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New Hampshire Shared Parenting Initative
In his March 13th article in the Nashua Telegraph titled "Divorce laws get second look", Andrew Wolfe quotes a few people who oppose HB529 and the presumption of equal parenting rights and responsibilities. I would like to take this opportunity to respond to each point made by those Mr. Wolfe interviewed for the article. I strongly believe that the Children and Family Law committee members are familiar with these individuals Mr. Wolfe sought out as the voice of those opposed to reform, and I urge the committee to inquire further of their viewpoints in light of my rebuttal positions.

Here is a link that will take you to the article:

The WMUR link to the same story, 'If Passed, New Divorce Bills Could Focus On Children' can be found here:

"We do not believe in the strict legal presumption of joint custody," Gardner said. "We believe each family is unique and you have to look at the needs of the children in each family. It's not always appropriate. It's not always in the best interests of the children."

Of course it is true that 'each family is unique and you have to look at the needs of the children in each family'. However, Ms. Gardner does not acknowledge the overwhelming amount of well understood and well accepted research and study data showing the single strongest indicator associated statistically with the dysfunctional development of children is that of being fatherless. Children with significant access to BOTH parents fare significantly better developmentally.

There is no better place to start than with the presumption of equal parenting when discussing the best interest of children. And if the presumption of shared equal parenting is indeed not appropriate for the best interests of the children in any given case, there is nothing that stops the court from determining as much. As a matter of fact, HB529 provides that the court may consider an additional list of 13 separate factors potentially affecting the best interest of the child. Notably, this list of 13 factors is exactly the same list provided for in HB640, requested by the Family Law Task Force. Indeed, HB529 provides for the 'best interest of the child' just as HB640 does. What it does much better than HB640, though, is to start the court's inevitable deliberation over the child's best interest at a point that is overwhelmingly shown to benefit children. That starting point is the presumption that both parents will be equally involved.

There is nothing 'strict' about a presumption, notwithstanding Ms. Gardner's strange assertion to the contrary. A presumption is a beginning point, no more and no less. There is ample opportunity and latitude provided by HB529 to the court to deviate from such a presumption where the true best interests of the child are benefitted. Ms. Gardner's point would be more easily understood if she were to argue what she really means... what she really means is that she doesn't like the 'strict legal presumption' (as she calls it) because she doesn't think the court should have to be accountable for writing down just why it has deviated when it elects to do so.

I was surprised to hear Ms. Gardner state, by the way, 'We do not believe in the strict legal presumption of joint custody', as it was not my understanding the Family Law Task Force actually took such a position in its November 2004 Final Report. If she is speaking for the Task Force when she says 'We' then it appears to me she may be taking liberties with the findings of the Task Force Final Report and its stated position (or lack thereof)...

"The biggest thing is getting rid of the words 'custody' and 'custodial rights,"' said Amherst divorce lawyer Honey Hastings, who wrote the second measure.

"That's the most significant change [in HB640]. It's gotten to have the sense of ownership, or winning," she said. "This is not good for kids."

Honey Hastings' comments about the change in terminology being the 'most significant change' in HB640 should send shivers down your spine. There is NO way that changing terminology is going to reconcile the gigantic problems that exist in the family courts. She talks further about the problem of custody cases having 'the sense of ownership, or winning'. Does Ms. Hastings actually believe that changing a handful of words in the current law is going to resolve this massive problem regarding the winner/loser mentality of the family courts? Do you actually believe this?

I would like to make an analogy between a child custody case in the NH family court and a Las Vegas Poker table where there are only 2 players participating (this table is the unequal table): The dealer at the unequal poker table (the judge) is consistently dealing a joker from the deck to one of the players at the table (the custodial parent, or CP). The other player at the table (the non-custodial parent, or NCP) wants to go play at the next table over where there is an objective dealer who only uses fresh decks of cards and deals fairly to both players (this fair-handed table signifies mediation). The fair-handed dealer signifies a judge who would be operating under law providing for a presumption of equal parenting. The NCP asks the CP repeatedly to move to the fair-handed table next to them (he asks for mediation), but the CP refuses because she knows she is likely to get a joker if she remains at the unequal table. The NCP asks repeatedly for them to move to the fair-handed table, but repeatedly is rebuffed. The NCP doesn't want to play at the unequal table, perhaps, and gets up to leave... but, then, a large bailiff blocks his exit path and tells him to sit back down. Now, the dealing begins at the unequal table and the CP gets a joker, true to form. She ends up with the winning hand and gets what is in the pot. Add the NCP's child to whatever is in the pot financially and you have what NH fathers are losing at the unequal table of NH's family courts every day.

How would you feel if your child were literally taken from you at this unequal table, after you had shown no disincentive to be a parent and had provided for, nurtured, and protected your child for many years? And all this after you had been begging only to play at the fair-handed table... Did I mention the part where the parties' lawyers are standing behind them all throughout the hand and instructing both of them that the CP is, indeed, very likely to get a joker...? It's true. Ms. Hastings is absolutely right about one thing, and that is the winner/loser sense of a custody battle. She is right because that is EXACTLY how the procedure works in the NH family courts today. Now the question is how to resolve this...

Ms. Hastings would have you believe that changing the word for what the parties sit on at the unequal table from 'chairs' to the word 'seats' will make a difference for the parties. She couldn't be more wrong. Those who sat on 'chairs' and got a joker will now sit on 'seats' and receive the same joker. As long as a presumption of equality is not the starting point, there will never be any more than a miniscule number of cases that are settled through mediation.

I tell you point blank that the fair-handed table of mediation and negotiation will forever be empty in NH's halls of justice as long as the unequal table is allowed to remain intact. The line waiting for its turn at the unequal table will continue to be huge, though, just as the current months long backlog is today in NH's family courts. It is up to you, the committee members, to demand that the dealers in NH's family courts begin dealing fairly to both parents, and for the sake of the children.

[Ms. Gardner said] “We’re looking for parents to make their own decisions regarding what’s best for their kids . . . and that flies in the face of a presumption.”

This commentary is so hypocritical on its very face that I feel little rebuttal is necessary. She is looking for parents to make their own decisions about what's best for the children, but then she refuses to presume that the parents should have an equal say??? I think what she really must mean is that she's looking for ONE of the parents to make the decisions for both the child and the other parent.

"There are a lot of lawyers who do divorce work who are very skeptical about the idea," Wise said. "They think that's sort of a parents' rights view of the situation," rather than being focused on what's best for children.

Mr. Wise doesn't go into enough detail, but he is at least half right when he speaks about parents' rights. It is also about children's rights, though. When all statistical data shows that children do significantly better with equal access to both parents then how can it NOT be about the best interest of the children. Parents' rights, when parents are fit, are directly synonymous with children's rights, by the way. Where does Mr. Wise get the idea that a judge, or himself, or a GAL (likely another attorney, like Mr. Wise) is in a better position to decide what's best for a child than that child's own parent? And shouldn't each parent retain a presumption of equality in order to exercise those things that are in their child's best interests? What is best for children is equal access to BOTH parents, unless there are other circumstances that warrant reconsideration (which HB529 unequivocally provides for). Again, Mr. Wise appears, in reality, to be skeptical of the requirement that HB529 provides whereby the court must articulate the reasons for abrogating a parent's equality.

Forgive me, if you will, for discounting where Mr. Wise says 'There are a lot of lawyers who do divorce work who are very skeptical about the idea'. In every other facet of government and throughout the entirety of the private sector there are rules about conflict of interest. Two examples of this are the rules against politicians taking gifts of high value from lobbyists, and the rule whereby a stockholder cannot publicly pump up the value of his/her stock using inaccurate data. These rules are to prevent conflicts of interest so that the tenets of justice and fairness are not undermined. I suggest to you that if ever there was a group of individuals with a conflict of interest it is lawyers who speak in opposition to statutory equality protections in NH family court. They are making a profitable living off of the litigation that is directly caused by the inequality in NH's courts. The amount of litigation would drop precipitously if HB529 were to pass.

"I think they are trying to tip the scales in terms of this perceived power imbalance, which I frankly don't see," Hastings said. "I don't think there is a bias (against men). . . . I haven't seen it."

I'd like to specifically counter this point about there not being a bias against fathers as parents in the courts. If, in fact, there is no bias, and the courts are indeed dealing in parental equality (for the sake of the children as well as the parents) then what harm does it do to protect equal parenting rights and responsibilities by requiring the court to write down just why it has denied one of the parents equal access to the child?

The subjective opinion that there is no inequity at present is a specious one. If she is accurate in that view (which she is not), then what is the purpose of arguing against the presumption of equality and the subsequent documention requirement when that presumption of equality is denied by the court? If fairness and equality prevail today in the courts then why do she and others opposed to the reform argue so vigorously against an explicit statutory protection? Is she arguing that even though the courts are fair and equal right now, they don't actually have the time to write down why they take a child from a parent?

The subjective opinion of many (which I share) that there *is* parental bias in the courts can never be termed a specious one, even if you don't believe it, because those of this viewpoint argue that the presumption of equal parenting rights (for both mother and father) should be protected through statutory language. Such statutory protection of parenting equality would be merely a direct extension of the 14th amendment equal protections clause, which has, by the way, been upheld on more than one occasion historically by the U.S. Supreme Court with respect to parenting rights.

Honey Hastings and those who share her opinion (mostly attorneys and entrenched divorce industry profiteers, frankly) argue vehemently for the continued latitude that current law gives the NH family courts to abrogate the 14th amendment provided equal rights of parents (and the rights of their children to retain equal access to BOTH parents) without even requiring the courts to make a record of why this has been done. I hope you see through the transparency of the 'I just don't think it's a problem' viewpoint...

"The more the parents themselves can work these things out, the more long-lasting the agreements are going to be, rather than something that's imposed on them by professionals from the outside," Wise said.

I shuddered when I read this, to be honest. If 'imposing' equality through a presumption (a starting point of statutory equality) of equal parenting rights is wrong then we must be living in the old Soviet Union. There can never be an 'imposition' of presumed equality by the legislature. There can only be the necessity of these statutory protections of equality on behalf of the citizenship to explicitly preclude those citizens from falling prey to those who would undermine the 14th amendment to the constitution and its equal protection clause. The 'imposition' that Ms. Wise refers to, instead, must certainly be the existing unequal disbursement of children to one parent or the other, thus making huge numbers of children largely fatherless and then again huge numbers of fathers largely childless.

That 'something that's imposed on them by professionals from the outside' is happening right now every day in NH's family courts, and it is being imposed unequally and unjustly. It is also generating generations of singly parented and dysfunctional children. Those 'long-lasting agreements' Ms. Wise alludes to will never be forged through negotiation of divorcing or separating parties as long as one of the parties gains an advantage through the purposeful manufacture of animosity...

When Chief Justice Broderick addressed the legislature in late February he told the legislators that the courts needed
'strong legislative support'. If HB529 isn't a perfect example of that strong legislative support requested by Judge Broderick then I am at a personal loss to conceive of what strong legislative support is...

I urge to you visit the 'Benefits of Joint Custody' page at
http://www.nhcustody.org/My_Homepage_Files/Page1.html to learn about the study and research data showing children who retain access to BOTH parents do far better than those who are singly parented. There is a wealth of information there. And there is much additional information at www.nhcustody.org

Marc Snider
Merrimack, NH