No one can argue against the goal of giving fathers a large presence in their children’s lives. The question is how to ensure that, when unmarried or divorcing parents cannot agree on child-custody arrangements, men get a fair hearing in family court. Fathers’ rights advocates in Massachusetts argue that custody orders generally favor mothers and are pinning their hopes on House Bill 1400, which promotes the concept of “shared parenting.’’ But the bill, now before the Joint Committee on the Judiciary, is too broad an approach to a challenging issue that demands nuanced, case-by-case decisions based on the best interests of the child.Robert Franklin explains the fallacy of this argument:
House Bill 1400 would create a legal presumption for joint custody in situations where there is no evidence of child abuse or neglect. ...
The “shared parenting’’ bill would only affect a small portion of broken families: those in which parents are unable to reach a settlement on their own. Those cases, marked by acrimony and poor communication, seem the ones that would benefit most from a judge’s insight — not to mention a judge’s ability to tailor arrangements to children’s age, location, and particular needs.
That statement demonstrates a remarkable ignorance of how settlements in legal matter occur. Settlements, or indeed their lack, don't occur in a vacuum. Settlements are made or not made in the context - and on the basis of - what the law is. What the law is tells litigants who's likely to prevail in case of a trial. Parties then make their decisions about whether or not to settle based on the facts of the case and what they know the law to be. Simple.Franklin is correct. The Globe's argument is nuts. Let me give an analogy. Suppose the law required banks to give 60 days notice for a foreclosure. Would the Globe oppose such a law because foreclosure occur in a small portion of cases where there is acrimony and where the parties would benefit from a judge's insight? No, it seems obvious that a more vague foreclosure law would only increase the acrimony and uncertainty.
A presumption of equally shared parenting would change the law. It would therefore change people's behavior regarding settlements. The presumption would almost certainly reduce litigation and increase the number of settled cases. Fathers would no longer need to battle for custody, or for that smidgen more of visitation than the standard practice. Mothers would know from the outset that, unless they could show abuse, neglect, violence or something equally bad on the dad's part, they'd best not fight and just let equal parenting take its course.
Just visit your local family court and tell me whether you see any "nuanced, case-by-case decisions based on the best interests of the child." I have yet to see one case that benefited from that so-called judge's insight.