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man repairing girl bike smallApril 5th, 2013 by Robert Franklin, Esq.

Things are heating up in Vermont. The Green Mountain State is one of only a few that require family judges to give sole parenting to one parent unless both parents agree to a different arrangement. That of course gives each parent a veto on any shared parenting arrangement; if one doesn't agree, it doesn't happen. And, since mothers get the vast majority of custody, they're the ones with an interest in exercising the veto.

If they do, they get the kids and the maximum child support Dad can pay. Why would a mom do anything else?

Of course, in most states it works out that Mom gets either primary or sole custody. That means she gets almost all of the parenting time while Dad and the kids have to make do with four overnights per month. That's about 13% of the kids' total time spent with their father, and much social science shows that's just not enough to maintain a meaningful relationship between them. 

That's the parenting time side of it. But most states allow joint legal custody meaning that both Mom and Dad have input into major decisions about, for example, where the child attends school, medical decisions, etc. It's not much, but it's something.

But in Vermont, what Mom says in family court goes absent a strong showing that she's unfit. And that of course exacerbates conflict between the two when divorce papers get filed as this article shows (Seven Days, 4/3/13).

 

Chris Weinberg of Jericho spent more than a half million dollars and two years of his life fighting with his now-ex-wife for equal parenting time with his two sons. If Weinberg, who got divorced in August 2012, had lived across Vermont’s border in New York, New Hampshire or Massachusetts, family-court judges in those states would have presumed that, unless he were an unfit parent, he would share equal custody of the kids with their mother.

That’s not how it works in the Green Mountain State. As Weinberg discovered the hard way, Vermont is one of only six states in the country that allow one parent in a contested child-custody case to “veto” joint custody — a decision Vermont judges cannot overrule.

In such cases, a judge decides who is the “primary” caregiver and who gets “legal rights and responsibilities.” The former is awarded “physical rights and responsibilities,” meaning the kids live with him or her most of the time; the latter makes decisions about the kids’ education, health care and extracurricular activities. Sometimes one parent gets both physical and legal custody; other times, they’re divided.

If it sounds like Solomon’s dilemma, it is. As Weinberg argues, Vermont law essentially creates a “winner-take-all” scenario in which squabbling parties have no incentive to play nice. Instead, he says, they’re more inclined to engage in “character assassination” to gain the upper hand.

And that can be expensive.

“Basically, it supports very lengthy, costly and ugly custody battles,” says Weinberg, 39. “There’s virtually nothing in our current statute that encourages parents [who are splitting up] to put together a parenting plan that’s actually in the best interest of the child.” But Weinberg isn't just another unhappy dad who's been roughshod over by an ex-wife and her allies in family court. No, he's decided to do something about a system of child custody that's been shown countless times to be bad for children and bad for both mothers and fathers.

The emotional toll of such battles is, of course, just as high. That was Weinberg’s primary concern when he formed JointCustodyVT.org, which advocates for changing Vermont law to allow judges to order 50-50 custody even when neither parent consents to it. Since its formation two years ago, JointCustodyVT.org has gained about 600 supporters statewide — male and female — including about two dozen members who work on public education, lobbying and petition campaigns.

Weinberg points to “irrefutable data” showing the importance of children growing up with both parents active in their lives. His website is full of facts and figures about children raised without both parents: They are statistically more inclined to suffer behavioral disorders, drop out of school, abuse drugs, go to prison, commit rape or take their own lives. Not only that, but he's gotten a state representative to carry a bill that would give judges the power to order equal parenting time even if both parties don't agree.

Supporting Weinberg’s efforts is Rep. Jim McCullough (D-Williston), who says his bill, H.412, aims to “level the playing field” in child-custody proceedings. McCullough, who introduced similar legislation in the 2011-2012 session, says Vermont statute ostensibly puts children’s interests first. In practice, however, he contends, the current system essentially terminates the parental rights of the noncustodial parent and relegates him to “the status of a visiting uncle or family friend.”

McCullough’s use of the word “uncle” isn’t accidental. Although there are no statistics to prove Vermont fathers are granted custody less often — Vermont isn’t among the states that collect that data — anecdotally, few dispute that moms are more likely than dads to get custody of the kids.

And that “strong bias” against men in the court system automatically puts them at a legal and financial disadvantage, Larry Miller suggests. The 45-year-old Burlington dad has been divorced since 2004 but is still “actively involved” in litigation with his ex-wife over the custody of their daughter.

Miller says he doesn’t want debate on this bill to get “all bogged down” in discussions about money and child support. But he points out that, because moms are more likely to be ruled the custodial parent, fathers won’t have equal time with their kids — “and the lawyers know it.” As a result, he says, the custodial parent typically pushes for fewer overnight stays with the noncustodial parent to maximize child-support payments.

“I just don’t see any justification, if you have two loving and devoted parents the child spends time with, why you can’t have 50-50 custody,” Miller says. When all the power is given to one parent, he adds, “What incentive is there for the parents to work together? There is none.” But of course, regardless of how sensible, regardless of how fair, regardless of how beneficial to children, there's always opposition to shared parenting, and so it is in Vermont. And guess who the opponents are. That's right, family lawyers. The bitter, divisive, destructive conflict Weinberg and Miller describe is their stock-in-trade.

But would changing Vermont law to a “presumption of joint custody” actually reduce such outcomes, or make child-custody disputes less acrimonious? Opponents of JointCustodyVT.org — including Vermont Legal Aid lawyers, advocates for victims of sexual and domestic violence and some mediators and former judges — say no. They contend that, if anything, the change would make such breakups even more contentious, resulting in more court time, higher legal expenses and, ultimately, more emotional and financial stress on the entire family.

“I think Vermonters have been very wise for a long time in saying that you cannot force people to agree and make decisions together,” says Jean Murray, a Vermont Legal Aid lawyer with more than 22 years of family-law experience. “If you do that, what you’re going to end up with is more people arguing. And arguing is never in the best interest of the children.” That might be persuasive if there weren't so much social science refuting it. But there is. In fact, much research shows that equal parenting reduces conflict not only during divorce but in the long run as well. By contrast, other research shows the opposite about sole and primary custody. For example, in 2008, Hawthorne and Lennings concluded that the "winner-take-all" system like that in Vermont exacerbates parental conflict, exactly as Weinberg and Miller describe. A great many other researchers like Lund, Warshak, Braver, Fabricius, Kruk, Bauserman and Nielsen have made similar findings.

So in reality it's no surprise at all when divorce lawyers oppose shared parenting as they have in every state in which it's been proposed. For them, weighing child well-being against their monthly bottom line is simple.

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