Sen. Brownsberger on Shared Parenting: Op-Ed

By Sen. Will Brownsberger, D-Belmont, whose district includes Belmont, Boston, and Watertown:

One of the issues that the legislature was unable to agree on in the session that ended last weekend was “shared parenting.”

Everyone supports “shared parenting” in concept — kids benefit from having two parents who can collaborate. And it is much more common now for fathers to take a very active role in day-to-day child care.

The controversial issue is whether divorce law should be changed to mandate shared parenting in post-divorce parenting plans. In the waning days of the session, the House passed a bill taking a thoughtful step in that direction.

Current law makes the best interest of the child paramount and gives no specific guidance in defining parenting plans — agreements about where the child should live, go to school, etc. If parents cannot agree, a judge can issue whatever order seems to best protect the child, ordering any form of sharing or sole custody.

The key sentence in current law is as follows: "In making an order or judgment relative to the custody of children, the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody."

The house-passed “shared parenting” legislation creates a new lead sentence that emphasizes the role of both parents: "The general court finds that every child in the commonwealth has the right to a safe, healthy and meaningful relationship with both parents, subject to the court’s determination of each child’s best interest, and encourages shared parental responsibilities."

Other language in the bill states that an allocation of residential responsibility may not be called “shared” unless it gives at least one third time to each parent. This definition creates a tilt towards these heavily shared arrangements. The bill subtly prioritizes shared parenting time in a number of other ways.

Whatever the legislature writes into statute will be attended to carefully by the judges who resolve thousands of contested divorce cases each year. Subtle language differences will have a huge impact.

The roughly 10% of cases that reach judges are the ones in which the parents could not reach an agreement on their own. So, the judge must balance the harm done by exposing the children to ongoing conflict and the complexities involved in multiple residences against the very real benefits of spending a balanced amount of time with each parent.

I have listened to many parents wounded by loss of contact with their children and I have also listened to the views of many practitioners in the family courts. I was not comfortable with the House’s draft, because I felt that it might create too strong a push toward complex sharing arrangements in high conflict situations where they may not be workable.

If any changes are to be made in the statute, the changes should more explicitly acknowledge the need of children for a stable, safe and low-conflict living arrangement. The best interest of the child should always be the first consideration.

There is no consensus that the process as it works now is unfair to men or to women or that judges fail to appreciate the value of both parents. Nor is there consensus about what legislative changes could help in other ways — to streamline the process and reduce backlogs, to make it easier for people who can’t afford lawyers to navigate on their own, to create incentive for parents to be civil to each other.

There are enough people who are understandably unhappy with the outcome of their divorce case that the conversation about reform will inevitably continue and as one legislator, I will remain open to that conversation over the years to come.

I welcome online comments at willbrownsberger.com and also welcome calls at 617-722-1280 and correspondence by email atWilliam.brownsberger@masenate.gov.

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>> Photo via Sen. Brownsberger Facebook page