One impressive Nov. 2 vote has been overlooked by the media. By 85 percent to 15 percent, a ballot initiative in Massachusetts approved equal legal and physical custody of children whose parents are divorced.
That ballot initiative is nonbinding, but it certainly is indicative of the will of the people and the growing recognition that children are best off under the care of both parents. The initiative came out of the grass roots following a massive signature-gathering effort during the summer.
The proposition appeared on the ballot as follows:
Shall the State Representative from this district be instructed to vote in favor of legislation requiring that in all separation and divorce proceedings involving minor children, the courts shall uphold the fundamental rights of both parents to the shared physical and legal custody of their children and the children's right to maximize their time with each parent, so far as is practical, unless one parent is found unfit or the parents agree otherwise, subject to the requirements of existing child support and abuse prevention laws?
This initiative was sponsored by a fathers' rights group whose members believe fathers are systematically discriminated against by family courts, which nearly always award physical custody to the mother even when the father has committed no fault. Family courts typically deny faultless fathers their equal parental rights even when state law appears to require equal custody.
California Family Law, for example, states (Sec. 3010(a)): "The mother ... and the father ... are equally entitled to the custody of the child." The only specific examples the statute gives for denying custody to a parent are child abuse, false accusations of child abuse, abuse of someone else with whom the person has a domestic relationship, substance abuse, and conviction of certain felonies.
Laws about custody rights vary from state to state, and only about a dozen states specify a legal presumption in favor of equal custody. Iowa's new law says that if a court denies a request for joint physical custody, the judge must explain why it's not in the best interest of the child.
Whether or not a state law mandates equal rights to both parents, family courts appear instead to rely on a concept called "the best interest of the child." Because that notion is wholly subjective, an indefinable rule with no standards or accountability, in practice it rests on the personal whim or bias of the family court.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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