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Best interest of the child standard, "Clear and Convincing Evidence"

To Mass. Shared Parenting Sub-committee:

RE: Best interest of the child standard

I was hoping to clarify a point I made at the meeting of Wednesday, February 15th. The Berkshire Fatherhood Coalition does not oppose the best interest of the child standard in shared parenting legislation. (Nor to my knowledge, does Father's and Family or the Children's Rights Council.) While the best interest of the child standard has been criticized as being standardless,1 all we are asking for is a presumption that shared physical custody is in the best interest of the child, which may be rebutted by evidence that it is not.

As I stated in our meeting, Massachusetts law has already stated such presumptions in other areas related to child custody. Chapter 209A:
Section 3 (d) ( http://www.mass.gov/legis/laws/mgl/209a-3.htm)
states that "provided, however, that in any case brought in the probate and family court a finding by such court by a preponderance of the evidence that a pattern or serious incident of abuse, as defined in section 31A of chapter 208, toward a parent or child has occurred shall create a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent."

There is also a requirement that the court make written requirements of fact if there is a departure for the general presumption that custody should not go to abusive parents. "If the court finds that a pattern or serious incident of abuse has occurred and issues a temporary or permanent custody order, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child, which findings demonstrate that such order is in the furtherance of the child's best interests and provides for the safety and well-being of the child."

To date nobody has stated that the need to write findings of fact, or the presumption, has proven unworkable under the 209A statute.
Moreover, given the nature of the right, asking a judge to justify severing or greatly reducing the parent/child relationship hardly is something that can withstand serious debate. If a child is going to be taken from one parent to be given to the sole custody of the other, the argument that stating why in writing is an excessive administrative inconvenience borders on obscenity. Too much is riding on the judges opinion, the risk of error is great, and appellate courts need something for which to adjudge the lower court's conduct.

The general criticism of the courts is that they do not recognize is that is in the best interest of the child to have joint physical custody.

See http://www.apa.org/releases/custody2.html

Also see http://www.apa.org/monitor/jun02/custody.html

(The shared parenting sub-committee was given a full copy of this study.)

RE: Clear and convincing evidence.

On a final note, as I have given you excerpts, the clear and convincing standard has been established as a constitutional right in parental termination cases. Santosky v. Kramer.

Santowsky sued the New York Department of Social Services (headed by Kramer), stating that the preponderance of the evidence standard was unconstitutional, because it unconstitutionally burdened the right to be a parent. Santowsky won. Now these are parental termination cases where the child could potentially be exposed to grave danger.
Basically, these parents were considered to be so dangerous, the state wanted to strip them of all parenting rights.

As predicted, New York argued that the "clear and convincing"
standard would endanger children, not unlike those that opposed or shared parenting bills. To this Justice Blackmun stated, "Nor would an elevated standard of proof create any real administrative burdens for the State's factfinders." Nothing has happened in the 25 years since this case was decided to indicate the "clear and convincing"
evidence standard has proven unworkable, or imposed harm on children.

This in an area where leaving a child with a parent is much more likely to lead to serious problems. Yet while there is 25 years of successful use of the "clear and convincing" standard in the context of exposing a child to a potentially dangerous parent, our opponents suggest that the "clear and convincing" standard is "unworkable," and that "children would be in danger," and that the "administrative inconvenience is too high," even though we are talking about two reasonably fit parents—nothing in the area of parental termination case.

The argument simply begs too much. If the "clear and convincing"
evidence standard does not endanger children in the context of adjudging potentially dangerous parents in parental termination cases, a fortiori it will not imperil children in your nickel-and-
dime custody case. After 25 years of success and its implementation
in all 50 states, it would seem that those that oppose the "clear and convincing" standard in shared parenting, where the risk of error is far less significant, have a tremendous burden in showing why it is not workable.


Rinaldo Del Gallo, III, Esq.


FOOTNOTE 1: For criticism of the best interest of the child standard, refer to the case of Troxel v. Granville.


Here are some quotes from Sandra Day O'Connor regarding the shortcomings of the best interest of the child standard. The statute allowed grandparents to get visitation if it was "in the best interest of the child." Here is what the court said:

"Section 26.10.160(3) [that allows for grandparent visitation if it is in the "best interest of the child], as applied to Granville and her family in this case, unconstitutionally infringes on that fundamental parental right. The Washington nonparental visitation statute is breathtakingly broad. According to the statute's text, "[a] ny person may petition the court for visitation rights at any time,"
and the court may grant such visitation rights whenever "visitation may serve the best interest of the child." §26.10.160(3) (emphases added).

That language effectively permits any third party seeking visitation to subject any decision by a parent concerning visitation of the parent's children to state-court review. Once the visitation petition has been filed in court and the matter is placed before a judge, a parent's decision that visitation would not be in the child's best interest is accorded no deference. Section 26.10.160(3) contains no requirement that a court accord the parent's decision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent's estimation of the child's best interests, the judge's view necessarily prevails.

Thus, in practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interests. The Washington Supreme Court had the opportunity to give §26.10.160(3) a narrower reading, but it declined to do so. See, e.g., 137 Wash. 2d, at 5, 969 P.2d, at
23 ("[The statute] allow[s] any person, at any time, to petition for visitation without regard to relationship to the child, without regard to changed circumstances, and without regard to harm"); id., at 20, 969 P.2d, at 30 ("[The statute] allow[s] `any person' to petition for forced visitation of a child at `any time' with the only requirement being that the visitation serve the best interest of the child")."

Justice Sandra Day O'Connor, the first women justice of the Supreme Court, said, "It is not within the province of the state to make significant decisions concerning the custody of children merely because it could make a `better' decision."

The general criticism of the best interest of the child standard is that it provides little guidance the judge was to what is in the best interest of the child, and that the right to parent is too easily defeated

Rinaldo Del Gallo, III
Attorney At Law
Spokesperson, Berkshire Fatherhood Coalition Pittsfield, MA 01201
PHONE: (413) 443-3150
FAX: (413) 499-0187
E-mail: RDelGalloIII@aol.com, R_Del_Gallo@hotmail.com 

Monday, February 20, 2006

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