The
Fatherhood
Coalition
The Fatherhood Coalition |
The Equal Parenting And Child Protection Act |
"Legal custody" shall mean having the right to make major decisions regarding the child’s welfare including, but not limited to, education, medical care, the use of psychosomatic drugs, and the child’s emotional, moral, and religious development. Legal custody shall include the right to have access to the academic, medical, hospital or other health records of the child.
"Shared legal custody" shall mean both parents having equal legal custody.
"Sole legal custody" shall mean only one parent having legal custody over a child.
"Physical custody" shall mean having physical charge over the child.
"Shared physical custody" shall mean that both parents shall have physical custody of the child as close to fifty percent of the time as is practicable.
"Sole physical custody" shall mean one parent having physical charge over the child.
"Shared and equal parenting" shall mean both parents shall have shared legal custody and shared physical custody.
A "shared parenting implementation plan" is an order of a judge dictating when each parent is to have physical custody of the child, and which may, at the discretion of the trial judge, provide for other matters such as, but not limited to, the child’s education, religious upbringing, and medical decisions regarding the child, should the parents not be able to agree.
An "unfit parent" is a parent who, by clear and convincing evidence in an adversarial trial setting where there is full and fair opportunity to be heard with proper notice, has show that he or she proves to be a serious and grave threat to the child’s physical or emotional well-being. It is self-evident to all civilized people that a pattern of serious physical or emotional abuse or a particularly egregious and outrageous incident concerning a child or made in the presence of a child constitutes "a serious and grave threat to the child’s physical and emotional well-being" where the parent manifests an inability or unwillingness to change.
A "fit parent" is a parent who is not unfit.
The "fundamental right to society with one’s child" shall in all instances include, but not be limited to, the right to society with one’s child, the right to companionship with one’s child, the right to discipline one’s child, the right to rear one’s child, the right to educate one’s child, the right to love one’s child, the right to provide moral and religious instruction to one’s child, the right to succor and nurture one’s child, and the right to foster the mind, spirit and body of one’s child.
The terms "cost of mitigating" or "mitigating with the least cost" or "mitigating with the greater cost" shall include and contemplate monetary cost, career cost, physical cost, and emotional and spiritual cost, from the vantage point of an ordinary person exercising ordinary sensibilities and behaving, acting, and thinking in a reasonable manner.
The term "incremental expense of having the child," is the actual cost of having a child in addition and above the cost of living where there is no child.
The "incremental cost" is the cost "but for" the child and never includes expenses that would exist if there was no child.
"This Act" refers to The Equal Parenting and Child Protection Act.
The legislature hereby recognizes that both parents are essential in a child’s development, and that severing an equal relationship with both parents should only be done when confronted by exceptional and compelling circumstances of the most serious nature.
The legislature hereby recognizes that as between two fit parents, equality and egalitarianism should be promoted and fostered.
The legislature hereby recognizes that legal disputes over sole custody of children fosters animosity between the two parents, is detrimental to both parents and to children, is costly physically, emotionally, and financially to the parents, is financially costly to the state and taxes the state’s judicial resources, that such lawsuits erodes the state’s and the child’s interest in the spirit of cooperation between the two parents that is necessary to maximize the potential of children, and that such lawsuits should only be instituted when shared parenting is impossible or nearly impossible or when one of the parents is unfit.
The legislature hereby recognizes that on aggregate, whatever additional judicial resources are need to implement shared parenting plans is far outweighed by the decrease in judicial resources fostered by shared parenting as the primary solution to custody determinations.
The legislature hereby recognizes that the preservation of the child’s right to equal access to both his or her parents and the preservation of the parent’s right to the society of their child far exceeds the state’s interest in the preservation of judicial resources and minimizing cost.
The legislature hereby recognizes that intact families are best suited for the rearing of children when both parents are fit, and that shared parenting best approximates an intact family in instances of divorce or separation.
The legislature hereby recognizes that when shared parenting is favored by the law, more parents will settle their disputes without resort to courts of law, thereby maximizing judicial efficiency and allowing courts to channel more time, energy and money into other areas that would be of greater benefit to children.
The legislature hereby recognizes that when one gender repeatedly obtains sole custody of the child and receives a high degree of compensation upon divorce, there is less incentive for that gender to make a marriage work and attempt to prevent divorce, whereas if the loss was borne equally by both of the marital partners, there would a greater likelihood of both sides trying to preserve the marriage.
The legislature hereby recognizes the high correlation between sole custody households and teen pregnancy, joblessness, economic status, teen suicide, teen violence and crime, and a child’s lack of esteem, and the value of shared parenting in greatly abating these societal ills.
The legislature hereby recognizes that the fundamental right of society with one’s child of a parent is greatly compromised when the other parent becomes the sole custodial parent. The legislature recognizes that this is a great detriment to not only the non-custodial parents fundamental rights, but to the best interest of the child. The legislature also recognizes that the clear and convincing evidence standard articulated in Santosky v. Kramer, 455 U.S. 745 (1982) for parental termination proceedings ought to be applied to all child custody determinations because the fundamental right of society with one’s child is subject to great compromise in all such proceedings, and in many cases, is something akin to complete eradication of the fundamental parental right.
Massachusetts General Law Chapter 208, Section 31 and Massachusetts General Law Chapter 208, Section 31A is hereby repealed in its entirety.
A child shall have a fundamental right to the equal care, nurture, love and society of both parents, if both parents are fit.
No court shall proscribe a fit parent from imparting to his or her child his or her views regarding religion, politics, humanity, philosophy, the arts, or the physical or social sciences, even if they are at odds with the views of the other parent.
No court shall relegate a fit parent to any type of secondary status. Any gender bias as between a father and a mother in the determination of child custody is hereby forever proscribed and is considered repugnant to the values and first principles of the Commonwealth of Massachusetts. A father and a mother shall enjoy the equal protection of the law, and the law shall not consider the gender of either parent in a custody determination or any other dispute concerning the rights and privileges of children.
The legislature hereby recognizes that there is a fundamental right to the society of one’s child, and that no parent and no court shall deprive the other parent of this right, or cause this right to be lesser vested than the other parent, unless it is shown in a court of law that a parent is unfit. When both parents are fit, the fundamental right to the society of one’s child shall only be abrogated in a court of law only upon a showing that there is a substantial and compelling reason of the most serious kind and nature that cannot be circumvented, whether that reason be temporal, geographical, or any other kind, nature, or sort. Should the fundamental right of a fit parent to the society of one’s child have to be compromised due to a substantial and compelling reason of the most serious kind and nature, this fundamental right shall only be compromised to the extent that is absolutely necessary, and it shall only be compromised by the least intrusive means so as to safeguard this fundamental right to the maximum extent possible.
When a substantial and compelling reason of the most serious nature arises so as to warrant compromising the fundamental right to the society of one’s child as between two fit parents, a court shall consider whether it is within the power of only one of the parents to mitigate the reason. If only one parent has the power to mitigate and if that parent within whose power it is to mitigate refuses to do so, there shall be a very strong preference in granting physical custody to the other parent, provided in so doing, the fundamental right to the society of the child of the parent who refuses to mitigate is done so by the least intrusive means necessary, so as to maintain equal parity between both parents as much as possible, and to compromise the fundamental right to society of one’s child as least as possible.
When a substantial and compelling reason of the most serious nature arises so as to warrant compromising the fundamental right to the society of one’s child as between two fit parents, a court shall consider whether it is within the power of both parents to mitigate the reason. In such a case where both parents have the power to mitigate, if that parent within whose power it is to mitigate with the least cost refuses to do so, there shall be a very strong preference in granting physical custody to the other parent whereby the cost of mitigating would be greater, provided in so doing, the fundamental right to the society of the child of the parent with the lesser mitigation cost is done so by the least intrusive means necessary, so as to maintain equal parity between both parents as much as possible and to compromise the fundamental right to society of one’s child as least as possible.
No fit parent shall be denied joint legal custody of his or her child under any circumstance.
It is unlawful for any institution that has the academic, medical, hospital or other health records of a child to not provide them to a parent who has legal custody of a child, regardless of whether that parent has physical custody of that child, and that the Probate and Family Court, District Court, and Superior Court hereby is granted injunctive powers to compel the submission of all such documents to all fit parents who have an interest in any such document.
There shall be no presumption that a child is better off with the mother or the father, and it shall be recognized in all custody determinations that a child’s access to both parents on an equal basis is essential to the development of the child, presuming both parents are fit parents.
If both parents are fit parents, there shall be a very strong presumption that shared parenting is in the child’s best interest, and this presumption may only be rebutted by evidence beyond a reasonable doubt that there are substantial and insuperable barriers to shared parenting.
The fundamental right to society of one’s child shall never be defeated for a technical reason, such as, but not limited to, the failure to correctly plead.
The legislature hereby recognizes that when a court predicates joint physical custody or joint legal custody upon the ability of the parents to cooperate and get along, a designing parent may eliminate the possibility of an award of joint physical custody or joint legal custody by simply refusing to be agreeable, and that it is better for the court to order a shared parenting implementation plan which demands compliance. Noncompliance with a shared implementation plan of such a nature and sort as to substantially and meaningfully frustrate the shared parenting implementation plan may, at the discretion of the court, be a factor in determining whether a parent is fit, but under no circumstance may a parent be deemed unfit by less than clear and convincing evidence. The legislature hereby recognizes that the appropriate touchstone for determining the appropriateness of shared parenting is the culpability of the individual parent in frustrating shared parenting, not the willingness of the parents to get along. Accordingly, when considering shared parenting, no court shall give weight to the ability of the parents to get along, but rather shall look only look to the culpability of an individual parent in frustrating or substantially frustrating the shared parenting arrangement.
A child custody determination shall never be used to punish or reward past behavior when it cannot be shown that there is a link between such past behavior and the future well-being of the child.
Modification. A parent who was previously deemed unfit should be given an opportunity to modify the custody order. Such modification should be in an adversarial trial setting where there is a full and fair opportunity to be heard with proper with notice. The previously adjudged unfit parent shall have the ability to prove that they have the ability to change, the willingness to change, and in fact have changed, and in such a case, the court should reconsider parental fitness. When the previously adjudged unfit parent shows that the parent does have the ability to change, the willingness to change, and in fact has changed, the previously adjudged unfit parent shall be deemed a fit parent unless there is still clear and convincing evidence that the parent proves to be a serious and grave threat to the child’s physical or emotional well-being.
This Act shall apply retroactively, and any child custody order made previous to the enactment of this Act will be reviewed at the request of any effected party to assure compliance with this Act.
When shared parenting is implemented, since both parents are equally participating in feeding and sheltering the child, child support usually would almost always be inappropriate and should be awarded only under rare circumstances. Unless there is a momentous disparity in income between the two parents and one of the parents would be impoverished, the two parents should share equally in the cost of providing clothing, medical expenses and other necessaries, and if necessary, the court should order so much. No parent shall have an obligation to provide goods or services that are not necessaries. Should there be a momentous disparity between the two parents and one of the parents would be impoverished if he or she had to pay child support, the court may order the more affluent parent to pay more giving due consideration to the means of both parents, but in no event shall such child support cost include what is greater than the incremental expense of having the child, and in no event shall it include living cost the other parent would have to pay even if there were no children.
This act shall be superior to all other acts to the extent that they may conflict with this act, and shall apply to the adjudication of the custody of children whether on a permanent or a temporary basis.
