In Colorado divorces, an end to 'custody'
DENVER — When parents divorce, everyday decisions about the children - from who will pick them up from soccer practice to what church they'll attend - can become a reason for another trip to see the judge. Now Colorado, in a move that is attracting the interest of states across the US, is trying to take the conflict out of custody issues. Indeed, state law now dispenses altogether with the term "custody," replacing it with the idea of "parental responsibility." Colorado's law, among the first of its kind in the US, is intended to provide a framework in which parenting after divorce can become more cooperative. Critics characterize it as a mere semantic shift, but supporters argue it can help change attitudes. "The real intent behind this is to get away from the idea that children are objects that can be won or lost, and put the needs of children first," says Joan McWilliams, a Denver lawyer and mediator who helped draft the law that takes effect Feb. 1. The law also aims to keep both parents involved in child-rearing, reflecting a growing awareness of the importance of children maintaining strong ties with each parent. Colorado's law is one of the most recent efforts by states to diminish conflict between divorcing parents. In Utah, divorce-education classes are mandatory for all separating couples. Texas divorce law encourages parents to enter a "joint managing conservatorship" of their children, rather than assign custody. In California, Pennsylvania, and Washington, family courts in certain counties require mediation for all divorcing parents. In Colorado, the power of words is taking center stage. "Clients tell me that words do make a difference," says Ms. McWilliams. "When you think about the language of divorce, it is language that supports conflict: Parents fight to win custody. The judge awards custody." State lawmakers first tinkered with the divorce statute in 1993, when they banished the term "visitation," replacing it with the words "parenting time." That change alone reduced tensions, says Michael DiManna, chairman of the legislative committee of the Colorado Bar Association's family law section. "The concept of 'visitation' was offensive to parents who didn't have residential custody," he says. "It's a lot more meaningful to call it 'parenting time.' " Experts ranging from psychologists to child-welfare advocates agree that words send a signal. "Using words like 'custody' and 'visitation' does not send the kind of message we want to when we're trying to do more for children," says David Levy, president of the Children's Rights Council in Washington. The philosophy of "parental responsibility" didn't originate in Colorado - nor even in America. Divorce laws in England have long relied on the concept. In the US, the term "parental responsibility" has been on the books in Washington since 1987. And since Colorado enacted its Parental Responsibility Act last May, interest has spread: The governor's office reports it has received a flood of requests from other states for a copy of the legislation. But the new law also has its detractors. Critics say the bitterness common to divorce can't be swept under the rug by euphemizing language. Moreover, some say, it's naive to expect parents who can't get along well enough to stay married for their children's sake to be able to sit down amicably and work out a parenting agreement. "Sometimes there is too much anger, too much emotion that people can't put aside, and parents may need a judge to make a decision for them," McWilliams acknowledges. "This doesn't work for all. It's not a panacea." Notably, divorces that involve domestic violence or other abuse are exempt from the statute. Moreover, the law encourages -but does not require - divorcing parents to draft a parenting plan together. In high-conflict divorces, the court may remain the only recourse. THE wording change doesn't help in cases where parents are determined to battle, says Dale Sawyer, a lawyer in Federal Way, Wash., who helped draft that state's revised law. "If there's a great deal of animosity, it's not going to make any difference," he says of such efforts. Even so, he supports them. In Colorado, advocates believe the Parental Responsibility Act can bring improvement. "Parents generally do not break up over disagreements about how to raise the children," says Mr. Levy. "Even if they don't like each other personally, they absolutely can agree on these issues of parenting responsibilities." "The presumption is that parents love their children,... and are willing to make decisions that are in their best interests," says Mr. DiManna, who practices family law in Denver. The new law also creates "a number of options that are not currently available," he notes. For example, parents can decide whether to share all major decisionmaking, or split that authority between them. They can divide obligations - such as who schedules dental visits and who selects the child's summer camp - and they can outline a schedule for parenting time. By dealing early with potential sources of conflict, the aim is to preempt bickering later. Parenting plans still must be approved by the court. When parents can't agree, a judge will assign responsibilities to them. To spare children a court battle, parents must be willing to put their personal differences aside, says McWilliams. "People think divorce is going to separate them, but when parents have children, they have a bond that can't be broken [even after divorce]. They have to say, 'We know we need to put the children first.' "