Changes in fathers' custody rights urged

Armed with voters' approval of nonbinding initiatives in more than 30 legislative districts, a group that wants to increase the parental custody rights of divorced fathers is urging lawmakers to change state laws to ''uphold the fundamental rights of both parents to the shared physical and legal custody of their children."

''As things stand now with sole custody given to one parent, the noncustodial parent finds himself the fifth wheel," said Dr. Ned Holstein, president of Fathers & Families, the advocacy group that pushed for the initiative. ''The short amount of time spent together are painful times, not happy times, because it reminds the child and the parent of what they don't have anymore, an intimate relationship."

Under current state law, the judge in a divorce case determines custody in the best interest of the child with the presumption of shared legal custody. Generally, that means the child lives with one parent, and both parents share in decision making. Advocates want to change the law to encourage joint custody, shared by both parents, as the standard in divorce law. Holstein said the change is needed ''because the parent is removed from the child's life and doesn't know what is going on between the child and their friends, teachers, baseball team, and things that really matter."

Legislators in districts where the proposal passed said they would press for change. If enacted, Massachusetts would become the 12th state to have legal support for joint custody. Twelve other states give preference to shared custody when both parties agree.

''I'll take this, but I want to be practical and come up with a law that can work and most importantly work in the best interest of the child," said Representative Robert A. DeLeo of Winthrop.

DeLeo, who once worked in probate court and has handled family law cases over the years, said that splitting time between two homes can be disruptive, because a child's life is focused on school, friends, and activities in their community. ''It's best for each child to have as much time with both parents as possible, but I don't see how you can cut a child in two," he said. ''You have to have some continuity."

The Massachusetts Bar Association opposed the change to shared physical custody when it came before the Legislature because it took discretion away from the courts and placed the best interest of the child second, according to Denise Squillante, former chairwoman of the family law division of the Massachusetts Bar Association.

''To create an automatic presumption takes away too much discretion from the court," said Squillante, who has been practicing family law for 21 years. ''No two cases are the same. They all call on different facts."

Squillante said that in cases where judges determine that both parents are fit, the courts should be allowed to maintain the current pattern in the household to avoid disruption in children's lives.

''This [proposed] law is not the answer in my experience, because there are very few situations where parents are able to work out a shared physical arrangement," she said. ''Kids don't like to be bounced back and forth and living out of a suitcase."

Holstein said, however, that shared physical custody will help quell many problems faced by youth. He cited poor grades, substance abuse, gang violence, and pregnancy, and said they are rampant among children in single parent homes.

''This is a cost-free method to address the problems of youth by finding ways to give them back their fathers instead of giving them programs," he said.