Originally published in January 2005.

By Marian Kent, Becky Lockwood, and Rob Okun

On Election Day 2004 citizens in more than 100 Massachusetts communities had an opportunity to express themselves about an issue affecting the lives of tens of thousands of children in the Commonwealth—custody rights after separation or divorce. While the ballot initiative was non-binding, if they were ever enacted as law, their terms suggest a likely damaging impact on the lives of children living in post-nuclear families. The questions “passed,” drawing strong support statewide even though many who supported their recommendations later said they weren’t sure exactly what they were voting for.

Two groups described as advocating for “fathers’ rights” drafted the ballot questions calling for “shared custody”—legislation that if later adopted would require joint custody be awarded in all custody disputes. On their surface, the questions are simple, feel-good initiatives, but they’re not. In reality, they may be seen as a planned effort to undermine current custody laws. With far-reaching implications, the proposed laws could have painful and even dangerous consequences for children caught in the middle of high-conflict divorce cases and, in particular, in cases where domestic violence is a factor.

Children enjoying love from, and connection with, both parents is of course a cherished value, one that no legislation or judicial ruling can mandate. But trying to create new law, putting parents’ rights over the long-held legal standard of “children’s best interests” (as the proposed changes would) undermines efforts to create an environment where divorcing mothers and fathers can parent with peace and justice. While many citizens may be aware of an individual judge’s decision that seemed not to be in a child’s best interest, voters in the future need to recognize the distinction between the effect of a single judge’s bad decision on an individual and the implications of enacting bad law that will affect thousands.

Domestic violence prevention advocates have long recognized that a minority of vocal men have banded together, perhaps out of their own hurt and frustration over individual custody battles to try and effect sweeping system-wide change.

Sadly, many proponents of these initiatives have tried in numerous ways to weaken protection primarily for mothers by portraying men accused of abuse as being the “true victims” of a system that has gone overboard in protecting women. Equally disconcerting is when such groups use faulty interpretations of family violence data as a rationale to try to derail efforts of community-based victim service providers. To make matters worse, they often herald the plight of individual abusers.

Voters in future elections should be wary of a campaign that appears to purposefully exploit our collective desire to protect children by claiming the initiative actually furthers the “best interest of the child” standard. Not true. A close examination of the November ballot initiative suggests a disturbing conclusion: those who drafted the question appeared to be more interested in “the best interest of the non-custodial parent” than they were in the child. Whether by design or out of their enormous frustration and sense of hopelessness with family court, such an initiative eliminates, limits, or ignores a means for formal consideration of the wishes of the child. The only rights the initiative creates or enhances are those of non-custodial parents. In what we can only hope was a glaring oversight, the language of the initiative makes no explicit provision for dealing with cases where sexual abuse or domestic violence is a factor, and they rely on antiquated, oversimplified notions about relationships between parents and children.

In our opinion, there is nothing in these proposals that offers meaningful enhancements to the well being of children. On the contrary, these ballot initiatives in particular are designed to authorize a shift away from the current “best interest of the child” standard established when the Child Custody Presumption Law was passed in 1998. That law was vociferously opposed by many of the men in the very groups now claiming to carry a mantle on behalf of children.

Let’s be clear. We believe strongly in co-parenting when both parents can work together to raise their children in an environment that supports their healthy development, fosters the children’s relationships with each parent and reduces the impact of parental conflict on children. Sadly, these proposed laws are not about creating good co-parenting relationships. Nor are they going to encourage men who are acting abusively to be responsible parents. They blur the line between the best interest of parents and children and aim to circumvent, in those cases involving abuse, the “best interest of the child” standard while leaving the former spouse and the child vulnerable to continued abuse and harassment. Future voters are advised to take special note of the sweeping implications of subsequent ballot initiatives.

Massachusetts has made great strides in efforts to protect children and families in. Still, in the 12 months from October 1, 2003 to September 30, 2004, two children, sixteen women, four men and two bystanders were victims of domestic violence homicide and at least four children were orphaned as a result of these murders. Voters must not be deceived by promises of simple solutions to issues as complicated as child welfare and domestic violence.

An estimated 43,000 children in the Commonwealth who live in homes where domestic violence exists deserve nothing less.

Marian Kent is executive director of Safe Passage in Northampton; Becky Lockwood is associate director for Rape Crisis Services and Violence Prevention Programs at the Everywoman’s Center at the University of Massachusetts