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May  11, 2008.

 

DIVORCED FATHERS and their children deserve a better deal than they’re getting from the courts. A shared parenting bill in the state House would create a “rebuttable presumption” – that as long as both parents are fit and it is practical, both parents are entitled to equal custody of the children. Currently, custody almost always goes solely to the mother when she objects to shared parenting.

A “rebuttable presumption” is an easy concept.

The court starts with the common sense position that it is usually in the best interest of children that they be raised equally by both parents after separation. As much as is reasonably practical, the court allows the children to spend equal time with both their mothers and fathers. It is a “rebuttable” presumption because the other parent could introduce evidence that a parent is unsuitable, or that as a practical matter it would be logistically unworkable, and that they have not done anything improper to make it unworkable.

The chief focus in child custody cases would continue to be on what is best for the child and nothing would be “automatic.” A judge would still examine every individual case to make sure the child’s needs are being met. In fact, “rebuttable presumptions” are nothing new in child custody cases.

Since 1999 we have had a “rebuttable presumption” that seriously violent parents should not be awarded custody of their children. None of the silly parade of horribles of judges with their hands tied automatically dispensing custody decrees without examining the facts of each individual case, resulted.

Currently, Massachusetts statutory law does not presume that there should or should not be joint physical custody. But there’s a big difference between the law and reality. In courtrooms across the state, when a mother objects to joint physical custody, she essentially extinguishes the hope of the father, even when sharing custody seems eminently workable and in the children’s best interest. A study by Joseph McNabb of Laboure College found that mothers obtained sole physical custody 83.2 percent of the time, fathers obtained sole custody 8.8 percent of the time, and joint custody was only awarded 8 percent of the time.

That’s a devastating number for fathers who want to be meaningful parts of their children’s lives. Many fathers justifiably feel as if their children have been the victims of state-sponsored kidnapping, punished for committing the unpardonable sin of being the primary breadwinner. Though opponents claim that more research is necessary, the effects of fatherlessness have been abundantly studied.

According to divorcemag.com, fatherless homes account for 63 percent of youth suicides, 90 percent of homeless/runaway children, 85 percent of children with behavior problems, 71 percent of high school dropouts, 85 percent of youths in prison, and more than 50 percent of teen mothers. Dr. Robert Bauserman did a meta-analysis (a study of all the studies) of 33 studies between 1982 to 1999 published by the American Psychological Association. In total, 1,846 sole-custody and 814 joint-custody children were studied. He concluded that “Children in joint custody arrangements had less behavioral and emotional problems, had higher self-esteem, better family relations and school performance than children in sole custody arrangements.”

Most people don’t need research to convince them of the obvious overwhelming benefits of fathers. They already know. That’s why shared parenting won 87 percent of the support of Massachusetts voters when it was a non-binding ballot question in 2004.

Shared parenting reduces litigation as parties do not have to continually go to court in the never-ending battle to prove that they are the better parent and deserve sole custody of the child.

Equality, mutual respect, ending conflict and endless litigation and providing children both of their parents – values not fostered by the current system – would not only benefit the parents, but it would be of incalculable value to the children. That’s why we need shared parenting.

Rinaldo Del Gallo III is a family law attorney and a spokesman for Berkshire Fatherhood Coalition.