Competing payments that prioritize joint custody of kids each cross the Home committee
Two dueling bills emphasizing joint custody were passed by a House committee on Wednesday after compromised amendments to each.
The bills were the subject of a controversial public hearing last week, with opponents of HB 365 saying the law goes too far by stripping judges of discretion. They also questioned the language of the bill, which aimed to split care time as evenly as possible.
Rep. Kenneth Paschal, R-Pelham, brought a replacement bill for HB365 before the House Judiciary Committee on Wednesday, changing some of that language and signaling to the committee that it had no intention of codifying that judges had a 50/ 50 division must arrange.
Comments at last week’s public hearing cited social science data showing that children benefited from spending at least 35 percent of their time with each parent, and Paschal said that’s also what his bill was aiming for.
The original version of the bill adjusted the definition of joint custody to ensure that the child has “equal or approximately equal time with both parents.”
The new languages state: “The aim of joint custody is for the child to have equal, or approximately equal, time with both parents, although the aim may not be fully achieved in all cases.”
The language echoes a suggestion made by retired law professor John Eidsmoe in an open letter to the committee, supplementing his testimony during the public hearing in support of HB365.
The bill also provides a standard of proof for overcoming the rebuttable presumption that joint custody is in the best interests of the child, and is also consistent with Eidsmoe’s proposal. The new language requires a “preponderance of evidence” to overcome conjecture.
“I think it should be clear and compelling evidence, but I think that puts us in the right direction,” Paschal said.
The basis of the bill is to ensure children have access to time with both parents and vice versa, Paschal said.
“Right now the standard is about 80 days a year with a parent,” Paschal said. “Last week there was a statement that everyone is still equal. As a man of integrity, that is not correct… We allow our courts, in particular, to turn away fathers to have a relationship with the child that you would normally see with an aunt or uncle.”
The committee passed HB365 without further discussion, having already passed HB314 sponsored by Rep. Ben Robbins, R-Sylacauga.
Robbins reiterated that his bill would give judges discretion. Proponents of HB365 have resisted the argument that HB365 deprives the judiciary of discretion, but that was the main line of judges opposing the law last week.
Robbins offered a friendly amendment to the bill, adding an additional factor: “Any history of intentional interference by a parent or attempt to damage the relationship between the child and the other parent.”
However, he objected to a proposed amendment that would have added wording similar to HB365 by including wording that equal or near equal custody is the goal of shared custody, although it is not fully achievable in all cases. Robbins moved to table the amendment and the committee agreed.
There was also further discussion about including wording that would require judges to write down findings about why they were found to be contrary to joint custody, but Robbins argued against it.
“You want a kid to have to read their father hitting their mother?” asked Robbins. “I think sometimes we don’t want some of that information to be known to the kids.”
Robbins’ bill requires written findings if both parents apply for joint custody and the judge orders otherwise, but only then. Paschal’s bill would require findings for any ruling against joint custody.
Both bills will now be submitted to the House of Representatives for consideration.
Comments are closed.