If you are like me, you have been watching so-called father's rights groups pushing legislation.
Recent legislation, HB 1550 got a lot attention as a game changer in Missouri custody law. Fathers, it was said, would get equal time with their children. 50/50. End of story.
Did that happen?
Like everyone else, I listened to the hype behind the supposedly father's rights legislation. Then I read the legislation. If legislation is supposed to be a process for making sausage generally, then this is the exception. The legislature made no change to existing law that means anything to anybody. Taking the sausage metaphor to the max: this is like going to the butcher shop with some meat you want cut, and getting it back uncut with new paper.
Don't get me wrong, I am not dispassionate here. I don't believe the legislature should handcuff the courts when they determine parenting time. If you have a judge that is bigoted towards dads, vote them out next election; in the meantime file a motion for change of judge.
Why am I not a fan? Not all parents are equal. Each case should be decided on its own merits. People with demonstrated parenting skills and close bonds with their children should spend more time with their children as compared to those who objectively have significantly less going for them in the areas of parenting skills or close parental bonds.
Why? Because it's good for children. I don't want a man or a woman to have a right to equal parenting time. They need to deserve it. But I digress.
Back to the new law. The Missouri Bar traditionally opposed equal parenting time laws. With this law, though, the Missouri Bar stayed silent. No wonder.
The legislation did nothing to equalize time between parents. Aside from changing some wording that will make appellate lawyers like me happy, it made no change in the law. I say that because it made no mandate for equal parenting time. Instead, it required the court's central bureaucracy (OSCA) to change its handbook on parent scheduling to add a section “in order to maximize to the highest degree the amount of time the child may spend with each parent.” What in the world does that mean?
Not equal time. The legislature had the opportunity to put “equal time” in that language, and chose not to. Simply put, the instruction to change a handbook to include “guidelines” does not mean the law changed.
You might say, yes but the handbook on parenting time changed.
Here's why I say that. I can draft a parenting schedule that maximizes time for the chronically drug addicted mom and the hard working dad. Don't believe me? Watch this: 1 hour visit with child every two months at the child's therapist's office for chronically actively addicted mom, the rest of the time child spends with dad. That's the maximum mom should get (and believe me, there had better be a good reason for that contact). I maximized her time with the child. I maximized Dad's time. Under the circumstances.
I can also draft a parenting plan for hard working mom and hardworking dad, where dad was the one who woke up multiple times per night, played with and diapered the child most of the time—that maximizes time for each. Mom gets every other weekend (2 or 3 nights) and a mid-week visit; the parents evenly divide the holidays and special days, like birthdays. (By the way, we suggest other schedules too, but that's another blog). I maximized the time for career mom. She is free to build her career and have regular contact with her children. I maximized the time for parently dad. And guess what, the child is used to the arrangement. Because that is as close to building a structure that looks like what happened before the parents split, that I can get, given that they have separate households. So, put that in your guidelines.
I bet they will.
Sleight of hand you say? No. Because the legislature did not write a law that said “equal parenting time for both parents, absence evidence that either abused or neglected the child.” If you don't say it, then you don't require it.
There is another reason why I know the law did not change. It's the big one. In fact, it's the foundational statute for interpreting every governmental action dealing with children. It shapes how each court interprets every statute, rule or ruling. It dictates how each handbook that deals with children is drafted. Even state actions that don't deal with custody, like general rules about how and when children should testify in criminal cases, must follow this rule.
Here is the big cahuna that the legislature let go when it passed the new legislation. Section 1.092, revised Missouri statutes: The child welfare policy of this state is what is in the best interests of the child. This statute is in the very first section of our statutes, way before the custody statutes. It was put up front for a reason. Its public policy. It's a directive to every organ of government. It must be followed, always.
Parenting time must be measured by this yard stick. The “guidelines” that the new legislation requires for “maximizing parenting” must follow this policy. Period. Without a mandate requiring equal parenting time, that is the law. The law is: parenting schedules must be in the best interests of children, not parents. That means the law still states that parenting time must be allocated according to the children's best interests, no one else's.
Until it's changed. When the legislature (A) eliminates statute Section 1.092 and (B), requires equal time for both parents who don't abuse or neglect their children, then it will have mandated equal parenting time.
That's not what happened, not by a long shot. The new legislation caused some media groups to get a lot of hits on the internet. But it's a big yawn for the lawyers of parents who have custody cases.
Bottom line: custody law did not change. And frankly, I am fine with that. Our office philosophy puts children first, regardless of the gender of the parent, or the status of a human being as a parent. Children first. That, thankfully, is still the law.