Guess Who’s Not So Worried About the Economy?

Boston, MA – Skyrocketing food and gas prices…foreclosures and a credit crisis…small businesses struggling to hold onto paying customers…just some of the recession worries shared by millions of Americans. But perhaps not everyone — as reported in last week’s Massachusetts Lawyers Weekly: “For divorce lawyers, slump in economy can boost business.” Read more here.

Boston attorney John G. DiPiano said, “We have seen just as many contested custody cases in the last 12 months as in the previous 12 months.”

“People will find resources for those kinds of cases, either through loans or borrowing from relatives.”

And attorney Regina Healy said, “I hate to say it, [but] there’s always work for lawyers in this field.”

The root problem is a family court system that breeds conflict; a legal maze that requires a skilled attorney, whether to initiate legal action — or to defend yourself from it. That is, if you can afford one.

Because family courts across the US usually assume the need to award sole custody to a “primary” parent and “visitation” to the other, they encourage a “winner-take-all” and “go-for-broke” strategy in custody disputes.

Fathers & Families believes that a remedy is right at our fingertips that creates incentives for parents to cooperate rather than litigate. Couples should know from the outset that if both are fit and if there is no serious domestic violence, shared parenting would be tried first. Only if shared parenting failed would the court modify the custody order to award sole custody to one parent. A critical part of this idea is that each parent should have an equal chance of becoming the custodial parent if shared parenting failed. That way, the parents would start out as equals, and each would be motivated to cooperate rather than litigate by the fear that they might be the one demoted to “visitor’ should shared parenting fail.

This approach would diminish parental conflict both inside and outside the courthouse. Vicious custody battles would decrease dramatically. Children would no longer be placed between warring parents. They would benefit from the long term love, care and guidance of both their parents. In cases requiring child support, it would be paid without the need for a huge child support collection bureaucracy because the payer would still have a loving bond with the child.

In a case I know well, the father sought shared legal and shared physical custody, but his lawyer insisted that he go for primary custody as a defensive maneuver. He was asked to recall any possible “gotcha” details about his ex – like drugs, mental illness, abuse, and so on – none of which existed. The implication was: if he wanted to stay in his kids” lives as an active parent, he should hold his nose and destroy the other parent.

He eventually ended up with the court’s mediator, who glared at the parents as she complained, “I’ve already spent an hour with you people…. a lot longer than you’re supposed to get.”  One hour to determine the life of a family for decades to come!

This is a classic case of too much government. First it creates the problem by insisting on sole custody to one parent, then it attempts to solve the very problem it has created by hiring therapists, parenting coordinator, GALs, psychological testers, and mediators. Except that the remedy to the problem they have created is feeble and doomed to failure, once the parents have been set up to fight for what is dearest to them  — their children.

The courts do not and will not have the staff, time and money to resolve custody disputes once they have set them in motion. Only a system that creates incentives for parents to cooperate rather than litigate will work  — then they will solve their own problems.

In Massachusetts, we support legislation to establish shared parenting as the first option for the court. We successfully lobbied the Boston Globe to become the first major newspaper in the country to endorse shared parenting in principle.  The Globe editorial said our bill would “…theoretically put mothers and fathers on equal footing by creating a legal presumption that in divorce cases – where there is no child abuse or neglect – both parents would share legal and physical custody of the children. Judges could still rule that one parent should get sole custody, but they would have to explain why.” Read more here.

86% of Massachusetts voters said yes in 2004 to our non-binding ballot question favoring shared parenting. We have made shared parenting the most-supported issue on Governor Deval Patrick”s website, and he has said that if the legislature passes shared parenting, he will sign it.

The Massachusetts Bar Association, however, supports continuing the status quo. No surprise, considering their recession-proof rewards.

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