We’d like to let you know about some legislation that’s making its way through the Massachusetts legislature with potentially harmful repercussions for children whose parents have experienced domestic violence.
Currently, the legal standard for custody arrangements being decided in probate court is what’s in the best interest of the child. Makes sense, right? However, there is a movement afoot to change that standard, so that it would focus more on the rights of parents, rather than the happiness and wellbeing of the child. Ironically enough, the proposed legislation is entitled, “An Act Relative to Child-Centered Family Law.”
The bills propose to drastically alter current custody laws, which give the courts leeway to structure custody arrangements that take into account the individual circumstances of the family involved. The new laws would establish a one-size-fits-all approach that strongly encourages shared joint custody, to the point of making any other arrangement difficult. They also assume that ongoing contact, communication, and cooperation between parents are best for the child and penalize parents who won’t make joint decisions. It sounds great in theory to require parents to cooperate in decisions that affect their child, and in a perfect world this might be a good thing. But in cases of domestic violence, requiring a survivor to have ongoing “cooperation” and contact with an abuser is not in the best interest of the child. Some groups are worried that language in the bill would strongly discourage survivors from raising legitimate concerns about safety concerns or parenting styles for fear of being perceived as negative or uncooperative, and their custody arrangement being altered as a result.
The League of Women Voters of Massachusetts points out that the bills incorporate concepts of “parental alienation” despite the lack of scientific consensus around that theory. (See Hoult, Jennifer. “The Evidentiary Admissibility of Parental Alienation Syndrome: Science, Law, and Policy.” Children’s Legal Rights Journal 26.1 )
The LWV argues, “The bills would have a chilling effect on victims of domestic violence who would be forced into ongoing contact with an abusive partner/parent and discouraged from disclosing justifiable concerns for fear of being accused of ‘alienating’ behavior. A 2013 study of the Massachusetts Family Courts found that 74%-87% of child custody and child support cases involved domestic violence. Yet, in only a small minority of the cases was domestic violence considered in making custody decisions. Unless and until the Family Courts can address this situation, no changes which would serve to weaken protections for victims of domestic violence and their children like those in the proposed bills should be considered.”
These bills would do just that: they would weaken protections for victims and their children that are built into the current system. Many of the survivors with whom REACH works have been alarmed to learn of these proposed changes, especially in light of their own experiences with the probate court system. One writes, “Richard (my ex-husband) wanted full custody of our children, Jacob and Emily.* I knew that we could not share this responsibility because, in particular, Jacob has been struggling with developmental issues since he was born, and I knew that my husband was not capable of dealing with his intensive care schedule on his own. Jacob currently suffered from chronic lung disease, which forced him to be on oxygen for the first two years of his life, as well as neurological development issues that prevent him from eating normally. Jacob has had to overcome such adversity because he was born premature, which was caused after my ex-husband threw me into a wall. Since his birth, I have done, and continue to do everything medically necessary for my son to thrive. Richard, on the other hand, refuses to acknowledge the struggles that our son faces, and does not help me maintain the necessary environment our son requires to thrive. I was able to demonstrate to the judge that Jacob and Emily would be better off if I had primary responsibility for them…The judge gave me custody and gave their father visitation, which was limited to weekday hours, and did not include any overnights. I believe that this has been in the best interests of our children…If the law that favors joint custody had been in effect when my case was in court, I would have been forced to settle for a parents agreement that would have been very hard on both of our children, but in particular Jacob as he has special needs that Richard refuses to acknowledge. I would also have been less likely to share many of the details of the domestic violence I experienced with the judge, knowing that I would have to continue to negotiate with Richard, and knowing that he could have potentially manipulated those facts to make me look uncooperative.”
Another survivor shares her story, “The supporters of the proposed bill claim that the court system is biased against fathers. My experience with the Middlesex Probate and Family Court shows that this is not necessarily true. My child’s father wanted full custody of our child and yet he failed to show up to multiple court dates. He failed to answer any interrogatories that were sent to him and failed to complete parenting and anger management classes that the judge ordered him to attend. Despite his lack of cooperation, the judge showed leniency by granting him multiple extensions and never penalized him. Going to court caused me great anxiety, and his lack of cooperation made my experience with the court worse. The court was more than reasonable towards him to a point that the court became antagonistic against me, even though I was following the rules and doing everything I was ordered to do. When the judge granted him more extensions this created more court dates, which caused me to miss more days of work and forced me to spend more money on legal fees and childcare.”
These excerpts come from letters that survivors have written to their lawmakers asking them to oppose this new legislation. If you are looking for a way to help, you can do the same! Whether or not you have direct experience with the probate court system, you can let your voice be heard on behalf of domestic violence survivors, and on behalf of children, who deserve to have their best interest placed at the center of any custody decision. The Massachusetts Law Reform Institute has put together an interactive website that makes it easy to compose a letter to your legislators. Check it out by clicking here, and be sure to share with your friends and family. For more information, you can also visit this site.
*Names have been changed to protect confidentiality