ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Sunday, January 19, 1997 TAG: 9701200148
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: LESLIE TAYLOR STAFF WRITER
JUDGES MAY BE REQUIRED to adopt a prejudice in child custody cases - that joint custody is in a child's best interest.
Lee Sowers was in court last month for his final divorce hearing.
He and his wife could not agree on custody arrangements for their two daughters. Custody had to be determined by a judge.
The judge awarded custody to Sowers' wife. The judge awarded Sowers, who is 32, "reasonable visitation."
"I felt he was taking away my rights to my children," said Sowers, of Salem. "That to me is not what the justice system is all about. They should take away the rights for someone accused of crimes.
"I've done nothing other than just being a father."
Sowers' former wife confirmed his account of the legal proceedings but declined to discuss the case further.
Lee Sowers has been pulled into a passionate debate. On one side are fathers'-and parents'-rights advocates who view Virginia courts as having an automatic bias in favor of mothers in custody cases. On the other are those - including lawyers, judges and family counselors - who believe the system considers first what is in children's best interest, and rightly so.
The debate is over presumptive joint custody, specifically a piece of legislation that would create a presumption in state law that joint custody is in children's best interest unless it can be proven otherwise, as in cases of neglect or abuse.
The state Senate passed the bill last year, but a subcommittee of the House of Delegates Courts of Justice Committee held it over for further study. The subcommittee, created to review the joint custody bill, in November stopped short of killing the measure and referred it to the Courts of Justice Committee without a recommendation.
The bill came out of that committee last month with a major revision, initiated by Del. Richard Cranwell, D-Vinton.
The bill originally would have put firmly into law a presumption that joint custody is in a child's best interest. The revised bill would only require that judges consider joint custody in divorce proceedings by adding joint custody to a list of nine criteria used by a judge to decide custody cases.
Currently, there is no such requirement in Virginia, but judges have the option of granting joint custody.
The law now states that in determining the best interests of children in custody cases, the court will, in part, consider the "age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs."
Under the proposed legislation, the court would consider the "age and physical and mental condition of the child, giving due consideration to the benefits to the child of joint legal and physical custody and mental condition of each parent."
Fathers'-rights advocates view the revised bill as a watered-down version of the original, which was introduced by Sen. Mark Earley, R-Chesapeake.
"It's already something that judges can do," said Barry Young of Christiansburg, who founded the now-disbanded Roanoke Valley chapter of the Children's Rights Council. "They're not changing or adding anything."
Cranwell insists the revision is a ``reasonable middle ground." The state shouldn't mandate that judges assume joint custody is in the best interest of the child, he said.
Ellen Weinman, a Salem lawyer and substitute judge in the 23rd Judicial Circuit, agrees. With a presumption of joint custody, the burden would be to show why joint custody is not in the best interest of children.
"Right now, the burden is what is in the best interest of the child or children," she said. "The court ought to be considering what the right thing for the child is, regardless of harm to parents.
"Kids don't ask for divorces. It's parents."
Weinman estimates that in 90 percent of the divorce cases she handles, custody arrangements are settled outside the courtroom. Divorcing couples are able to work out arrangements for their children, she said.
"Where kids have trouble is where parents aren't able to put aside their own bitterness," Weinman said. "Those go before court. When that's the case, because people can't agree on joint custody the child continues to be in the middle of a tug of war between people who are fighting."
But what is the likelihood of divorcing couples, in the midst of emotional upheaval, setting aside their differences long enough to work out custody arrangements? And would a judge's order for joint custody make conditions any better for couples in the throes of disagreement?
"Couples where joint custody works are people who know how to mediate and calmly discuss," said Pat Davidson, a marriage and family counselor and child therapist who works for Family Service of Roanoke Valley.
"If couples can't communicate civilly, the child is in the middle of a crossfire of words between parents. Ordering people to communicate doesn't make them communicate. Just because someone court-orders it won't make people automatically listen."
In Virginia courts, custody is more likely to be awarded to the mother than the father, according to data compiled by the Children's Rights Coalition of Virginia in Richmond.
The coalition - which has pushed for passage of presumptive joint custody legislation - looked at divorce decrees in 5,000 cases in five Virginia court systems. The coalition identified 10 cases where the father was granted custody without meeting one of three criteria: the mother gave her consent; the mother was deemed unfit; or a child over 12 convinced a judge that he or she wanted to live with the father.
The coalition identified only one case where the judge awarded joint custody without the mother's consent, said Murray Steinberg, one of the coalition's founders.
But Weinman contends that may be more a reflection of our culture than any bias of the court that favors mothers.
"As a culture, women do more with child care than men," she said. "Men are much more involved than they used to be. But I don't think there's a family out there where things are always equal. Generally, one parent does more than the lion's share.
"Still, today women are more likely the ones who deal with the kids. That's just reality."
But children should have the right to both parents, unless they have been abused or neglected, Lee Sowers said.
"I understand that laws are designed to protect children and that right should not be taken away from the court," he said. "But the court is of the opinion that children should be raised by moms. That to me is twisting the discretion of the court.
"Unfortunately, in my case, my time with my children is being controlled by people other than me."
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