To Mass. Shared
Parenting Sub-committee:
RE: Best interest of the child standard
I was hoping to clarify a point I
made at the meeting of Wednesday,
February 15th. The Berkshire Fatherhood
Coalition does not oppose the best
interest of the child standard in
shared parenting legislation. (Nor
to my knowledge, does Father's and
Family or the Children's Rights Council.)
While the best interest of the child
standard has been criticized as being
standardless,1 all we are asking for
is a presumption that shared physical
custody is in the best interest of
the child, which may be rebutted by
evidence that it is not.
As I stated in our meeting, Massachusetts
law has already stated such presumptions
in other areas related to child custody.
Chapter 209A:
Section 3 (d) (
http://www.mass.gov/legis/laws/mgl/209a-3.htm)
states that "provided, however,
that in any case brought in the probate
and family court a finding by such
court by a preponderance of the evidence
that a pattern or serious incident
of abuse, as defined in section 31A
of chapter 208, toward a parent or
child has occurred shall create a
rebuttable presumption that it is
not in the best interests of the child
to be placed in sole custody, shared
legal custody or shared physical custody
with the abusive parent."
There is also a requirement that the
court make written requirements of
fact if there is a departure for the
general presumption that custody should
not go to abusive parents. "If
the court finds that a pattern or
serious incident of abuse has occurred
and issues a temporary or permanent
custody order, the court shall within
90 days enter written findings of
fact as to the effects of the abuse
on the child, which findings demonstrate
that such order is in the furtherance
of the child's best interests and
provides for the safety and well-being
of the child."
To date nobody has stated that the
need to write findings of fact, or
the presumption, has proven unworkable
under the 209A statute.
Moreover, given the nature of the
right, asking a judge to justify severing
or greatly reducing the parent/child
relationship hardly is something that
can withstand serious debate. If a
child is going to be taken from one
parent to be given to the sole custody
of the other, the argument that stating
why in writing is an excessive administrative
inconvenience borders on obscenity.
Too much is riding on the judges opinion,
the risk of error is great, and appellate
courts need something for which to
adjudge the lower court's conduct.
The general criticism of the courts
is that they do not recognize is that
is in the best interest of the child
to have joint physical custody.
See
http://www.apa.org/releases/custody2.html
Also see
http://www.apa.org/monitor/jun02/custody.html
(The shared parenting
sub-committee was given a full copy
of this study.)
RE: Clear and convincing evidence.
On a final note, as I have given you
excerpts, the clear and convincing
standard has been established as a
constitutional right in parental termination
cases. Santosky v. Kramer.
http://supct.law.cornell.edu/supct-cgi/get-us-cite?455+745
Santowsky sued the
New York Department of Social Services
(headed by Kramer), stating that the
preponderance of the evidence standard
was unconstitutional, because it unconstitutionally
burdened the right to be a parent.
Santowsky won. Now these are parental
termination cases where the child
could potentially be exposed to grave
danger.
Basically, these parents were considered
to be so dangerous, the state wanted
to strip them of all parenting rights.
As predicted, New York argued that
the "clear and convincing"
standard would endanger children,
not unlike those that opposed or shared
parenting bills. To this Justice Blackmun
stated, "Nor would an elevated
standard of proof create any real
administrative burdens for the State's
factfinders." Nothing has happened
in the 25 years since this case was
decided to indicate the "clear
and convincing"
evidence standard has proven unworkable,
or imposed harm on children.
This in an area where leaving a child
with a parent is much more likely
to lead to serious problems. Yet while
there is 25 years of successful use
of the "clear and convincing"
standard in the context of exposing
a child to a potentially dangerous
parent, our opponents suggest that
the "clear and convincing"
standard is "unworkable,"
and that "children would be in
danger," and that the "administrative
inconvenience is too high," even
though we are talking about two reasonably
fit parents—nothing in the area of
parental termination case.
The argument simply begs too much.
If the "clear and convincing"
evidence standard does not endanger
children in the context of adjudging
potentially dangerous parents in parental
termination cases, a fortiori it will
not imperil children in your nickel-and-
dime custody case. After 25 years
of success and its implementation
in all 50 states, it would seem that
those that oppose the "clear
and convincing" standard in shared
parenting, where the risk of error
is far less significant, have a tremendous
burden in showing why it is not workable.
Sincerely,
Rinaldo Del Gallo, III, Esq.
*****
FOOTNOTE 1: For criticism of the best
interest of the child standard, refer
to the case of Troxel v. Granville.
http://supct.law.cornell.edu/supct/html/99-138.ZS.html
Here are some quotes
from Sandra Day O'Connor regarding
the shortcomings of the best interest
of the child standard. The statute
allowed grandparents to get visitation
if it was "in the best interest
of the child." Here is what the
court said:
"Section 26.10.160(3) [that allows
for grandparent visitation if it is
in the "best interest of the
child], as applied to Granville and
her family in this case, unconstitutionally
infringes on that fundamental parental
right. The Washington nonparental
visitation statute is breathtakingly
broad. According to the statute's
text, "[a] ny person may petition
the court for visitation rights at
any time,"
and the court may grant such visitation
rights whenever "visitation may
serve the best interest of the child."
§26.10.160(3) (emphases added).
That language effectively permits
any third party seeking visitation
to subject any decision by a parent
concerning visitation of the parent's
children to state-court review. Once
the visitation petition has been filed
in court and the matter is placed
before a judge, a parent's decision
that visitation would not be in the
child's best interest is accorded
no deference. Section 26.10.160(3)
contains no requirement that a court
accord the parent's decision any presumption
of validity or any weight whatsoever.
Instead, the Washington statute places
the best-interest determination solely
in the hands of the judge. Should
the judge disagree with the parent's
estimation of the child's best interests,
the judge's view necessarily prevails.
Thus, in practical effect, in the
State of Washington a court can disregard
and overturn any decision by a fit
custodial parent concerning visitation
whenever a third party affected by
the decision files a visitation petition,
based solely on the judge's determination
of the child's best interests. The
Washington Supreme Court had the opportunity
to give §26.10.160(3) a narrower reading,
but it declined to do so. See, e.g.,
137 Wash. 2d, at 5, 969 P.2d, at
23 ("[The statute] allow[s] any
person, at any time, to petition for
visitation without regard to relationship
to the child, without regard to changed
circumstances, and without regard
to harm"); id., at 20, 969 P.2d,
at 30 ("[The statute] allow[s]
`any person' to petition for forced
visitation of a child at `any time'
with the only requirement being that
the visitation serve the best interest
of the child")."
Justice Sandra Day O'Connor, the first
women justice of the Supreme Court,
said, "It is not within the province
of the state to make significant decisions
concerning the custody of children
merely because it could make a `better'
decision."
The general criticism of the best
interest of the child standard is
that it provides little guidance the
judge was to what is in the best interest
of the child, and that the right to
parent is too easily defeated
Rinaldo Del Gallo, III
Attorney At Law
Spokesperson, Berkshire Fatherhood
Coalition Pittsfield, MA 01201
PHONE: (413) 443-3150
FAX: (413) 499-0187
E-mail: RDelGalloIII@aol.com, R_Del_Gallo@hotmail.com
Monday, February 20, 2006
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