TN bill on divorce would require equal custody of children
A bill that would evenly split child custody in contentious divorce cases is drawing national attention to Tennessee and dividing groups along gender lines.
On one side is a powerful alliance of women's groups, some judges and the Tennessee Bar Association, who say the change would make divorces tougher to settle and give abusive ex-husbands leverage they shouldn't have. Spending half of the time with each parent will also impose impractical schedules on kids, they say.
On the other is a bevy of fathers-rights groups who say children are being deprived of full relationships with both parents. Courts have for far too long ignored laws calling for custody decisions to be made in the best interest of children, they say, and judges are overly influenced by notions about the mother-and-child bond.
If the bill passes, Tennessee would become home of the most gender-neutral and revolutionary child custody law in the United States, observers say.
Committee hearings on the bill have drawn standing-room-only crowds full of mothers wearing saucer-sized lapel stickers that read "Vote no on HB 2916" and fathers wearing everything from military fatigues to business suits. Even two grandmothers testified that their sons' children never got to know them because of uneven custody arrangements.
Right now, parents divorcing in Tennessee — or unmarried parents trying to work out custody arrangements — are encouraged to work with a mediator to negotiate a plan. Under the pending bill, courts automatically would divide children's time equally between moms and dads unless one parent can prove the other is utterly unfit.
Several other states, including nearby Missouri, start from a presumption of an even custodial split unless there has been abuse, said Janet L. Richards, a law professor at the University of Memphis who specializes in child custody matters. But Tennessee would be alone in requiring clear and convincing evidence that one parent is unfit before dividing custody unequally.
"This law sets up a standard of proof that's just short of the criminal standard of beyond a reasonable doubt," said Richards, a member of the Tennessee Bar Association's Family Law Code Revision Commission.
The way Eric Kyle sees it, he hasn't been able to properly father his children since he divorced in 2005.
Kyle, who lives in Davidson County, wanted his son and daughter to split their time equally between him and his ex-wife, who lives in Williamson County. But when Kyle sought an attorney willing to try to negotiate that kind of arrangement, one after another told him the same thing.
"You either have to dirty up your ex and do whatever you have to get full custody, or you accept what I understand is a pretty standard 80/20 time split," he said. "Of course, it's dads that get the children 20 percent of the time in most cases."
Rep. Mike Bell, a Riceville Republican and the bill's key sponsor, said he introduced the bills after constituents' complaints and hopes it might encourage more parents to reconsider divorce.
"It's a concern that children are being deprived of one parent or another in most cases in a custody battle," said Bell, who has been married for 25 years and has five children.
Bell said he plans to amend the bill to make clear that the 50-50 parenting standard cannot be applied in cases where one parent has been convicted of some form of domestic violence.
Opponents want to scare the public with claims about children being shuttled back and forth and attending multiple schools, said Mike McCormick, executive director of the Washington, D.C.-based American Coalition for Fathers and Children.
In reality, most parents start off living within 100 miles of one another, and courts can order parents to stay close to each other, he said.
"I say with the recognition that there is nothing like (this bill) in the country — all it would actually do is require parents to be on equal footing in courts of law," McCormick said. "And it would allow children to have what they really need, and that is equal time with each of their parents … provided that both parents are fit and able to care for that child."
5-10% Can't Agree
Parents can't come to an agreement in 5 to 10 percent of Tennessee divorce cases, said Allen Ramsaur, executive director of the Tennessee Bar Association.
Then a judge has to make a decision, and at least one of the parents isn't happy with how the judge rules, he said.
"Let's just say you have a parent who lives in Nashville and the other in Murfreesboro," Ramsaur said. "This 50-50 parenting time arrangement would virtually mandate that that kid go to school half time in Nashville and half time in Murfreesboro, and I suppose kick a ball around for one team in Nashville and another in Murfreesboro. That's why there's nobody who is actually involved in these cases on a broad scale every day who supports it."
The bill also ignores the problems some families have, said Kathy Walsh, executive director of The Domestic Violence State Coordinating Council in Tennessee.
Some parents divorce after years of the kind of controlling, domineering or even violent behavior by one party that doesn't go away just because the relationship ends, Walsh said.
She said the bill could prompt victims to stay with their abusers so they don't have to leave their kids alone with the other parent for longer periods.
In truth, both sides have a litany of research about the role of both mothers and fathers in a child's healthy development.
What's indisputable: It's important for children to maintain a relationship with both of their parents before and after a split, said Barbara B. Hauser, a social worker and Harvard University Medical School lecturer on psychiatry. And when parents are engaged in a particularly contentious struggle with one another, time with either parent can be a source of real stress for their children.
"Given that we are talking about parents here who have not been able to arrive at an agreement on their own, I would say that there is a high probability that a true split arrangement would create considerable stress for children unless some sort of provision was made for neutral ways to exchange a couple's children," she said.
The House Children and Family Affairs' Family Justice Subcommittee will decide March 23 if the bill will go to the full House. The vote was delayed for two weeks after the committee asked the Tennessee Bar Association to provide a variety of divorce-related data.
Monica Gimbles said she doesn't think the bill is realistic. She is in the process of finding an attorney to work out custody arrangements for her 5-year-old daughter with her one-time fiancé.
"This is the kind of idea that people come up with when they haven't ever actually taken care of a child, a small child that needs a lot of care and takes a lot of time," Gimbles said. "It probably sounds good when it comes to bath time and bed time and all the stuff in between, it just makes the child's life topsy turvy."