Thursday, February 28, 2008

Shared Parenting Bill: Some Responses to the Boston Globe

Just a bit more on the issue of shared parenting presumptions, the shared parenting bill, and the Boston Globe's recent editorial, which I criticized the other day here. In the following two letters to the editor, Paul Sawyer of Westford and Donald Miller of Boston both made some very good points. I especially like Donald Miller's analysis, which is in most respects just a more concise, and better-written, version of my own critique:

IN A perfect world, where judges could know everything accurately and quickly, simply leaving it for them to decide would be appropriate. The Massachusetts court system is not that world. It is encumbered and overscheduled, so divorce cases are often prolonged and acrimonious, with incomplete and biased information presented. Quick judicial decisions must be made at the beginning, and, without the presumption of joint custody, these often separate the father from the children and begin a destructive process that could have been avoided.

Your editorial presents opinions that seem fair, calling for more research and for trusting judges. However, it makes no reasonable argument for not passing the bill currently in the Legislature. In the absence of domestic violence, why shouldn't the presumption be joint custody? This presumption may change the course of many divorces - albeit with less income for adversarial lawyers - and would be better for our children as they grow up and eventually become parents themselves.


I would just take a few important, related exceptions to Mr. Miller's comments, with which I otherwise generally agree: 1) There will always be parents who cannot agree and will choose to fight, and so judges will still have to decide custody cases, and make many difficult decisions, both at the outset and later in the litigation process, whether we have the new presumption or not (that's why I advocate a better, and earlier, use of evidentiary hearings in such cases) and 2) I very much doubt that the shared parenting bill would lead to "less income for adversarial lawyers." That's probably just wishful thinking on his part, unless perhaps it's just a snarky remarky. But I'm sorry to say I'm sure we will continue to have great need for adversarial lawyers just as surely as we will continue to have adversarial parents, whether we adopt the new shared parenting presumption or not. (Now, maybe you think this is wishful thinking on my part, but believe me, I would gladly transform my law practice in exchange for greater post-marital peace in Massachusetts. I prefer to consider this simply realistic thinking, or healthy cynicism, on my part.)

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

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