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challenges policy on awarding custody
|Advocate seeks support in county for parental rights
By SHELLEY GRIESHOP
The Daily Standard
An Ohio resident is challenging the state's constitution which he says
deprives fit parents of the right to care for their own children.
Michael Galluzzo of St. Paris claims that Ohio law currently steps on
parental rights in divorce cases when it awards custody of minor children to one parent
without proof that the other parent is unfit.
Galluzzo has been advocating and seeking support for changes in
parental rights decisions throughout the state, including Mercer County.
The federal case is now awaiting a reply from the attorney general's
office of the State of Ohio, which was ordered to join the suit in September. The attorney
general is expected to defend the constitution, which Galluzzo says interferes with the
custody of a parent and child without due cause.
"This is the only case that has ever made it to federal court that
specifically addresses the federal rights of divorcing parents," involving fitness,
the standard to prove unfitness and equal custody, he said.
Galluzzo filed the complaint in U.S. District Court in Dayton in April
2001 after he was denied custody of his own children in June 1993. In his divorce case
originally filed in Champaign County, Galluzzo said he was denied custody of his minor
children in an ex parte order, even though the court failed to find him unfit.
An ex parte order is one that is made on behalf of one party only, without notice
to or challenge by the other party.
In a typical divorce case with children involved, the mother or father
obtains an attorney who files the proper divorce papers in court, usually with a request
for that parent to be appointed residential parent (the parent with whom the children will
In an ex parte order, the parent who files first is typically awarded
residential custody without a hearing, barring the other parent from being heard in the
matter. Statistics show that mothers are awarded residential custody of their children in
more than 85 percent of cases settled in U.S. courts, Galluzzo pointed out.
Mercer County Magistrate Michael Bernstein, who handles most divorce
cases within the county, said sometimes it is necessary to issue ex parte orders in
custody matters when a child's immediate welfare is at risk.
"Ex parte orders are issued only when children are in danger or
need permanency in their lives," Bernstein said. "Kids are usually caught in the
middle of a fight."
Bernstein, who began as a magistrate in Mercer County in January 1987,
said ex parte orders in divorce cases aren't a common practice locally and are only issued
in serious instances based on a verbal complaint by a parent armed with documentation.
Bernstein admitted he uses no specific guidelines to determine whether he will or will not
grant an ex parte, but stressed he doesn't take the matter lightly.
"If I find out I have been misled, I will not hesitate to reverse
the ex parte," Bernstein said.
Following an ex parte order, a hearing on the matter is set within 14
days and the parent who is withheld custody of their children may object in writing. If
both parties are not in agreement with the custody situation by the first hearing, another
hearing can be set down the road, many times up to six weeks later.
This is where most father's rights advocates, such as Galluzzo, say the
court begins an ongoing process that denies one parent's rights over another. The longer a
child is away from one parent, the more distant the child becomes and the more likely they
are to be "brainwashed" by the residential parent, Galluzzo said.
"One problem with temporary custody is that it gives one parent
the opportunity to begin manipulating the child against the other parent," Galluzzo
Wayne Henderson of Celina said he knows too well how the system can rob
a father of his parental rights. The 48-year-old said his wife was appointed residential
custody of the couple's children based on a verbal complaint to the court in February of
2001, prior to their final divorce. She has maintained that status even after he objected
several times in court motions, Henderson said. His objections were denied and as the
pending divorce dragged on for months, he lost a relationship with his children that he
fears he may never get back.
"The last time I visited with my 15-year-old son was a year ago.
The visitation I am supposed to receive has never been enforced by the courts," he
Galluzzo told The Daily Standard that the current law on custody
matters has devastating effects on children and the relationship they have with their
"Evidence indicates that children who do not have substantial
involvement with both parents are more likely to suffer severe consequences,"
Galluzzo cites studies by groups, such as the National Fatherhood
Initiative, that show children in single parent households without fathers involved in
their lives are more likely to become truant, get involved in crime, get pregnant before
the age of 18, and exhibit behavior problems.
Galluzzo, a member of Parents And Children For Equality (P.A.C.E.), has
recommended these changes to the law:
In a divorce or separation action, both parents retain equal
custody and responsibility rights unless one of both parents are found unfit.
Divorcing parents must attend mediation and provide the court
with a shared parenting plan. If one can't be reached, the parents would proceed to a
trial before a judge or jury, eliminating any bias of the court that could occur when a
ruling is made without the presence of the parents and their attorneys.
Galluzzo said he believes his case could change the way family law is
looked upon and create equal rights for parents who want the best for their children.
"This case will definitely bring about changes. Any decision that
is made has at least raised the awareness of the major difficulty in the family court
system," he said.
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