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Ballot question seeks equal custody for divorced parents

By Ben Rubin, North Adams Transcript, Nov. 1, 2004

NORTH ADAMS -- One question made it onto the ballot in the area this year, though the real question is: What does it really mean?

The yes or no question states: "Shall the state representative from this district be instructed to vote for legislation to create a strong presumption in child custody cases in favor of joint physical and legal custody, so that the court will order that the children have equal access to both parents as much as possible, except where there is clear and convincing evidence that one parent is unfit, or that joint custody is not possible due to the fault of one of the parents?"

More simply, the question asks if parents should automatically be given equal custody of children in a divorce or separation, except if one of them is unfit. If ever enacted, such a bill would encourage state representatives to support measures for legal and physical shared custody in the Legislature.

Currently, state laws are very child-oriented, with judges' custody rulings done with the child's best interests as the primary guiding factor, said Jeffrey Wolf, a family legal aid for Massachusetts Law Reform Institute.

"I think it would be a very bad result for children if the law were changed," said Wolf. "Legislators would be encouraged to change the law from child's best interests to where conflicting parents' rights is the deciding question."

Wolf said the laws as they are can best serve the children and protect them from legal battles or unfit parents, especially because the unfitness standard is very high. Default joint custody would cause domestic-violence victims to have a much harder time breaking off from an abusive father, Wolf said.

He added that most of the time, divorced fathers who lost custody in court are the ones who bring up this joint custody issue.  (Is this retaliation by judges?)

Mike Franco and Rinaldo Del Gallo III, co-chairman and family lawyer of the Fatherhood Coalition, brought this question and a similar one to the ballot in 37 districts in the state. Franco said recently in the Daily Hampshire Gazette that the courts are biased toward mothers under the current law.

Massachusetts General Law chapter 208, section 31 states: "... 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."

"The 'best interest' standard gets translated operationally by the courts as the wishes of the mom," said Mark Charalambous, spokesperson for the coalition, in the Gazette.

"We don't want a vindictive mother simply to be able to play out her anger," he said.

Charalambous said in the article that children who grow up without a father figure are more likely to commit crime, use drugs, or have teenage pregnancies.

Charalambous later added in the article that the current standard should be changed to give parents stronger rights.

Wolf said that doing so would cause children to be "used as weapons" in court battles, allowing fierce tugs-of-war for custody, with parents' interests being put ahead of children's welfare.

The question is non-binding -- meaning it's essentially a survey. This specific question will appear on ballots in the 1st, 2nd, 3rd and 4th Berkshire districts on Tuesday.