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Testimony To New Hampshire Legislative Body


 MAY 10, 1995 HEARING

 Good afternoon, Mr. Chairman, it's good to see you again and I again  marvel at your patience and diligence.
 This is an important set of issues and you've had a very long day. I  thank you for doing this.

 Mr. Chairman, I had initially hoped to be one of the first to  testify on this subject, because I was going to warn you about some  of the things you would be hearing from the opponents; some of which  are stereotypes and distortions, some which I view as outright  falsehoods. Instead, I'm actually glad that I have come to testify  late in the day because now I don't have to just warn you about  them, now I can point out some of them to you.

 Mr. Chairman, I came today to talk entirely about the best interests  of children because that is what we are here for and that is what  this bill attempts to foster and encourage. Mr. Chairman, children  are born with two parents. Children want, love and need two  parents. Children are in the joint custody of both parents during  the marriage.

 During the marriage, we know that the status of the child is to have  a pure and unrestricted joint custody with unlimited access to both  parents. The question for us, Mr. Chairman, is what should the law  do when that marriage breaks apart? Who should have the burden of  proof? The one who wants to continue the involvement of both parents

 or the one who wants to claim sole ownership of the child? Where  should the burden of proof lie when there's going to be a change  from the existing unrestricted access to both parents?

 Mr. Chairman, when you think about a custody order, bear in mind  that it's a very simple legal concept. A custody order is just an  injunction. We take people who previously had unrestricted freedom,  people who previously had unrestricted access to their children, and now we enjoin them from exercising part of that prior right. Well,
Mr. Chairman, we're both lawyers. In fact, I think that most of the  folks at the front of the room right now are lawyers, and we know  the rule for dealing with injunctions in every other area of the  law. That is, you impose the minimum restriction on the parties'  prior freedom. You put only the smallest imposition, the  smallest restriction on them necessary to resolve the dispute at  hand. You don't go to a disruptive extreme.

 If, as we all know, those children were in joint custody during the  marriage, my submission to you, Mr. Chairman, is that we ought to  work very hard to preserve for the children, for their best  interest, as much of that preexisting joint custody, as much of that  access to both parents as we can. Mr. Chairman, when a divorce  comes, does a child have less need or more need for the involvement  of both parents? I submit to you, Mr. Chairman, the child's need for  both parents is actually greater because of the insecurity created by the divorce itself. If we care about children's best interests,
 we need to send a message through our law that encourages the  continued involvement of both parents, that encourages continued  shared parenting, and that imposes only the minimum necessary  restrictions just as we would do with any other kind of injunction.

 Mr. Chairman, think about what a custody battle is. Two parents go  into court and stand before a judge, each of them begging to spend  more time with the child. What message do we want to send to people  in this community? Have you heard one witness come forward today and  say that the District of Columbia's citizens are suffering from an  excess of parenting or an excess of fathering or that children spend

 too much time with either of their parents? Of course not. We know  that just the opposite is true.

 We know that children are suffering from the absence of their  parents. We know that our children are suffering from insufficient  parenting. What is the message that we should be sending through our  courts? I submit to you, Mr. Chairman, that if we care about the  best interests of children, the message we should send is that we  want to encourage the maximum continued involvement of both parents.

 Continue for them the joint custody that existed during the  marriage, take away from those children as little as you absolutely  must, presume a continuation of two parents.

 We have a saying in our community, "It takes a whole village to  raise a child." By what theory of the child's best interests should  a court come in and issue an order restricting one parent to mere  visitor status? When you have fit and loving parents, when you have  two parents in a society that cares about children coming in front  of  the court and saying, "please give me more time with my child,"  shouldn't we throw up our hands and say, hallelujah!, here is a
 child who is loved, here is a child who has two parents who want to  be involved, let us see what we can do to maximize the contributions  of both?

 Instead we have a very perverse system, Mr. Chairman, under which  the judge says, "No, no, I'm sorry, my job is to pick a winner and  pick a loser here." Well, Mr. Chairman, when you pick a winner and  pick a loser in a custody fight, all you've done is guarantee that  the child is the loser, because that child walked into court with  two parents and walks out with only one. The winner-loser mentality  that has driven child custody in the District of Columbia is  antithetical to the best interests of the child. The proposed  legislation is designed to preserve for children what we know they  need. It doesn't matter what social pathology you look at, teenage  pregnancies, drug abuse, suicide, low self-esteem, school  dropout . . . You can go through the litany of pathology that the  government has to spend money to try to cure. Every single one of  them is linked to familybreakdown and parental absence. We don't  have an excess of parenting. We have a shortage of parenting.

 Let's put into place a law which says it is the policy of the  District of Columbia to encourage the maximum involvement of both  parents, to preserve for each child the joint custody in which that  child was born and which continues by nature and by the law until a  foolish judge intervenes and takes it away. We don't need to take it  away. We need to have a law that says you both are still Mom and  Dad.

 Look at the situations that are in the newspapers right now, such as  the Prost v. Green litigation. I've talked with people on both sides  of that case. You know what they both tell me, they both tell me  they're scared. They're scared that they might lose custody, that  they might be reduced to visitor status. So rather than run that  risk, they each go in and fight like crazy. You've seen some of that  in the newspapers. Each of them has said they would be willing to  accept joint custody, but both remain fearful that if they go into  court and acknowledge a willingness to accept joint custody, they  will be deemed to have already given away half the loaf while they  still run the risk of losing everything. These people run the risk  of being reduced to a mere visitor to their own child, so they feel  that they have to fight to be the one who emerges as the winner out  of a desperate fear that otherwise they'll end up being the one  who's the loser.

 Mr. Chairman, the purpose of this bill is to get past winners and  losers. To say to both litigants, "Relax, at the end of this you're  both still going to be Mom and Dad. You're both going to have  substantial relationships with your children." Now, Mr. Chairman, I  really need to talk about some of the distortions and stereotypes  and outright falsifications that occurred in the testimony of the small  group of opponents you heard from earlier today.

 Let's start with the claims that are made about cases where conflict  exists between the parents. Mr. Chairman, you keep hearing the  notion of, "oh, well, if the parents are in conflict, oh, tsk, tsk,  we can't possibly have joint custody." Of course conflict is bad for  children. Conflict during a marriage is bad for children, conflict  in sole custody is bad for children, conflict anywhere is bad for  children. But none of the people who argued about conflict ever  asked you to directly compare the logic of the choices that are  actually in front of you. We're not comparing joint custody against  Ozzie and Harriet, we're comparing joint custody against sole  custody, Mr. Chairman.

 Think for a moment which is more likely to engender hostility, which  is more likely to create conflict -- a situation in which both  parents are told, "Relax, you're not going to lose your role as a  parent," or a situation in which the court says, "I'm going to pick  a winner and pick a loser. Choose your weapons and come out fighting,  the last one left standing is the winner." Sole custody  determinations, Mr. Chairman, are the source of the conflict. This  legislation is designed to reduce that conflict, reduce fear and  work for the best interests of the children. Ask the opponents of  joint custody which is more likely to create conflict -- a  winner/loser dichotomy or sharing. That's an easy choice.

 A related claim was that joint custody forces unwilling parents to  interact with each other. Again, they are comparing joint custody  against Ozzie and Harriet, they are not comparing it against sole  custody. The parents also have to interact with each other in a sole  custody situation. In sole custody, however, they interact from a  basis of hostility. They interact from a basis of power and  powerlessness. They interact from a basis in which one parent has  been declared to be the loser and that parent is ever fearful of  losing still more, of losing every last shred of contact and is ever  struggling to try to get back into the child's life and restore what  was taken away by a piece of paper, a judicial decree. Shared  parenting, Mr. Chairman, gets away from all those conflicts.  Shared parenting says you're both still Mom and Dad. Neither of you  has lost your child. Neither of you is the owner of the child with  power to exclude the other. Mr. Chairman, there is no doubt that the  shared parenting approach is more healthy for children.

 Let me turn now to the "veto" power that's been proposed by some of  the opponents of shared parenting. Can you think of any other area  of law where the statute grants permission for one of the litigants  to come in and veto a proposed remedy that was in the best interests  of the parties and otherwise permitted by the law? Can you imagine,  in any other setting, the audacity of this demand, the hubris of  daring to come forward and say that the most hostile parent ought to  have the power to veto the other parent's involvement, ought to have  the power to veto the child's best interest in shared parenting?  What theory of best interest could ever suggest that one parent  can veto the child's best interest and reject shared parenting?

 Mr. Chairman, the opponents of this legislation acknowledge that 42  states have shared parenting in their statutes and the rest have it  in case law. They didn't cite to you a single one that allows this  veto that they are urging you to adopt. They talked about  California. Mr. Chairman, that's one of their greatest falsehoods.

 California didn't retreat from shared parenting. California is in  the forefront of shared parenting; 75 to 80 percent of all custody  decrees in California include joint parenting and it's even higher  in some other states. In Minnesota, for example, it's in excess of  90 percent. Shared parenting is here; the revolution has arrived and  it's time for D.C. to catch up.

 California's status is particularly interesting because of the way  that it was distorted in the earlier testimony. California was under  siege a few years ago. Several groups that didn't like joint custody  went to the California legislature with an agenda of approximately  30 separate amendments trying to gut the joint custody provisions in  California's law. They utterly failed. What California did instead,  was that it passed a very simple clarification of its statute which  said that shared parenting was equally available as an alternative  to sole custody. California has one of the clearest laws repudiating  the notion that sole custody is preferred and that shared parenting  is, somehow, an ugly stepchild.

 California went two steps further, Mr. Chairman, that none of the  opponents of shared parenting ever want to talk about and you'll be  able to find this very easily. It's both cited in my prepared  testimony and is easily found in California statutes. They do two  things. They say right up front that it is the policy of the State  of California to encourage frequent and continuing contact of the  child with both parents. Then they go further; they say we like  shared parenting, but we know sometimes we may not be able to have  equal time with both parents; perhaps distance doesn't allow it. In  those cases where we have to give the majority of the residential  time to one parent, we are going to give a preference to that parent  who shows the greater willingness and ability to cooperate in  keeping the other parent involved. Mr. Chairman, it is on this point  that the real fraud of some of the opponents becomes apparent.

 You heard opponents earlier today saying that they didn't like the  cooperative parent provisions of this proposed statute. Can you  imagine that? How dare they demand that we ought not to encourage  cooperation, that we ought not to encourage demilitarization of  divorce. You've heard all day long of the horrors of divorce for  children. Of course, we should encourage cooperation. Of course, we  should teach both of the parents to get along with one another and  to work for the child's best interest. Our current sole custody  situation doesn't do that. It says only one parent is going to be  left standing at the end of the day. We need to get to the other  side, Mr. Chairman, we need to recognize what these kids are born  with, want, love and need: two parents.

 Another set of issues the opponents raised is about control. They  say that parents asking for shared parenting are just trying to  control the other parent. Well, think about the fraud, the illogic  of that for a moment. If you are asking a question about who's  trying to control whom and one parent comes to you and says, "Mr.  Judge, I would like to have shared parenting, so my child can have  two parents" and the other parent says, "I want sole custody, I want  to own this child," who's trying to exercise power? Who's trying to  exercise control? Who is it that wants to be the one who's dominant  and who is the one that has the interest of the child at heart?  Turning to the question of abuse, Mr. Chairman, I won't trouble you  with the statistics, but, in Exhibit E of my testimony, you'll find  the frequency of child abuse, jurisdiction by jurisdiction. You'll  find it quite contrary to the stereotypes and myths that have been  set forth in earlier testimony. Anywhere from two-thirds to three-  quarters of all child abuse is committed by mothers, not by fathers.

 Are the opponents of this bill saying that as many mothers should be  disqualified from custody or do they want to be selective again and  say that it is only fathers who should be disqualified? Let's be  honest, let's be logical, let's look at this consistently.

 The opposition to the Parenting Plan, Mr. Chairman, is the one that  I find to be the most despicable among the arguments by the  opponents of this legislation. I think there ought to be no room at  all in this city for racist, classist, elitist arguments that the  city's residents are too stupid to fill out a form that indicates  their desires for the upbringing of their own children. There is  nothing difficult about letting parents indicate for themselves how  they would care for their children and providing that information to  judges. There is nothing that requires this all to be done magically  by lawyers or in a black box by a judge.
 We should be encouraging our parents to come forward and look at the  issues, look at the burdens of raising a child and fill out that  form. When they sit down and look at that form and they realize how  big a job it is to properly care for a child, they step back and  think, "You know, this is a job that's kind of hard to take on all  by myself. It's to my advantage, as well as to the child's  advantage, to share this burden, because two parents can do a better

 job." Mr. Chairman, child custody law should apply one of the very  simple propositions in mathematics; two is more than one. Two  parents can do more than one. A single parent may do all that he or  she can, but there's no doubt that the active involvement of a  second parent adds a lot and makes it better for the child.
 Mr. Chairman, you also heard noise about child support and how  terribly that was going be impacted if we had shared parenting. One  of the things that I handed to you, Mr. Chairman, is a summary of a  study by Professor Sanford Braver, which is to my knowledge the only  controlled study in the nation of what happens to child support when

 you have shared parenting. You'll see, on the back side of that  summary, a highlight of Professor Braver's findings. He said, "We  found that the groups differed significantly in terms of how much  financial support was paid. When sole custody was the arrangement,  despite the father's wishes, only 80 percent was paid; when joint  custody was awarded, despite opposition by one of the parents, child  support zoomed to almost perfect compliance, 97 percent compliance."

 Mr. Chairman, if you care about child support, if you care about  reducing welfare dependency, joint custody does it. Don't allow  people to come to you and make policy by anecdote. Look at the  research, and look at what you know is a matter of simple logic. An  involved parent is more likely to provide financial support along  with emotional and physical support.

 Finally, Mr. Chairman, I'm going to close with the issue of gender  bias, because you raised a little while ago the point that this  debate has gotten somewhat fragmented along gender lines. Well, I  submit to you, that's not quite right. What you find is that the  people in favor of shared parenting include both men and women,  mothers, fathers, children, advocates, a broad range of people.  Where you find a very limited opposition, where you find a very  limited perspective is in the people who are opposed to shared  parenting. They do come at it from a single perspective, from the  winner-take-all mentality that says that one parent should own that  child, that one parent should have power over that child.
 When you look at the testimony from today, think about who has the  interests of children at heart. Who is it that wants the children to  have the benefit of two parents and who is it that wants to use the  children as a lever of power in the battle of the sexes? I would  also ask you, Mr. Chairman, to look at the exhibits to my testimony  because this is not a gender issue, this is an issue for some people  who want to have power. Look, for example, at Exhibit A to my  testimony where you will find Karen DeCrow, the former president of  the National Organization for Women and look at what she says:

 "If there is a divorce in the family, I urge a presumption of joint  custody of the children. Shared parenting is not only fair to men  and children, it is the best option for women. After observing women's  rights and responsibilities for more than a quarter of a century of  feminist activism, I conclude that shared parenting is great for  women, giving time and opportunity for female parents to pursue  education, training, jobs, careers, profession and leisure. There is  nothing scientific, logical or rational in excluding men or forever  holding women and children as if in swaddling clothes in an  eternally loving bondage. Most of us have acknowledged that women  can do everything that men can do. It is time now for us to acknowledge  that men can do everything women can do."

 Men can be parents, Mr. Chairman. Look also at Exhibit B, where  Supreme Court Justice Ginsburg states her view and her goal for the  future, her desire to see men taking a greater role in child care  and child custody. Look at Exhibit C from the National Center for  Women, an organization of more than 100,000 members and its  endorsement of this legislation. Mr. Chairman, this is not a gender  issue, but there is a special interest group, there is a limited  opposition, there are people who want to have control over children.

 I respectfully suggest that you reject their arguments for control  and, if you care about the best interests of children, give them two

 parents; let them keep the two parents that they had during the  marriage. Don't allow sole custody to take that away from them.
 Thank you.

 Chairman Lightfoot: Thank you, Mr. Henry, that was quite an  excellent statement. I think you have covered all the bases.

 Let me ask you a question about the presumption and whether we  should have a presumption of shared custody. As you say, the  presumption in the proposed legislation we are talking about just  states that the pre-existing joint custody will continue in the  event that neither parent comes forward with a reason for sole  custody. I think that does apply in the situation of a divorce where  there is a marriage that is dissolved. There, you are talking about  a presumption of continuing the pre-existing relationship to the  child. But where we have a situation where there is a child out-of-  wedlock, where there is no marital relationship, I find that the  rationale does not seem to apply for the presumption because you are  no longer continuing a pre-existing relationship. I would like  it, if you can, for you to elaborate for me why we should apply the  presumption of shared custody to a situation where the parents are  living out-of-wedlock and really where they are not living together  in a shared relationship.

 Ronald Henry: Let me begin by thanking you because it is important  to recognize and get the law to recognize that shared parenting is  what pre-exists during the marital relationship. We ought to back  away from that only with the greatest reluctance and it is very  important that we get this concept recognized in the law very  clearly and unambiguously. Now let me talk to you about the non-  marital situation because frankly, in my view, there is no  difference in terms of the outcome or the proper legal status. Bear  in mind that each child is born with two parents. That child is born  with two legal parents. We have child support proceedings regardless  of marital status. There is no distinction made between the legal  obligations imposed upon a marital father and a nonmarital father.

 In fact, if you look at the Supreme Court cases, Clark v. Jeter, for  example, about seven years ago, the Supreme Court established in a  unanimous ruling that it was unconstitutional to treat a non-marital
 child in a way that was inferior to a marital child. What the court  said there dealt with a statute that had a shorter statute of  limitations for commencing a child support action for non-marital  children than the statute of limitations for marital children. I  think the state allowed something like nine years for marital  children and only three years for nonmarital children. The Supreme  Court said, "Time out. You can't do that. You can't discriminate  against nonmarital children. They have got every bit as much right  to the involvement, the resources, the wherewithal of the father.  They have got every bit as much right to those two parents that they  were born with as a marital child."

 So, Mr. Chairman, I would submit to you that as a constitutional  matter, we would be very hard pressed to discriminate against the  non-marital child. I would go further and put it into pragmatic  terms. Most of the children who are born into a non-marital  situation are not the result of casual one-night stands. These are  parents who have known one another a long time. They have got a  relationship. They are frequently and, perhaps in the majority of  the cases, actually living together. They are involved, both of  them, with respect to the child. Why in the world would we have a  law that presumes that one of the parents is uninvolved? I think  that just the opposite should be presumed.

 We should, as a matter of the law serving as a moral force, as a  matter of the law encouraging the best in all of our citizens, start  with the presumption that we do want, we do expect, that we do  believe both parents are going to be involved. Surely, that won't be the case in all situations but isn't that where we want to start  out? Don't we want to believe, don't we want to encourage that dual  parent involvement, and don't we again get back to the problem of  there being no excess of parenting in this town? We should encourage more parenting.

 Chairman Lightfoot: Very good. I have nothing further to cover just  now. Thank you. We will talk again before this bill moves forward. I

 would ask you one favor in respect to the study that you have given  to us, regarding the impact of joint custody child support. This is  the only study you are aware of, I gather?

 Ronald Henry: That is the only empirical study I am aware of which  has put side by side sole custody settings and joint custody  settings where the joint custody was imposed over the objection of  one of the parties. Remember the objection you have heard from  opponents is that while they admit joint custody works where it is  agreed to, they argue that it can't work where it is imposed. This  is the only study that has put side by side forced sole custody  versus forced joint custody.

 Chairman Lightfoot: I would appreciate it if you could tell us where  it was published.

 Ronald Henry: I will be happy to get the full survey and report for  the Committee.

 Chairman Lightfoot: Is it a volume or book of some type?
 Ronald Henry: I can tell you briefly. Professor Sanford Braver has  been working in this area for a good many years, principally under  grants from the National Institutes for Health. He has found, for  example, in the area of child support that there are three principal  predictors of child support compliance: the fairness of the original  order; the obligor's frequent access to the child; and the obligor's  work stability. A lot of this gets lost in our stereotypes, in the  name-calling that goes back and forth. The research does exist to  show us and give us some guidance on these policy issues and I will  be happy to get Professor's Braver's study to you.

 Chairman Lightfoot: I would appreciate it. Thank you.