The Enemies of Shared Custody.
By Robert G. Leclair
The war to enact a law making shared custody the presumption in this country should be waged on behalf of all children - and society in
general. Simply stated, a shared custody presumption written in the law means that in order for a judge to override shared custody and order a
different type of custody such as “sole custody” he must document with clear and convincing evidence that shared custody would not be in the
best interest of the child.
The path to great accomplishments is usually fraught with many obstacles. And so also is the path to making shared custody the norm. This
honorable effort is hindered by some and out rightly opposed by others - including many powerful and well-funded enemies whose motives are self-
serving and not so honorable.
Advocates of Shared Custody…Confront Your Enemies
The people who advocate for shared custody should never be trapped or intimidated by its enemies. If a bill was sponsored by an unlikely
supporter and sounds too good to be true…be wary. Sharing custody after divorce is extremely rewarding for children and society but it is not
always easy for parents. That can make it particularly exhausting for advocates to sustain the effort. We must never get discouraged; the fight to
accomplish this goal for our children is well worth the effort. Otherwise, I would not have dedicated 50 years of my life to it. Except in my own
case, which required a 10-year struggle, I have met with little success. However, I remain undeterred and have dedicated a chapter in my book to
exposing precisely why, so far at least, we have failed to change the system. Hopefully, if we better understand the nature of the enemies of
shared custody, we will be much more likely to succeed and your children and humanity will greatly benefit.
It is also essential that we never allow ourselves to be lulled into a false sense of accomplishment by choosing a law that merely pays lips service
to or encourages shared custody rather than making the law a presumption. A presumption is the only way to make shared custody the norm in
the USA. The legal profession and judiciary will try to tell you otherwise…don’t believe it! Remember that this is the one case when a bill only
encouraging shared custody will not work to make it the norm or the default. As you read on it will become very obvious why the judiciary has
ignored many studies and books as far back as 1978 (i.e. “The Disposable Parent: The Case for Joint Custody” by Dr Mel Roman).
First, we and the public in general must acknowledge that divorce and domestic violence is big business in the United States. Many in the judicial
and legal system and other professions make a damn good living from people thrown into the throes of divorces. Many professionals either fail to
see or simply don't care that divorce can be so traumatic that both parents and children can and often do suffer from “situational stress” and, even
worse, sometimes “PTSD”. While doing research in a Massachusetts courthouse, I overheard two lawyers discussing their case: One said to the
other “I don’t know who is crazier, your client or mine” and they both laughed. Sadly, that tells the real story as to how divorces are often handled.
Middle class divorce victims are often drained of their finances and for years thereafter fall into a class by itself…the new ”middle class poor”.
This condition is completely ignored when politicians in presidential campaigns promise to help the economics of the middle class with jobs…
jobs…jobs and better paying jobs. The result is that the children of divorce often become paupers. Unfortunately, politicians ignore the divorce
reform that is needed to help the people struggling with the divorce process…such as a less adversarial and more humanitarian system like
making shared custody a presumption to replace the devastating and biased tacit presumption under the “best interest of the child” doctrine,
which most often results in sole custody awards to the mother and visitation to the father.
It dosen’t take a brain surgeon to see how simple divorce reform could help a family’s finances. Even judges have stated in the press that in
divorce nobody can support two households except the rich or affluent middle class.
I’m happy to see that many organizations of men and women are supporting and promoting reform of the judicial system to enact laws on shared
custody. Again, I must forewarn everybody about the dangers of falling for and being duped by much of legalese embedded in proposed bills on
shared custody. Only two parameters to look for: is the bill merely “encouraging" shared custody - or does it actually make shared custody a
“presumption”? Only the latter is acceptable.
If the law only encourages shared custody most judges will rule in favor of their biases and reject the shared custody concept. Other judges will
adopt the shared concept in some cases - but not all. Proponents of the shared concept will then be fighting ad infinitum on a case by case basis
or to make shared custody the norm. Many children will then be deprived of the merits of parental sharing.
I said earlier that the proponents of a “shared custody presumption” will have many powerful and well-funded enemies. Who are these people?
Enemy #1 is most judges. Enemy #2 is divorce lawyers...and the legal profession itself. And, believe it or not, Enemy #3 is VAWA/OVW.
Enemy #1: Most Judges
Judges rarely state an opinion on a presumption of shared custody law. Most say that they already have the discretion to grant shared custody or
determine the fitness of the parents. But, are they qualified to determine fitness? Many lawyers say no. And many mental health professionals
Judges say that shared parenting is a good practice in some cases - in many other cases - not so much. For judges it all boils down to their
discretionary powers. In 1973, I drafted 6 variations of shared custody bills and all included the element of presumption. I submitted them to the
Attorney General MA for his approval to place them on the ballot for a public vote. He flatly rejected my submission stating in writing; “the shared
custody bills would eliminate the “lawful discretionary powers” of judges. There you have it, discretionary powers of judges seems to be a “sacred
cow” for judges. In reality, shared custody is simply redirecting their discretionary powers to a concept that spares the children the agony of losing
a parent as evident in numerous studies.
Another never-talked-about reason why judges would reject making shared custody the norm with a presumption in law is the fact that it would
disrupt the status quo of using formulas to allocate support and alimony. It could throw that practice in total disarray or chaos. All judges do now is
having one party (normally the male) support according to the established formula.
Judges will tell you…each custody case is different and requires judicial discretion. The question is…why then are 85% of final decisions always
the same? That is a good Missouri question ( known as… the show me state). Since judges rule on laws enacted by the judiciary, the drafted
shared custody bill S00847 should be handed to them for analysis and comments as to why it should be enacted or rejected.
Enemy #2: Lawyers and Bar Association in Each State
Many lawyers have expressed deep concerns and skepticism about bills on shared custody being filed in many states. Most bills are either worded
to encourage shared custody or make it a presumption of the courts. Lawyers mainly object to the presumption approach. As one California lawyer
wrote, “Unfortunately, those who advocate for shared and equal parenting presumptions either have a hidden agenda or just don't understand the
nature of human conflict”. What hoooey! In fact, nothing could be farther from the truth!
That opinion has been categorically discredited by most professionals including my ex wife and I who fought for and obtained shared legal and
shared physical custody and abided by the arrangements that did not even contain the inflammatory word "visitation".
A shared custody law in Florida was recently defeated when Governor Scott vetoed the bill approved by the legislature. It appears that what
defeated the bill was intense lobbying by lawyers and radical feminist according to a 4/20/16 article by Rachel Alexander in The Christian Post:
“The lobbying against the bill was led by the Family Law Section of the Florida Bar Association and radical feminist groups such as the National
Organization for Women. The Family Law Section spent $105,000 to hire "emergency lobbyists" for two weeks of intense lobbying. The lobbyists
included some who used to work for the governor”.
Many lawyers are dedicated, ethical and concerned about divorce and the dissolution of the family. However, many are not and are more
concerned with price gouging and defeating the shared custody bills. The latter want expand the divorce industry with laws that promote the
business aspect of divorce such as the adversarial process, court mandated legal counseling, litigation and believe it or not domestic violence.
The trend now is to recommend that women file restraining orders in order to get more leverage in divorce courts. Caring about children, families
and Christian values is slowly eroding in professional legal circles.
This is just the tip of the iceberg. Many new trends are emerging that are promoted by lawyers and radical feminists embedded in numerous
departments of the federal government: trends that will exacerbate the divorce and domestic violence process and increase the cost for those
caught in the middle of such tragic, traumatic and emotional human conflicts.
Success in addressing these issues depends on whether or not the legal profession can police itself. Endorsing presumptive shared custody laws
would certainly be a big step in the right direction.
Enemy #3: VAWA/OVW and N.O.W.
If you are shocked and have problems believing the information herein, just remember that the truth will ultimately speak for itself.
The Violence Against Women Act (VAWA) was established in 1994 and administered by the Office of Violence Against Women (OVW) to eliminate
violence against women. OVW spent billions of tax dollars over more than two decades to establish policies and procedures and implement an
approach to wage a war on abuse and violence. Congress in 2016 awarded OVW a yearly budget of more than a billion dollars to fight the war to
protect women. This huge amount of tax dollars was far greater than in any previous year.
After more than two decades according to VP Biden, domestic violence is still an epidemic. What is wrong with a federal program that spends
$billions$ with little or no progress: sounds like the war on poverty and drugs again. Could it be that OVW is implementing the wrong approach,
spending billions and still failing to protect women after more than two decades?
All that said, we need to address the major issues as to why OVW is considered a major enemy of “Shared Custody”. Two of their policies reveal a
total disregard for shared custody benefitting children of divorce.
1) In 1999 OVW conducted strategy meetings with judges, lawyers and other women’s group to determine approaches for the war on domestic
violence. Their conclusions are a harbinger of OVW’s ideology for the future. One of the many conclusions shown below indicates OVW’s
opposition to shared custody and quite frankly…it’s a totally false perception:
“Some states still have “friendly parent provisions” or joint custody presumptions embedded in their statutes. Unfortunately, these laws place
battered women at risk of losing custody altogether, or sharing custody with a batterer. Either outcome places women and children at significant
risk for further violence. In states where joint custody presumption exist, the rationale seems to be a mistaken assumption that children always
need contact with both parents and that batterers are not dangerous”.
On the contrary, shared custody could play a major role in preventing domestic violence and possibly murders of women. Stating that joint custody
presumptions place battered women at risk of losing custody altogether or sharing custody with a batterer is obviously a myth because I don’t
know of any judge who would let this happen.
2) For two decades OVW has adopted pro-arrest and no-drop policies in domestic violence situations as well as in allegations of violence and
abuse. Consequently over 1.5 million restraining orders are issued and granted each year. Most states have a domestic violence law on the books
and all have similar issues. Judges readily admit that with allegations it is very difficult to assess the truth and no judge can afford to make a
mistake. Therefore, without due process and rules of evidence, most restraining orders are simply granted on a “better safe than sorry
approach”. To most people this approach to protect women makes a lot of sense.
However, there is a flip side to this approach with serious and unpredictable consequences. I believe OVW’s motivation for remaining silent on the
restraining order process that grants restraining orders without due process is the fact all restraining orders based on allegations of domestic
violence can and are granted based on a “better safe than sorry approach”. Also, domestic violence can now be linked to and used in the divorce
process. This approach reinforces OVW and the NOW organizations claim that divorces often result from domestic violence. When this becomes
the trend in divorces you may as well scrap amicable and no-fault divorces and shared custody laws. Like the restraining order process divorce will
become just as adversarial; gradually becoming a boost to the legal profession’s economy and a devastating blow to the best interest of the
OVW also believes that in most divorces domestic violence is always present as a factor. Every state has or will soon be forced to include the
domestic violence law as part of and a factor in the divorce law on custody and visitation. It now becomes very obvious that judges in divorce
courts will be forced to decide if restraining orders that were granted on an arbitrary or better safe than sorry basis are true or false in terms of the
allegation of violence and abuse. The inherent danger is that divorce will become more adversarial than ever and again who will suffer the most...
the children! VAWA whose goal to protect women from violence and abuse was undeniably worthy of our total support but it has been so corrupted
by a radical ideology implementing policies and procedures that women are no longer protected and are even lulled into a false sense of security.
If a shared custody law had been implemented years ago just think of all the children that would have been spared the trauma of eventually losing
a mom or a dad. Judges would still have retained their discretionary powers but in a concept that has been proven to be in the best interest of the
children. Lawyers would not be blamed for supporting an adversarial process and destroying families and children. There is no doubt that judges,
lawyers, radical feminists and OVW who oppose shared custody have ulterior and self-serving motives as well as political aspirations.
It is a Difficult Battle…But Well Worth the Fight
Since the 80’s study after study has revealed that children still thrive after divorce when two parents remain involve in their lives. So why is it so
difficult to enact a law that makes shared custody the norm or default in divorce? The opposition as shown above is so fierce and so well funded
that they can readily force their radical ideology and self-serving attitude in opposition.
Why did Governor Scott of Florida recently veto a shared custody bill? He said ““This bill has the potential to up-end that policy in favor of putting
the wants of a parent before the child’s best interest by creating a premise of equal time-sharing. Our judges must consider each family’s unique
situation and abilities and put the best interests of the child above all else” as quoted by Gray Rohrer of the Orlando Sentinel.
Rohrer also wrote: Representatives of NOW and other women’s groups urged Scott to veto the bill and, NOW lobbyist Barbara Devane said her
group objected to both aspects of the bill. Devane was also quoted; “Every divorce case is different, and you can’t have a cookie cutter approach’’
a totally ridiculous statement. Shared custody is not a cookie cutter approach’’; the shared arrangements can vary from case to case in
accordance different needs and circumstances.
Rachel Alexander ‘s article clearly shows how political power and money of those opposed to shared custody could overwhelm proponents and
defeat a similar bill in most states. Rachel stated:
“The lobbying against the bill was led by the Family Law Section of the Florida Bar Association and radical feminist groups such as the
National Organization for Women. The Family Law Section spent $105,000 to hire "emergency lobbyists" for two weeks of intense lobbying. The
lobbyists included some who used to work for the governor”.
WHO SUFFERS THE MOST FROM THESE POLITICAL GAMES….THE CHILDREN OF DIVORCE!
All written material, graphic images and Original art work copyrighted 2020 by Robert G. Leclair