Two dueling bills emphasizing joint custody both passed a House committee on Wednesday after adjustments to each made some compromise.
The bills were the subject of a contested public hearing last week with opponents of HB 365 saying the bill went too far in taking discretion away from judges. They also questioned the bill’s language that sought to split custody time as equally as possible.
Rep. Kenneth Paschal, R-Pelham, brought a substitute bill for HB365 before the House Judiciary Committee Wednesday tweaking some of that language, and signaling to the committee that it was not his intention to codify that judges must order a 50/50 split.
Comments at last week’s public hearing cited social science data that showed children benefitted from spending at least 35 percent of their time with each parent, and Paschal said that is also what his bill is seeking.
The original version of the bill adjusted the definition of joint physical custody to ensure that the child has “equal or approximately equal time with both parents.”
The new languages states “the goal of joint custody is that the child has equal or approximately equal time with both parents, although the goal may not be fully realized in all cases.”
The language reflects 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 evidence for overcoming the rebuttable presumption that joint custody is in the best interest of the child, also aligning with Eidsmoe’s suggestion. The new language requires a “preponderance of evidence” to overcome the presumption.
“I think it should be clear and convincing evidence, but I think this moves us in the right direction,” Paschal said.
The foundation of the bill is to ensure children have access to time with both parents, and vice versa, Paschal said.
“Right now the default is about 80 days a year with one parent,” Paschal said. “There was a statement last week that everybody is still on equal footing. As a man of integrity, that is not accurate … We allow our courts to relegate, particularly fathers, to have a relationship with the child you would normally see with an aunt or uncle.”
The committee passed HB365 without any further discussion, after having already passed HB314, sponsored by Rep. Ben Robbins, R-Sylacauga.
Robbins once again emphasized his bill as giving judges’ discretion. Supporters of HB365 balked at the argument that HB365 takes away judicial discretion, but that was the main line taken by judges who spoke against the bill last week.
Robbins did offer a friendly amendment to the bill adding an additional factor for consideration: “Any history of a parent’s intentional interference or attempt to damage the relationship between the child and the other parent.”
However he disagreed with an amendment offered that would have added language similar to that of HB365, inserting language that equal or approximately equal custody is the goal of joint custody, although not fully realizable in all cases. Robbins motioned to table the amendment and the committee agreed.
There was also further discussion on including language that would require judges to write out findings of why the found against joint custody, but Robbins argued against it.
“Would you want a child to have to read about their father beating their mother?” Robbins asked. “I think sometimes we don’t want some of this info being known by the children.”
Robbins’ bill does require written findings if both parents request joint custody and the judge orders otherwise, but only then. Paschal’s bill would require findings for any decision against joint custody.
Both bills are now headed to the House for consideration.
