November 10, 2015
By Ned Holstein, MD, MS, Founder and Acting Executive Director, National Parents Organization
The story in Massachusetts has both similarities and differences from the story in Minnesota. Like Minnesota, the story has lessons for anyone who wants to pass shared parenting legislation in their state.
Like Minnesota, the Massachusetts story began almost 15 years ago, when National Parents Organization (then known as Fathers and Families) filed a shared parenting bill in the Legislature. It was carefully drafted by lobbyists we had hired. They had studied both the custody statute and the case law (higher court decisions), spoken to key legislators, and produced a bill that was acceptable to us and that might stand a chance of passage. In my view, having a professionally-crafted bill was a very good move for our long-term credibility. The bill would have required a judge to give written findings of fact and conclusions of law if he/she ordered something other than joint physical and joint legal custody.
This didn’t seem like a big deal — after all, if a judge is going to reduce a fit and loving parent to the status of a visitor, would it be too much to require that the judge at least write down the reasons for the “parentectomy?” Too much to ask that there actually should BE some good reason?
The lobbyists were not cheap, but it seemed worthwhile, as they were able to provide us shrewd advice, and with quick access to almost any legislator we wanted to talk to. They all seemed earnest, sympathetic and eager to help — up to a point. And with the help of our lobbyists, we were able to sign up many co-sponsors for our bill, at one point about a quarter of the Legislature.
At a certain point, a legislative hearing was held on the bill by the Judiciary Committee, together with about 50 other bills. We received only about 10 days notice of the hearing, which made it tough to get people to attend a long hearing in downtown Boston during working hours. Without lobbyists, we would not have known about the hearing at all, since the notice was not distributed widely. I have come to feel the late, insider notice was perhaps purposeful, to keep down the number of people who would testify.
And the legislators gave no hint of what order they would hear testimony on the various bills, so it was not possible for people to leave the crowded and hot hearing room and come back several hours later when our bill would be heard. Perhaps also on purpose, in my view.
About 30 of our members, whom we had briefed on how to testify, spoke eloquently, and from the heart. And we submitted carefully drafted written testimony that, we thought, answered all reasonable objections to the bill.
We then sat through a long parade of witnesses who testified against the bill on all sorts of false grounds — that it would put battered women at risk, that it destroyed the venerable “best interest of the child” standard, that it would be too demanding for children to go back and forth between two parents, that it was about parental needs, not children’s needs, etc etc.
We could not help but note that many of the opponents were from the bar associations, who clearly have a conflict of interest, since their members make money when there are bitter custody battles. Most of the other opponents were representatives of non-profits, often attorneys, whose salaries were paid by taxpayers. So taxpayer money was being used to argue against a bill that would help children, while there was no public money to support children with a simple measure that cost the taxpayer nothing. And, we asked, why exactly were attorneys considered “experts” on what is best for a child’s development? Had they been taught child development in bankruptcy class, or contracts, or evidence? But here they were, speaking gravely about what children need!
Then we learned that the family court judges had quietly let the Judiciary Committee know that they did not want our bill. This was interesting, since under the Massachusetts constitution, the judiciary is not allowed to lobby the legislature. Noting that these judges are, after all, attorneys, we again asked ourselves when and how they became experts on the best interest of children. And why should the practical concerns of judges, such as the desire to avoid re-litigation of cases, thus increasing their workload, take precedence over what is best for children?
About a year later, we learned that the bill had been quietly quashed by the Judiciary Committee. It was given the euphemism of being “referred for further study,” but it actually meant being killed.
So we re-filed the bill at the beginning of the next legislative session, which was a long time, because in Massachusetts, each legislative session lasts two years.
And more or less the same thing happened.
And we continued to re-file the bill every two years quite a few times. Each time, the evidence that shared parenting is good for children had become stronger, but it did not seem to interest the Legislature very much. Each time, we had more members showing up to testify at the legislative hearing, numbering close to 200 at our peak. That hearing went on until 11 PM.
But the Co-Chair of the Judiciary Committee was a divorce attorney, as were her sister and three or four other close relatives. She was against it, no matter how many of her constituents came to her office to explain what had happened to them and why children need shared parenting. Every two years our bill was “referred for further study.” It did not seem very hopeful.
We tried a new tack. In 2004, we sent hundreds of volunteers into the streets to gather signatures. With enough signatures, a question would appear on the ballot asking voters if they thought shared parenting should be the usual outcome if both parents were fit and there had been no domestic violence. Our members gathered thousands of signatures, and on the day George W. Bush was re-elected, 700,000 Massachusetts citizens, about one-quarter of the electorate, voted on our question. We won 86% of the vote. Later, we wondered how an idea that 86% of the people voted for could be described by opponents as “controversial.” Still, the Boston Globe buried this result, while giving prominence to a minor ballot question that had appeared in front of only 80,000 voters, and nothing much seemed to have changed in the Legislature.
We also tried to influence the Executive branch. With the help of our lobbyists, we met with then-Governor Deval Patrick, who was polite and attentive, as were we. But nothing really happened, perhaps because his wife had been beaten in her first marriage, and she was a domestic violence advocate, and the domestic violence organizations have historically opposed shared parenting legislation.
In case you decide to hire lobbyists, you will learn that in addition to their monthly retainer, they will expect you to attend fundraisers that they sponsor for various politicians, funded by their clients — in other words, by you. They will usually give you a financial quota to fill. (Because we are a non-profit, we are non-partisan, but as individuals, we can attend a political fundraiser and give campaign donations.)
As the next gubernatorial election came into view, we were invited to a fundraiser for Governor Patrick. In the hotel meeting room, with some medium grade hors d-oeuvres spread on a central table, the car dealers stood in a cluster in one corner, the insurance companies in another, the construction companies in another, and ten of our members whom I had hit up for about $500 apiece in our chosen spot. The Governor moved from group to group, spending about 10 minutes with each, finishing with a photo with each group. The unspoken rules were that you don’t talk about the legislation you really care about, because that might put the Governor on the spot; instead you talk about the Red Sox, or the time the Governor came to your church, or whatever. Our lobbyists stood close by, giving us credibility, but also making sure we didn’t violate the unwritten rules. The Governor smiled and chatted and thanked us for our support, and we smiled and chatted and shook hands.
To our surprise, the Governor glided over to the next group without pausing for a photo with us. We alerted our lobbyists to this oversight, who slid over to the Governor’s aides and pointed it out to them. Except that after the Governor met with several more groups, each with a photo, it became clear this was not an oversight. So we boldly stationed ourselves in front of the only exit from the room. When the Governor had finished with all groups, and was ready to leave, he came towards us on the way to the door, we asked for a photograph, and he graciously posed with us. After he had left the room, the aide came over and sternly told us that we could post the photo in our offices, but under no circumstances was it to be published, put on our website, in our newsletter, or any other reproduction.
Not long thereafter, we decided that although we had learned a lot from our lobbyists, our funds could be better spent in other ways. We constantly urged our members to contact their Representatives and Senators, something the lobbyists had always discouraged because they were afraid that one “mad dad” could kill the support of a legislator for good. So we screened and trained our members before setting them loose.
We also increased our contacts with the media. At first, they got back to us mainly to ask for what is called the “Yeah, but….” quote. This is where there is a long admiring article on, say, domestic violence advocates, and at the very bottom of the article, in lip service to even-handed reporting, we are quoted as saying, “Yeah, but… real domestic violence is the reason for only a small percentage of divorces and should not be a reason to deny shared parenting to all the others.”
These various repudiations didn’t feel good, and to feel totally ignored felt even worse.
But gradually, we perceived that we were gaining ground. The media began to publish our point of view more substantively, and there were radio and television appearances as well. Then they began to publish our op-ed articles. And then some of them, including the Boston Globe, even wrote their own editorials supporting shared parenting. We were appointed to some minor advisory groups, both an acknowledgment of our existence and a test of our ability to work constructively. Fewer articles appeared trashing our movement and shared parenting. We were treated with small signs of respect when we spoke to legislators or testified at hearings. More legislators agreed to co-sponsor our bill. Many of our earlier opponents, such as domestic violence groups, stopped opposing our bill; although they were still uncomfortable with shared parenting, they remained neutral in view of the increasingly positive research evidence that we had distributed and talked about in the media.
Finally, at a small public event, one of our members once again asked Governor Patrick what he would do about the sole-custody problem in the family courts. To his surprise, the Governor said that he would form a commission to study the matter. Not long thereafter, we were invited to sit on this commission, known as the Governor’s Working Group on Child-Centered Family Law.
There were four outright supporters of shared parenting on the Working Group, plus three or four others with varying degrees of support for the concept, among the 18 members. The remainder were the “usual suspects,” such as bar association attorneys, domestic violence advocates, judges, women’s groups, legislators, and practicing attorneys.
Early on, a decision was made to totally re-write the Massachusetts custody statute. This became a protracted affair, with debates over every word and every sentence. Provisions were put in and later taken out; wording was changed, and then changed back. Although there were profound differences of opinion, common ground slowly emerged in some areas, and compromises in others. The Working Group benefited because one member was a mediator by training and practice, and, just as in Minnesota, he was adept at getting us to “yes” when it seemed we were galloping towards “no.”
After 18 months of long meetings, we had a proposed new custody statute for Massachusetts that explicitly “encouraged” shared parenting as the public policy of the Commonwealth, and defined this as each parent having at least one-third of the parenting time. Although we fully understood this was less than perfect language, it was a huge step in the right direction. And all the members of the Working Group had signed off on the entire bill.
Unfortunately, Governor Patrick was by then sliding towards his exit as Governor, and did not want to introduce a major bill so late in his term. On the positive side, the divorce attorney who had Co-Chaired the Judiciary Committee had moved on to another leadership position in the Legislature, and was no longer a direct obstacle to our bill. So we waited another six months and filed the new custody statute as a bill in January, 2015, with about one-quarter of the Legislature as co-sponsors, and promises of support from some of the all-important legislative leaders.
Our legislative hearing was held last July. Only a handful of opponents turned out to testify, while 35 of our members, both men and women, testified movingly about the need for shared parenting. At the hearing, we distributed a 150 page book we had compiled and printed containing all the evidence in favor of shared parenting, refutation of the opponents’ myths about shared parenting, why shared parenting is good for women too, the names of the many legislators who had co-sponsored shared parenting bills currently and in the past, the precinct-by-precinct results of the 86%-favorable ballot question, the actual language of the proposed custody statute, the many positive newspaper articles, and more. Our PR firm had caused several media outlets to cover the hearing, and the stories the next day were positive.
Now we are awaiting the action of the Judiciary Committee, but from a much stronger position than ever before. We are not taking anything for granted. We are once again getting op-eds placed in local newspapers, especially in the districts of members of the Judiciary Committee. And we are once again training and inspiring our members to contact their legislators asking them to support the bill, again focusing our efforts on members of the Judiciary Committee.
Still, the legislative process is totally unpredictable to most outsiders. A Massachusetts blog reports that the Legislature has passed almost nothing of substance since its session began on January 1 of this year. “According to legislative records, a total of 104 bills have made their way through the Legislature so far this year and been signed into law by the governor. That sounds like a lot of legislation, but most of the laws are routine matters lawmakers could do in their sleep.”
“Of the 104 laws approved so far this year, 57 dealt with strictly local matters, such as exempting a municipal job from Civil Service or fixing a town election date. Another 36 laws created sick leave banks for state employees. That leaves 11 laws dealing with more substantive issues, and most of them were budget appropriations that had to pass to keep state government operating.”
“The fiscal 2016 budget was the most significant law passed this year…”
“The only significant non-budget laws passed this year allowed the state to launch an early retirement program, authorized a sales tax holiday, mandated fingerprint-based criminal record checks for adoptive and foster parents, and set requirements for opiate overdose reporting…”
“The issues that have dominated discussions on Beacon Hill [the state Legislature] have made little progress through the Legislature so far.”
So we are not alone in our frustration with the slow pace. We may get this out of the Judiciary Committee, through the Legislature, and signed by the Governor, or we may not. If not, we will be back again, and again. We see that our strength is greater every year, and it is only a matter of time before we win.
For those who want to pass shared parenting legislation in their states, there are lessons to be learned from both Massachusetts and Minnesota. The most important lesson is that persistence will pay off, no matter how unfriendly the terrain seems at first.
Just as important are the differences today. The environment today is much friendlier to shared parenting, no matter how chilly it may seem at first. And the research evidence that shared parenting benefits children is now so much stronger than just a few years ago. Although it will take hard work to pass shared parenting, it will not require so many years as it has in these two states. The essential ingredient is to do the hard work.