http://www.nhcustody.org/Ron%20henry%201995%20testimony.pdf
JOINT CUSTODY OF CHILDREN ACT
OF 1995
DISTRICT OF COLUMBIA
MAY 10, 1995 HEARING
TESTIMONY OF RONALD K. HENRY
Good afternoon, Mr. Chairman,
it's good to see you again and I again
marvel at your patience and
diligence.
This is an important set of
issues and you've had a very long
day. I thank you for doing this.
Mr. Chairman, I had initially
hoped to be one of the first to testify
on this subject, because I was going
to warn you about some of the
things you would be hearing from the
opponents; some of which are
stereotypes and distortions, some
which I view as outright falsehoods.
Instead, I'm actually glad that I
have come to testify late in
the day because now I don't have to
just warn you about them, now
I can point out some of them to you.
Mr. Chairman, I came today to
talk entirely about the best interests
of children because that is
what we are here for and that is what
this bill attempts to foster
and encourage. Mr. Chairman, children
are born with two parents. Children
want, love and need two parents.
Children are in the joint custody
of both parents during the marriage.
During the marriage, we know
that the status of the child is to
have a pure and unrestricted
joint custody with unlimited access
to both parents. The question
for us, Mr. Chairman, is what should
the law do when that marriage
breaks apart? Who should have the
burden of proof? The one who
wants to continue the involvement
of both parents
or the one who wants to claim
sole ownership of the child? Where
should the burden of proof lie
when there's going to be a change
from the existing unrestricted
access to both parents?
Mr. Chairman, when you think
about a custody order, bear in mind
that it's a very simple legal
concept. A custody order is just an
injunction. We take people who
previously had unrestricted freedom,
people who previously had unrestricted
access to their children, and now
we enjoin them from exercising part
of that prior right. Well,
Mr. Chairman, we're both lawyers.
In fact, I think that most of the
folks at the front of the room
right now are lawyers, and we know
the rule for dealing with injunctions
in every other area of the law.
That is, you impose the minimum restriction
on the parties' prior freedom.
You put only the smallest imposition,
the smallest restriction on
them necessary to resolve the dispute
at hand. You don't go to a disruptive
extreme.
If, as we all know, those children
were in joint custody during the marriage,
my submission to you, Mr. Chairman,
is that we ought to work very
hard to preserve for the children,
for their best interest, as
much of that preexisting joint custody,
as much of that access to both
parents as we can. Mr. Chairman, when
a divorce comes, does a child
have less need or more need for the
involvement of both parents?
I submit to you, Mr. Chairman, the
child's need for both parents
is actually greater because of the
insecurity created by the divorce
itself. If we care about children's
best interests,
we need to send a message through
our law that encourages the continued
involvement of both parents, that
encourages continued shared
parenting, and that imposes only the
minimum necessary restrictions
just as we would do with any other
kind of injunction.
Mr. Chairman, think about what
a custody battle is. Two parents go
into court and stand before
a judge, each of them begging to spend
more time with the child. What
message do we want to send to people
in this community? Have you
heard one witness come forward today
and say that the District of
Columbia's citizens are suffering
from an excess of parenting
or an excess of fathering or that
children spend
too much time with either of
their parents? Of course not. We know
that just the opposite is true.
We know that children are suffering
from the absence of their parents.
We know that our children are suffering
from insufficient parenting.
What is the message that we should
be sending through our courts?
I submit to you, Mr. Chairman, that
if we care about the best interests
of children, the message we should
send is that we want to encourage
the maximum continued involvement
of both parents.
Continue for them the joint
custody that existed during the marriage,
take away from those children as little
as you absolutely must, presume
a continuation of two parents.
We have a saying in our community,
"It takes a whole village to
raise a child." By what
theory of the child's best interests
should a court come in and issue
an order restricting one parent to
mere visitor status? When you
have fit and loving parents, when
you have two parents in a society
that cares about children coming in
front of the court and
saying, "please give me more
time with my child," shouldn't
we throw up our hands and say, hallelujah!,
here is a
child who is loved, here is
a child who has two parents who want
to be involved, let us see what
we can do to maximize the contributions
of both?
Instead we have a very perverse
system, Mr. Chairman, under which
the judge says, "No, no,
I'm sorry, my job is to pick a winner
and pick a loser here."
Well, Mr. Chairman, when you pick
a winner and pick a loser in
a custody fight, all you've done is
guarantee that the child is
the loser, because that child walked
into court with two parents
and walks out with only one. The winner-loser
mentality that has driven child
custody in the District of Columbia
is antithetical to the best
interests of the child. The proposed
legislation is designed to preserve
for children what we know they need.
It doesn't matter what social pathology
you look at, teenage pregnancies,
drug abuse, suicide, low self-esteem,
school dropout . . . You can
go through the litany of pathology
that the government has to spend
money to try to cure. Every single
one of them is linked to familybreakdown
and parental absence. We don't have
an excess of parenting. We have a
shortage of parenting.
Let's put into place a law which
says it is the policy of the District
of Columbia to encourage the maximum
involvement of both parents,
to preserve for each child the joint
custody in which that child
was born and which continues by nature
and by the law until a foolish
judge intervenes and takes it away.
We don't need to take it away.
We need to have a law that says you
both are still Mom and Dad.
Look at the situations that
are in the newspapers right now, such
as the Prost v. Green litigation.
I've talked with people on both sides
of that case. You know what
they both tell me, they both tell
me they're scared. They're scared
that they might lose custody, that
they might be reduced to visitor
status. So rather than run that risk,
they each go in and fight like crazy.
You've seen some of that in
the newspapers. Each of them has said
they would be willing to accept
joint custody, but both remain fearful
that if they go into court and
acknowledge a willingness to accept
joint custody, they will be
deemed to have already given away
half the loaf while they still
run the risk of losing everything.
These people run the risk of
being reduced to a mere visitor to
their own child, so they feel that
they have to fight to be the one who
emerges as the winner out of
a desperate fear that otherwise they'll
end up being the one who's the
loser.
Mr. Chairman, the purpose of
this bill is to get past winners and
losers. To say to both litigants,
"Relax, at the end of this you're
both still going to be Mom and
Dad. You're both going to have substantial
relationships with your children."
Now, Mr. Chairman, I really
need to talk about some of the distortions
and stereotypes and outright
falsifications that occurred in the
testimony of the small group
of opponents you heard from earlier
today.
Let's start with the claims
that are made about cases where conflict
exists between the parents.
Mr. Chairman, you keep hearing the
notion of, "oh, well, if
the parents are in conflict, oh, tsk,
tsk, we can't possibly have
joint custody." Of course conflict
is bad for children. Conflict
during a marriage is bad for children,
conflict in sole custody is
bad for children, conflict anywhere
is bad for children. But none
of the people who argued about conflict
ever asked you to directly compare
the logic of the choices that are
actually in front of you. We're
not comparing joint custody against
Ozzie and Harriet, we're comparing
joint custody against sole custody,
Mr. Chairman.
Think for a moment which is
more likely to engender hostility,
which is more likely to create
conflict -- a situation in which both
parents are told, "Relax,
you're not going to lose your role
as a parent," or a situation
in which the court says, "I'm
going to pick a winner and pick
a loser. Choose your weapons and come
out fighting, the last one left
standing is the winner." Sole
custody determinations, Mr.
Chairman, are the source of the conflict.
This legislation is designed
to reduce that conflict, reduce fear
and work for the best interests
of the children. Ask the opponents
of joint custody which is more
likely to create conflict -- a winner/loser
dichotomy or sharing. That's an easy
choice.
A related claim was that joint
custody forces unwilling parents to
interact with each other. Again,
they are comparing joint custody against
Ozzie and Harriet, they are not comparing
it against sole custody. The
parents also have to interact with
each other in a sole custody
situation. In sole custody, however,
they interact from a basis of
hostility. They interact from a basis
of power and powerlessness.
They interact from a basis in which
one parent has been declared
to be the loser and that parent is
ever fearful of losing still
more, of losing every last shred of
contact and is ever struggling
to try to get back into the child's
life and restore what was taken
away by a piece of paper, a judicial
decree. Shared parenting, Mr.
Chairman, gets away from all those
conflicts. Shared parenting
says you're both still Mom and Dad.
Neither of you has lost your
child. Neither of you is the owner
of the child with power to exclude
the other. Mr. Chairman, there is
no doubt that the shared parenting
approach is more healthy for children.
Let me turn now to the "veto"
power that's been proposed by some
of the opponents of shared parenting.
Can you think of any other area of
law where the statute grants permission
for one of the litigants to
come in and veto a proposed remedy
that was in the best interests of
the parties and otherwise permitted
by the law? Can you imagine, in
any other setting, the audacity of
this demand, the hubris of daring
to come forward and say that the most
hostile parent ought to have
the power to veto the other parent's
involvement, ought to have the
power to veto the child's best interest
in shared parenting? What theory
of best interest could ever suggest
that one parent can veto the
child's best interest and reject shared
parenting?
Mr. Chairman, the opponents
of this legislation acknowledge that
42 states have shared parenting
in their statutes and the rest have
it in case law. They didn't
cite to you a single one that allows
this veto that they are urging
you to adopt. They talked about California.
Mr. Chairman, that's one of their
greatest falsehoods.
California didn't retreat from
shared parenting. California is in
the forefront of shared parenting;
75 to 80 percent of all custody decrees
in California include joint parenting
and it's even higher in some
other states. In Minnesota, for example,
it's in excess of 90 percent.
Shared parenting is here; the revolution
has arrived and it's time for
D.C. to catch up.
California's status is particularly
interesting because of the way that
it was distorted in the earlier testimony.
California was under siege a
few years ago. Several groups that
didn't like joint custody went
to the California legislature with
an agenda of approximately 30
separate amendments trying to gut
the joint custody provisions in California's
law. They utterly failed. What California
did instead, was that it passed
a very simple clarification of its
statute which said that shared
parenting was equally available as
an alternative to sole custody.
California has one of the clearest
laws repudiating the notion
that sole custody is preferred and
that shared parenting is, somehow,
an ugly stepchild.
California went two steps further,
Mr. Chairman, that none of the opponents
of shared parenting ever want to talk
about and you'll be able to
find this very easily. It's both cited
in my prepared testimony and
is easily found in California statutes.
They do two things. They say
right up front that it is the policy
of the State of California to
encourage frequent and continuing
contact of the child with both
parents. Then they go further; they
say we like shared parenting,
but we know sometimes we may not be
able to have equal time with
both parents; perhaps distance doesn't
allow it. In those cases where
we have to give the majority of the
residential time to one parent,
we are going to give a preference
to that parent who shows the
greater willingness and ability to
cooperate in keeping the other
parent involved. Mr. Chairman, it
is on this point that the real
fraud of some of the opponents becomes
apparent.
You heard opponents earlier
today saying that they didn't like
the cooperative parent provisions
of this proposed statute. Can you
imagine that? How dare they
demand that we ought not to encourage
cooperation, that we ought not
to encourage demilitarization of divorce.
You've heard all day long of the horrors
of divorce for children. Of
course, we should encourage cooperation.
Of course, we should teach both
of the parents to get along with one
another and to work for the
child's best interest. Our current
sole custody situation doesn't
do that. It says only one parent is
going to be left standing at
the end of the day. We need to get
to the other side, Mr. Chairman,
we need to recognize what these kids
are born with, want, love and
need: two parents.
Another set of issues the opponents
raised is about control. They say
that parents asking for shared parenting
are just trying to control the
other parent. Well, think about the
fraud, the illogic of that for
a moment. If you are asking a question
about who's trying to control
whom and one parent comes to you and
says, "Mr. Judge, I would
like to have shared parenting, so
my child can have two parents"
and the other parent says, "I
want sole custody, I want to
own this child," who's trying
to exercise power? Who's trying to
exercise control? Who is it
that wants to be the one who's dominant
and who is the one that has
the interest of the child at heart?
Turning to the question of abuse,
Mr. Chairman, I won't trouble you
with the statistics, but, in
Exhibit E of my testimony, you'll
find the frequency of child
abuse, jurisdiction by jurisdiction.
You'll find it quite contrary
to the stereotypes and myths that
have been set forth in earlier
testimony. Anywhere from two-thirds
to three- quarters of all child
abuse is committed by mothers, not
by fathers.
Are the opponents of this bill
saying that as many mothers should
be disqualified from custody
or do they want to be selective again
and say that it is only fathers
who should be disqualified? Let's
be honest, let's be logical,
let's look at this consistently.
The opposition to the Parenting
Plan, Mr. Chairman, is the one that
I find to be the most despicable
among the arguments by the opponents
of this legislation. I think there
ought to be no room at all in
this city for racist, classist, elitist
arguments that the city's residents
are too stupid to fill out a form
that indicates their desires
for the upbringing of their own children.
There is nothing difficult about
letting parents indicate for themselves
how they would care for their
children and providing that information
to judges. There is nothing
that requires this all to be done
magically by lawyers or in a
black box by a judge.
We should be encouraging our
parents to come forward and look at
the issues, look at the burdens
of raising a child and fill out that
form. When they sit down and
look at that form and they realize
how big a job it is to properly
care for a child, they step back and
think, "You know, this
is a job that's kind of hard to take
on all by myself. It's to my
advantage, as well as to the child's
advantage, to share this burden,
because two parents can do a better
job." Mr. Chairman, child
custody law should apply one of the
very simple propositions in
mathematics; two is more than one.
Two parents can do more than
one. A single parent may do all that
he or she can, but there's no
doubt that the active involvement
of a second parent adds a lot
and makes it better for the child.
Mr. Chairman, you also heard
noise about child support and how
terribly that was going be impacted
if we had shared parenting. One of
the things that I handed to you, Mr.
Chairman, is a summary of a study
by Professor Sanford Braver, which
is to my knowledge the only controlled
study in the nation of what happens
to child support when
you have shared
parenting. You'll see, on the back
side of that summary, a highlight
of Professor Braver's findings. He
said, "We found that the
groups differed significantly in terms
of how much financial support
was paid. When sole custody was the
arrangement, despite the father's
wishes, only 80 percent was paid;
when joint custody was awarded,
despite opposition by one of the parents,
child support zoomed to almost
perfect compliance, 97 percent compliance."
Mr. Chairman, if you care about
child support, if you care about reducing
welfare dependency, joint custody
does it. Don't allow people
to come to you and make policy by
anecdote. Look at the research,
and look at what you know is a matter
of simple logic. An involved
parent is more likely to provide financial
support along with emotional
and physical support.
Finally, Mr. Chairman, I'm going
to close with the issue of gender
bias, because you raised a little
while ago the point that this debate
has gotten somewhat fragmented along
gender lines. Well, I submit
to you, that's not quite right. What
you find is that the people
in favor of shared parenting include
both men and women, mothers,
fathers, children, advocates, a broad
range of people. Where you find
a very limited opposition, where you
find a very limited perspective
is in the people who are opposed to
shared parenting. They do come
at it from a single perspective, from
the winner-take-all mentality
that says that one parent should own
that child, that one parent
should have power over that child.
When you look at the testimony
from today, think about who has the
interests of children at heart.
Who is it that wants the children
to have the benefit of two parents
and who is it that wants to use the
children as a lever of power
in the battle of the sexes? I would
also ask you, Mr. Chairman,
to look at the exhibits to my testimony
because this is not a gender
issue, this is an issue for some people
who want to have power. Look,
for example, at Exhibit A to my testimony
where you will find Karen DeCrow,
the former president of the
National Organization for Women and
look at what she says:
"If there is a divorce
in the family, I urge a presumption
of joint custody of the children.
Shared parenting is not only fair
to men and children, it is the
best option for women. After observing
women's rights and responsibilities
for more than a quarter of a century
of feminist activism, I conclude
that shared parenting is great for
women, giving time and opportunity
for female parents to pursue education,
training, jobs, careers, profession
and leisure. There is nothing
scientific, logical or rational in
excluding men or forever holding
women and children as if in swaddling
clothes in an eternally loving
bondage. Most of us have acknowledged
that women can do everything
that men can do. It is time now for
us to acknowledge that men can
do everything women can do."
Men can be parents, Mr. Chairman.
Look also at Exhibit B, where Supreme
Court Justice Ginsburg states her
view and her goal for the future,
her desire to see men taking a greater
role in child care and child
custody. Look at Exhibit C from the
National Center for Women, an
organization of more than 100,000
members and its endorsement
of this legislation. Mr. Chairman,
this is not a gender issue,
but there is a special interest group,
there is a limited opposition,
there are people who want to have
control over children.
I respectfully suggest that
you reject their arguments for control
and, if you care about the best
interests of children, give them two
parents; let them keep the two
parents that they had during the marriage.
Don't allow sole custody to take that
away from them.
Thank you.
Chairman Lightfoot: Thank you,
Mr. Henry, that was quite an excellent
statement. I think you have covered
all the bases.
Let me ask you a question about
the presumption and whether we should
have a presumption of shared custody.
As you say, the presumption
in the proposed legislation we are
talking about just states that
the pre-existing joint custody will
continue in the event that neither
parent comes forward with a reason
for sole custody. I think that
does apply in the situation of a divorce
where there is a marriage that
is dissolved. There, you are talking
about a presumption of continuing
the pre-existing relationship to the
child. But where we have a situation
where there is a child out-of- wedlock,
where there is no marital relationship,
I find that the rationale does
not seem to apply for the presumption
because you are no longer continuing
a pre-existing relationship. I would
like it, if you can, for you
to elaborate for me why we should
apply the presumption of shared
custody to a situation where the parents
are living out-of-wedlock and
really where they are not living together
in a shared relationship.
Ronald Henry: Let me begin by
thanking you because it is important
to recognize and get the law
to recognize that shared parenting
is what pre-exists during the
marital relationship. We ought to
back away from that only with
the greatest reluctance and it is
very important that we get this
concept recognized in the law very
clearly and unambiguously. Now
let me talk to you about the non-
marital situation because frankly,
in my view, there is no difference
in terms of the outcome or the proper
legal status. Bear in mind that
each child is born with two parents.
That child is born with two
legal parents. We have child support
proceedings regardless of marital
status. There is no distinction made
between the legal obligations
imposed upon a marital father and
a nonmarital father.
In fact, if you look at the
Supreme Court cases, Clark v. Jeter,
for example, about seven years
ago, the Supreme Court established
in a unanimous ruling that it
was unconstitutional to treat a non-marital
child in a way that was inferior
to a marital child. What the court
said there dealt with a statute
that had a shorter statute of limitations
for commencing a child support action
for non-marital children than
the statute of limitations for marital
children. I think the state
allowed something like nine years
for marital children and only
three years for nonmarital children.
The Supreme Court said, "Time
out. You can't do that. You can't
discriminate against nonmarital
children. They have got every bit
as much right to the involvement,
the resources, the wherewithal of
the father. They have got every
bit as much right to those two parents
that they were born with as
a marital child."
So, Mr. Chairman, I would submit
to you that as a constitutional matter,
we would be very hard pressed to discriminate
against the non-marital child.
I would go further and put it into
pragmatic terms. Most of the
children who are born into a non-marital
situation are not the result
of casual one-night stands. These
are parents who have known one
another a long time. They have got
a relationship. They are frequently
and, perhaps in the majority of the
cases, actually living together. They
are involved, both of them,
with respect to the child. Why in
the world would we have a law
that presumes that one of the parents
is uninvolved? I think that
just the opposite should be presumed.
We should, as a matter of the
law serving as a moral force, as a
matter of the law encouraging
the best in all of our citizens, start
with the presumption that we
do want, we do expect, that we do
believe both parents are going
to be involved. Surely, that won't
be the case in all situations
but isn't that where we want to start
out? Don't we want to believe,
don't we want to encourage that dual
parent involvement, and don't
we again get back to the problem of
there being no excess of parenting
in this town? We should encourage
more parenting.
Chairman Lightfoot: Very good.
I have nothing further to cover just
now. Thank you. We will talk
again before this bill moves forward.
I
would ask you one favor in respect
to the study that you have given to
us, regarding the impact of joint
custody child support. This is the
only study you are aware of, I gather?
Ronald Henry: That is the only
empirical study I am aware of which
has put side by side sole custody
settings and joint custody settings
where the joint custody was imposed
over the objection of one of
the parties. Remember the objection
you have heard from opponents
is that while they admit joint custody
works where it is agreed to,
they argue that it can't work where
it is imposed. This is the only
study that has put side by side forced
sole custody versus forced joint
custody.
Chairman Lightfoot: I would
appreciate it if you could tell us
where it was published.
Ronald Henry: I will be happy
to get the full survey and report
for the Committee.
Chairman Lightfoot: Is it a
volume or book of some type?
Ronald Henry: I can tell you
briefly. Professor Sanford Braver
has been working in this area
for a good many years, principally
under grants from the National
Institutes for Health. He has found,
for example, in the area of
child support that there are three
principal predictors of child
support compliance: the fairness of
the original order; the obligor's
frequent access to the child; and
the obligor's work stability.
A lot of this gets lost in our stereotypes,
in the name-calling that goes
back and forth. The research does
exist to show us and give us
some guidance on these policy issues
and I will be happy to get Professor's
Braver's study to you.
Chairman Lightfoot: I would
appreciate it. Thank you.
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