Monday, March 26, 2012

Does Massachusetts Need Child Custody Reform?

Following the enactment of the new Alimony Reform Law, the Boston Globe has published an editorial calling for child custody reform. Just as the alimony reform has changed the law from pro-female to pro-male, advocates of child custody reform are seeking pro-male changes as well.

The current law for child custody is based on a standard referred to as “The best interests of the child.” This means that a judge will make all custody decisions by considering what is best for the child. A judge has great discretion in making a decision. A court can award primary custody to one parent or shared custody between both parents. Since the custody decision controls the payment of child support, some people fight over custody as a way to fight child support payments. The result is that people who pay child support frequently call for child custody reform.

As a lawyer, I always explain the way that the courts currently approach child custody as trying to preserve the status quo. In most marriages, one spouse is the major wage earner and the other spouse is the primary custodial parent. In our society, with heterosexual couples, the husband is frequently the wage earner and the wife is frequently the custodial parent. If it is good enough for the couple while married, it should be good enough for a Judge. Typically, the custodial decision made by the couple together is the same decision made by a Judge after a contested trial.

A common argument made by the wage earner is that they couple should have shared custody with each parent having the child half of the time. This was the great experiment of the 1980s. The courts generally stopped promoting this as the results were not good for children. Children need consistency in their lives. They seem to do best when they go to school from the same house every day. They do best with the same parent helping them with homework each day. While there are exceptions, most children seem to do best with the traditional custody/visitation schedule. If the parents focus on the best interests of the children, they should want a custody arrangement that is best for the children. If the parents focus on what is best for the wage earning parent, they will look to a different arrangement.

I don't deny that some custody decisions result in bad results for children, I think that overall, the current system works well. I don't think that Massachusetts needs to reform child custody. Perhaps a few tweaks to the system is all that is needed.

1 comment:

  1. I am curious as to how MA is going to handle custody cases now that the alimony has been reformed. These go hand in hand and I am frankly very surprised that MA reformed alimony wihtout considering the impact on custody. If one parent makes $900k a year and the other $60k then they clearly can not provide an equal standard for the children. Once alimony ends the children often still live at home especially in a short marriage. If the higher wage earning argues for full custody because they can provide a better home and better public schools, will the courts honor that especially if the lower income parent does not have the means to provide a home and instead is living in an apartment with a roommate. It seems to me that it will become competitive where one parent may outdo the other financially and thus win custody. Will the courts insist that the lower wage earning subsidize her lack of wages with assets that she received in the divorce so that the children can remain in their school district?
    This would force that person to basically live beyond their means in order to not lose shared custody. I am concerned that there will be many divorce women who do not have a penny left once the children leave the nest and then who steps in to care for them.... taxpayers.