NOW - NEW YORK STATE OPPOSE MEMO
Mandatory Joint Custody
A3181 (Benjamin) A6743 (Thiele)
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Current New York law was enunciated by Judge Charles Breitel for the NY Court of Appeals in Braiman v. Braiman. “Joint custody is encouraged, primarily as a voluntary alternative for relatively stable, amicable parents behaving in a mature, civilized fashion. As court-ordered arrangements imposed upon…embattled and embittered parents … [joint custody] can only enhance family chaos.” Braiman is still good law and should not be overturned.
Each year, the National Organization for Women-New York State fights back against proposed legislation that will hurt mothers and their children.
A case for “Primary Caregiver Presumption.” The National Organization for Women-New York State has always favored a primary caregiver (usually the mother) presumption to ensure stability and continuity of care for children. If the father has not been involved in a major way in the lives of his children during the marriage, why would that involvement increase after divorce?
Primary caregiver presumption legislation would cut down on a bargaining tool where one parent agrees to forgo a custody battle if the other agrees to a less favorable financial settlement. Richard Neely, a lawyer in West Virginia, has acknowledged that he often advised his male clients to make that threat. When he became Chief Justice of West Virginia Supreme Court of Appeals, he was responsible for the passage of a primary caregiver presumption.
Contrary to the argument of so called father’s rights groups, mothers are NOT awarded custody in 95% of the divorce cases. Since only 5% of cases are litigated, mothers get custody by agreement of the parties, whether or not the agreement is coerced as described above.
Father’s rights groups are in the forefront of the push for legislation establishing a presumption in favor of joint custody. These groups emphasize that many states already have some form of mandated joint custody. The first of these was California. After seeing the effects on children: convoluted living arrangements between relocated, possibly remarried parents, children being transferred from parent to parent in front of police stations, children being enrolled in two separate schools and other horror stories, the California legislature, in 1989 revoked its presumption and the statute now established “neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan which is in the best interest of the child or children.”
A New York Times article dated March 26, 1995, describes a voluntary joint custody arrangement between parents who both wanted their child and had no reason to doubt the prevailing wisdom that it would best for him to continue to be raised by both parents. This child was “ferried” first across town, then across the State (California) and then later across the country. After eight years, the author (the father with whom the child resided during the school year) writes “… you would think he would be used to it by now. He is not. His emotional preparation begins a week or so before he flies to visit with his mother … He becomes, to varying degrees, anxious, lethargic, somber and withdrawn from his friends. The back and forth seems only to have become tougher on him as he has grown older.” He concludes, “Joint custody may work for divorcing parents. But it’s a terrible arrangement for the children.”
For over 20 years, father’s rights groups have been claiming that courts discriminate against fathers in custody decisions. A continuum of studies shows that when fathers sue for custody, in the majority of cases, fathers win sole custody. Unbelievably, this is true even when fathers have been physically and/or sexually abusive.
Children should be seen, heard and believed. There is a pervasive attitude in the courts that allegations of child abuse are not true. Andrew Schepard, founder of PEACE, a statewide parental education program, in the NY Law Journal column of July 29, 1998, discussed an Australian study of child abuse charges. He stated that “many professionals involved in such cases [of child abuse] believe that the allegations are presumptively false, simply a nuclear weapon in the ongoing divorce custody wars.” The study found, to his surprise that only 9% of the allegations were unproven. According to the US Department of Health and Human Services, during 2005, an estimated 899,000 children in the 50 States, DC and Puerto Rico were determined to be victims of abuse or neglect. Of the perpetrators who were parents, more than 90% were the biological parents, 4.3 % were the stepparents, and 0.7 % was the adoptive parents of the victim. The parental relationship was unknown for 4.5 % of the victims.
The truth about So-Called PAS: The proposed legislation does not acknowledge the devastation wreak by domestic violence and child abuse, although they state that the court must consider the affects of domestic violence upon the best interests of the child. However, because of the widespread acceptance in the courts of PAS (parental alienation syndrome) mothers are afraid to even raise the issue of child abuse for fear of losing custody and possibly even visitation. Often, mothers are advised by their attorneys and domestic violence counselors not to raise that issue in court because of the risk that it will backfire. The “friendly parent” concept intimidates the parent who has experienced an embattled relationship which makes the future of joint custody predictable.
Joint custody over the wishes of one parent facilitates using the children to maintain access and control over the other parent’s life. NOW receives dozens of calls asking how a custodial parent can enforce visitation responsibilities. Under current law, there are no penalties for failure to exercise visitation. This bill has been designed to establish rights without responsibilities. There is no way to enforce joint custody obligations or shared parenting schedules.
The father’s rights groups and others who are proponents of this bill point to the breakdown of the family throughout the country, the epidemic of single mothers, the increasing of number of children in trouble and rising population of young people in prison. These, indeed, are ills within our society; however the causes are complex. Joint custody awards won’t affect the multitude of families in disarray for various reasons. This bill certainly does not contribute to a solution for these problems.
We do not know the extent to which this bill will affect child support awards. Father’s rights groups have been lobbying for years to reduce child support obligations based on the time they are with their children. This bill has the potential to cause the lowering of the child support awards, certainly not in the best interest of the children.
Wrongly formulated legislation apportions child support based on the percentage of time the child spends with each parent. The Honorable Judith M. Reichler, former support magistrate (formerly known as hearing examiner) in NY County, served on the committee to develop the child support guidelines (CSSA). In testimony she presented to the NYS Bar Association in January 2006, she stated the following: “It is simply more expensive to have joint physical custody because, among other things, of the necessity for duplication of certain household costs in each parent’s home.” She went on to say that a proportional offset method for calculating child support has the potential of depriving children of much needed support. The intent of the sponsors of the child support guidelines was to protect children from unfairly bearing the economic burden of parental separation and allowing them to share in the economic status of both their parents.
Proposed legislation that mandates joint custody is in the best interest of fathers; certainly not in the best interests of children.
New York State is in the advantageous position of availing itself of hindsight. Let us review the results of the leap into forced joint custody in other states before taking this misstep.
Marcia A. Pappas
President
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