March 12, 2018 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
The Alabama Senate has approved a shared parenting bill that, while it could be better, would be a step forward on the path toward children’s best interests. Here’s an article (Decatur Daily, 3/9/18). And here’s the bill.
Senate Bill 211, sponsored by Senator Larry Stutts, would establish a rebuttable presumption in favor of joint custody. Now, when I first saw that term, I got nervous. “Joint custody” of course can mean virtually anything. It can mean joint legal custody with one parent getting virtually no contact with the child. Or it can mean joint physical custody but with one parent again seeing the child only rarely.
The good news is that, in SB 211, “joint custody” is defined this way:
JOINT CUSTODY. Joint legal custody and joint physical custody.
So there’s no trap. There’s no way for a judge to simply give Dad equal legal custody while denying him meaningful contact with the child.
How does the bill define legal and physical custody? Legal custody is pretty much what we’d expect:
Both parents have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training, and the responsibility to discuss those decisions and consider the wishes and concerns of each parent and the child. The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions; however, that designation does not negate the responsibility of that parent to discuss those decisions with the other parent and to consider the other parent’s wishes and concerns.
The devil of course is in the definition of joint physical custody.
Physical custody is shared by the parents in a way that assures the child frequent and substantial contact with each parent. Frequent and substantial contact means that the child has as much time as practical with both parents.
Therefore the child will see each of its parents as much as possible, given the unique circumstances of the family. So far, so good.
The rebuttable presumption is that joint custody is in the child’s best interests, as in reality, it usually is.
There shall be a rebuttable presumption that joint custody is in the best interest of the child. This rebuttable presumption may be overcome only by clear and convincing evidence, set forth in written findings of fact, that joint custody is not in the best interest of the child.
From there, the bill lists the usual factors Alabama courts use in determining custody. But instead of using those factors to balance one parent against the other and declare a winner who gets sole or primary custody, under SB 211, a judge would have to find that one parent is so deficient as to rebut the presumption by clear and convincing evidence. Then he/she would have to make written findings of fact explaining why joint custody wasn’t ordered, something judges are loath to do.
And of course the bill encourages parents to fashion their own parenting plan.
Sen. Larry Stutts says too many Alabama judges deciding custody disputes automatically give mothers primary custody of children.
“The data supports that shared custody helps kids,” Stutts, R-Tuscumbia, said Thursday. “The more involved both parents are, the better.”
Just so, but of course there are those who disagree and as usual, the issues they raise are phantasms.
Opponents of the bill said it wasn’t needed and took away judges’ ability to make decisions that are best for children.
No, judges are free to issue any orders they wish. SB 211 simply requires them to have reasons other than a pro-maternal bias for denying children adequate time with their fathers. And if they do, they have to explain why.
In all but the rarest of cases, joint parenting, as it’s defined in the bill, is in children’s best interests. That’s what the science on the matter teaches us. Sadly, there are always some who are unwilling to learn.
Sen. Dick Brewbaker, R-Montgomery, was one of eight senators to vote against the bill.
“We’re getting away from a standard of what’s in the best interest of the child and moving to a standard of what’s more fair for the parents,” Brewbaker said.
Nope. This is not about parents. It’s about kids. Yes, parents too will benefit, but if shared parenting were bad for children, there’d be no movement promoting it. That parents get something from shared parenting is a collateral benefit. Brewbaker needs that education I just referred to.
SB 211 passed the Senate and now goes to the Alabama House of Representatives.
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