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Globe Editorial

Child-custody cases demand discretion, not new laws

June 13, 2010

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NO ONE can argue against the goal of giving fathers a large presence in their children’s lives. The question is how to ensure that, when unmarried or divorcing parents cannot agree on child-custody arrangements, men get a fair hearing in family court. Fathers’ rights advocates in Massachusetts argue that custody orders generally favor mothers and are pinning their hopes on House Bill 1400, which promotes the concept of “shared parenting.’’ But the bill, now before the Joint Committee on the Judiciary, is too broad an approach to a challenging issue that demands nuanced, case-by-case decisions based on the best interests of the child.

House Bill 1400 would create a legal presumption for joint custody in situations where there is no evidence of child abuse or neglect. Judges would still have the right to award sole custody to one parent, but would have to provide written justification for their decisions. Massachusetts law currently has no legal presumption in favor of either parent, or even to the primary caregiver.

The “shared parenting’’ bill would only affect a small portion of broken families: those in which parents are unable to reach a settlement on their own. Those cases, marked by acrimony and poor communication, seem the ones that would benefit most from a judge’s insight — not to mention a judge’s ability to tailor arrangements to children’s age, location, and particular needs. Even in the best of circumstances, equality is hard to define within the context of school days, weekends, and summers. And if parents can’t set aside their conflicts to determine the long-term best interest of their children, an “equal’’ custody arrangement, in which the children are frequently shuttled between enemy camps, could expose them to even more rancor.

That said, the courts should be monitored closely to ensure that fathers get fair treatment, and that, as much as possible, both parents get ample time with their children. And it’s worth considering other measures that could encourage cooperation, so that judges wouldn’t need to get involved. One small but promising step is Senate Bill 1662, which would eliminate some of the incendiary language now used in domestic relations cases — for instance, changing “visitation’’ to “parenting time’’ and replacing “custody,’’ which connotes ownership, with “residential responsibility.’’ Passage of that bill wouldn’t fully satisfy shared-parenting advocates. But any measure that helps parents find common ground is surely in their children’s best interest.