Conference quark::mennotes

91.0. ""Proposition 50/50": An Initiative Petition for a Law" by SMAUG::GOBLE () Mon Sep 27 1993 12:56

The first item (below) is the full text of "PROPOSITION 50/50":
A Massachusetts Initiative Petition for a Law.  "Prop 50/50" is
currently circulating to gain enough signatures to be placed
on the 1994 Massachusetts Ballot.

The second item is a recent editorial from LAWYERS WEEKLY, written
by a "cross-section of Massachusetts Lawyers", on the issues raised
by "Prop 50/50." 

The two documents are separated by "----".

If you have opinions on this as potential legislation please contact
your state representative.

For additional information:

    send mail to:      Dave SMAUG::Goble

    or contact:        Citizens for Divorce Equality
                       John H. Roberge
                       CDE Chairman
                       at 617-566-4215
 

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                 THE COMMONWEALTH OF MASSACHUSETTS

                       Initiative Petition
                           For a Law

                          To Promote
              Equal Responsibility for Childrearing
                By Separated and Divorced Parents



AN ACT FURTHER REGULATING SHARED CUSTODY OF MINOR CHILDREN.

Be it enacted by the people, and by their authority, as follows:


	SECTION 1  The following Amendments to Chapter 208 and Chapter 215 of
the General Laws are in furtherance and support of a public policy to assure
each minor child frequent and continuing contact with both parents after the
parents have separated or dissolved their marriage and to encourage parents to
share the rights and responsibilities of child rearing.


	SECTION 2.  Section 19 of Chapter 208 of the General Laws as appearing
in the 1992 Official Edition, is hereby amended by striking out lines (1)
through line (5) inclusive.


	SECTION 3.  Section 28 of Chapter 208 of the General Laws as appearing
in the 1992 Official Edition, is hereby amended by adding the following Section
28B after Section 28A:-

Section 28B.  Upon the filing of an action in accordance with this section,
section eighteen, section twenty or section twenty-eight-A of chapter two
hundred and eight, or section thirty-two of chapter two hundred and nine, or
chapter two hundred and nine A, within one hundred fifty (150) days of the
filing of such action, or within one hundred fifty (150) days of the date of
any temporary custody order issued and authorized in accordance with this
section, section eighteen, section twenty or section twenty-eight A of chapter
two hundred and eight, or section thirty-two of chapter two hundred and nine,
or chapter two hundred and nine A, absent a written Child Custody
Implementation Plan agreed to by the natural or adoptive parents of minor
children, and upon a motion by either party or of a next friend on behalf of
the minor children of the parties and with notice to the other party or
parties, within thirty days subsequent to the motion being filed, shared
physical custody of minor children shall be ordered by the court with equal
responsibility for each parent for fifty percent of care and transportation of
minor children, excepting that shared physical custody shall not be ordered if
the court makes specific findings in writing that shared physical custody is
detrimental to the child, excepting further that Shared Physical Custody of a
minor child may not be ordered for a parent who has been convicted of child
abuse or neglect, a parent who is presently incarcerated for a felony, a parent
who has been convicted for assault and battery as a result of a domestic
dispute, a parent who is an active substance abuser as determined by a credible
substance abuse specialist, or a parent who has been lawfully declared to be
mentally incapacitated.  

No part of this section shall be construed as authorizing that a temporary
custody order be issued on the basis or as a consequence of the pendency of an
incomplete evaluation or investigation, or any pending civil action in a court,
or any pending criminal action in a court except for indictments of parents for
allegedly committing felonies or child abuse or neglect.


	SECTION 4.  Section 31 of Chapter 208 of the General Laws as appearing
in the 1992 Official Edition, is hereby amended by striking out lines (28)
through line (50) inclusive and inserting in place thereof the following
paragraph:-

	At the time of either a trial on the merits on a complaint for divorce
or a complaint for modification, there shall be a rebuttable presumption in
favor of shared physical custody and the court shall order that parental
responsibility for a minor child be shared by both parents unless the court
makes specific findings in writing that shared physical custody would be
detrimental to the child.


	SECTION 5.  Line (58) of Section 31 of Chapter 208 of the General Laws
as appearing in the 1992 Official Edition, is hereby amended by striking the
phrase "or visit with him" and inserting in place therof:- with the parties


	SECTION 6.  Section 31 of Chapter 208 of the General Laws as appearing
in the 1992 Official Edition, is hereby further amended by inserting after line
(76) and before line (77), the following two paragraphs:-

In addition to the details and provisions required by the court or statute and
requested by the parties, a Shared Custody Implementation Plan shall contain
provisions for residence and division of times to care for the child by the
parents including holidays and vacations, for the responsibilities of each
parent for transportation of the child, for equitable access and frequent and
continuing contact with the minor child by both parents, for fully mutual
decision-making by both parents concerning the child's education, values and
moral instruction, social and recreational activities, and psychological,
dental, and medical treatment, and a provision by name of an agreed upon
mediator, mediation service, or court mediation program to address any
disagreements.

Upon written notice from one parent to the other parent of a disagreement with
any provision contained in a Shared Custody Implementation Plan approved by the
court, the parents shall retain mediation services as provided for in the
Shared Custody Implementation Plan.  During the pendency of any complaint for
modification of a Shared Custody Implementation Plan approved by the court, the
court may order both parents to participate in mediation as defined in the
Shared Custody Implementation Plan.


	SECTION 7.  Section 31 of Chapter 208 of the General Laws as appearing
in the 1992 Official Edition, is hereby further amended by striking out lines
(94) through line (98) inclusive and inserting in place therof the following
paragraph:-

Where the parents have reached an agreement providing for the custody of the
children the court may enter an order in accordance with such agreement, unless
the court makes specific findings in writing that such an order would be
detrimental to the child.


	SECTION 8.  Section 6C of Chapter 215 of the General Laws as appearing
in the 1992 Official Edition, is hereby amended by striking out lines (1)
through (8) inclusive and inserting in place therof the following two
paragraphs:-

Section 6C. Upon a complaint, after judgment pursuant to this chapter relative
to the care and custody of minor children, filed by either parent or by a next
friend on behalf of the children, after notice to both parents, the courts may
make a judgment modifying its earlier judgment as to the care and custody of
said minor children provided that the court specifically finds in writing that
a material and substantial change in circumstances of the parties has occurred
and that a modification would not be detrimental to the child.

In complaints for modification in which either parent seeks shared physical
custody and submits a Shared Custody Implementation Plan for approval by the
court, there shall be a rebuttable presumption in favor of shared physical
custody, and the court shall order that parental responsibility for a minor
child be shared by both parents unless the court makes specific findings in
writing that shared physical custody would be detrimental to the child.


	SECTION 9.  The second paragraph of Section 6C of Chapter 215 of the
General Laws as appearing in the 1992 Official Edition, is hereby further
amended by inserting after the last sentence in the second paragraph, the
following sentence:-

Temporary orders issued under this section shall be presumptively issued for
no more than 60 days unless the court makes specific findings in writing.


	SECTION 10.  The provisions of this act are severable, and if any of
its provisions or an application thereof shall be held unconstitutional by any
court of competent jurisdiction, the decision of such court shall not affect
or impair any of the remaining provisions or other applications thereof.


	SECTION 11.  This act shall become law upon certification of the
results of the 1994 State election.


The undersigned have personally reviewed the final text of this Initiative
Petition, fully subscribe to its contents, and agree to be one of the original
signers of the petition.

[deleted to conserve space]
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EDITORIAL

from LAWYERS WEEKLY

August 16, 1993

"DO CUSTODY LAWS NEED REVAMPING?"

  Children do better when there are two parents to help guide
them.  That's what some of the newest research suggests.
"Children need both their parents," is how David L. Levy,
president of the National Council for Children's RIghts, put
it recently, quoted in The Washington Post.

  The realization that both parents have a role in child-rearing
that goes beyond mere financial support has implications for the
way the legal system treats custody matters.

  At present, when a marriage breaks up, the law tries to
determine which parent is "best" -- a difficult, and often
impossible, task.  Im many instances, perhaps most, both parents
are "best."  It's no secret that many judges hate to handle this
type of case because it involves the impossible task of making
a Solomon-type decision.

  Perhaps there is a better way to handle this important dilemma
in our society.

  Instead of starting with a reference point that requires a
judge to "pick" between competing parents, perhaps we should
start with a different reference point more in keeping with
the latest research: a child needs BOTH parents.

  There is presently a petition circulating to put a referendum
question on the 1994 Massachusetts ballot about this very
question.  Members of the bar may or may not agree with the
exact language of the petition or with the goals of those
supporting it.  That is not the issue.

  What is important in that we not dismiss this effort out of
hand.  Regardless of how one votes, the proposed petition can
be a springboard for a serious study of this important matter
that the bar should be involved in.

  Lawyers must be careful not to be arrogant or curt when
talking about fundamental rights which affect a person's entire
life.  Custody is not about keeping a job or obtaining money
damages.  Children are more precious than anything to most
people.  We should not dismiss such basic concerns without
considerable thought.

  Obviously, shared physical custody is not always possible or
desirable.  Some believe that relatively few parents are
actually capable of effectively managing joint physical custody
after a divorce and that the law at present provides parents with
sufficient equal standing.

  Others counter that some degree of shared custody will often
have beneficial results for all involved, the parents as well
as the children.

  For example, it has been suggested that some mothers who have
"won" physical custody are overburdened and exhausted, with the
result that they become socially isolated.  It may be difficult
for them to establish a career and break free from financial
dependence upon a former spouse.

  And fathers who do not share in custody are not sufficiently
burdened with their children's care, some say.  The sense of
loss that frequently overwhelms men during this period can make
a father give up contact with his children.  And it may be one
reason why some fathers are reluctant to provide financial
support despite court orders compelling them to do so.  "The
relatively uninvolved father, who finds his parental identity
threatened, msay ... take flight and abandon his offspring,"
writes Richard Warshak, a clinical psychologist from Texas.

  Another scholar, Holly L. Robinson of Seton Hall University
School of Law, notes that children are also hurt.  She says that
the traditional, sole-custody arrangement has a detrimental
effect on children, who may experience feelings of loss and
abandonment, strained interactions with both parents, disturbances
in cognitive performance and sex-role identification problems.

  In fact, Robinson believes that parenting is so basic that it is,
in fact, a fundamental CONSTITUTIONAL right.  "Once precreation has
occurred and a biological parent-child relationship has been
created, parents retain a constitutionally pretected, fundamental
liberty interest in maintaining full and meaningful relationships
with their children," she writes.

  Robinson would replace the "best interests of the child" test
(which she believes to be unconstitutional) with a presumption that
parents are entitled to joint custody of their children on
divorce that may be rebutted "only by the court's determination,
based on clear and convincing evidence, that an award of joint
custody in the particular case would be detrimental or harmful to
the children involved."

  Some states, including Florida and California, have moved toward
this approach.

  While we are not expressing an opinion as to Robinson's analysis
or the ballot initiative slated for the 1994 election, we think
the issue of child custody in contemporary society is an important
enough one for the bar to take a leadership role in a thoughtful
and courteous debate about it.  As always, we welcome your views
on this complicated issue.
 


     [Editorials are written as a collaborative  effort by  Lawyers]
     [Weekly's board of editors, which consists of a  cross-section]
     [of  Massachusetts  lawyers.   The  editorials  represent  the]
     [opinion  of a majority  of the board on  topics deemed worthy]
     [of discussion and consideration  by  the bench and bar.  They]
     [do not necessarily reflect the view of any  single  member of]
     [the board.  Additional viewpoints  are welcome in the form of]
     [letters to the editor.                                       ]

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    I am all for 50/50 parenting after a divorce, but just how would 
    this proposition translate to reality !!!
    
    If its mentioned I must have lost it, in the cross-references ...
    
    Its difficult enough to flip-flop between work-days and weekends,
    vacations and non-vacations.
    
    Gil

You can make it work - I've been doing it for eight years now.  But it's far
from easy; it requires you and your ex to place your child's well-being above
your own emotions and frequent contact/communication with your ex.  It also
really requires you to stay in the same area and make it possible for the
child to attend the same school, same after-school care, etc.

The scheme we've settled on is to swap every three weeks.  For younger kids,
a shorter period should be chosen.  Initially, we had a complicated schedule
for alternating holidays and made "asjustments" in the swap periods to
accomodate them, but this ended up being confusing for our son so we now
just stick to the every three weeks and let the holidays fall where they may.
If you get too stuck on having 50% of the holidays each year, it'll never
work.

Is this the best thing for the child?  I don't have an answer to that.  
Swapping does itself have a harmful effect, but I still believe it is less
than losing what was an active parent.

For those divorcing parents where one of the parents "suddenly" discovers
an interest in child care, I'm reluctant to recommend a 50-50 split.  I
certainly don't think it would work for everyone and don't think it should
be mandated.  However, I do think that responsibility should be shared
equally and that having the government treat the NCP as a checkbook while
not making the CP responsible for how the money is spent and allowing
reasonable "visitation" is itself a crime.

				Steve