Fairness for Fathers -The Boston Globe Weighs In, But Doesn't Really Get It

The Boston Globe yesterday opined on the shared parenting bill, introduced by State House Representative Colleen Garry, a Dracut Democrat, and cosponsored by about 50 other legislators, including many of the legislature's most thoughtful and courageous members, as well as the progressive Fathers & Families organization. In A fair role for fathers - The Boston Globe, the Boston Globe paternalistically (or should I say "maternalistically"?) condescended to admit that the idea of shared parenting is appealing, even while it predictably rejected the idea without any convincing explanation or any alternative proposals for reform.

I myself believe that, short of other, more comprehensive reforms that would make the family court fairer to children, the shared parenting presumption proposed in this bill makes a lot of sense. Some of the reforms I would prefer to see include mandatory evidentiary hearings at the temporary orders hearing stage of all divorce and family law proceedings where physical custody is in contention, and other reforms designed to force judges actually to hear facts, presented as evidence in court, rather than to make conclusions based on short motion hearings, followed by delegation of investigatory authority to guardians ad litem, who are very often incompetent, biased, or both, after which the temporary orders often become permanent orders, without regard to what would truly be in the best interests of the children. Also, I would like to see standards raised for judges, greater accountability for judges, for judicial pay to be raised, and many other badly needed reforms to make the judicial process more competent, fair and efficient.

We need facts, and custody cases should be fact-driven, and decided on a case-by-case basis, and should not be prejudiced by procedural obstacles to having those important facts presented in court. It is interesting that the Boston Globe argument actually seems to make just this point, but in doing so quotes the very knowledgeable Professor Kindregan, with whom I usually agree, in an attempt to discredit the shared parenting initiative and to defend the status quo:

Charles Kindregan, a law professor at Suffolk University, soundly argues that a presumption of joint legal and physical custody could handcuff judges who should be free to consider the best interests of children on a case-by-case basis. "You don't need a presumption when you have facts," Kindregan says. The relevant facts include children's age, temperament, emotional development, and medical needs, as well as how parents get along and how far apart parents live from each other.

Amen. Well, of course we need facts. I agree you don't need a presumption when you have facts. That's why I think we should hear the facts immediately. Without facts, there will be presumptions or assumptions that govern behavior, whether written into the law or not, and these presumptions or assumptions will lead to "temporary" custody orders that are hard to change. The problem is the current system generally presents obstacles and long delays for those who would benefit in the early presentation of those facts.

That's why there should be immediate evidentiary hearings in court when custody is in dispute, not 15-minute temporary orders hearings where no evidence is heard, but failing that, there should be no premature award of custody to one of the two parties until the facts are presented. When a couple is married, they both have custody by operation of law. It is not clear why that should so quickly be taken away from one party, right at the point of the marital split, as it so often is, before any evidentiary hearing, or trial, takes place.

Actually, the shared parenting bill aims to do much the same thing as would my proposal for more - and earlier - fact-finding, evidentiary hearings, by requiring that the court actually hear evidence and enter findings before giving sole physical custody to just one of the two parents.

Unless and until we can get the greater, more comprehensive reforms I favor, I think shared parenting presumptions, or at the very least some change in the direction of more enlightened states, such as California, and even New Hampshire, which have progressively reformed their family law language and procedure, should be implemented. I support this bill just as I have long supported affirmative action for minorities, and gay and lesbian rights, and for similar reasons: there is irrational discrimination and it needs to be remedied. We need a push in the right direction. We needed a push in the civil rights arena, and we got it with civil rights legislation and affirmative action. We needed a push for gay and lesbian couples and the Supreme Judicial Court gave us one.

Let's face it. If decisions have to be made without the presentation of facts, presented by witnesses under oath, under cross examination, "temporary" custody decisions will necessarily be made based on less reliable things, including self-serving he-said, she-said allegations in short motion hearings by attorneys about what the facts will supposedly show at trial. In such cases, there will always be presumptions or assumptions. The question then becomes: What kind of presumptions or assumptions do we want to have?

Indeed, in the absence of such a presumption of joint physical custody, or shared parenting, we will continue to have the unstated, actual presumption or assumption that favors the illusory status quo, that unstated assumption that purports to keep things as closely consistent with how they appeared to have been before the splitup by keeping things as they appear to be now, i.e. the children would remain as they happen to have been placed through the chaotic, anarchic process of domestic splitups, which far too often leave the children under the sole control of the mother. Of course, often the children happen to be with the mother during this anarchic process because the mother is and was in fact the primary caregiver and the more active parent; however, when that is true, the mother should not suffer on account of a requirement that the court actually look at the facts and make findings before awarding custody to her alone. (Indeed it should help her to fend off, very early in the litigation process, any frivolous claims for custody.)

Yes, now we need a push in the family law arena that we can accomplish through a change in the language and attitude of family law. Such a change would help people, including our decision makers, to see the light and stop discriminating in the inadvertent, unthinking way they often do. But the dilemma, I'm afraid, is that we may in fact need more people to see the light before any changes will be made. There are several facts that a majority of voters will probably need to acknowledge before any real reform will happen, and to do so, they will have to open their minds and overcome their predilection to side unthinkingly with the politically correct:

1) Most judges are, like all of us, stuck in the past, and limited by their own experiences growing up in a more conservative, traditional world, in which mothers were presumed to be the better caregivers. But as the saying goes, the more things change the more they stay the same. Although judges are getting better and better about acknowledging the expanded role of fathers in children's lives and in entertaining the possibility of shared or even sole physical custody for fathers, they are still, like most of us, stuck in the past, and are, like all of us inclined to decide based on their hunches, biases, and their limited life experiences, when they don't actually see all the facts.
2) Mothers are not necessarily better caregivers, and many fathers are far better caregivers than the mothers.
3) It is very hard, and it takes a long time if it ever even happens, to have the facts presented in court in custody cases. Usually witnesses and evidence are not ever presented, as by the time the parties can proceed to trial, the result is already a forgone conclusion, based on the precedent set by temporary orders and preliminary custody determinations and agreements made without the benefit of any evidentiary hearings on the matter.
4) A mother is more likely to get custody, even in situations where the father is the better parent and the children would be better off with him. All other things being equal (such as access to financial resources to fight, ability to parent the children, level and degree of parenting involvement with the children), mothers have an unequal advantage, and are in a much superior bargaining position in custody disputes.
5) The family court procedure gives advantage to the person with present control over the children, and gives the mother easier means of securing that kind of control, including but not limited to the ready availability of restraining orders, which can be, and often are, easily brought and obtained through fraudulent, false allegations. Securing this kind of control of the children through manipulation or fraud is much more available at present to women than to men, and there are many ways in which the current domestic violence system is very discriminatory toward men.
6) It is usually, but not always, true that mothers are the more involved of a child's two parents in traditional relationships, as that has historically been the case. But even in those typical situations, it is not always true that children are better off having one parent have the children 70 percent or more of the time after their parents split up. Most children will benefit from having time with both parents on schooldays and on weekends, no matter what the division of labor was in the family before their parents split.
7) Fathers had unfair advantages in custody cases, until the "tender years doctrine" and restraining orders gave the upper hand to women in this country in custody battles. The subsequent replacement of the "tender years doctrine" with the "best interests of the child" standard has not resulted in evening the scales of justice. Mothers and women generally still are strongly favored in many ways by the law itself, even though it generally appears on its face to be gender-neutral now, and are favored even more so in the way that law is implemented in family courts in this state.

I have hope as I see some improvement in the attitudes and wisdom of members of the family law community, and I feel very encouraged by the success of organizations like Fathers & Families. However, I really strongly believe that we should do our best to effect the best interests of children in every case, and unfortunately, the best interests of the children are actually not being served in many, many cases. Frankly, and to put it bluntly, too many children are being placed with their mother when they should instead be placed with their father, and even more children are being placed solely with their mother when they should instead be placed with both parents in a shared parenting arrangement. Although I would prefer more comprehensive reforms, as I have indicated, I certainly believe this proposed shared parenting law would help us to achieve the best interests of many more children than we now do.

Over the years, as I have practiced family law in Eastern Massachusetts, representing both women and men, in every kind of situation - mothers with sole physical custody, fathers with sole physical custody, and both mothers and fathers with joint physical custody - I have watched this state adopt progressive reforms benefiting gay and lesbian couples, while simultaneously failing to make equivalent progress, and real justice, for the vastly greater number of children, mothers, and fathers who come from "traditional" homes with a father and a mother.

Massachusetts is my adopted, not my home, state. I have often been attracted by the progressive spirit of this state, but perplexed often by its seemingly contradictory, traditional, conservative, even reactionary forces. I find in the family law field that this contradictory nature, this strange blend of progressive and regressive forces, may be responsible for the strange alliance and synergy I have witnessed between traditionalists - and I mean in fact "paternalistic" traditionalists - and radical feminist ideologues who have demonized men, often without any sense of reality. It is in part this strange combination of forces, and distorted ideas, that has led to the inequality so obvious in family court today.

Of course, there are many people who are, and will continue to be, in denial about these basic facts. There are actually even some women's groups who claim they are still discriminated against in family court. It wasn't that long ago that they were, but now it is men who are discriminated against in family court. However, real gender equality, like Cathy Young has advocated, is what we need, and it will require all of us, not least of us opinion makers such as the Boston Globe, to understand and acknowledge reality, both that of the workplace and that of the home. Until then, we will continue to watch real progress on this front take place in other states like neighboring New Hampshire.

But why, I wonder, can't we have feminism, fathers rights and gay rights all at once? They are not mutually exclusive. We have the potential to be the best state in the nation, in terms of equality, tolerance and acceptance in our family and social life. I mean, can't we all just get along? Am I just a crazy dreamer?

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