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Push To Change Custody Laws: What's Best For Kids?

Feb 26, 2014
Originally published on February 26, 2014 10:43 am

Fathers today spend more time than ever with their kids, experiencing just as much stress as women in balancing work and family, if not more. But when couples divorce and a custody dispute hits the courts, too many judges award custody to Mom, according to fathers' rights groups.

Ned Holstein, head of the National Parents Organization, formerly called Fathers and Families, says research shows that children do better academically and emotionally when they see a lot of each parent.

"We believe family courts are actively hurting kids" by not awarding joint custody more often, says Holstein. The best legislation, he says, favors joint custody, so long as both parents are fit and there's been no domestic violence.

Lawmakers in Arizona, Arkansas, Florida and Minnesota have passed measures favoring more equally shared custody, though governors vetoed the last two. Other states have introduced legislation, while some have created a task force to study the issue. A task force in Connecticut recently rejected such a change in custody law; one in Maryland will issue its report later this year.

For Holstein, it boils down to equal rights for fathers in an era of converging gender roles, but he has faced a lot of resistance.

"It gets blocked time after time in legislatures because there are groups that don't want it to happen," he says.

Until recently, the State Bar of South Dakota was one of those groups.

"The bar's concern was that the individual parent's interest trumped that of the children," says Thomas Barnett, executive director of the Bar.

If the parents live far apart or children have a slew of after-school activities, dictating a 50-50 split could be a logistical nightmare, he says. What's more, joint custody means that divorced parents see each other more often. If they don't get along well, that could result in trouble.

After blocking legislation for several years, Barnett decided to work out a compromise. Legislation passed the South Dakota Senate unanimously this year and is now in the House. One major change dropped the legal presumption of joint custody, but the bill does call on judges to consider it and lays out a series of factors to weigh, including the logistics of a joint arrangement and how parents treat each other in the child's presence.

"What that bill is telling the parents is, you need to get along for the benefit of the children," Barnett says. "If one of them is a bad actor, that's going to be held against them, as it ought to be."

Most divorcing couples never land in court, and many agree to a joint custody arrangement among themselves. But when it comes to disputed claims, many family lawyers say each situation should be sorted out case by case.

"The younger the child, the more in sync you have to be on how they should be raised," says Maria Cognetti, who practices family law in Pennsylvania and heads the American Academy of Matrimonial Lawyers. Research shows that younger children especially need stability, she says.

Cognetti was in court recently with a client, a father who wants shared custody. The mother told the judge that the child goes to bed by 9 or 10 p.m., but that the father lets him stay up until 1 a.m.

"I grabbed my client out in the hallway and I said, 'Please tell me you're not doing that,' " she says.

Cognetti represents a lot of dads, and even without changing the law, she finds courts are much more open to granting equal custody.

"A good dad wins," she says. "So if what you're trying to do is help bad dads win, I can't help you."

But Ned Holstein of the parents' organization says plenty of good dads don't get a fair shake in court. He likens the struggle to other long-term movements for social change.

"This history goes like this," he says. "Defeat, defeat, defeat. Victory."

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Fathers today are spending more time than ever with their kids. But when couples divorce and contentious cases hit the courts, fathers' rights groups say too many judges fall back on tradition - primary custody for Mom; weekends and overnights for Dad. These groups are pushing for shared custody laws. A number of states are considering that change, but there's plenty of resistance. Here's NPR's Jennifer Ludden.

JENNIFER LUDDEN, BYLINE: In recent years, lawmakers in Arizona, Arkansas, Florida and Minnesota have passed measures favoring shared custody - though governors vetoed the last two. Other states have created a task force to study the issue. Ned Holstein heads the National Parents Organization, which started out as a fathers' group and supports joint custody. He says it boils down to equal rights for fathers, in an era of converging gender roles.

NED HOLSTEIN: We think the best legislation creates a rebuttable presumption that the kids will be with both parents, if both parents are fit and there has not been any serious domestic violence.

LUDDEN: Holstein says research shows kids do better when they see lots of each parent. And his own polling shows overwhelming public support.

HOLSTEIN: But yet it gets blocked time after time in the legislatures because there are groups that really don't want it to happen.

THOMAS BARNETT: The bar's concern was that the individual parent's interest trumped that of the children.

LUDDEN: Thomas Barnett, of the State Bar of South Dakota ,fought such legislation for several years. What if parents live far apart, he asks, or children have a slew of after-school activities? Dictating a 50-50 split could be a logistical nightmare. Plus, joint custody means divorced parents see each other more. If they don't get on well, that could be trouble.

But last year, Barnett decided to work out a compromise. South Dakota's legislation has now passed the Senate and is in the House. It does not include a legal presumption of joint custody, but it does call on judges to consider it. And it lays out a series of factors to weigh.

BARNETT: What that bill is telling the parents is, you need to get along for the benefit of the children. And if one of them is a bad actor, that's going to be held against them, as it ought to be.

MARIA COGNETTI: The younger the child, the more in sync you have to be with how they should be raised.

LUDDEN: Maria Cognetti practices family law in Pennsylvania, and heads the American Academy of Matrimonial Lawyers. She thinks custody should be awarded case by case. She says research shows younger children, especially, need stability.

COGNETTI: I just was in court this morning on a custody case, and my client wants shared. But Mom says, the child goes to bed by, you know, 9 or 10 o'clock and you're letting him stay up until 1 a.m. And I have to tell you, I grabbed my client out in the hallway and I said, please tell me you're not doing that.

LUDDEN: Cognetti says she represents lots of dads. Even without changing the law, she says courts are much more open to granting equal custody.

COGNETTI: A good dad wins. So if what you're trying to do is help bad dads win, I can't help you.

LUDDEN: Ned Holstein, of the Parents Organization, says plenty of good dads don't get a fair shake in court. But he likens his struggle to other long-term movements for social change. Lots of defeats, until you finally achieve victory.

Jennifer Ludden, NPR News. Transcript provided by NPR, Copyright NPR.