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.