Alabama SB 196 Would Enact Equally Shared Parenting

Add Alabama to the list of states to try to pass equally shared parenting legislation.  Senate Bill 196 was submitted to the Children, Youth Affairs and Human Resources Committee on March 9 and is still there pending action.  Called the Children’s Family Act, it currently has 21 sponsors.  Here’s the bill in full. Much like the bill in the Minnesota Legislature, SB 196 would require a judge to order equal parenting on the part of  the mother and father in all custody cases in which both parents were deemed to be “fit” and in which they didn’t agree to another parenting arrangement.
So, if passed, the bill would still allow parents to decide for themselves what parenting time works best for them and their kids.  That’s important since it’s what happens in the vast majority of cases. And, like the Minnesota bill, Alabama SB 196 would require a judge to make written findings of fact if he/she orders anything but equal parenting time.  As a practical matter, that would only happen in case one of the parents was found to be unfit.  Judges would have to spell out what factors they found to indicate unfitness. And, as it turns out, the term ‘parental unfitness’ is defined by the proposed bill.

A parent who fails to properly care for his or her child and maintain the emotional health and overall well-being of the child in such a manner the failure will seriously harm the child pursuant to Section 26-14-1 to Section 26-15-4 inclusive.

Here are those sections.  They include

ABUSE. Harm or threatened harm to a child’s health or welfare. Harm or threatened harm to a child’s health or welfare can occur through nonaccidental physical or mental injury, sexual abuse or attempted sexual abuse or sexual exploitation or attempted sexual exploitation.

NEGLECT. Negligent treatment or maltreatment of a child, including the failure to provide adequate food, medical treatment, supervision, clothing, or shelter.

In short, pretty much anything that could fall under the heading of abuse or neglect of a child can lose a parent his/her rights under the proposed bill. What can’t do that is domestic violence against the other parent.  And if you don’t think that’ll cause trouble, think again.  My guess is that the bill will have to be amended to include that or it’ll never stand a chance. Even now, this article tells us that opponents are trotting out the same old arguments to try to thwart efforts to expand fathers’ rights (Birmingham News, 4/6/11).  One claimed that children would be shuttling between parent’s houses every week.  Of course, being a family lawyer, she knows that happens a lot now.  When Dad has “visitation” every week, the child leaves Mom’s house and goes to Dad’s every week.  Two days later little Andy or Jenny turns around and reverses the process.  How it would be worse for the child to spend one week with Mom and then one week with Dad, she doesn’t explain. More importantly, she doesn’t explain why parents couldn’t agree to – or a judge couldn’t order – a two-weeks-here/two-weeks-there schedule.  Or three weeks.  I suspect that’s because she knows a judge could do precisely that. The other tired complaint is that the bill would take away judge’s discretion.  Well, in a sense it would.  It would no longer allow them to deny contact between fit parents (almost always fathers) and the children who love and need them.  Is that the type of discretion judges need? More importantly, opponents of equal parental rights in family courts need to explain to the rest of us why they want to maintain a system of child custody that routinely separates fathers from children to the detriment of both, especially the kids.  I’ve said this before.  Opponents of fathers’ rights in family courts resist any and all efforts to expand those rights.  So what is it about the status quo that these people find so appealing?  According to them, is the current system working so well that it doesn’t need to be changed?  What’s the upside of fathers having so little access to their children?  What’s the benefit to kids of losing their relationship with Dad? Those are all questions the anti-dad crowd needs to answer, but they never do.  Like the opponents of SB 196 they “just say ‘no’.”  What’s their plan for ensuring that children don’t lose their fathers post-divorce?  If they have one, they never mention it, and in the end I think that’ll prove to be the Achilles heel of the movement to keep dads out of the lives of their children. After all, take a look at how the the bill describes it’s legal basis. “(b) The Legislature finds that it is the public policy of this state that children with two fit parents have liberty interest rights protected by the U.S. Constitution and the Alabama Constitution and each child shall have a  fundamental right to freedom of association and equal access with each of the two fit parents and the respective families, the right to be guided and nurtured by each fit parent, the right to have major decisions made by the application of the wisdom, judgment, and experience of each fit parent regardless of marital status. Each of the two fit parents and each child have a fundamental constitutional right to a parent-child relationship unless one or both parents is proven unfit by clear and convincing evidence. A divorce from a spouse is not a divorce from the child. Likewise, if unwed parents separate from each other that is not a separation from parent and child. Therefore, there is a fundamental importance of the parent-child relationship to the welfare of the child to each fit parent with the child, and the relationship between a child and each fit parent. Any parental decision, unless clearly harmful to the child, should be a parental determination made by each of the two fit parents. That’s right; each child and each fit parent has a fundamental liberty interest in freely associating one with the other.  That’s about as basic as it gets. It is that constitutionally protected liberty interest that critics of family court reform oppose.  All in all, given a choice between supporting or opposing that fundamental liberty interest, I’d rather be where I am than where they are.

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