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A fair role for fathers PDF Print E-mail
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Written by Boston Globe   

FATHERS'-RIGHTS groups are fighting for their own vision of fairer divorces, one in which fathers have the time and access to be a positive presence in the lives of their children. It's a goal with great merit. But one of the proposed means, a bill now before the Legislature, is not the best way to promote the interests of divorced fathers and their children.

"We love our children," says Ned Holstein, the founder and executive director of Fathers & Families, a Boston-based nonprofit. Even after marriages break up, Holstein adds, fathers still want to be part of children's lives.

The problem, Holstein says, is that courts are stuck in the past and tend unfairly to view fathers as breadwinners and mothers as nurturers. So in the contest of who gets custody of the children, mothers tend to win.

That means fathers lose. They end up with "visitation" rights that can make them seem more like outsiders than parents. And in bad cases, some fathers complain bitterly of being shut out entirely.

In response, Holstein and others have become advocates of "shared parenting," a flexible arrangement in which both parents play a significant role - as long as the family is free of domestic violence. Writing shared parenting into law would be in children's best interests, Holstein says, pointing to research studies that conclude that children who have contact with both parents are less likely to become suicidal, involved with gangs, or pregnant as teenagers.

What government could do
To move closer to this vision, Fathers & Families is promoting a shared parenting bill filed in the State House by Representative Colleen Garry, a Dracut Democrat. The bill would theoretically put mothers and fathers on equal footing by creating a legal presumption that in divorce cases - where there is no child abuse or neglect - both parents would share legal and physical custody of the children. Judges could still rule that one parent should get sole custody, but they would have to explain why. Currently, state law has no legal presumption in favor of either parent.

The bill has undeniable appeal. Children should have both parents in their lives sharing daily tasks such as homework and household chores as well as big events like trips and graduations. That already happens in relatively amicable custody cases; the divorcing parents work out solid plans to share responsibilities.

But while it makes sense for judges to maximize the role of fathers, this bill is not the best way to do so. It could distract judges from focusing on the best interests of individual children and prompt drawn-out fights about how exactly to define shared physical custody. Would summers and major holidays with Dad count, for example?

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. A judge looking at an infant will have to make very different decisions than a judge looking at a teenage boy.

Using judicial discretion wisely
"We trust the discretion of judges," says Fern Frolin, a lawyer and the chair of the Massachusetts Bar Association's family law section, who says there is already an appropriate shift toward more shared parenting.

One challenge, though, is expanding this culture. That's a job, in part, for the state's probate and family courts. The court's website already features a publication called "Planning for Shared Parenting: A Guide for Parents Living Apart." Produced by the Massachusetts chapter of the Association of Family and Conciliation Courts, a nonprofit organization that seeks to resolve family disputes, the publication is for parents, lawyers, and judges trying to come up with a shared-custody plan centered on a child's best interests.

Judges in this state already hear from experts, and that education should continue.

A missing piece is research. The state needs to know how many fathers actually do get joint physical custody and what the long-term outcomes are for children.

"Let's do a pilot. Let's try it out in a county," says Marsha Kline Pruett about testing shared parenting in this state. A psychologist and a professor in Smith College's School for Social Work, Pruett says it's crucial for fathers to be involved with children. Having studied family courts in Connecticut, she's seeking funds to do the same in Massachusetts.

Researchers could look at how well shared parenting plans fare over time and what other help parents might need. Some cases may require more mediation. And some divorced couples struggle to accommodate new patterns of care; divorced fathers may want more time with their children than they had during their marriages. Protecting children means defusing these conflicts.

"How can you move children from enemy camp to enemy camp?" asks Daniel Bray, a lawyer and the former chairman of the Iowa State Bar Association's family law section. Iowa law encourages shared physical custody, but doesn't establish a formal legal presumption toward it. Even that limited provision can be the subject of court fights. As Iowa's state appeals court rulings show, conflicts inevitably remain and parents go back to court - and some judges worry that this creates more stress for their children.

Government policy can't take all the acrimony out of divorce, and the shared parenting bill is too blunt a tool to deal with the nuances of child custody cases. Even so, the legal system can protect children and address the concerns of fathers' groups - by making sure judges have the latitude and the training to protect the place of fathers as well as mothers in their children's lives.

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