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Shared-custody laws urged by fathers in state

By Kimberly Ashton, Daily Hampshire Gazette Staff Writer, October 18, 2004

Two men whose children were placed in the complete custody of their ex-wives say the courts have been unfair to them and other fathers across the state.

To remedy that kind of situation, the men are backing a ballot initiative meant to encourage the Legislature to pass shared-custody laws.

Mike Franco, co-chairman of the Fatherhood Coalition, maintains the courts are biased toward mothers, who overwhelmingly receive custody of their children. The coalition is one of two fathers' rights groups that led the effort to put a question in 37 districts statewide asking voters if they support legislation mandating shared physical and legal custody.

''We don't want a vindictive mother simply to be able to play out her anger,'' said Mark Charalambous of Leominster, a spokesman for the Fatherhood Coalition.

The question asks if parents should automatically have joint custody of their children upon divorce or separation unless one parent is deemed unfit. Some communities will see two nearly identical questions - one instructing their state senator to support the measure and another instructing their state representative.

Current law presumes that neither parent should be favored and uses the welfare of the children as the guiding principle in deciding custody cases.

''... the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody,'' states Massachusetts General Law chapter 208, section 31.

Charalambous says the ''best interest of the child'' standard should be changed ''because parents do have rights.''

''The 'best interest' gets translated operationally by the courts as the wishes of the mom,'' he said, calling it an ''amorphous standard that is bent and twisted.''

The question is nonbinding, meaning that it carries no legal weight, but is being used to gauge public support of automatic joint custody, to signal this support to the Legislature, and to ''educate the public,'' said Franco.

Charalambous said the culture of the courts favors women, giving the mothers ''a de facto veto over shared custody.''

When it comes to the mother, said family lawyer and Fatherhood Coalition member Rinaldo Del Gallo III, ''You almost have to show a parental termination (level of) fault before you can get joint physical or sole custody.''

''The struggle that men are going through to get real justice with a capital 'J' is a story that needs to be told,'' Charalambous said, calling the issue the ''most underreported of our times.''

He said he believes women ''play the batterer's card'' to grab full custody.

Charalambous also said children are hurt by the absence of fathers in their day-to-day lives. Children raised without fathers are more likely to commit crime, use drugs and be incarcerated, he said, and teenage girls in that situation are more likely to become pregnant.

''Basically, all the pathologies are directly correlated with father-absence,'' Charalambous said.

Opponents of the initiative say the question aims to make parental rights more important than children's needs.

''It sounds at first like a simple, feel-good initiative, but it's not,'' said Wendy Berg, a lawyer at Western Massachusetts Legal Services.

Berg said that what she sees ''all the time'' is abusive men using the children to keep a battered woman in fear after the divorce.

If default joint custody eventually becomes law, it could have the effect of keeping domestic-violence victims from going to get help if they see that they are not actually going to be able to sever the relationship with the abuser,'' said Deborah Hart, a lawyer at Safe Passage.

Domestic abuse, like substance abuse, is one of the things courts look at when deciding who should get custody.

And, said family lawyer Sandra Staub, not all problems that harm children rise to the level of a parent being deemed ''unfit'' - the standard the question seeks to invoke before parental rights are terminated.

Both Staub and Berg said that the current standard, which focuses on what's best for the children and not on parental rights, should remain.

Berg said she thinks that shared custody is appropriate when the parents have an amicable, cooperative relationship, but that it's detrimental to children when the parents are hostile to each other. Children in such relationships are in danger of being ''the rope in their parents' tug of war.''

Furthermore, she said, if parents have joint custody regardless of the state of their relationship, they have no incentive to create a good co-parenting plan.

Franco said the group has purposely targeted the state's more conservative areas, which is one reason the question will not be asked of voters in Amherst or Cambridge.

The ballot question will appear on the 1st Hampshire House, 2nd Hampshire House, 1st Franklin House, 1st Berkshire House and Hampshire-Hampden Senate districts in the general election Nov. 2.

Kimberly Ashton can be reached at kashton@gazettenet.com.