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Children involved in divorce best served by shared parenting  
By Mark Charalambous, Telegram & Gazette, Fri. Dec 3, 2004

With the holiday season upon us, legions of noncustodial parents across the country are entering what is for them the most difficult time of the year.  The pain of separation from one’s own children can be particularly acute during that time of the year traditionally spent with families and loved ones. 

Our state legislators will soon have the opportunity to do something about this. Following an astounding 85 percent statewide approval of a non-binding ballot initiative on Nov. 2 favoring shared custody for children of divorce, the Statehouse will have the opportunity to pass meaningful shared parenting legislation this session.

With respect to child custody following a family breakup, everyone agrees on one thing: custody battles are bad for the children involved. Unfortunately, that is where the agreement ends.  Presently, custody of children is decided in a winner-take-all contest between the parents. This environment encourages parents—already suffering impaired judgment because they’re going through what is often the very worst time of their lives—to disparage the other parent and convince the court that the “best interests of the child” are served by eliminating or severely restricting their access to the child.

The courts have to stop playing God, employing all sorts of self-styled 'child experts' to determine the 'best interests of the child.'

The “best interest of the child” standard encourages this kind of behavior by the parents. The solution is to change our present mindset from this winner-take-all contest into one where parents are encouraged to cooperate with one another, and thus serve the true best interests of their children.

It makes no sense for two good, loving parents to be forced into a position of trying to show that they are better than the other parent. It produces the worst of all possible worlds for the children involved, as well for the parents themselves. This is a case where children know better than adults: The best parent is both parents.

Take the extreme example of a parent who most reasonable people would consider to be unfit--perhaps an alcoholic father or a mother that severely neglects the child: Even in those cases the child will typically beg, cry, and scream not to be taken from them. Blood is not just thicker than water—it’s richer than money and all the better things that money can buy for the child.

The bond between biological parents and their children is the strongest of all human bonds—even marriage—and it must now be treated this way by our family courts. The first step is to change the law by passing the new shared parenting bill supported by the Fatherhood Coalition.

The courts have to stop playing God, employing all sorts of self-styled “child experts” to determine the “best interests of the child.” Children are not served when the state rules that one of their parents doesn’t pass muster consistent with some “expert’s” notion of a good parent, or either is simply not as good as the other parent. 

The solution is for the law to recognize that unless a parent is proved to be seriously harmful to his/her child’s welfare, every child has an inalienable right to the love, care and companionship of both their parents, as do the parents to the child’s.

The law must reflect this by establishing a rebuttable presumption of shared custody. Besides establishing such a presumption, the shared parenting bill removes the present statutory  language that practically encourages each parent to demonize the other in order to show that only they are worthy of their child.  

For example, Ch. 208, section 31 presently reads in part: “When considering the happiness and welfare of the child, the court shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health.” This may sound good, but in practice it serves as an invitation for divorce lawyers to employ all sorts of costly behavioral professionals to provide “evidence” of the harmful effects of the other parent’s parenting, often relying on the flimsiest of anecdotal incidents that, under this present wording of the law, are sufficient to demonstrate harm to the “emotional health” of the child.

The bill replaces this wording with language that requires evidence of serious harm to a child before a parent’s custodial rights can be abridged. Establishing such a minimum standard for ending a parent’s custodial rights is the only way to stop the present practice of eliminating a parent form his/her child’s life for spurious reasons.

Shared parenting will also make re-litigation less likely.  Often, fathers who lose their children after divorce spend years fighting Herculean legal battles to restore their relationships with their children. The only beneficiaries of these protracted legal battles are lawyers and family specialists who derive income from the never-ending litigation. Ensuring an initial shared parenting judgment that respects the parental role of both mothers and fathers—and thus puts the true best interests of the children first—is the best guarantee that children will be spared these tragic battles that can consume the best years of their lives.

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Mark Charalambous of Leominster is spokesman for CPF/The Fatherhood Coalition