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NOW New York State

 

NOW - NEW YORK STATE OPPOSE MEMO

S-1349- (Johnson) - Mandated Joint Custody

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Each year, the National Organization for Women-New York State fights back against proposed legislation that will hurt mothers and their children.

A case for “primary caregiver presumption.” The National Organization for Women-New York State has always favored a primary caregiver (usually the mother) presumption to ensure stability and continuity of care for children. If the father has not been involved in a major way in the lives of the children during the marriage, why would that involvement increase after divorce?

Primary caregiver presumption legislation would cut down on a bargaining tool where one parent agrees to forego a custody battle if the other agrees to a less favorable financial settlement. Richard Neely, a lawyer in West Virginia, has acknowledged that he often advised his male clients to make that threat. When he became Chief Justice of West Virginia Supreme Court of Appeals, he was responsible for the passage of a primary caregiver presumption.

Contrary to the argument by so called father’s rights groups, mothers are not awarded custody in 95% of divorce cases. Since only 5 % of cases are litigated, mothers get custody by agreement of the parties, whether or not the agreement is coerced as described above.

Children should be seen, heard and believed. There is a pervasive attitude in the courts that allegations of child abuse are not true. Andrew Schepard, founder of PEACE, a statewide parental education program, in a New York Law Journal column of July 29, 1998, discussed an Australian study of child abuse charges. He stated that “many professionals involved in such cases (child abuse) believe that the allegations are presumptively false, simply a nuclear weapon in the ongoing divorce custody wars.” The study found, to his surprise, that only 9% of the allegations were false.

The truth about so-called PAS: The proposed legislation gives short shrift to the devastation wreaked by domestic violence and child abuse, although they state that the court must consider the effect of domestic violence upon the best interests of the child. However, because of the widespread acceptance in the courts of PAS (Parental Alienation Syndrome), mothers are afraid to even raise the issue of child abuse for fear of losing custody and possibly even visitation. Often, women are advised by their attorneys and domestic violence counselors not to raise that issue in court because of the risk that it will backfire. The “friendly parent” concept intimidates the parent who has experienced an embattled relationship, which makes the failure of joint custody predictable.

Term “parenting time” does not make a parent:. The term “parenting time” suggests that all non-custodial parents take an active, positive role in their children’s lives. Although some do, this language clouds the fact that many parents choose not to exercise their visitation rights; choose not to be involved in their children’s lives. A change in terminology does nothing to enforce parental responsibility or involvement, nor does it guaranty continued relationships between parent and child.

The current terminology and current legal system does nothing to limit access for parents who want to take an active role in their child’s life. Joint custody or shared parenting establishes rights without responsibilities. Just as there is no way under current law to enforce visitation, there is nothing in this legislation which enforces compliance with a “shared parenting plan”. There are no penalties for failure to comply.

Let us learn from the experience of others. In California, one of the first states to mandate joint custody, a report prepared fifteen years after divorce reform legislation, found in joint and sole custody arrangements followed up two and three years after the initial filing that the children’s contact with their parents varied considerably across custody types. One-third of joint-physical custody arrangements were indistinguishable in sole custody –visitation arrangements in the same population. “There is evidence that under appropriate circumstances parents and children benefit under joint custody arrangements after divorce. There are, however, critical differences between voluntary joint custody arrangements and court-imposed joint custody over the reluctance of one parent” This concern extended to mediation-influenced joint custody. After seeing the harm wrought by court-ordered joint custody, such as, among other things, children attending two different schools, California ended its official bias in favor of joint custody awards on January 1, 1989, stating that “Proponents of joint custody argue that court-imposed joint custody encourages battling parents to ‘work things out between themselves’, but this assumption is based more on wishful thinking than reality”

The bottom line is green: In the 2006 Legislative Session, proposed legislation finally put to rest the fiction that “shared parenting” is harmless touchy-feely terminology rather than another name for joint custody. For years court ordered joint custody has been in the forefront of demands by fathers’ rights groups. We believe that the actual motivation for proposed legislation is to require the court to equate the parenting plan or schedule with actual parenting responsibilities, financial and otherwise. Arguments have been made by non-custodial parents that the costs of spending time with their children should be deducted from their child support obligations, ignoring the fact that it is the primary caregiver who is responsible for the day-to-day expenses of the children. The newly proposed legislation lays the groundwork for the courts to decrease child support awards based on an erroneous assumption that the caregiver and the non-custodial parent carry the same load and devote the same time to their children. Children will suffer financially under this proposal.

In fact, that is just what is happening. Further, wrongly formulated legislation apportions child support based on the percentage of time the child spends with each parent. The Hon. Judith M. Reichler, former support magistrate, (formerly known as hearing examiner) in New York County, served on the committee to develop child support guidelines. In testimony she presented to the New York State Bar Association on January 27, 2006 she stated the following: “It is simply more expensive to have joint physical custody because, among other things, of the necessity for duplication of certain household costs in each parent’s home.” She went on to say that a proportional offset method of calculating child support has the potential of depriving children of much needed support. The intent of the sponsors of the child support guidelines was to protect children from unfairly bearing the economic burden of parental separation and allowing them to share in the economic status of both their parents.

Proposed legislation that mandates joint custody is in the best interests of fathers; certainly not in the best interests of children.

Marcia A. Pappas, President, NOW-NYS, Inc.
Gloria Jacobs, Esq., Chair, Domestic Relations Law Task Force

 

New York State NOW National Organization for Women