Sharing the kids
Special to The Eagle
By Maryann Carnes, Berkshire Eagle, May 24, 2002
For the first 21 months of his daughter's life, Michael Franco said, he was her primary caregiver. His wife, a flight attendant, was away four to five days a week. Yet when they divorced, Franco said, his ex-wife was given sole custody of their daughter, now 4, and moved to Texas.
"I lost everything," the Chicopee man said. "My ex has to fly her up to visit me once a month. But that will all change when she starts school and then I'll be a holiday dad."
Franco is one of a number of divorced fathers who believe they are being treated unfairly by the court system because of their gender.
Although lawyers and judges insist that the best interest of the child is always considered foremost, Franco and others contend there is an inherent bias against men having physical custody of their young children. They have been vigorously campaigning -- as the Fatherhood Coalition -- to change the state's divorce laws.
"Specifically, we'd like the language of the divorce law to read that there will be a presumption of joint physical and legal custody of children," said Franco, who is the state co-chairman of the coalition as well as its Western Massachusetts coordinator. That would mean both parents would be entitled to share full custody unless judges could demonstrate why they shouldn't.
Shared-parenting bills have been filed in both the House and Senate and are currently in committees. It's uncertain whether they will be acted upon before the legislative session ends in July.
Supporters say a change in the law would allow fathers closer contact with their children than many have now. Opponents argue that shared parenting is difficult at best and hard on children who must live between two households.
The Fatherhood Coalition was formed nationally about six years ago and began in the Berkshires last year. Franco said there are about 350 members and supporters in the county.
"We've counseled fathers about how to represent themselves," he said. "We also get them emotionally ready for a custody hearing. We've also gone to the Statehouse and have talked to as many state representatives as possible."
The coalition earlier this year enlisted the support of state Sen. Andrea F. Nuciforo Jr., D-Pittsfield, for the shared-parenting legislation and has demonstrated twice for fathers' rights in front of the probate courthouse in Pittsfield.
The group's Web site, located at www.fatherhoodcoalition.org, offers news reports, accounts of divorce experiences, advice and legislative updates on issues pertaining to men, divorce and custody issues.
But while Franco and other coalition members claim the judicial bias against them is pervasive, court officials say it is not and that legislation is unlikely to solve what is at the heart of the issue for some of these men -- the emotional fallout of breaking up a family.
"There is absolutely no bias against the father in probate courts," said Berkshire Probate Court Judge Edward J. Lapointe. "The only standard of measure is what's in the best interest of the child. We start with the premise that both parents are equal."
In the majority of cases, Lapointe said, the parents themselves arrive at a custody arrangement as part of their divorce agreement. When they can't agree, it goes to trial.
Custody takes two forms: legal, which entails decision-making about the child's education, health care and religious and moral development; and physical, which determines with whom the child lives.
An examination by The Eagle of 85 divorces in Probate Court files for the year 2000 showed that in two-thirds of cases where children were mentioned, the parents shared legal custody with the mother getting physical custody. The others were combinations of shared legal and physical custody and/or sole custody to either parent.
Lapointe said that when a case goes to trial, the two sides offer arguments, the court appoints agents to investigate and the judge makes the custody decision.
Because couples who go to trial have not been able to work out a shared-parenting arrangement on their own, he said, judges are unlikely to consider joint physical custody a workable option.
If they can't even agree on sharing custody, he asked, how are they going to cooperate to raise the child togeher?
So the decision becomes whom should the child live with.
Lapointe said he and most other judges take into account a host of factors, among the most important being who has been the primary caregiver for most of the child's life and who is most likely to encourage a close and continuing relationship with the other parent.
In most cases, he said, the primary caregiver will have been the mother, so it becomes likely that she will get physical custody. But it has worked the other way, too, he said, as more men have been seeking, and getting, custody of their children.
"I'm very vigilant about protecting fathers' rights," he said. "There isn't a presumption in favor of either parent. Both parties get a fair shake in Berkshire County."
If a parent feels he has been treated unfairly, Lapointe said, he can appeal the judge's decision. But he said in his eight years on the bench, only one of his rulings has been appealed and in that case the mother was contesting the awarding of custody to the father.
"That says something, doesn't it?" he asked.
Berkshire Bar Association President Glynnis MacVeety likewise said the shared parenting legislation advocated by the Fatherhood Coalition doesn't address a critical issue -- the inability of the divorcing couple to communicate.
"If the parents can't agree with each other," she asked, "how can they expect to agree on the day-to-day, basic needs of the child?
"It takes a lot of communication to have shared custody," she said.
"Who," she asked, "is going to pick the child up after school? When he's sick, who is going to stay home from work and take care of him?
"It doesn't work well for the child," she said. "Not because one parent is bad and the other is good, but because [the parents] didn't get along. Legislation won't fix that problem.
"What's unfair about the system for fathers," she went on, "is that they lose their everyday time with their kids."
But making a child "a pingpong ball between two homes is hardly in a youngster's best interests. What child can handle that?" she asked.
If the mother wants to remarry, or move to be near her own family, or accept a job transfer, the situation can become even more highly charged.
"My ex-wife remarried and tells our daughter to call the new husband dad," Franco said. "I'm still sending child support payments to Texas, so that makes me 'Uncle Dad.'"
Other Fatherhood Coalition members talked of hardships even with their children living close by.
Jeffrey Nadeau of Dalton said that when he and his wife decided to divorce after 18 years of marriage, he moved out and rented a home less than a mile away to be near his four children, who remained living with their mother.
But because he had been the one to leave the home, he said he was legally considered to have abandoned his family and his parental rights were in question.
"My oldest had a medical problem," he said. "And his doctor refused to give me any information because I was not the custodial parent."
He said he was able to get the information eventually.
Nadeau said that next to living with both parents, he thinks "the shared-parenting option is the best solution" for the children in a divorce.
Shared legal custody alone, he said, is meaningless; it only allows access to information, not to decision-making about the child's upbringing.
Nadeau said one of his children now lives with him, and he is seeking full shared custody of the others.
Michael Lyon, co-chairman of the Berkshire Fatherhood Coalition, said he was initially given 19 hours a week to visit with his young daughter after he and his wife divorced.
He said he spent $30,000 on divorce and custody hearings and now has 25 percent of his daughter's time. He plans to petition for more, but added, "I'm not optimistic."
Not everyone in the Fatherhood Coalition has had such difficulties.
James Lensky of Dalton said he raised his now 12-year-old son, Alex, alone with little opposition from his ex-wife, who had custody of their daughter, Ashley Marie, now a high school senior.
"I didn't ask her for support payments, on the premise that she would pay her way to go back to school," he said of his ex-wife.
"I hired two nannies, but then left my night job for a day position to have hours that fit Alex's schedule. I took a $25,000 cut in pay and lost 10 years' seniority to do that," he said.
But Lensky believes his efforts paid off. He said his son is "an A-B student, a Boy Scout and in a lot of plays at school."
And he said the children now spend time both with him and their mother.
Lensky joined the Fatherhood Coalition mostly, he said, to support other fathers.
"Fathers don't often win," he said. "They get tossed on the street with the shirt on their back if they're lucky."
But he added: "This isn't about men vs. women. It's about doing what's right for our kids."
Eagle Features Editor Charles Bonenti contributed to this story.