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Divorced dads: Family court system is broken

"This is Life with Lisa Ling" looks at the "dad dilemma," when fathers who yearn for equal custody of their children are denied. Watch Sundays at 10 p.m. ET.

Posted: Nov 8, 2018 4:42 AM
Updated: Nov 8, 2018 4:42 AM

Mothers often complain about getting the short end of the stick in divorce cases involving child custody, but so do many fathers.

For parents who are trying to juggle shared custody, child support payments and their careers — finding the right life-balance can seem impossible.

Sometimes disagreements escalate into messy legal battles that require judges, attorneys and therapists to step in and help.

In her CNN Original Series, "This is Life," Lisa Ling spoke with fathers who feel the system has let them down.

One is a divorced father who has spent time in jail because he said he couldn't pay his court-ordered child support.

"I'm currently at $680,000 worth of arrears, at 9% interest," said Dr. Carlos Rivera. "I will never be able to get out of this hole." Rivera, a pediatrician, says he went bankrupt, was let go from his medical practice and now makes about $100 per month.

In another case, a father named Jake was banned from seeing his children by something called a civil protection order.

In court documents, Jake's wife said he went through dangerous mood swings, blocked her internet access and tried to obstruct her from driving away with the kids. "Within a month and a half I lost my kids, I lost my wife and I lost my house," said Jake, who denies doing anything to hurt his children and who didn't want CNN to use his last name.

A third situation doesn't involve marriage or divorce. Justin -- who also asked CNN not to use his last name -- fathered a son during a brief relationship. He learned his name wasn't listed on the child's birth certificate and he didn't get equal custody of his son.

"How can I be a father to my kid if I only see him four nights out of the whole month?" Justin told Ling.

In America, more than 80% of custodial parents -- the parent that kids live with most -- are mothers. Is it harder for men to get a fair shake in custody cases involving children? Do laws and courts favor women because of a traditional presumption that women are better care-givers for children?

According to laws in most states, they're not supposed to, says family law attorney Randall Kessler, author of "Divorce: Protect Yourself, Your Kids and Your Future." "But some judges may be old-fashioned and they might think the mom should have custody," he said.

We posed some tough questions to Kessler, along with Fulton County, Georgia, Superior Court Judge Gail Tusan and board-certified family therapist Ephrat Lipton of the Atlanta Center for Wellness, to offer insight and advice on how fathers — and parents in general — can avoid acrimonious outcomes during the often painful legal process of uncoupling.

What if dads can't pay child support?

Attorney Randy Kessler

Pay something

Don't ignore this situation, it's important. Most people can pay something. If there's any way you can pay even a small amount toward your child support, do it. If you don't, you're certainly risking jail time.

"Unfortunately the best way to prove to a judge that you can't pay is to sit in jail for two weeks."

Don't give up

You can't reduce your child support payments unless you get in front of a judge. "So, be politely persistent. Don't give up. Keep going."

Hire a lawyer

It sounds like a contradiction, but it's true: Hire a lawyer to tell a judge you can't afford child support. Judges don't appreciate having to deal with someone who is trying to learn the law on the fly.

"If you can't hire someone, at least get a lawyer's advice."

Judge Gail Tusan

Make a good-faith effort

Judges are quite aware that people lose their jobs and times can be tough. But child support is so important that judges expect parents to do whatever is necessary to support their children.

"You can't just say, 'I'm a displaced CEO and there's no way I'm going to work at McDonald's. That's beneath me. And therefore everyone should just understand.'"

Erasing the slate

Judges cannot just erase a parent's slate of what he or she owes in child support. The money is owed to maintain the safety and security of the child. But some judges will consider modifying a child support agreement in certain circumstances.

"We're trying to make decisions based certainly on the practicality of what the income is."

Therapist Ephrat Lipton

Don't get mad

Anger can complicate a divorce by getting in the way. Angry people can easily get irritable and agitated. The solution is to channel that anger differently. Accept the situation and deal with it the best way you can.

"It's an amazing and powerful thing when you just say, 'It is how it is and there's nothing I can do about that.'"

Equal rights for unofficial dads

Attorney Randy Kessler

Dads can catch up

In general, the legal default is: if two unmarried people have a child and no papers have been signed, the woman who bore the child starts out with custody.

The dad is not official. But he can catch up really quickly. He files what are called legitimation papers, asking the court to establish that making him the official father is in the child's best interest.

"This sounds oversimplified, but the court has to decide what's in the child's best interest. The problem is that decision may be a question of how that judge was raised or what that judge's values are."

Judge Gail Tusan

Step up

The father should come forward as soon as possible and express his desire to have a relationship. That will put him in a far better position than if someone has to go hunt him down to make him have a relationship.

"The more time that has gone by between the child being in life and the father stepping forward makes it more difficult to resolve."

Therapist Ephrat Lipton

Be grateful

Being grateful for what you have is important during stressful circumstances. Scientific research shows that daily gratitude can improve your mood more than simple positive thinking.

"There's all this neuroscience now. We're actually understanding the brain so much better than we did before."

Protection orders

Attorney Randy Kessler

What are protection orders? Are they fair?

If a parent goes into court and accuses the other parent of being a threat for domestic violence, the judge can issue an immediate order of protection, which legally bars the first parent from access to the children.

"The other parent doesn't have to be in court for a judge to issue the order, which sounds a little unfair to the other side. But on balance it's probably a good thing because the orders probably protect more people than they hurt."

Is there a way to prevent or protect against protection orders?

You could have a witness present during visits with children. Or you could record video of the visit with a smartphone. In many states you can record without the other side knowing. So be aware of local laws.

A judge could use the video to decide if the parent really did pose a threat to his children.

"It's sort of a virtual witness."

Judge Gail Tusan

Stay cool

Just exhale and try to stay cool. Don't try to fix it yourself by going to court and saying: "She's a liar."

Get some legal advice about the best next steps. Figure out if this is just an unfortunate once-in-a-lifetime argument with everyone feeling much better the next day ... or is this the latest episode in a history of domestic violence. Each of those situations should be resolved in a different way.

Protection orders used as a strategy tool

Better lawyers won't use protection orders for strategy purposes in a divorce case. They should be used as an emergency maneuver only, when something out of the ordinary has happened and somebody needs help immediately.

Therapist Ephrat Lipton

Break it down

When working with someone who feels traumatized because everything's been ripped away from them, it helps for them to break it down. They should remind themselves they're alive and healthy and living freely in the world.

"Even if there's nothing you can do to fix your situation, embrace whatever you can hang on to."

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