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Changing ‘custody’ statutes might change attitudes

In recent years, some states changed their statutory language to eliminate the legal concept of “custody” from divorce proceedings. Is it time for the Commonwealth of Virginia to get on board?  Instead of relying on the term “custody” when dissolving a marriage, the term “parental responsibilities” would take its place when deciding the circumstances of a parent’s role in family law matters. Eliminating the loaded concept of “custody” allows the parties and their lawyers to focus on concrete consequences of specific actions by parents.

While practicing family law in Colorado in the late 1990s, I helped draft legislation to do away with the term “custody” in statutes in favor of the terms “parenting time” and “decision-making.” Changing the statutory focus provides courts with wider latitude to determine how to address parenting plans.  Members of my law firm have taken the initiative to discuss the possibility of a Virginia proposal with the Virginia Bar Association Family Law Coalition and with Del. Mark Sickles, D-Franconia.

The compelling force behind changing the law is a desire to remove a sense of ownership associated with the word “custody.”   This change represents an effort to encourage parents to focus on their parenting duties, rather than viewing their children as property that can be “won” or “lost.”

Proposals for change also seek to clearly establish that parenting time issues can be treated as separate and distinct from decision-making responsibilities. It is easier for the lay person to understand the elements of parenting time and decision-making as they are distinguished from one another. Eliminating the concept of “custody” can preserve much of existing law, but change how parental responsibilities are viewed.

Decision-making different from ‘parenting time’

One version of a proposal for change provides for flexibility in decision-making responsibilities between parties. Under the application of current law, it appears to be an “all or nothing” proposition; either the sole custodian makes all of the major decisions, or the decision are shared under joint custody. A change in the statutory framework allows the court to grant all decisions to one parent or both, but it would confirm that the court could also have the flexibility to allocate the major decision-making responsibility mutually between parties, individually to a party, or in any combination.

For example, a mother could have sole decision-making responsibility for health care and the father and mother joint decision-making on all other major decisions.

New legislation that eradicates the concept of “custody” also would do away with the term “visitation.” This term would be replaced by “parenting time.”  The parties would enjoy an alternation of care with the parenting time specifically enumerated. The criteria to determine decision-making responsibilities and parenting time would remain unchanged.

Post-divorce considerations

Studies show that an involved parent will be more likely to provide full and timely child support. In many cases, a parent who “loses” custody may become uninvolved with the children, which will often lead to problems with payment of child support and post-decree actions. Without the “win/lose” situation often presented in custody cases, there may be less loss of contact between a parent and a child and fewer problems with child support. The child will benefit by having an involved parent and adequate financial support.

It has been suggested that a change in the law is simply a matter of semantics. The reality, though, is that words are powerful tools, and careful usage can determine whether a divorce will be highly conflicted or more cooperative. Too often, a party gets hung up on the fact that the other parent will have “custody.” In some circumstances, a party may be concerned about major decisions in one particular area; under current law it would appear that a party needed to pursue sole custody to address that particular concern. Proponents of this new legislation believe that it will allow for more creativity and options when attempting to settle cases. For example, Dad can be the decision-maker for health and education matters, and Mom can decide religion, financial matters and sports activities.

Unfortunately, for some families involved in highly conflicted situations, this law may have little or no impact. No one is professing that new legislation is a magical cure for the ills that plague divorced families. However, it is a step in the right direction. A new law would provide enough flexibility to protect children’s interests, and, at the same time, promote the belief that children have the right to the involvement of both parents, while holding both parents accountable.

– By Albert M. Bonin, the managing partner at the law firm of ShounBach based in Fairfax, Virginia.


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