By Ned Holstein, MD, MS, Founder and Acting Executive Director, National Parents Organization
Bar Associations Gut Shared Parenting
The Massachusetts Bar Association, the Boston Bar Association, and the Women’s Bar Association, together with a couple of influential Senators on the Judiciary Committee, have succeeded in gutting the proposed reforms of custody law that were fought out over two years ago by Governor Patrick’s Working Group.
As a result, National Parents Organization must do a U-turn and oppose the passage of S834, also known as H1207. You MUST call your Senators and Representatives today or tomorrow to urge them to amend or defeat this bill, since I do not think it is likely that we can get it changed enough in the committees it must go through before it gets to the floor of the House and of the Senate.
In a classic double-cross, three representatives of bar associations who served on the Working Group pretended to support the bill when we finished our 18 months of work and sent it to Governor Patrick. Then, once the bill got into the Judiciary Committee, they went behind closed doors to do their bloody work.
Here is my analysis of the back-alley knife-job the bar associations did on the wellbeing of children:
To those attorneys and others who have insisted that shared parenting for fit parents is already the norm, I say, "Show me the evidence," because there is plenty of evidence that this is not the case.
Every change that was made in committee strengthens the hand of the custodial parent and weakens the hand of the non-custodial parent. What children need is for the non-custodial parent to be strengthened, to the point that he -- and I now abandon the phony gender neutrality with which we have previously conducted these discussions -- would be indistinguishable from the custodial parent.
Although parental rights are exalted in decisions of the US Supreme Court and in those of numerous state supreme courts, the one reference to parental rights in our bill in the Public Policy Statement has been deleted. This of course works to weaken only the non-custodial parent, since he is the one whose parenting rights are drastically curtailed under the cookie-cutter custody arrangements that are still the norm today.
Our instruction to the court to take into consideration that a parent may have improperly worked to alienate a child from the other parent has been deleted. This is terrible for children, who are the ultimate victims of the twisted parents who turn them into little hate machines against the other parent.
The willingness of a parent to cooperate with the other parent has been removed as a factor for consideration by the court, further strengthening the hand of the custodial parent, who typically does not need cooperation from the other parent. This is awful for children, who need their parents to learn to cooperate if at all possible.
The careful balance we achieved after long debate between the history of caregiving and the present desire and ability of a parent to perform the caregiving functions has been destroyed by removing the work "present." This of course will serve to keep women locked in the limited role of caregiver so as not to lost custody of a child, and will continue to punish men for being loyal breadwinners over the years of the marriage.
The ability of the parent to foster a positive relationship between the child and the other parent has been weighed down as a factor for the court to consider with all the domestic violence baggage, even though there are ample (and meritorious) protections against domestic violence elsewhere in the bill. Worst is the fact that the new bill talks about "abuse" as a reason why a parent could be excused for not fostering the child’s relationship with the other parent. But “abuse” is undefined in the bill, which means that a ruthless and vindictive parent will be statutorily encouraged to make all sorts of exaggerated or baseless claims of bad behavior by the other parent, and the court may credit any of these as some form of undefined "abuse." Of course this will be applied with gender bias. This is all catastrophic for children, who need the law to calm down the parental hostility, not ramp it up.
A new factor has been added for the court to consider, whether a parent has deserted the child. In paternity cases in many states, a father who does not even know that his former girlfriend is pregnant, because she has hidden this fact, or secretly moved away, is held to have deserted his child. Or they are held to have abandoned their parental rights because they don't happen to read the legal notices of pending adoption in a newspaper. The same injustice will now be encouraged for divorced parents who are often kept away from their children by actions of the other parent, such as bogus restraining orders, secretly moving away within the state (or without), repeated visitation interference, inability to pay or to take time off from work for supervised visitation due to a bogus accusation, alienating the child so that she becomes an accomplice in the "desertion," or simply the necessity of long work hours for noncustodial parents who must pay the exorbitant child support demands in Massachusetts for middle class "obligors." Also terrible for children, who need to be relieved from all these stratagems. Although a factor concerning desertion is not inappropriate, qualifying language to prevent the foregoing schemes is desperately needed.
A parent's interference with the other parent's access to the child as a negative factor is now weighed down with language about whether the interfering parent has a "good faith belief" that she is acting protectively for herself or the child. How about evidence, instead of an inscrutable state of mind? We already have widespread abuse of restraining order law, which is likewise based on the complainant's alleged state of mind (fear) rather than evidence. This is another calamity for children, who suffer when the law encourages parental accusations, and pay dirt for litigators (and mediators).
Likewise, "A parent’s knowingly providing false information to any court regarding parenting" as a negative factor is completely removed from the bill. Fire up the engines of false accusations, slander and libel, and the engines of litigation for profit. A child's nightmare come true.
In the original bill by the Working Group, we provided for adjustment of the parenting plan if there is repeated access interference. This allowed either a temporary or permanent change. The new draft gratuitously inserts "temporary adjustment" of the parenting plan. Astonishingly, this removes judicial discretion to make a permanent change due to access interference, discretion that already exists under existing law. After all the sanctimonious talk against parenting presumptions because of the need to preserve judicial discretion, comes this stinker, which limits judicial discretion that already exists! This strengthens the hand of the custodial parent, who has no serious consequence to fear from access interference. The child can kiss a beloved parent goodbye with this insertion. Totally unnecessary, demanding the suspicion that ideology is at work here rather than best interest of the child.
Another provision of the Working Group’s bill gave the court power to levy monetary damages connected to violations of the parenting plan. Some of its provisions would have worked to the advantage of custodial parents, and some to noncustodial parents, a plus. But this is now gone. It wasn't even a source of controversy within the Working Group. This provision never came up during the legislative hearing. There was no known or public opposition to this clause. Who came up with this, and why? More anguish for children, as the court is deprived of stronger tools to enforce what is ostensibly the child's best interest. And look at the disparity between what we do to enforce child support (over $5 billion per year nationally) and our complete failure to enforce the parenting plan!
Finally, behind closed doors and without discussion, a decision was made to add a paragraph which reads in part, "An order of shared decision making or residential responsibility shall not constitute grounds for modifying a support order absent demonstrated economic impact that is an otherwise sufficient basis warranting modification." Where to start with this sneak attack? First, this paragraph does not even belong in Section 31, which is about "custody." Second, it directly contradicts the current Guidelines. Third, it requires a showing of economic impact to make a change in child support resulting from a change in parenting time, while the entire intention of establishing Guidelines was to replace arguments about economic impact with a formula. Fourth, it makes no economic sense, because shared parenting decreases the costs of the custodial parent, which should be recognized in the support order. This torpedo again works against the noncustodial parent, as do almost all the changes to our work. But it will be marvelous for litigators and economic consultants who will fight about economic impact to the tune of $$$$$. Say goodbye to the child's college fund. This provision alone is grounds for opposing this bill. It smacks of ideology, not best interest of children.
National Parents Organization will be forced to apply its full resources to defeating this bill in its present form, unless it can still be amended. Over 15 years of advocacy on this issue, while the rest of the country has moved ahead, this allegedly “progressive” state has not thrown even one crumb to true advocates for children, who recognize the deep wounds caused by the sole custody tradition. After this stab in the back, after the duplicitous actions of the bar associations in pretending to support the compromises reached by the Working Group and then turning around and attacking this bill behind closed doors, we must band together to rescue our children and assert our humanity as parents.
Ned Holstein, MD, MS
Founder and Chair of the Board
National Parents Organization