Winner Takes All: Should Vermont's Family Courts Be Allowed to Order Shared Custody of Kids? 

Chris Weinberg of Jericho spent more than a half million dollars and two years of his life fighting with his now-ex-wife for equal parenting time with his two sons. If Weinberg, who got divorced in August 2012, had lived across Vermont’s border in New York, New Hampshire or Massachusetts, family-court judges in those states would have presumed that, unless he were an unfit parent, he would share equal custody of the kids with their mother.

That’s not how it works in the Green Mountain State. As Weinberg discovered the hard way, Vermont is one of only six states in the country that allow one parent in a contested child-custody case to “veto” joint custody — a decision Vermont judges cannot overrule.

In such cases, a judge decides who is the “primary” caregiver and who gets “legal rights and responsibilities.” The former is awarded “physical rights and responsibilities,” meaning the kids live with him or her most of the time; the latter makes decisions about the kids’ education, health care and extracurricular activities. Sometimes one parent gets both physical and legal custody; other times, they’re divided.

If it sounds like Solomon’s dilemma, it is. As Weinberg argues, Vermont law essentially creates a “winner-take-all” scenario in which squabbling parties have no incentive to play nice. Instead, he says, they’re more inclined to engage in “character assassination” to gain the upper hand.

And that can be expensive.

“Basically, it supports very lengthy, costly and ugly custody battles,” says Weinberg, 39. “There’s virtually nothing in our current statute that encourages parents [who are splitting up] to put together a parenting plan that’s actually in the best interest of the child.”

It’s often said that buying a house is the biggest single financial decision a couple will make, but getting divorced can be a close second. Even in amicable breakups, the costs of lawyers, court fees, alimony and child support can quickly run into the tens of thousands of dollars, altering the lifestyles of everyone involved. And when couples can’t agree to share custody of the kids, both sides can hemorrhage money for months, or even years, until they work out their differences — or the court does.

The emotional toll of such battles is, of course, just as high. That was Weinberg’s primary concern when he formed JointCustodyVT.org, which advocates for changing Vermont law to allow judges to order 50-50 custody even when neither parent consents to it. Since its formation two years ago, JointCustodyVT.org has gained about 600 supporters statewide — male and female — including about two dozen members who work on public education, lobbying and petition campaigns.

Weinberg points to “irrefutable data” showing the importance of children growing up with both parents active in their lives. His website is full of facts and figures about children raised without both parents: They are statistically more inclined to suffer behavioral disorders, drop out of school, abuse drugs, go to prison, commit rape or take their own lives.

But would changing Vermont law to a “presumption of joint custody” actually reduce such outcomes, or make child-custody disputes less acrimonious? Opponents of JointCustodyVT.org — including Vermont Legal Aid lawyers, advocates for victims of sexual and domestic violence and some mediators and former judges — say no. They contend that, if anything, the change would make such breakups even more contentious, resulting in more court time, higher legal expenses and, ultimately, more emotional and financial stress on the entire family.

“I think Vermonters have been very wise for a long time in saying that you cannot force people to agree and make decisions together,” says Jean Murray, a Vermont Legal Aid lawyer with more than 22 years of family-law experience. “If you do that, what you’re going to end up with is more people arguing. And arguing is never in the best interest of the children.”

Supporting Weinberg’s efforts is Rep. Jim McCullough (D-Williston), who says his bill, H.412, aims to “level the playing field” in child-custody proceedings. McCullough, who introduced similar legislation in the 2011-2012 session, says Vermont statute ostensibly puts children’s interests first. In practice, however, he contends, the current system essentially terminates the parental rights of the noncustodial parent and relegates him to “the status of a visiting uncle or family friend.”

McCullough’s use of the word “uncle” isn’t accidental. Although there are no statistics to prove Vermont fathers are granted custody less often — Vermont isn’t among the states that collect that data — anecdotally, few dispute that moms are more likely than dads to get custody of the kids.

And that “strong bias” against men in the court system automatically puts them at a legal and financial disadvantage, Larry Miller suggests. The 45-year-old Burlington dad has been divorced since 2004 but is still “actively involved” in litigation with his ex-wife over the custody of their daughter.

Miller says he doesn’t want debate on this bill to get “all bogged down” in discussions about money and child support. But he points out that, because moms are more likely to be ruled the custodial parent, fathers won’t have equal time with their kids — “and the lawyers know it.” As a result, he says, the custodial parent typically pushes for fewer overnight stays with the noncustodial parent to maximize child-support payments.

“I just don’t see any justification, if you have two loving and devoted parents the child spends time with, why you can’t have 50-50 custody,” Miller says. When all the power is given to one parent, he adds, “What incentive is there for the parents to work together? There is none.”

Vermont’s joint-custody movement is hardly new. For more than a decade, joint-custody bills have been introduced in the legislature, usually without gaining much traction. That isn’t likely to change this year. Still, the roles of mothers and fathers have shifted in recent years — with same-sex parenting adding a new wrinkle — and with them, so have many of the traditional assumptions about who does what for the kids.

Last month, the Pew Research Center released the results of a nationwide survey of the roles of moms and dads. It found that, while fathers still devote “significantly” less time to child rearing than do mothers — on average, seven fewer hours per week — there is now measurable “gender convergence” in the ways men and women divide their time between work and home.

Moreover, in Vermont and nationally, the 2010 Census figures revealed that about 60 percent of all two-parent households with minor kids now have two working parents.

“Which begs the question,” Weinberg says, “in a modern family, who is the ‘primary’ parent?”

Opponents of H.412 insist they’re not opposed to having both parents involved in kids’ lives, assuming it’s safe to do so. The problem, they contend, is that the presumption of joint custody elevates the interests of the parents above those of the kids.

Sarah Kenney is associate director of public policy for the Vermont Network Against Domestic & Sexual Violence. H.412 includes an exemption from joint custody in cases involving emotional or physical abuse. However, Kenney says, evidence from other states indicates that such exemptions rarely achieve their stated purpose, largely because abuse is extremely hard to prove in court. Without, as H.412 requires, “clear and compelling evidence” — i.e., a relief-from-abuse order, actual physical evidence or a criminal conviction — victims and their attorneys are reluctant to raise such concerns in court for fear of being accused of false allegations.

“And so often financial control is part of the [abuser’s] coercive tactics,” Kenney adds. “Money is always a concern when victims are contemplating whether to leave, how to leave and how to support their kids. And the idea of paying an attorney is sometimes the last straw that prevents someone from making that break.”

Moreover, Kenney says, the idea that current state law creates protracted legal battles that wouldn’t happen under a joint custody presumption “just flies in the face” of research from other states. She points out that in the 1990s, California and Oregon shifted to a presumption of joint custody — then switched back. A 2005 study on those changes by the University of Iowa’s College of Law concluded, “The biggest winners, at least in Oregon, seem to be not so much the traditionally noncustodial parents, but rather the mediators and, slightly less dramatically, the divorce lawyers.”

Indeed, one longtime Vermont mediator suggests that, if H.412 were adopted, “None of us would be able to handle the amount of business we would get.”

That’s the opinion of Neal Rodar, mediator-in- residence at Champlain College’s master’s program in mediation and conflict resolution. “Forcing people to agree to share something that they aren’t necessarily capable of sharing will only mean more fights,” he explains.

While Rodar acknowledges that Vermont’s current law sometimes seems unfair to one parent, he’s not convinced that switching to a presumption of joint custody would make it any fairer. As he points out, Vermont’s emphasis on mediation already allows for creative solutions such as “chunking,” or giving one parent a chunk of responsibilities, such as medical decisions, and the other a different chunk, such as educational decisions.

“There’s such a thing in Vermont called ‘hockey right,’” Rodar notes. That provision addresses parental concerns about whether extracurricular activities can be scheduled on the other parent’s visitation time.

Mark Keller, a family attorney in Essex Junction, spent seven of 12 years on the bench as a family-court judge. He says that joint custody only works when both parents think the other is a good parent, respect the other’s opinion and can put aside their petty differences for the sake of their kids. Without those three “core requirements,” he concludes, ordering equal custody makes no sense.

On the bench, Keller says, he often saw couples with joint custody come ask a judge to settle every dispute, such as whether their child should attend school in South Hero or Colchester.

“The last thing I wanted to do was have a hearing to decide which is the better school system,” he says. Instead, Keller would pick which parent got to be, in the words of George W. Bush, “the decider.”

Legal Aid’s Murray, who represents low- and moderate-income individuals, notes that 70 percent of people in family court are unrepresented by lawyers, so she’s very sensitive to the financial repercussions of altering the law.

“At Vermont Legal Aid, we do keep in mind how often people go to court, how much it costs to go to court and what kind of arguments bring people back to court,” she says. Forcing joint custody, Murray argues, will only result in more financial, as well as emotional, pain.

McCullough disagrees. Based on experience in other states, he suggests, H.412 would reduce the caseload of Vermont’s family courts.

Would that save fighting parents money in the long run?

“That’s not really the object,” McCullough admits. “The object is, of course, to create the best possible environment for children to reach