Friday, May 13, 2005

Massachusetts - Presumptive Joint Custody

Massachusetts will soon be hearing testimony for and against HB 919, a bill for a presumption for shared parenting.

The term "shared parenting" sounds good, but it is nothing more than a euphemism for joint physical custody. Good parenting cannot be legislated. Shared parenting has little to do with parenting, and everything to do with dividing up the time a child spends with each parent. It turns parents into calendars who are overly concerned with their schedules.

The bill seeks to cut the following section: "When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health." It is a bad idea to cut this section. The child's present or past living conditions should be of paramount concern when deciding custody. A child can have "frequent and continuing contact with both parents" without having a shared parenting order in place. A presumption that [...] the parents shall have shared legal custody and shared physical custody of said child" places adult demands over the happiness and welfare of the child. It also treats all families as if they are the same, and they are not.

Custody should be determined on a case-by-case basis. One particular form of custody, such as joint custody, should not be forced on parents when other forms of custody would be more appropriate for them and especially for their children. Joint custody is already an option for parents who choose to try it on their own. There does not need to be a presumption for it. 90% of parents settle without the need for court intervention in deciding what form of custody is best for them and for their children. Most parents do not choose joint custody because they recognize how hard it would be on them and especially on their children. They also recognize that in most cases the mother had been the primary caregiver of the children, and they believe she should continue in that capacity. That is why mothers most often get sole custody. It is not due to bias against dads in court. When dads make an issue of custody, they get some form of it more than half the time.

Courts are not biased against fathers. Lynn Hecht Schafran found in "Gender Bias In family Courts", published by the American Bar Association Family Advocate, that "Despite the powerful stereotypes working against fathers, they are significantly more successful than is commonly believed. The Massachusetts [gender bias] task force, for example, reported that fathers receive primary or joint custody in more than 70 percent of contested cases."

"The various gender bias commissions found that at the trial court level in contested custody cases, fathers won more than half the time. This is especially significant in light of the fact that not only do fathers win more often in court when they take these cases to trial, but also that an overwhelmingly higher percentage of fathers gain primary custody -- by any means -- than were ever the primary caregiver of their children during marriage. Statistically, this dashes the argument that 'only the strongest cases are taken to trial,' and in fact indicates an extraordinary bias against mothers and the value of mothering and mothers' work."

Last week, California rejected a presumptive joint custody bill. I had testified against that bill. An earlier bill from 1996 had also failed. New Hampshire recently sent one off to study, which means that the bill is dead. Maryland has rejected presumptive joint custody twice already. I had provided testimony against the bill both times. Presumptive joint custody has been rejected in Australia, New Zealand, Canada, and the U. K. The Guardian reported in an July 2004 article entitled "Divorce Plan Puts Children First", that Lord Falconer, the constitutional affairs secretary, said: "There cannot and will not be an automatic presumption of 50-50 contact. Children cannot be divided like the furniture or the CD collection."

While joint custody may work for parents who freely choose to try it, joint custody has been shown to be detrimental to children who are exposed to conflict between their parents. When one parent wants joint custody and the other doesn't, there will be conflict between those parents that joint custody will not aleviate. Paul Amato noted in his article "Contact With Non-custodial Fathers and Children's Well-Being that "In a large California study, Maccoby and Mnookin (1992) found that joint custody is sometimes used to resolve custody disputes. They found that joint custody was awarded in about one-third of cases in which mothers and fathers had each sought sole custody. And the more legal conflict that occurred between parents, the more likely joint custody was to be awarded. Three and one-half years after separation, these couples were experiencing considerably more conflict and less co-operative parenting than were couples for whom joint custody was the first choice of each parent."

The children's needs are often ignored when people talk in favor of presumptive joint custody. Joint custody asks a lot of children. It is harmful to children who cannot handle the restrictive schedule. Many of them cannot handle the shunting back and forth between homes very well. They also must keep track of which home they are to be in on a given day, which is stressful for them. They lose track of their friends, and their extracurricular activities suffer when parents pay too much attention to when the children are to be with them. They miss birthday parties, sleep-overs, and evening school activities because their parents are too concerned with the joint custody schedule. Many children like to join theatre groups, bands, and sporting events that are unfairly subjected to the joint custody schedule, where their parents focus more on when the children are supposed to be with them, than on what their children would like to do with their own time.

In the cases where joint custody has worked, the families had these qualities in common: the parents had an amicable relationship, their divorce was amicable with little or no conflict, they had higher-than-average incomes, they had only one child, neither parent (especially the father) had remarried, they lived within close proximity of each other, they had flexible job schedules, the child could handle the joint custody arrangement, and the parents chose freely between themselves to try joint custody and they chose to make it work.

There should not be a presumption for joint custody in Massachusetts. It ignores the desires of most parents, who don't want joint custody. It also ignores the contributions of the primary caregiving parent, most often the mother, and it ignores the needs of children. It ignores the child's development as the child ages. Hopefully, Massachusetts will reject a presumption for joint custody, as California recently did.

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