The following is an article by Fathers & Families Board Member, Robert Franklin, Esq.:

Massachusetts HB 1400 will be voted on in committee soon, perhaps as early as July 13th. It would establish a presumption of equally shared parenting in case of divorce or separation. If a judge deviated from an equally shared arrangement, he/she would have to write an opinion detailing the reasons for ordering unequal parenting. This article is a pretty balanced view of the subject on the part of a paper that’s on record as opposing the bill (Boston Globe, 7/5/10). Full disclosure: the article quotes Dr. Ned Holstein who is a board member of Fathers & Families as am I.

The piece is not the “fathers want custody, so let’s find a way to trash fathers” type of article we’ve become accustomed to. On the contrary, the father around whom the writer constructs his piece is an upstanding man, a police officer who works two jobs and has never engaged in domestic violence. He strongly desires an equal role in caring for his new son, but, despite his motivation and qualifications, the court said ‘no.’ So readers are meant to sympathize with him and, by extension, dads generally.

Not only that, but the piece adds a vital bit of information to the debate in Massachusetts, one that’s new to me. It cites a 1993 study of 501 custody decisions in Worcester County that found that mothers were awarded sole physical custody in 83.2% of cases. Dads got sole custody in 8.8% of cases and joint physical custody was awarded in 8% of cases.

Of course that’s not a recent study, but consider this: the United States Census Bureau statistics show that nationwide, in 1993, 83.9% of custodial parents were mothers. By 2005, that figure was 83.8%. So in 1993, when the Worcester County study was done, awards of physical custody almost exactly tracked those in the country at large. And the Census Bureau’s data show that patterns of custody awards haven’t changed a bit since 1993. That at the very least suggests that Massachusetts still awards sole physical custody to mothers about 83% of the time. Time passes, but fathers’ access to their children never seems to improve.

And that’s the short answer to the people quoted in the article who say that child custody should be decided on an “individualized” basis. Now, of course there’s nothing in HB 1400 that removes a judge’s power to do exactly that. In cases in which one parent is violent or unfit to parent, judges can deviate from the equally-shared presumption. But the simple, clear fact is that, without the presumption, children end up with at best a tenuous relationship with one parent. Eighty-three percent of the time, that parent is the dad.

That brings us back to where we so often find ourselves when child custody law is the topic. Opponents of shared custody never answer the most obvious of questions, “what’s so good about the current system?” They oppose change. They oppose equally shared parenting, but uniformly fail to propose an alternative. That can only mean they’re happy with the status quo.

That in turn must mean they think that children losing a parent after divorce is acceptable in some way, because much social science and countless individual case histories tell us that is exactly what happens. Supporting the status quo can only mean that they think that courts’ failure to enforce the visitation rights of non-custodial parents doesn’t need to change. So what’s so good about a situation in which millions of children effectively don’t have a father? That very situation – what Daniel Patrick Moynihan called “pathological” in 1967 – has been brought about in no small part by family law and family courts.

It’s no wonder the opponents of shared parenting don’t tell us what’s so good about the current system. They’d be hooted down in derision if they tried. So they stick to their talking points hoping no one will notice that they’re defending the indefensible.

Not uncommonly, that means making up facts. Nancy Allen Scannell of the Massachusetts Society for the Prevention of Cruelty to Children informed us that,

the process already prefers joint physical custody.

Oh, I see. It prefers it, but somehow doesn’t get around to actually ordering it in more than 8% of cases. And that of course is precisely the point: the “process” has for many decades systematically cuts dads out of the lives of children, and so must change.

Robert Franklin, Esq., is a board member of Fathers & Families, America’s largest family court reform organization. To learn more, see www.fathersandfamilies.org. 

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