F & F’s Written Testimony in Support of Our Shared Parenting Bill

Testimony on HB 1400, Fathers & Families’ Shared Parenting Bill HB 1400 was heard by the Joint Committee on the Judiciary of the Massachusetts Legislature on Thursday (9/17). The bill would establish a presumption of shared legal and shared physical custody following divorce, where a family court determines that both parents are fit to care for their children.

Through Fathers & Families’ efforts, over one-quarter of the Massachusetts Legislature has expressed clear, public support for our Shared Parenting Bill, many of them signing on as co-sponsors. We gathered thousands of signatures to place shared parenting on the 2004 Massachusetts ballot and led a successful campaign for its passage, winning 86% of the vote. Massachusetts Governor Deval Patrick told the Legislature that if they pass Fathers & Families’ Shared Parenting, he will sign it, and F & F recently met with Massachusetts Governor Deval Patrick. US Senator Scott Brown co-sponsored our bill while he was in the Massachusetts Senate.

Fathers & Families selected eight activists to testify in support of Fathers & Families’ shared parenting bill Thursday. Led by Ned Holstein, M.D., M.S., Founder and Chair of the Board of Fathers & Families, the group spoke movingly about the need for shared parenting. Afterwards the Committee took the highly unusual step of holding a prolonged question-and-answer dialogue on our issue.

Below is the written testimony in favor of HB 1400 submitted by Ned Holstein, M.D., M.S., Founder and Chair of the Board of Fathers & Families. Holstein also debunks the most common anti-shared parenting myths in this submitted testimony.

Fathers & Families helped author this bill and supports HB 1400. HB 1400 establishes a presumption of shared legal and shared physical custody following divorce, where a family court determines that both parents are fit to care for their children. The only requirement to overcome the presumption is written findings of fact, a very low bar, thus preserving judicial discretion

Please note the following characteristics of HB 1400:

•    It instructs the court to “endeavor to maximize the exposure of the child to each of the parents so far as the same is practicable;’
•    It establishes a preference for shared legal and physical custody in temporary and permanent orders, absent “emergency conditions, abuse or neglect,’ but does not remove judicial discretion to order a different arrangement;
•    It allows the court to order sole physical and/or sole legal custody, requiring only that written findings of fact be provided showing why joint custody would harm the child;
•    It calls upon the parties to file detailed parenting plans to assist the court in choosing a specific parenting schedule that works for each individual child;
•    It makes no changes in child support orders;
•    It preserves protections against unfit or violent parents.

Contrary to the assertions sometimes heard, here are some things HB 1400 does NOT do:

•    It does not diminish judicial discretion;
•    It does not mandate any particular division of physical custody, such as 50/50;
•    It does not create more parental conflict, but rather diminishes it;
•    It does not change existing law that protects victims of domestic violence;
•    It does not increase the number of transitions from home to home in most cases;
•    It is not a one-size-fits-all mandate  — any reasonable custody plan can be implemented;
•    It does not apply to out-of-wedlock births.
•    It does not discard the best-interests-of-the-child standard.

The strongest argument for this bill is that it is the best post-divorce arrangement for children.  Prior to divorce, the child has two parents.  Research shows that the child attaches equally strongly to both parents at the age of approximately six months.  The attachments to both parents remain equally strong, even when one parent is the primary caretaker and the other parent has limited interaction with the child, as long as the amount of interaction exceeds a rather modest threshold level.  Disruption of attachment to either parent causes impairment in the psychosocial well-being of children.  The symptoms by which these impairments are manifested vary by age.  In infants and young children, there is sadness, depression, crying, anger, sleep disruption, aggression and other symptoms.  From ages 5 to 12, the manifestations include sadness, anxiety, anger and various forms of acting out.  From puberty to adulthood, the manifestations include substance abuse, depression and suicide, gang involvement, anger, violence, educational under-achievement and drop-out, and teenage pregnancy among girls.

All of these assertions have been amply documented by research.  Fathers & Families would be happy to serve as a resource to the Committee in its deliberations, and to provide guidance to the many studies demonstrating these negative effects of the rupture of primary attachments.

Thus, before divorce the child has strong psychological attachments to both parents.  Shared legal and shared physical custody of the children post-divorce comes closest to maintaining the relationships to which the child is accustomed.

But HB 1400 does not place the court in any straightjacket.  It is a flexible bill that instructs the court to “endeavor to maximize the exposure of the child to each of the parents so far as the same is practicable.”  It does not require shared parenting where there are “emergency conditions, abuse or neglect.”  HB 1400 preserves protections against unfit or violent parents.  It allows the parties in a contested custody action to file detailed parenting plans to be considered by the court, but the court may reject the parenting plans in its discretion.  It allows the court to order sole physical and/or sole legal custody, but to do so, the court must produce written findings of specific facts supporting its decision.  And HB 1400 makes no changes in child support orders.

Massachusetts’ children need shared parenting.  Over 25% of our children are growing up in homes from which their fathers are absent.  Overwhelming research evidence demonstrates that children, on average, are not doing well in sole custody, with two- to three-fold increases in such serious childhood pathologies as depression, suicide, drug and alcohol abuse, educational under-achievement, commission of or victimization by violence, feelings of sadness and loss, feelings of anxiety and fear for the future, and sexual activity among teenage girls.  It is time to reject a failed policy.

The enactment of draconian laws enforcing the payment of ample amounts of child support does little to improve these outcomes.  While the financial support of children is important, the data now show clearly that financial security alone does not prevent the problems enumerated above.  Indeed, the research of Dr. Judith Wallerstein, who is one of the most pessimistic researchers concerning the effects of divorce on children, was conducted entirely in Marin County, California, one of the most affluent counties in the United States. If the wealth of the families she studied does not protect against poor outcomes for children, no amount of money will.

Another response to these problems has been a series of fragmented and largely ineffective programs for youth.  Gang involvement?  Let’s try midnight basketball.  Drug use?  Let’s have police officers and former drug addicts talk to the children.  Teenage sexual activity?  Let’s improve sex education in the schools.  While all of these programs have usefulness, the high rate of youthful pathology persists.

This is seen as an incomprehensible paradox in a society of such wealth and opportunity.  But it is not a paradox.  What these children suffer from in the large majority of cases is the lack of fathers actively involved in their lives.  HB 1400 takes a long stride towards restoring fathers to their lives.

Some opponents paint shared parenting as a radical solution to the problems our children face.  It is nothing of the sort.  In fact, this is an issue on which the intelligence of ordinary people has far outpaced the response of our legislative and judicial institutions.  For instance, a non-binding ballot question appeared in about 41 election districts in Masschusetts in 2004. Of over 600,000 voters who registered an opinion, 86% supported joint physical custody as the usual outcome if both parents are fit and there is an absence of domestic violence.

Shared parenting is not a radical concept; rather, it is endorsed by the majority of citizens, who recognize that the days of gender-stereotyped roles are over.  Shared parenting is opposed mainly by a few non-representative organizations, whose desire to maintain power and control over children by one party to a marriage masquerades as concern for the children, and who rely on a shrinking group of researchers who are entrenched in positions that are 15 years out of date.

Until 15 years ago, empirical evidence on the best interests of children was hard to come by.  Our “experts” proceeded mainly from psychoanalytic theory of 30- 40 years ago, not empirical research.  Almost all other precepts growing out of psychoanalytic theory of that era have been discarded.  For instance, do we really still believe that what a woman wants most in life is to possess a male sexual organ?  Just as we have discarded these outmoded concepts, it is time to discard the discredited notion that children have only one psychological parent when, in fact, they clearly have two.

What better proof could there be than to ask the children themselves?  Fabricius surveyed over 800 college students whose parents had divorced.  These young adults were old enough to form mature judgments, yet young enough to remember their childhood.  They expressed persistent feelings of sadness and loss because they had been deprived of adequate contact with their fathers.  In fact, when asked to name the best arrangement for children of divorce, 75% responded, “equal time with both parents.”  Similarly, distinguished researcher Robert Emery in Virginia carried out a survey of young adults whose parents had been divorced.  They too expressed persistent feelings of sadness, emptiness, and of having missed out on a better life because of the limited time with their fathers that had been imposed on them as children.  There are now seventeen studies with similar findings, and no studies showing that children desire less time with their non-custodial parents, according to Linda Nielsen, Professor of Women”s Studies at Wake Forest University.

Researcher Judith Wallerstein has written of the need to “listen to the children.”  If we listen to the children, we hear that they want two parents actively involved in their lives.  The children find that the dislocations inherent in spending large amounts of time in two homes is a small price to pay for maintaining an intimate, nurturing relationship with two parents.

Shared parenting is also good for children because it dramatically increases compliance with child support orders.  Researcher Sanford Braver has written, “We found that the groups differed significantly in how much financial support was paid.  When sole custody was the arrangement, despite the father’s wishes, only 80% was paid; when joint custody was awarded, despite opposition by one of the parents, child support zoomed to almost perfect compliance, 97% compliance.”  Other studies too have shown similar results.  We don’t need our enormous and expensive child support enforcement bureaucracy, complete with shackles, handcuffs, jails, garnishments, seizures, and “wanted” posters.  What we need is free:  shared parenting.

Another benefit of shared parenting is that it diminishes the divorce rate.  Contrary to popular belief, mothers initiate between 65% and 80% of divorces.  In 80% of the cases initiated by mothers, the fathers do not want the divorce.  A rigorous study by Brinig and Allen shows that the strongest factor by far in the initiation of divorce proceedings is the expectation of gaining sole physical custody.  Armed with that expectation, mothers in troubled marriages have little reason to stay in the marriage and work on it.  Instead, they have every reason to leave the marriage, and they do so in large numbers.  But with shared parenting, mothers will not have the expectation of “owning” the children after divorce, nor will they have the expectation of being freed from all interactions with the problematical husband.  Not surprisingly, research papers by Kuhn and Guidubaldi, as well as Brinig and Buckley, have shown that the divorce rate decreases where there is shared parenting after divorce.

Finally, there is the matter of fundamental equitable treatment of the two parties to a divorce.  Let us look closely at the concept of an “award of custody.”  This is a misnomer.  It is in truth a taking of custody from one parent.  Both parents walk into the courtroom with equal legal and physical custody rights to the child.  These rights are removed from one of the parties.  A so-called award of custody is actually more in the nature of an injunction, in which a party who previously possessed liberty interests that are supposedly fundamental and protected by the United States Constitution, walks out of court with a severe abridgment of these supposedly sacrosanct liberties.

The objections commonly raised to shared parenting do not hold up under scrutiny.  Easiest to dispose of are the practical objections.  The parties live too far apart, or in different school systems, or will need to duplicate clothes and toys, or will need duplicate arrangements for childcare, etc.  When parents have the expectation that there will be shared custody, they will take care to create conditions that allow for it even prior to the judgment of divorce. Mostly these are minor problems that are readily solved when the court makes it clear that neither parent will be sliced out of the parental equation.  In the occasional case where the practical issues present major obstacles to shared parenting, HB 1460 allows the judge to order sole custody.

Another frequently cited objection to shared parenting is that it will put women in danger by requiring them to remain closely connected with a violent ex-partner.  This objection has merit, but only in a few cases.  Research by Janet Johnston, Richard Gelles and others demonstrates that only about 5% or 6% of  relationships are violent.  In general, our society does not restrict the fundamental liberties of the many because of the misdeeds of 5% or 6% of the population, and the same principle should hold true in custody determinations. But more to the point, nothing in HB 1400 contradicts the Massachusetts statutory prohibition against giving any share of custody to a parent guilty of domestic violence.

It is undoubtedly true that prolonged high conflict between parents is damaging to children, whether this occurs inside or outside of marriage.  The opponents of shared parenting who point to this research unfortunately make no distinction between different levels of conflict.  Mild conflict is treated as no different from severe conflict.  Temporary conflict is treated as no different from long-standing conflict.  In particular, conflict immediately surrounding the divorce process is treated as if it were a permanent fact of life.  Thus, any case in which conflict can be asserted, even mild, transient, or divorce-related conflict, is elevated to a sacred principle that allegedly precludes shared parenting.

There is a particularly pernicious result of this fuzzy way of thinking.  It creates perverse incentives, particularly for mothers.  By aggressively pursuing unreasonable, hostile, and uncompromising positions, she creates conflict.  She is then rewarded for having created conflict by being awarded sole custody of the children, precisely because of the conflict she has created.  Is there any other area of law in which one of the litigants can unilaterally veto a proposed solution that is in the best interests of all parties, including children?  The conflict argument, as currently employed in the family courts, stimulates the very conflict it finds to be harmful for children.

Moreover, much conflict is about custody itself. If it is clear that custody is to be shared, the conflict goes away.

To diminish conflict, we must enact a system in which there are no longer winners and losers.  With shared parenting, parents will interact with each other on the basis of protected and equal power, not, as is currently the case, as victor and vanquished.  If we wish to diminish post-divorce conflict, we will enact shared parenting.  In fact, a study by Judith Seltzer at the University of Wisconsin indicates just this result.  She found that joint custody reduces conflict between parents even when one of those parents opposed joint custody.  We must eliminate the “hostile parent veto” by enacting shared parenting.

Another objection is that sole custody is somehow a women’s issue, not a societal issue.  It is true that the National Organization for Women opposes shared parenting legislation.  Other women’s organizations, such as the National Center for Women with over 100,000 members, and the Concerned Women of America, also with large numbers of members, reportedly support shared parenting.  And Karen DeCrow, the former president of the National Organization for Women has written, “If there is a divorce in the family, I urge a presumption of joint custody.  Shared parenting is not only fair to men and children, it is the best option for women.  After observing women’s rights and responsibilities for more than a quarter of a century of feminist activism, I conclude that shared parenting is great for women, giving time and opportunity for female parents to pursue education, training, jobs, careers, profession and leisure.  There is nothing scientific, logical or rational in excluding men or forever holding women and children as if in swaddling clothes themselves, in eternal loving bondage.  Most of us acknowledge that women can do everything that men can do.  It is now time to acknowledge that men can do everything that women can do.”

There is a voluminous research and legal literature on the complex issues surrounding shared parenting.  Fathers & Families would be happy to serve as a resource to the Judiciary Committee, providing direction to this literature, or assisting this Committee in any manner it may deem fit.

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