While the bills on immigration and teacher pay-cuts seemingly have received all the fanfare and media attention here in Alabama, several other bills could more broadly and directly impact every family  in the Alabama. One such bill is Republican Senator Paul Bussman’s Senate Bill SB196 which is called the Alabama Children’s Family Act. (Remember Paul Bussman?)

On its face, this bill sounds good:  equal time for each parent.  However, to say that this bill fundamentally alters family law and child custody determinations by Alabama courts is an understatement; it is nothing short of radical. PLEASE NOTE: In addition to Sen. Bussman, this bill enjoys 20 Republican co-Sponsors in the Senate; there are only 22 Republican Senators in all.

In the past weeks, this bill had been pulled for mediation; however, it is now reported that Senator Bussman has withdrawn from the mediation process on this bill and now intends to proceed with having a public hearing on this bill tomorrow, Wednesday April 6, 2011.

Presently, in a divorce or other child custody dispute, the court decides where a child will reside and respective periods of parental visitation based upon the “best interests of the child.” The courts typically consider which parent has provided the most and best care for the child and which can provide a better home in the future; however, they may also consider fault for the divorce as well. (In the courts in which I practice,  fathers which have been active during a child’s life have a fair shot at custody.)  After a trial,  the courts frequently devise a schedule wherein on party has primary physical custody and the other party has regular visitation: many times every-other weekend. On occasion, a court will order a joint physical arrangement wherein the court divides physical custody equally: one week on-one week off.

In complete reversal of this, the Republican”s bill dictates equal custodial time between parents unless one parent is “unfit.” It reads:

In every petition filing for divorce or for a child custody determination . . ., absent a legal finding by the court of parental unfitness by clear and convincing evidence, or absent a fair agreement between each of the two fit parents, with complete knowledge of the legal ramifications of the decision, in all contested cases the court shall ensure that:

“(1) In making an order or judgment relative to the care of a child, the parental rights of each of the two fit parents shall be held to be equal.

“(2) In making an order or judgment relative to parenting time of a child, the residential parenting time shall be held to be equal.

Parental unfitness is defined as “[a] parent who fails to properly care for his or her child and maintain the emotional health and overall well-being of the child in such a manner the failure will seriously harm the child pursuant to Section 26-14-1 and Sections 26-15-1 to 26-15-4, inclusive.”

It is rare that a parent will fall within that definition of unfitness “by clear and convincing evidence.” Accordingly, split physical custody will almost become universal in Alabama. Even absent-fathers, which have largely left the care-giving responsibilities to the mothers, will now enjoy a statutory advantage in court which cannot be normally overcome.

While this bill does not direct actual schedules, I would expect “equal time” to practically mean either week on/week off or year on/year off arrangements.  So possibly, a child would live with a different parent every other year.

The bill is doctrinaire and allows no real flexibility or judicial discernment. This bill does not allow a judge to even consider if one parent resides in California and the other in Alabama; it demands equal time.

This bill will possibly lead to increased litigation because a parent will unlikely settle a matter for less than complete equal time. Accordingly, all the “mud” will be brought out (and likely exaggerated) in an attempt to prove “unfitness.”

The bill does not stop there. It demands that during periods which the parents cannot agree on major decisions:

Providing that in cases of disagreement regarding major decisions after implementation of the parenting plan, the father shall have primary parental decision-making authority in even-numbered years, and the mother shall have primary parental decision-making authority in odd-numbered years, unless the decisions by the parent with decision-making authority seriously harm the child. Primary parental decision-making authority is not intended to negate the responsibility of the parties to notify and communicate with each other as provided in this article.

A child could have a different school, different religion, different extra-curricular activities, and different medical care every other year.

The Republicans’ bill removes all discretion from locally elected judges. Their bill mandates a one-size fits all custody arrangement. Judges and local counsel need the flexibility to craft orders which meet the demands of justice, equity, and fairness.  Divorce and child custody determinations are difficult and complex. No one wins in divorce, especially the children but this bill commands the courts use a sledge hammer when they need the precision and flexibility of a surgical scalpel. We need legislation which allows for wisdom to be employed, not restricted.

I anticipate this bill will only lead to great frustration by Judges, attorneys, and parents and we all will be stuck.

My opponent’s t-shirts exclaimed in the campaign: “Experience Matters.” While this bill sounds good in sound-bites, if experience with how a law works in the real world matters, then this bill must be fundamentally altered.

UPDATE: The Senate Children, Youth Affairs and Human Resources Committee held a public hearing on the bill Wednesday, and Bussman said he expects the committee to vote next week. Here is an article.

UPDATE: The public hearing tomorrow is at 2:00 (4/6) in room 807 at the State House.

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