Henrico County VA

Dads disappointed by changes in child custody bill

Father’s rights advocates say they are down but not out after passage of a substitute bill originally aimed at giving both parents joint custody rights in divorce cases.

The legislation is House Bill 84, sponsored by Delegate David Albo, R-Springfield. Originally, it stated that in a divorce “in which custody or visitation is at issue, there shall be a rebuttable assumption that it is in the best interests of the child that the parents be awarded joint physical custody and that no parent’s share of physical custody shall be for a period of less than two-fifths of the child’s time.”

Fathers and their advocates strongly supported that wording.

“No man can be a father to his children on the basis of seeing them every other weekend,” said Kenneth Skilling, a Fairfax County resident and former president of Fathers for Virginia, which provides support for divorced fathers.

But the language was changed radically as HB 84 made its way through the legislative process. The substitute bill approved by the General Assembly and sent this week to Gov. Bob McDonnell omits any mention of the presumption of joint custody. It simply states that judges must communicate the reasoning for their decisions on custody or visitation to all parties involved.

“The bill has unfortunately dramatically changed from the last one that was introduced,” said Diane Poljacik, a child custody mediator who supported the original wording of HB 84.

She said the measure that was passed “does nothing to change anything of importance. Judges are already supposed to communicate the basis for their decision. So what does this change?”

The text of HB 84 was changed in the House Courts of Justice Committee. The substitute bill then was approved unanimously by the House and the Senate.

Current Virginia law does not state a preference for either parent in custody cases. It states:

“In determining custody, the court shall give primary consideration to the best interests of the child. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either. The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest. The court may award joint custody or sole custody.”

But in practice, courts overwhelmingly favor mothers over fathers on custody issues, father’s rights advocates say.

Skilling cited a 2011 study by the Virginia Department of Child Support Enforcement, which found that only 6 percent of custodial parents were male. In the remaining instances, fathers were awarded visitation and legally relegated to the term “visitor.”

Supporters of the original draft of HB 84 gave a series of emotional testimony before the House Courts of Justice Committee in January. “I haven’t seen my children in over two years because of the way the court system currently functions,” said David Scolamiero, who spoke on behalf of Virginia Equal Parents, a group seeking reform of custody laws.

“Instead of a father having to fight for time with the children he loves, the legal system would begin with the presumption that he merits equal time,” Scolamiero said.

HB 84 wasn’t the only bill advocating joint custody in divorce cases. HB 606, sponsored by Delegate James LeMunyon, R-Chantilly, contained similar language. It sought to establish “a presumption in child custody cases that an award of joint legal custody, with physical custody, to the extent feasible, shared equally between the parties, is in the best interests of the child.”

LeMunyon’s bill died in the House Courts of Justice Committee.

Supporters of such legislation are looking forward to next year’s legislation session. They plan to push for a joint custody bill again before the 2013 General Assembly.
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