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A Real Benefit to Children

Why State Should Support Shared Custody Bill

By Daniel Grubbs, The Recorder, Greenfield, Mass., June 15, 2002

In some ways, fatherhood has never been better. Fathers are more involved with their kids now than they have been since the start of the Industrial Revolution. More and more fathers are working as stay-at-home dads, or more commonly, sharing child-rearing responsibilities with their spouses. The feminist movement of the seventies opened up jobs and careers for women and at the same time allowed men to move away from the role of sole breadwinner. Women gained rights in the workplace and, as a result, men were allowed more room in the home.

Unfortunately, legal rights for men in the home never followed. A father can work full time within the home taking care of his children, home, and family, only to find himself divorced with no rights. A stay-at-home mother is recognized as a homemaker and the primary caretaker of her children. For this reason, the courts usually give her a major portion of the family’s assets and sole physical custody of the children. A father in the same position is considered to have been unemployed by the courts; thus, in the event of divorce, he is denied the assets of the marriage and is made a visitor in his children’s lives.

It is difficult to find statistics on the subject. Joseph McNabb, dean of Laboure College in Dorchester and a professor of health policy at Northeastern University, conducted a study of cases from the Worcester County Probate Court, which is demographically representative of the state. In his study, McNabb hand-pulled 501 case files and found fathers had won custody in fewer than two percent of cases, usually only in those where the mother was dead or institutionalized. Similarly, a 1989 gender-bias study by the Massachusetts Supreme Judicial Court found that women win sole custody in 93.4 percent of cases. (Amazingly, they could find no evidence of gender discrimination against men by their courts.) In the Massachusetts Probate and Family Courts, nearly any excuse works to remove children from their fathers.

The problem is not that the laws are unjust. The state constitution requires that laws be gender neutral, and the Massachusetts General Laws specifically state that parents’ rights shall be held equal. The problem is the "best interests of the child" standard. On its face, it looks wonderful: Who would argue against the best interests of the child? In practice, the "best interests of the child" means that the courts can come to any conclusion they like, based solely on their own bias and prejudice. As long as the courts say it is in the child’s best interests, their decision is legal. Parental rights are not even part of the equation. The courts, to which we look to uphold our rights, are instead a source of injustice and inequity.

There is an alternative to the sole physical custody handed out in our courts. Shared parenting, or joint physical custody, is already the standard -- and proving successful -- in many states. Shared parenting would presume that unless one of the parents is deemed unfit, or both parents agree to a different arrangement, they will each get approximately equal time with their children after a divorce.

Not only is this patently fair and just, it appears to be what is actually in the child’s best interests. In a widely acclaimed study published in the March 2002 issue of the Journal of Family Psychology (available at the American Psychological Association Web site http://www.apa.org/journals/fam/press_releases/march_2002/fam16191.pdf), Dr. Robert Bauserman examined 33 existing studies involving 2,660 children regarding joint custody (comparing joint and sole custody) from 1982 to 1999. He concluded that children in joint custody arrangements had fewer behavioral and emotional problems, higher self-esteem, improved family relations, and better school performance than children in sole custody arrangements. In fact, children in joint-custody arrangements were found to be as well adjusted as children from intact families. The data seem to show that the majority of the damage done to children of divorce is the result of the sole-custody arrangements imposed by our local courts.

It is about time that the legislature and the courts in Massachusetts caught up with the changes in society. We need a court system that holds all parents to be important in their children’s lives. Probate and Family Court should be a place to work out what’s best for our children’s future, not an arena where parents hack each other to pieces in the process of determining a winner and a loser.

H. 2546, An Act Relative to Shared Custody, is a bill currently before the Massachusetts Legislature. If enacted, this legislation would help to restore equality and justice for parents and children throughout the Commonwealth. The presumption of shared parenting set forth in this bill would go a long way toward ending the acrimony and pain of divorce for all involved.


Daniel G. Grubbs, Franklin County chapter director, The Fatherhood Coalition. He is a Shutesbury resident.

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