August 15, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
The Massachusetts Senate killed shared parenting legislation this year. The bill that had passed the House died in the Senate Judiciary Committee at the end of the legislative session. This is business as usual in the Bay State. As is so often the case, those with a financial stake in the conflict caused by child custody cases, i.e. divorce lawyers, opposed the bill. Apparently they had the muscle to stop it and they did. The people of Massachusetts have voted overwhelmingly for shared parenting, but the lawyers are opposed, so the bill died.
To defend their position that children don’t need fathers post-divorce (for some reason they do need them during marriage), Senator William Brownsberger offered not reasons, but excuses. Now, friend of the National Parents Organization, Terry Brennan, has taken apart Brownsberger’s excuses here (Patch, 8/9/16).
In justifying his opposition, Senate Chair of the Judiciary Committee, William Brownsberger, cited three points:
“Whether divorce law should be changed to mandate shared parenting in post-divorce plans,”
“It might create too strong a push toward complex sharing arrangements in high conflict situations,” and “There is no consensus that the process as it works now is unfair to men or to women or that judges fail to appreciate the value of both parents."
Needless to say, not one of those points withstands even casual scrutiny.
The first one is simply a misrepresentation of the bill. As with all shared parenting bills, the Massachusetts version in no way changed existing law to “mandate shared parenting.” Brownsberger of course knows that perfectly well, having presumably read the bill itself. That shared parenting bills tie judges’ hands and require them to order 50/50 parenting in all cases is simply absurd. It’s a red herring trotted out by opponents of children having access to their fathers post-divorce and is invariably, obviously false.
Senator Brownsberger’s counterpart, House Chair of the Judiciary Committee, Representative John V. Fernandes responded to the Senator’s first objection, characterizing it as “a totally unfair and inaccurate reading of the House bill.”
And what about Brownsberger’s other two claims? They too are pretty much boilerplate objections put forward by the divorce bar every time there’s a shared parenting bill before a state legislature. And of course they are entirely without merit, as Brennan aptly demonstrates.
Instead of being influenced by attorneys who seldom even meet the children involved, Senator Brownsberger was given the opportunity to hear the 110 world experts who endorsed shared parenting with an offer extended to introduce the Senator to the psychiatrists, psychologists, child development experts, domestic violence experts, and family law experts making the endorsement.
Included in the paper endorsed by this esteemed group is a lengthy section on “conflict” stating:
“A meta-analysis of 33 studies reported better emotional, behavioral, and academic functioning for children in joint physical custody compared with children in sole custody, regardless of the level of conflict between parents.”
“More parenting time is not associated with poorer child outcomes in high-conflict families where there is no violence or abuse.”
“Conflict was neither more nor less damaging for children in shared care-time arrangements than for children in other arrangements.”
“Rather than magnify harmful effects of parental conflict, shared parenting may protect children from some of its negative consequences.”
The 110 experts concluded their section on conflict stating:
“A policy of automatically denying joint physical custody when a couple is labeled as ‘high conflict’ brings additional drawbacks in addition to denying children the protective buffer of a nurturing relationship. It sends the message that generating or sustaining conflict can be an effective strategy to override shared custody.”
So 110 leading experts in the field agree that shared parenting is best for children of divorce even when there’s parental conflict and a policy of denying parenting to one parent due to conflict only encourages the other parent to create or exacerbate conflict. Predictably, science demonstrates that shared parenting arrangements tend to lessen conflict and wasteful, time-consuming litigation.
In his review of the implementation of shared parenting in Australia, University of British Columbia Professor Edward Kruk found:
"A marked reduction in child custody litigation has also been noted since the new legislation, with applications to court over child custody falling by a staggering 72%. Court determined parenting arrangements fell from 7.8% to 2.8% of cases and lawyer negotiation from 10.6% to 5.8% of cases. Corresponding to decreased litigation has been a marked increase in the use of family relationship centers and family mediation services. And most Australian parents (72%) now resolve parenting arrangements without the use of any legal services." (The Equal Parent Presumption, Dr. Edward Kruk, page 45)
No wonder the lawyers don’t like shared parenting. Conflict generates fees, shared parenting reduces conflict and therefore diminishes lawyers’ earnings.
Third, Brownsberger claimed the system isn’t stacked against fathers. That too is simply false as Brennan demonstrates by citing two studies of Bay State custody outcomes.
As reported in the Boston Globe, Dr. Joseph McNabb, a professor at Northeastern University, analyzed custody decisions from Worcester Probate and Family Court in 1994-95 and found that fathers won sole physical custody (usually with shared legal custody) in slightly fewer than 9 percent of all cases. An additional 6 percent got shared physical custody. More recently, MIT Professor Phillip Greenspun conducted a study of every divorce case in Middlesex County in May of 2011. That study found:
“Women won custody more than 91% of the time that there was a ‘primary’ parent.”
“Only 7.5% of the children whose custody was at issue in May 2011 lawsuits in Middlesex ended up with true shared parenting or ‘joint physical custody.’"
The report concluded:
“It is not rational for fathers to fight for custody because their chances of winning primary or shared parenting are insignificant.”
Recently, divorce lawyers have taken to claiming that family courts are changing the way they order child custody to the extent that, really, parenting time is roughly equal. Given that, obviously there’s no need to change existing laws. The trouble is that there’s no evidence to support the claim. Year after year, the Census Bureau shows about 82% of custodial parents to be mothers. That’s held true since at least 1993. If things are changing, why don’t the Bureau’s data reflect it?
More specifically, when studies are done, they demonstrate the exact opposite to be true. Three years ago the State of Nebraska studied custody outcomes and found that fathers almost never receive sole custody while mothers receive it the large majority of the time. Meanwhile, shared custody is rare.
And of course there are the two studies Brennan cites demonstrating the same to be true in Massachusetts.
The simple fact is that the family courts of Massachusetts, daily, yearly, remove fit, loving fathers from their children’s lives to the detriment of all concerned, particularly the kids. That is what Brownsberger and his friends in the bar association promote. They do so with resort to demonstrable untruths that would shame less doctrinaire opponents of children’s well-being.
Thanks to Terry Brennan for once again telling it like it is.
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