Wednesday, March 09, 2005 - Al Knight Custody laws revisited - Al Knight

I'm trying to post this using the BlogThis! button - so we'll see how it goes...

Voters last year in many areas of Massachusetts voted overwhelmingly in favor of a terse little ballot measure that endorsed "shared physical and legal custody" for divorcing parents.

Not surprisingly, there are now those in Colorado who would like to see a similar measure put on the state ballot next year.

The subjects of child custody, visitation and parenting time are not new to this state. There were two recent unsuccessful attempts to pass a law creating the "presumption" that divorcing parents in Colorado, absent proof of unfitness, should be granted shared parenting time.

These efforts failed largely because of claims that the new, shared-parenting arrangements would increase court costs. The sponsors insisted the changes would cut costs, but given tight state budgets under consideration at the time, the fear of higher court costs was enough to kill the bills.

The drive for legislation to level the playing field in family courts is by no means limited to Massachusetts and Colorado. A number of states have dealt with the issue. Often, the same familiar facts have been cited. Nationally, women in the vast majority of divorces get custody of the children. In a typical case, the non-custodial parent will see the children a couple of weekends a month, an arrangement that makes the father little more than a footnote in the lives of his children.

Dr. Steven W. Newell of Littleton, who was active in the earlier legislative battles, would like to try changing the parental landscape through the initiative process. He and others took a proposal to the Legislative Council last month which features a non-binding ballot measure patterned on the Massachusetts model.

Slightly modified, the Colorado measure reads:

"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 shared physical and legal custody (shared parenting) 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?"

The Colorado Legislative Council apparently assumed that the sponsors of the measure were really interested in something that would have legal force and effect and so the staffers drew up a six-page measure that would actually rewrite the divorce laws in Colorado.

Newell rejects this approach, reasoning that such a measure would be so complicated that even he could not support it. He also suggests such a campaign would galvanize the large number of people who make their living off the current, lopsided system. What he proposes instead is an advisory measure that would give the voters of Colorado their first real opportunity to be heard on an important issue that has already affected many of them personally. The hope would be that, given a favorable vote, legislation could follow.

Newell has pointed out that for every divorcing couple with young children, there are a couple of sets of grandparents whose access to their grandchildren has been affected. Because there are about 40,000 divorces in the state each year, he says, and 25,000 of them involve children, there are a couple hundred thousand voters who have had very recent experience with the family court system.

Whatever the quality of this experience, the affected parents are bound to have an interest in a ballot measure on the value of shared parenting.

Opponents of the Massachusetts measure last year sounded very familiar themes, including the claim that "shared parenting" is nothing more than a smokescreen for divorcing fathers who want to avoid paying child support. Still, the measure was favored by 85 percent, indicating that many voters think that the family court system could easily be improved to the benefit of children.

Who knows? Maybe something like that could happen in Colorado. In this state, unlike Massachusetts and some others, the ballot hasn't heretofore been used for advisory measures. But if there is a way to adapt the Colorado procedures to the task, it's hard to think of a topic more deserving of public attention.

Al Knight of Fairplay ( is a former member of The Post's editorial-page staff. His columns appear on Wednesday.

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