

SB236 attacks the Shared Parenting law that has existed since 1995. ==============================

If you can make the hearing, please do so. A packed room would be a great help. Legislators are very good at counting noses.

If you can take off work, here is how to get there.

1) Dress very nice. Dress to impress. 2) Going North on I110, take the Florida exit. 3) Take Florida to River Road 4) Turn North. 5) There is free parking along the levee on your left. So find a free spot and park in it. 6) Walk up the hill to the Capitol building. 7) Pass through security. 8) Take the elevator or stairs down to the floor below. 9) If you are early, we will congregate in the lunch room directly opposite the elevator. 10) Go left to the House committee rooms. 11) It will be the second room on the left hand side. 12) Enter the room and pick up a RED CARD. {RED CARD = against bill; GREEN = for bill; WHITE = for information} 13) Fill in the card. Enter the Bill number, check if you wish to speak, put in your contact information, sign the back of the card. 14) Turn the card in. You have now made your presense and intentions known to the committee. 15) Find a good seat to sit in and wait, wait, wait while they discuss all the other bills (fill in cards for any other bill you care about). 16) If you plan to speak, please write down what you wish to say in advance of the hearing. That will help you remember.

That's it. That's all there is to it.

============================== On to the bill.

Senator Dan Claitor Louisiana District 16

Dear Dan,

I am afraid we must respectfully disagree with your arguement that there is no legal defintion of the word "SHOULD".

You are absolutely correct that the word is not in my version (8th ed) fo BLACK'S LAW DICTIONARY (BLACKS); nor is it in the current print version of BLACKS (9th ed). However, it is very likely to be in the next print edition (10th ed).

After viewing the video of the arguments made that day (April 7th), I took the perfectly perfectly reasonable and practical approach of pointing out the oversight regarding the word "should" to Thomson/West the publishers of BLACK's (April 8th).

As of 7:30 am today (April 9th - my birthday by the way), they have forwarded my request to include the word "should" into the next version of BLACK's.

The representative from BLACK's did point out that the word "should" is currently defined by statute in at least three states. These states are:

1. Pennsylvania PA ST 75 Pa. C.S.A. § 102 defines should as follows: Should indicates that an actions is advisable but not required. 2. Rhode Island RI ST § 32-7-7, defines should as follows: Should Indicates a recommendation, not a requirement. 3. Vermont VT ST T. 24§ 4303, defines should as follows: Should means that an activity is encouraged but not mandated.

Quinn presented a standard false argument, the false choice. You must choose either A or B. No other choices are allowed. This is not correct.

There were other perfectly reasonable choices available.

For example, the legislature could have added the definition for the word into the legislation. Any one of the three choices listed above would have been perfectly acceptable.

Another perfectly reasonable alternative would have been to replace the word 'should' with a different word phrase that more perfectly matches the original legislative intent when the law was passed.

Something such as, 'when joint custody is awarded, the courts are encouraged but not mandated to award equal physical custody.'

Or perhaps 'when joint custody is awarded, the courts are recommended to, but not required to award equal physical custody.'

Or perhaps 'when joint custody is awarded, the courts are advised to but not required to award equal physical custody'.

This avoids the need of the legislature to define the word and it maintains the original legislative intent of this law as passed 15 years ago.

SB492 of 2008 by Quinn (Act 671) It is amazing what youc an learn when you hang out at the legislature.

While I was waiting for the afternoon session to start, I decided to monitor the House Civil Law and Procedure committee that was meeting at 10:00 am that day.

They were hearing Hunter Greene's HB774 - Provides with respect to the failure to exercise visitation. This bill modifies Senator Quinn's bill SB492 from 2008 (Act 671 of 2008).

Karen Downs, a prominent family law attorney, family law judge Pam Baker, and Rep. Hunter Greene presented why they needed to change the law that Senator Quinn had just written two years ago.

They are removing a TRAP built into that law, that the Judiciary A committee; the full Senate; the House Civil Law and Procedure committee; and the full House failed to notice two years ago.

Abstract: Provides for a defense to an action for failure to exercise or allow visitation

Present law provides that it shall be an affirmative defense that the failure to exercise or allow visitation was by mutual consent, beyond the control of the defendant, or for other good cause shown.

Proposed law retains present law but changes it from an affirmative defense to a defense.

Basically, the civil code does not allow affirmative defenses for the type of action used in this case.

They said, "IT IS A TRAP - If a party makes this affirmative defense, and the other side objects, then the judge is obligated uphold the objection and the defense must be discarded."

It is the duty and responsibility of the legislature to adequately review the laws that they pass to ensure that the laws are appropriate, accurate, and do not contain errors that will cause harm.

Perhaps the judge and the attorney caught this error and were correcting it before harm was done. But more probably, they participated in a case where someone was financially harmed by this law because their affirmative defense was thrown out.

How much time did the Judiciary A committee spend reviewing SB236? How many witnesses did the committee have (zero). What would the harm have been to have returned this bill to committee; to have a hearing with proper public notice; so that you could have gotten accurate and informed testimony on the effect of this change to the law?

MAY (Back to BLACK's)

1. To be permited to.

2. To be a possibility.

3. Loosely, is required to, shall, must

"In dozens of cases, courts have held 'may' to be synonymous with 'shall' or 'must'."

There is a very substantial discrepancy between the three definitions in BLACK's. If the courts interpret the meaning of the word using the final definition, then there is no change in the law.

However, if the courts interpret the meaning of the word using either of the first two definitions, then there is a substantial change in the meaning of the law.

Given the arguments made in the hearing, it is abundantly clear that Quinn does not intend for the third definition to be the one used. She gave the false choice of "shall" versus "may".

If you ask the family court judges in Baton Rouge, they will probably interpret the law using the third definition. They will for the most part continue to grant shared custody and ignore this law.

However, where the children will be harmed is in the outlying parishes, where despite shared custody being encouraged for the last fifteen years, the courts are still routinely denying children reasonable access with their fathers.

Back to 1993 - The custody wars - HB1888 (Act 905)

I was still a happily married man with a young daughter. I was not involved in politics and didn't have a clue what the legislature was up to.

A number of years before this, a father out in California (James Cook) had gone into family court and was shocked at how he was treated and how little time he was granted with his child.

In response, he founded the "Joint Custody Society" and started the Joint Custody movement. At this point in time, when the words "Joint Custody" were used, it meant "joint physical and legal custody".

This movement reached Louisiana in 1993. In that year, Representative Favre sponsored HB1888 (Act 905). This act put the following law onto the books:

To amend and reenact Civil Code Art. 131(D), relative to joint custody of children; to require the parties to share equally in physical custody, where practicable; and to provide for related matters.

Be it enacted by the Legislature of Louisiana:

Section 1. Civil Code Art. 131(D) is hereby amended and reenacted to read as follows

Art 131 Custody of children pending the litigation.

D. For purposes of this Article, "joint custody" shall mean the parents shall, to the extent feasible, share the physical custody of children of the marriage.

To the exent it is feasible, physical custody of the children shall be shared equally.

In making an award of physical custody, the courts shall consider, among other things, the factors enumerated in Paragraph (C)(2).

Joint custody shall also mean that the parents shall enjoy the natural cotutorship of such children in accordance with Article 250, subject to the plan of implementation effected pursuant to Paragraph A of this Article.

Physical care and custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parents.

An award of joint custody obligates the parties to exchange information concerning the health, education, and welfare of the minor child; and, unless allocated, apportioned, or decreed the parents or parties shall confer with one another in the exercise of decision making rights; responsibilities, and authority.

Approved by the Governor, June 23, 1993

A lot of SHALLS in that law.

This bill passed through the legislature unanimously (not that means very much given the apparent standard of review)

The dirty response - Law erased immediately

In the same year, the legislature also passed a law written and presented by Professor Spaht, LSU family law professor. This law also went through unanimously.

This law erased all of the existing divorce law and replaced it with essentially the same law with minor upgrades.

What happened next was that Act 905 of 1993 was added to the law at the normal time all laws are added to the books - in August.

The Spaht law, when passed specified that it was to be made effective on the first of the new year.

So the existing law plus the addition from Act 905 was erased from the law books. The new law was then written into the divorce law.


Act 905 of 1993 was voided by erasue.

LSLI to the (partial) rescue?

The LSLI body, I do not know who was involved, said that laws cannot be voided in this manner.

So somebody compared the two laws and said that the 'only' difference between the two laws was a single line. So this one line was added back into the law; and a footnote was added to the law books explaining what the State Law institute had done.

So what line do you think that they added into the law was?

Brilliant deduction sir. You are correct.

Yes, they added it to R.S. 9:335(A)(2)(b)

"(b) To the extent it is feasible physical custody of the children shall be shared equally."

So the very last little bit of Act 903 of 1993 is contained in this line.

This was the law in place when my wife decided to divorce me in mid 1994.

So I was very familiar with the laws of this period. This was the start of my political awakening. Senator Quinn's versions of what happened are not accurate.

The second attack - 1995 SB759 by Dardennne

The second attack on Joint Custody was mounted in the next regular session two years later. It was in that year, 15 years ago, that the words that we are arguing over was placed into the law.

In that act, the word shall falls to the word should.

This change was not contemplated by Dardenne in his original version of the law. Senator Dardenne's original intent was to leave the mandatory word shall in place.

However, the House Civil Law and Procedure committee made an additional change.

To amend and reenact R.S. 9:335(A)(2), relative to joint custody;

to remove the burden on a court to allocate physical custody of children equally;

and to provide for related matters

On Page 25 HOUSE 25th Day's Proceedings - May 17, 1995

This bill was reported by the Committee on Civil Law and Procedure with amendments

Amendment No. 1

On page 1, line 2, delete "to remove" and inster in lieu thereof "to provide that custody should be shared equally when feasible and in the child's best interest;"

Amendment No. 2

On page 1, delete line 3 in its entirety

Amendment No. 3

On page 1, line 10, change "(2)(a)" to "(2)(a)"

Amendment No. 4

On page 1, line 14, insert the following:

"(b) To the extent it is feasible and in the best interest of the child, physical custody of the children shall should be shared equally."

This was the only line in the entire code that ensures that equal time can be obtained.

This was the only line in the entire code that ensures that equal time can be obtained.

This was the only line in the entire code that ensures that equal time can be obtained.

The line is surrounded by weasel words to give the courts leeway to not do what is in most children's best interest - and that is lots of time and contact with both of their parents.

The line before it, that you read during the session, that line only specifies 'frequent and continuing' contact. That is a far lower standard and far less time than the line you are changing.

Nicholas James

-------------------------------------------------------------- CLP WEEKLY 051910.wpd Weekly Committee Schedule HOUSE OF REPRESENTATIVES

Committee on Civil Law and Procedure Wednesday, May 19, 2010 Committee Room 2 9:00 am


HCR 132 PERRY CHILDREN/PARENTAL RIGHTS Requests congress to adopt and propose to voters for ratification a constitutional amendment relative to parental rights HB 738 LAFONTA CHILDREN/ADOPTION Provides relative to persons who may petition for intrafamily adoption HB 1305 BALDONE RECORDS/RECORDATION Provides with respect to the redaction of social security numbers from recorded documents HB 1318 HENDERSON EMERGENCY PREPAREDNESS Provides relative to immunity of personnel while engaged in emergency preparedness activities HB 1324 RICHMOND PROPERTY/EXPROPRIATION Repeals provisions relative to compensation in certain expropriation proceedings HB 1453 JOHNSON MALPRACTICE/MEDICAL Excludes health care providers who perform certain abortions from coverage under the state and private Medical Malpractice Acts

SCR 38 LONG CONGRESS Memorialize Congress to pass the Parental Rights Amendment to the U.S. Constitution and submit it to the states for ratification.

SB 108 RISER CHILDREN Provides relative to legitimation of a child who has reached the age of majority. (8/15/10) SB 130 MORRELL SOCIAL SERVICES DEPT Provides for collection of child support by private party agencies. (gov sig) SB 217 CLAITOR FUNDS/FUNDING Adopts the Uniform Prudent Management of Institution Funds Act. (7/1/10) SB 218 APPEL CONTRACTS Provides relative to security retainage under the Private Works Act. (8/15/10) SB 229 MARTINY EVIDENCE Provides relative to self-authentication. (8/15/10)

SB 236 QUINN DIVORCE Provides that physical custody of children may be shared equally in a joint custody decree. (8/15/10)

SB 256 CHAISSON COMMERCIAL REGULATIONS Enacts the Louisiana Exchange Sale of Receivables Act. (gov sig)

SB 281 BROOME CHILDREN Extends provisional custody of children by mandate to grandparents. (8/15/10)

SB 320 QUINN CHILDREN Provides for the relocation of the residence of a child. (8/15/10)

SB 322 QUINN CHILDREN Provides requirements relative to an acknowledgment of paternity. (8/15/10)

SB 323 QUINN CHILDREN Provides relative to Dept. of Social Services and appearance in court of an access and visitation attorney. (8/15/10)

SB 361 SMITH, JOHN USUFRUCT Provides for the continuous revision of the Civil Code Articles on usufruct. (gov sig)

SB 457 APPEL CIVIL PROCEDURE Provides relative to the Louisiana Binding Arbitration Law. (8/15/10) SB 644 BROOME CHILDREN'S CODE Provides for the Interstate Compact on the Placement of Children. (see Act)

Thursday, May 20, 2010 NO MEETING IS SCHEDULED



TOPICS: Breaking News; Crime/Corruption; US: Louisiana
KEYWORDS: sharedparenting
Need your help guys.
1 posted on 05/12/2010 7:32:47 PM PDT by Pikachu_Dad
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To: Pikachu_Dad

What is this bill and why should we support it?

2 posted on 05/12/2010 7:48:36 PM PDT by sthguard (The DNC theme song: "All You Need is Guv")
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To: sthguard

We are OPPOSING it.

3 posted on 05/12/2010 7:59:58 PM PDT by Pikachu_Dad
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To: sthguard

Current law:
“(b) To the extent it is feasible physical custody of the children SHOULD be shared equally.”

Revised law:
“(b) To the extent it is feasible physical custody of the children MAY be shared equally.”

The proposal greatly weakens the current law.

MAY is a negative test. It means that you are not going to get equal time unless you prove yourself worthy.

SHOULD is a postitive test. It expressess the will of the legislature and inidcates that parents SHOULD share their children unless a reason is found that it does not work.

4 posted on 05/12/2010 8:02:50 PM PDT by Pikachu_Dad
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To: Pikachu_Dad

visit and write to him about this; “may” paves the way for Parental Alienation on the part of the “custodial” biomom.

5 posted on 05/13/2010 3:08:24 AM PDT by AbolishCSEU
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To: Pikachu_Dad

This is not “breaking news.”

6 posted on 05/13/2010 3:31:55 AM PDT by Labyrinthos
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To: AbolishCSEU

Excellent point. He has helped us out before.

Wrote to Glenn.

7 posted on 05/13/2010 7:03:32 AM PDT by Pikachu_Dad
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