The Boston Globe reports on the recent hearings on shared parenting reform:
“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.”
The courts or the DCF have no mandate to maintain statistics of custody arrangements. About the totality of the cases in probate and family courts around the state, there is much known anecdotally, but little hard data. A 1993 study of 501 consecutive divorce outcomes in Middlesex County shows that “shared parenting (joint physical custody) was the outcome in only 6.4% of cases. Fathers received sole physical custody in 8.8% of cases, and mothers received sole physical custody in 83.2% of cases.” And a May 2011 look at 144 divorce cases involving minors also in Middlesex had only 7.5% of children end up in shared custody. “Mothers won sole physical custody of the child(ren) in 84% of cases, and fathers won sole physical custody in 8.5% of cases.”
These numbers are culled from a Jan, 2015 report of a working group set up by the previous Governor, Deval Patrick, to study child-centered family law in the state. The report was “described by its facilitator as a “compromise” but later denounced by some of the organizations represented on the committee”, we’re told by the Globe.
A bill proposed by the report, and advanced to the legislature, encourages (but does not mandate) shared parent responsibility of minor children in wake of a divorce. This has engender an array of reactions: from full throated support to entrenched opposition, for example from domestic violence organizations and some bar associations, who “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.”
Yet the plain language of the proposed bill makes it clear that it preserves undiminished judicial discretion, and holds the best interest of the child as the judicial standard. The bill defines shared parenting as an arrangement whereby the child spends at least one third of time with each parent, but does not mandate, and instead it merely encourages shared parenting. All existing statutory and case law protection against domestic violence are preserved.
We know, also anecdotally, that there is popular support for this measure. In 2005, 20% of Massachusetts was presented with a non-binding ballot question in favor of shared parenting rights – with an 85% yes vote. And the Globe has editorialized on the related topic of parents defaulting on child support – perhaps prompted by the murder of Walter Scott in South Carolina.
Will the shared parenting bill be wheeled forward? Here’s to hoping that it will be, and that some balance is restored to the system – for the benefit of children who need both parents around, even after parent separation.
I have been through two divorces with five children (two from the first, three from the second), now all grown and each doing reasonably well. I have been married to my third wife since 2002. I therefore have some familiarity with this issue. My first divorce was in 1988, my second in 1998. The second was more hostile than the first, and my second wife and I were in the clutches of the Massachusetts Probate Court (Middlesex County) through 2010, when we finally reached a stable stalemate regarding the children.
First, I was unable to discern ANY changes in the Probate Court system between 1988 and 2010 despite several high-profile “reforms” comparable to this proposed legislation. The Court remains firmly rooted in stereotypes about both mothers and fathers — stereotypes that are accurate often enough to be very hard to dispel.
Here are some examples:
– “Mothers are more involved with the children than fathers.”
– “Fathers are more likely to miss support payments than mothers.”
– “Fathers are more likely to physically threaten mothers than vice-versa.”
– “Mothers are better care-givers than fathers.”
– “Fathers are able to make more money than mothers, and therefore should have higher support obligations.”
In practice, these stereotypes combine with understandable self-interest on the part of the legal community to create a Probate Court reality that is generations behind the reality of current society. Mothers and the legal community benefit. Fathers suffer.
Since at least 1988, “shared legal custody” has been common practice. My understanding is that current law requires this to be explicit in the Divorce Agreement unless the parties demonstrate why “the best interests of the children” require otherwise.
For the same period, the prevailing standard is sole physical custody to the mother, with specified “visitation” (what an AWFUL word) for the father according the following schedule:
– Alternating weekends
– One evening per week every week
The prevailing standard for child-support is for the non-custodial parent (nearly always the father) to pay child support according to “guidelines” first published in the 1980s, and written into law sometime after 1988 (we chose to use the guidelines in my first divorce; we were required to use them by the time hostilities ended in the second).
“Shared legal custody” is a bad joke. When the mother chooses to violate them by excluding the father, EACH such violation must be proven, one at a time, before the Court (requiring both sides to pay legal fees, of course). Since the bias against fathers is so pervasive, it is nearly impossible for the father to prevail unless the offense is extraordinarily egregious. “Minor” infractions such as changing doctors to exclude the father from health-care decisions, moving from one town to another without informing the father, or “forgetting” to fill prescribed medications for the children do not meet that standard. The result is that the mother successfully complains to the court of “harassment” from the father, further raising the bar for future complaints.
Similar issues exist with physical custody and visitation. Mothers schedule events for the children that conflict with visitation weekends without informing the father. Fathers arrive for a Saturday morning pickup to find the children still asleep in their beds. Mothers refuse to pack belongings for the children such as favorite PJs (when they are little), stuffed animals, even shoes — insisting that fathers buy similar items to keep in their home. The effect of this is to add additional burden to a father already paying 50% of his net income (guideline amount!) for child support that explicitly includes clothing for the children. Not to put too fine a point on it, but a pair of dress shoes for a 10 year old boy fit the child for about six months. With a “guideline” visitation arrangement, that works out to about a dozen Sunday mornings at church. It’s a very expensive proposition for a father trying to both meet his support obligations and provide a religious foundation for his children.
When a mother who has been earning six figures working from home during the marriage is suddenly unable to earn ANYTHING during the divorce because of “child care obligations imposed by the divorce”, the Court nods and agrees that it is in the best interest of the children to make her income, for guideline calculations, zero. When the father, laid off from a six-figure job just prior to the divorce (and prompting the timing of the divorce), has been forced to take a fifty percent pay cut in order to meet “temporary” support orders attempts to use that current salary for guideline calculations, the Court agrees with the mother that father is “evading support responsibilities” and orders that the guideline calculation be performed on “imputed” income — the father’s pre-layoff six figure income.
The result is that father gets a support order of, essentially, 100% of his net (after tax) income. Not surprisingly, many fathers therefore are unable to make those payments. Then, of course, the father is hauled in the front of the Court for non-payment of support and typically faces imprisonment (yes, it does happen), wage garnishment, and similarly intrusive measures. Too many fathers who find themselves in this situation direct their anger towards the mother or the children. The result, when not tragic, is often a 209A restraining order so that the father loses all access to his children.
Fortunately, I was able to navigate these waters without being jailed. I was able to find consulting jobs so that I could scrape together the obscenely large support payments. I was able to call on friends and family so that I could live rent-free for several years while I rebuilt my career so that I could meet my financial obligations and still maintain a healthy and loving relationship with my children (including renting a Residence Inn suite for visitation weekends, and flying from a Cleveland OH contracting job to Massachusetts and back).
I was lucky. Too many fathers are not.
There are several phrases in the thread-starter that compel explanation about the difference between the reality of Probate Court and the reality of the rest of the world, to wit:
– “undiminished judicial discretion”: This is legaleze for “revenue enhancement for lawyers”. The reality of “judicial discretion” is that both parties need lawyers, whose meter runs well in excess of $200/hour, in order to have access to the judge at all. Each such hearing is preceded by many hours of discovery, negotiation, depositions, and so on. A Guardian Ad Litem, whose meter runs at the attorney rate, is frequently required. Many Divorce Agreements specify that mediation (at a lower hourly rate) is required before presenting any issue to the Court. The costs of the mediator must therefore often be included in the cost of “judicial discretion”.
– “best interest of the child“: This is legaleze for “make the child a pawn” and “blame the father”. The mother who wants to block the father’s access to the children (while of course preserving a generous support award) cites “best interest of the child” as the reason why the mother cannot work (even if her previous six-figure income was from working at home) and why the rigorously applied visitation schedule is explicitly excluded by the mother in planning the child’s weekend activities.
In 2001, it cost me well over $50,000 in legal fees to modify our Divorce Agreement so that on alternate visitation weekends during the school year (a total of about six per year), I could pick up the children in their North Shore home on Friday evening at 6:00p instead of Saturday morning at 9:00a for their weekend in Boston. Please bear in mind that on every visitation weekend (long or short), I drove to and from their town for morning and afternoon soccer and baseball games, afternoon and evening music lessons, theater rehearsals and performances, and various birthday parties and similar events. I frequently made the 2-hour round trip with the children multiple times on the same day, and my wife and I frequently needed to drive both cars so that we could manage simultaneously scheduled and conflicting events. The “best interests of the children” standard did NOT include the inconvenience to the children of these long hours in the car. On the “Friday pickup” weekends, once per month, the 6:00p pickup time meant fighting rush-hour traffic from Brookline to the North Shore — we had to leave Brookline by 4:00p in order to get to the children’s home by 6:00p.
I have no reason to believe that any of this is any different today. It appears to me that this proposed bill carefully preserves the very aspects of the current system that make it so destructive to fathers who love and care about their children.
This is a deeply-rooted and challenging issue that is not going to be addressed by any single piece of legislation, including this one. The solution requires, instead, re-examining the fundamental attitudes that ALL of us have — explicitly including judges, attorneys, and parents.
Family practice attorneys interact with judges every day. Mothers and fathers interact with judges several times a year at most. The judge’s opinion of the attorney is therefore the dominant factor in the attorney’s behavior. The judges, and Probate Court system, are heavily biased towards mothers today. No individual attorney will successfully fight that bias. This means that it is effectively impossible for a father to even have effective legal representation of his interests — the legal standard for fathers is significantly higher than for mothers, and I see nothing in this proposed legislation that will change that reality.
The bottom line is that yes, the existing system desperately requires that some balance be restored. I remain unconvinced that the proposed legislation does anything at all to address that requirement. Will it hurt? Probably not. Will it help? Probably not.
Should it be “wheeled forward”? It doesn’t matter to divorced fathers.
When I saw this post I immediately thought of you because you have referred to your experiences with this multiple times in the past. There are indeed multiple realities and while I like the default assumption of shared custody, along with gender-neutral language in the statute each case needs to be looked at on its own merits and without bias. I have a friend who shares custody with her child’s father (They were never married.) and to hear her tell it at least he really doesn’t have much business being in the child’s life.
One father who “doesn’t have much business being in the child’s life” unfortunately does terrible damage to all the fathers who love and care for their children. The Court sees the “rotten apple”, and the stereotype is reinforced. The miscreant’s attorney, if he has one, makes the usual evasive excuses, and the Court has heard them all before. The gavel sounds — not just for that rotten apple, but for every father.
Imagine, if we can, a world where the rights and experiences of fathers were as guarded as zealously as our police. Imagine a world where the standard of proof required to separate a father from his children was as high as that required to separate a cop from his gun.
Yes, there are bad fathers just as there are bad cops. Yes, sadly, the share of fathers who are “bad” is higher than that of cops. Our gender biases and prejudices hurt men as well as women, and our attitudes towards men and fatherhood is a prime example. We have a long, long way to go.
When we men tolerate gender-based wage disparity, we set up a situation where the husband’s income is harder to forgo than the wife’s. When children come, it is therefore the mother who stays home (if the family is lucky). When divorce follows, it is the father who is an “uninvolved father” — because few jobs today that pay enough to support a family on a single income also allow the worker to be home enough evenings, weekends, and occasonal afternoons to remain “involved”.
How many men feel comfortable telling their colleagues that they’re just going to have to miss the afternoon’s crucial budget strategy meeting because their day care provider just called to say their child is ill and needs to be taken home? How many professionals truly admire that father’s dedication to his job? When a snarky remark is made about that father’s dedication to his job, how many workplaces join in the laugh and make sure the father is not invited to the next budget session?
So long as bias exists in our culture, it will exist in our legal system. Because of the role the legal system plays, it will require more effort to change. A culture that still struggles to allow fathers to take a day off to care for a sick child is going to have a very hard time persuading courts that a father who says he can’t find a job is telling the truth.
The existing system is heavily biased towards mothers. An entire industry exists that benefits from that bias. That bias is not going to dissolve by wishing it away through gender-neutral language. The statutes have been gender-neutral for decades. It takes far more than that.
Thanks for sharing
I’m not, and hope never to be, as knowledgable as somervilletom about how the probate court functions in child custody cases between divorcing parents. But tom’s characterization of a bias toward the mother in those cases seems plausible to me because of the apparent bias probate judges have against families in general, in custody cases involving developmentally disabled persons.
I’ve blogged here many times about a number of those cases in which family members of disabled individuals have found themselves pitted against the state, corporate human services providers, court-appointed guardians, or all of those parties. In those battles, the families almost invariably lose; and, like the fathers described by Tom in child-custody cases, still end up paying exorbitant legal costs that can break them financially.
I agree with Tom that a comprehensive reform of the probate court system is needed — one that addresses the pervasive biases probate judges seem to have, far out of proportion to judges in other types of court systems.
To the question “Is the Probate Court system inherently dysfunctional”, I can only answer from my experience — yes.
I also went through a divorce in the early ’90s, and can confirm that the process is heavily biased against fathers’ parental rights. Even when a father scrupulously avoids, as I did, any questionable or inflammatory behavior, he will lose access to his child except for the every-other-weekend-and-one-night-a-week schedule. Often he will have to struggle to get even that, as I did. For me, it was heartbreaking, and every time I returned my son to his mother’s house, I was depressed for days. Eventually, my ex-wife decided she would have a better life if our son was away more, and allowed me more “visitation.”
For a father to gain custody, the mother pretty much has to have a documented criminal history.
The cause of fathers’ rights is undermined by the misogynistic “Men’s Rights” movement. With their antifeminist ranting and posturing, they poison the well for the rest of us.
Because of some of the very things discussed on this thread, such as type of work each parent has, one thing the father could have going for him is higher income. If the logic is the father can better afford child support because he has the resources, shouldn’t the same logic suggest that he is also in a better financial position to outright raise the child?
One of my attorneys, patiently explaining why I had no chance of convincing the Court that I was better able to care for my children than their mother, cited a case (I don’t have the citation at hand now, this was nearly 20 years ago) where a mother was convicted of dealing cocaine and crack from her home (where the children resided). The Court ruled that she was still a “fit” mother because she ensured that the children were not in the room during the illegal transactions. The father’s custody bid (based on this conviction) was denied.
…I wonder what would happen if the father played the “I’m in fear” card against the mother that you have cited in the past that mothers use against fathers. I don’t really like it because there’s no due process behind it, but at very least equal protection demands equal results.
I was able to find just one dated study of gender bias in 209A awards, a 2005 study using 1997 data for the Gardner District Court. Since I’m not willing to pay $40 to research a post, we’ll have to be content with the abstract (emphasis mine):
I think it’s worth noting that this legislation was created under the name “Jane Doe Law” while it was being considered by the legislature.
It’s clear enough from the legislative history and actual practice that the law is intended to protect female victims from male abusers.
I’ll defer to the attorneys of our community about a more first-hand answer to your hypothetical, as well as to the realistic chances of your contemplated “equal protection” objections.