August 6, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
In Massachusetts, Senate Bill 834 is making news, causing those who believe the current system of depriving children of meaningful contact with one parent post-divorce to scrape the bottom of their barrel of excuses. Here’s the latest (Boston Globe, 8/1/15).
As I wrote here, S.B. 834 is the culmination of two years of effort by a working group inspired by then Governor Duvall Patrick. The list of organizations on the panel is a Who’s Who of Bay State interests concerned about reforming child custody laws. Predictably, their work product represents a compromise among the various competing interests. For pro-shared parenting advocates, the bill would be a great improvement over current law, but far from the ideal.
Perhaps the key section of the bill reads as follows:
2. “Residential Responsibility”
a. Shared. A child shall have periods of residing with and being under the care and responsibility of each parent; provided, however, that such periods shall be shared by the parents in such a way as to assure a child frequent, continued and developmentally appropriate contact with both parents and in accordance with the best interest of the child. Time with each parent may but shall not necessarily be equal. Unless the parents agree or the court determines otherwise, a child shall reside one-third of the time or more with each parent.
b. Primary. A child shall reside with and be under the care and responsibility of one parent for at least two-thirds of the time, and have reasonable parenting time with the other parent, unless the court determines that such time with the other parent would not be in the best interest of the child.
That follows a section that states the state’s policy on parenting following divorce.
A. Public Policy Statement. It is the policy of the Commonwealth to promote the best interest of children by supporting safe, healthy, and meaningful relationships between children and their parents. Each parent has a right to parent his or her child absent any limiting factor to the contrary and subject to the court’s determination of each child’s best interest. The Commonwealth encourages shared parental responsibilities and parenting plans that prioritize the unique needs and evolving maturity of each child consistent with the safety and well-being of the child.
In short, if this bill becomes law, Massachusetts will encourage shared parenting, but not require it. Various factors are listed to guide judges in allocating parenting time. And other factors prevent it outright.
Shared parenting advocates, including the National Parents Organization’s Ned Holstein and Steven Hitner have put their shoulders to the wheel to get the bill passed.
The State House hearing room seemed an unlikely place for grown men to bare their souls.
But as father after father took a seat in a committee room, urging lawmakers to support proposed legislation to revamp Massachusetts’ child-custody statute, they laid out the particulars of their divorces and personal lives in blunt detail.
The scene could soon repeat itself inside state houses across the country. About 20 states are considering measures that move toward more equal custody arrangements for parents following divorce or separation, according to Ned Holstein of the National Parents Organization, a Boston-based group that has been a driving force behind the push for shared parenting. A handful of states have already enacted similar legislation, while several others have formed task forces to examine family-law issues.
Of course the main reason for shared parenting is the welfare of children whom much research demonstrates benefit from maintaining meaningful contact with both parents post-divorce. Unfortunately, the article gives the science short shrift in favor of the changing demographics of paid and unpaid work. Briefly, men are doing more childcare and women more paid work, so parenting time following divorce should reflect that.
Battles over custody and child support are as old as divorce itself. But as parenting norms have shifted in the past half-century — the “Leave It To Beaver” setup giving way to one in which 71 percent of women work outside the home and more fathers are engaged in child care — lawmakers seem increasingly willing to consider that long-standing child custody statutes might warrant review.
“I think it’s reflecting what’s going on in the culture with parenting and shared-parenting and fathers’ involvement,” said Constance Ahrons, professor emerita of sociology at the University of Southern California, and author of two books on divorce. “Fathers used to be helpers [during marriage]. Now, they’re expected to be equal parents.”
Of course, in terms of children’s welfare, who does the lion’s share of paid vs. unpaid work is largely irrelevant. Children bond with both parents and don’t respond well to losing one of them. If we’re serious about doing what’s in children’s best interests, we’ll enact shared parenting laws and do our best to encourage parents to actively participate in their children’s lives.
Still, the practicalities of shared parenting make it possible for both parents to work, earn and save equally, a fact that should appeal to adults of both sexes.
As usual, there are those who oppose S.B. 834. And, also as usual, their excuses for doing so don’t survive even cursory examination.
Groups ranging from domestic violence organizations to bar associations have expressed concern over blanket statutes guaranteeing parents a certain amount of visitation time. Instead, they argue, custody disputes should be handled on a case-by-case basis, always with a child’s best interests in mind.
Hmm. Just as an aside, it’s illegal for DV organizations that receive federal funding to lobby for or against any form of legislation. And, if the Massachusetts Bar Association is a mandatory one, it’s likely illegal for it to lobby as well.
But beyond that, the claim that S.B. 834 is, in some way, a “blanket statute guaranteeing parents a certain amount of visitation time” is simply false. All anyone has to do is actually read the bill and it’s clear that it mandates nothing in terms of parenting time and guarantees nothing. And, as always, each case would be handled on a case-by-case basis, just like they always have been. These opponents have nothing real with which to oppose S.B. 834, so, in their desperation to preserve a dysfunctional status quo, they simply make up objections.
To its credit, the Globe article draws attention to the realities of the bill.
The proposed legislation strongly encourages, but does not mandate, courts to grant shared custody in which a child would spend no less than one-third of the time with each parent.
Other objections are equally at odds with the facts about shared parenting generally, and S.B. 834 in particular.
Others have concerns, among them: that the legislation could give more power to abusive parents, take discretion away from judges, and force hostile parents into a shared system that could prove detrimental to a child.
“The way this bill is written, it highlights the rights of the parents over the best-interest analysis of the children,” said Maritza Karmely, an associate professor at Suffolk Law School, who teaches family law.
Let’s be clear. S.B. does not deprive judges of discretion. Under S.B. 834, family judges will continue to examine the facts of each individual case and determine whether shared parenting is appropriate given the factors listed in the statute. If it is, then they’re encouraged to order at least a 33%/67% split of parenting time. That’s in accordance with the social science on shared parenting that finds 33% of parenting time to be the least a parent should have in order for the child to reap the benefits of shared parenting.
But what’s particularly bizarre is Karmely’s assumption that, in some way, the best interests of children are at odds with their having substantial time with each parent. Again, that’s simply false. Indeed, the opposite is true. If Massachusetts wants to do what’s best for kids, its legislature will pass S.B. 834.
Opponents have been too wrong for too long. It’s time to do the right thing for children and parents alike.
National Parents Organization is a Shared Parenting Organization
National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved? Here’s how:
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Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.
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