My name is Scott Field, and I also live in south St. Louis County.

     Some of you have spoken out against even the mild remedy for our children of a rebuttable presumption of joint custody, without considering the huge flaws in our current sole custody system and how it's harming children.

     The point of a rebuttable presumption, rebuttable, again, of joint legal and physical custody would be to say, as we do in all other areas of the law, let's bring evidence forward to show what the facts, indeed, are. We're pretending here by testimony that a rebuttable presumption is instead an ironclad mandate. It is not. It's simply asking that evidence be presented which would be a change in the way that family law is done now.

     In reality, I'll be able to show for you there is, today, a hostile parent veto in place, concerning custody of children.

     In the areas of custody and best interest of the children, please do remember, and take to heart, the testimony of Dr. Warshak. He does have his facts in order.

     In the area of enforcement, certainly, I do give a great deal of credence to what Judge Goeke has to say. He's been working on this and dedicated his life to it.

     As to what states are not joint custody states, the Childrens Rights Council believes that there are 16 states that do practice, in reality, joint custody now.

     What would be the point of changing the law? The point of changing the law to help our children, and its protected best interest of our children, would be that if you start with joint custody, which all parents had and practiced before a dissolution, then Missouri should become a joint custody state. If you set reasonable, high expectations for cooperation, you will eventually get cooperation, and several of the witnesses have spoken to that. That if you expect cooperation, and you take away the incentive for making a divorce, then you're going to see more intact families staying together for the best interest of their children.

     In reference to the last witness, the professor, I would dispute that there are two types of custody, two types of support. I believe that really we need to look at the fact that there are, in reality, three types of custody. There's monetary custody, which we debate and kick around at great length. There's residential custody, which will serve our children well, if we have substantial equal time split. And, there's emotional custody, just as there's emotional support, where your child is with you and you're able to show them, because they're with you, that you do love your child. These are some of the reasons that we should make Missouri become a joint custody state.

     It's especially needy, and I can't speak to this, personally, but it's especially needy where there is a paternity versus a  dissolution. We have heard from several of the witnesses, the harm done to children when one that child loses a parent, when that parent drops out. With a paternity, the father is often the one that's pushed away or forced away. There is a huge expense involved in trying to get your access to your child. There is a lot of time and a lot of money.

     Tomorrow's section will involve just the lay people, the public, and I have asked for one father to come and tell us, in detail, excruciating detail, that it took him a year, approximately 12 police reports, three trips to court, and thousands of dollars to get back what had already been court ordered, in his case, and that he was trying to get his court ordered time with his children and that was being blocked, repeatedly.

     Over time, there has been a lot of testimony given that the parents do heal and they quite often do, but over time, the experience of a divorce and losing a parent, because there's no joint custody available, and one parent chooses to drop out or is pushed out, or is moved away from. These children don't heal. We need to start with a rebuttable, just a rebuttable presumption of the joint legal and physical custody and a strong sharing of time, because custody has been set at filing in our current law. The parent that files first, snatches custody, and as the different witnesses have said, custody remains with the snatching or filing parent until there is a final decision made by the court.

     I know a father who had lived for quite a while with equal time and joint legal custody, joint physical custody. His former spouse decided to move out of state, off to the coast, and the judge would not enforce and will not enforce his own orders about access, and about children. Move away does hurt children. More on that later.

     There were requests earlier for some statistics. These are from the state of Missouri, and shows that custody is given in 1995, on my first page, to the father, 11 percent of the time, and joint custody is only 15 percent of the time. Almost every year in the state of Missouri, they do custody statistics, and every year, the result is that joint custody is the outcome for our children in fewer than 20 percent of the cases. Everywhere I've gone in Missouri, 20 percent is not a passing grade. 20 percent is an F. People say, well, let's try to avoid outcome based directives. No, let's expect it. We're going to begin for a change to work in the best interest of our children, a rebuttable presumption of joint custody is part of that.

     On pages 2. And 3. .......

     JACOB: Mr. Chairman, I have three questions.

     CASKEY: Senator Jacob.

     JACOB: Is the 20 percent, is that ordered, or does that include them all where they were agreed to, as well?

     FIELD: Those are the state's statistics, and you'll have to ask  vital statistics for that answer. In reality, though, most judges will not order joint physical custody over the objection of one parent, and that's what I mean, that very much Missouri is not a joint custody state. It's a hostile parent veto state.

     On the second page, when the wife and mother files first, we call this first-strike. When she files for a dissolution, joint custody is cut down. Joint custody, which we do know, is the best outcome for children.

     Strangely enough, on the third page, you'll see that when the husband and father files for custody, joint custody is greatly enhanced. Unfortunately, we also see sole father custody as an outcome, based upon the fact that Missouri is not, in reality, a joint custody state, but Missouri is a first strike state, with a heavy reliance still on the tender years doctrine and sole maternal custody. Again, these are the state of Missouri's own numbers.

     Going from custody, where we do need to begin to protect our children with a rebuttable presumption of joint custody, not a strong mandate, just a presumption that says, bring evidence, and you shall be heard.

     Let's look at support. The income shares model, which Missouri currently uses is fatally flawed, and it is beyond debate that our children need and all deserve all three kinds of support, residential, monetary, and emotional.

     There have been recent studies, that have been condensed and reported in Newsweek, and the U.S. News and World Report, that through the Harvard University Press, show that money is not the most important thing that we give to our children. Please reflect back, Representatives and Senators, on your own lives, and what your parents gave to you. For most of you it was not riches. Some of you grew up in an era before I did, and maybe you were just lucky to have food. The most important things that your parents give to you are not material. Money is not the most important thing that I provide for my child, nor is it the most important thing her mother provides for her. It's what you do for your child. It's what you teach them. It's the values you instill in them, that you do not steal. You do not take what is not yours. And, that you learn to play well with others. Missouri law teaches, in contrast, that being a bully will be rewarded. That's, again, a part of the first-strike.

     One thing I would like to speak about, would be that many times, you'll see one parent whose income drops at the filing and of the dissolution. What I'm told and what I heard during lunch is that judges and attorneys try to treat this as hiding income, or purposely dodging income. I see it quite often as a change in circumstances, where one parent who was able to work because there was an agreement between both parents, $75.00, a week, where one parent was able to work nights and weekends, now has to forego that extra time at work, be it as a doctor, or as an attorney, or as just a contractor, putting in sundecks for people, or as a nurse. One parent has to forego that time at work and that extra income because of a change of circumstances. They've been filed against in a dissolution and they now have to spend time, where before they were working for money. Now, they're working to be back in part of their children's lives.

     What we often see is that, realistically, when Mr. And Mrs. Jones get divorced, we often see that Mr. Jones has income of $29,000. Mrs. Jones has an income of $30,000, but we're seeing that in order for a child support as being entered, so as to be able to justify denial of joint custody.

     We have heard an opinion given that Missouri's Child Support Chart Form 14, based upon the flawed income shares model, is too low. That's incorrect. Judge Frawley mentioned in the March 24th, Missouri Lawyers Weekly, that the model used by the Missouri Supreme Court assumes that the children live in one home, 365 days a year. Unfortunately, Judge Frawley didn't seem to mention that when he was here earlier. Further flaws in Missouri's Child Support Chart, which has been kept a secret, not only from its citizens, but from most lawyers and judges, will include the fact that intact married families were used as the basis for this study, and it's not a study of Missouri families. It is a national study, so that Missourians with relatively modest incomes, for the most part, are lumped in together with high income states, such as Florida, New Jersey, New York, California, Massachusetts, Washington, and Oregon, Texas. Incomes there are a lot higher. Let us also consider the fact that with respect to our Supreme Court Judges, while they may be very wise people, they do not live in the economic circle of the average Missourian. Their salaries are around $100,000 a year, instead of $30,000. That's common.

     Please do pay heed when our Director of Child Support Enforcement does come forth and tell you that quite often the amount of child support ordered is not payable by the parents obliged to pay that, due to a change in circumstances, the courts refused to recognize. There's a great deal of appellate opinion out there that says that it is the paying parents duty to either lower his expenses, and that's their language, or raise his income, instead of modifying the amount of child support to meet reality.

     Another point I would like to make about linkage would be that when the custodial parent goes back and asks for more support, which often happens, there's no requirement that they be current in the amount of access court ordered. That's something that needs to be fixed.

     About enforcement, when we don't act on enforcement, as Judge Goeke has suggested that we change things to meet, so that he's able to get enforcement done, we're teaching kids that there's a benefit to being a bully and that it is all right to flaunt the law. And, remember, I'm hoping that my one friend that I work with, on these custody issues, will be able to take off tomorrow, because it did take him over a year, and thousands of dollars, and a dozen police reports, and three trips to court to finally get back to what was court ordered.

     On the subject of move-aways. In a very few cases, I can understand where a move-away needs to be allowed. If there is medical treatment that's not available where the child currently resides, if there are other special educational needs for a handicapped child or a child with special needs that cannot be met where that child currently resides, certainly, move-away can be justified then, but it should be used sparingly, because when you allow a child to move away, in the eyes of that child, you kill a parent. That parent ceases to exist. And, enforcement of what remains of court ordered access, which is called visitation, is hard to do, especially interstate.

     An additional thing I would ask, recommend that the committee look at, would be that when a move-away is allowed and transportation costs are incurred to allow what access visitation is left between parent and child, that they designate that the support first goes to pay for transportation, so that that child does have at least a vestige of her relationship with both parents, especially the one that's moved away from.

     I hear a lot, and there is also talk among people in the mental health profession, in the St. Louis area, about establishing minimum punitive schedules between the child and the non-custodial or male parent. I would ask you to please go ahead and make sure that you avoid looking at any kind of minimum schedule, because I've been advised by one judge that if there's ever a minimum schedule installed, that's all you can ever expect any father to get going forward. And, that's a warning that I've received from a judge.

     Another problem with the minimum punitive schedule for access or visitation, as it's called, would be that they're often age driven, given as a zero to one year, one to three years. What happens is, that this sets a precedent that can't be broken unless there's also a provision written into the decree years in advance, that at such age, we will put these children and this broken family on a joint custody status, by putting in there, that all other things being equal, you're going to write in advance, a change of access or visitation schedule. These precedents really are hard to break and will require multiple trips back to court for modifications of custody, access or visitation.

     One thing that I find that tickles me about attorney's fees, is that there's been talk below the surface of establishment of a trust fund. Sounds like a good thing. But, the real purpose of this trust fund would be that the parents would pay monies into this trust fund to make sure that the attorneys receive their fees. That doesn't sound very trusting to me.

     CASKEY: Hear, hear, hear. Shame on you.

     FIELD: Going back to custody, the Missouri Bar has available, for free, a Study on Gender and Justice, which was from March of ‘93, which, where judges and the attorneys who practice in front of them, admit that judges indicate by statement or action that young children usually belong with their mothers. That's Page. 4. And, judges say that - well, attorneys who practice in front of the judges, say that they usually or always give fair and individualized consideration to fathers who seek custody of their children, about a quarter of the time.

     I will admit that joint custody can be bad in some cases, but I'd also like to go ahead and bring up the obvious conclusion that no one has brought up yet today, that joint custody might be bad for attorneys who practice a lot of family law.

     I have some selected quotes of Page 5., from James Cook, chair of the family law section newsletter. "Whew!!! We managed to dodge the bullet again this legislative session. Senate Bill 51." "....Senate Bill 51 was not the only legislative challenge our section faced. There were several bills introduced and the Section was scrambling virtually the entire session to keep pace." "The Section,....formally recognized the Honorable Christine Sell-Rogers, for her effort to helping educate legislators, and taking the lead in opposing Senate Bill 51." Also, said, Mr. James Cook, "I feel the legislation would have passed, and we would be facing many problems today." No where in this newsletter that was really intended just to be read by attorneys, is there a fear that joint legal custody would inflict some terrible horror on our children. No where in the article by Mr. Cook, is there a concern that joint custody might somehow harm children, but I would like to thank Mr. Cook for finally being the one to show me the money, because that's where the denial of joint custody is about when it comes to the bar. It's bad business for the bar. I will understand that.

     I would like to offer you some solutions before I conclude. Many people have asked, how can the legislature assist in raising literacy, graduation rates, lower teen and out-of-wedlock pregnancies, lower abortions, teen births, lower drug abuse, lower child abuse, and criminal behavior, all while raising voluntary compliance with court ordered child support, and how can the legislature do this for free? A rebuttable presumption of joint legal, and, perhaps, joint physical custody, as well, will do this. Here's why. Attorney respondents were asked, and judges were asked, if the court awarded visitation as sufficient to allow meaningful participation in children's lives by their non-custodial parent, judges said, always, usually, or sometimes, in about 75 percent of the cases. That means that in 25 percent of the time, the judges, themselves, admit that there is insufficient time that they allow, and more likely, it's closer to 60 percent, because they're saying sometimes 37 percent of the time.

     The same question was asked of these judges and the attorneys, and they said that, the attorneys claimed that more than a third of the cases, that court ordered visitation is sufficient for a real, meaningful relationship between parent and child. They said, no, seldom, and never in more than a third of the cases.

     When judges and attorneys claim publicly that all is well, but among themselves admit to such a high level of noncompliance with their sworn duties, it gives me reason to doubt what their real intent is.

     What we hear, publicly, from the judiciary and the bar, is a stark contrast in what they meant to discuss among themselves, and my facts here come from Gender and Justice, which is available for free from the Missouri Bar.

     Another thing that comes from Gender and Justice, there is no evidence that maternal custody are inherently in the best interest of the child at any age. The majority of children have multiple attachments. They're attached to both parents. They prefer both parents, equally, so there is no reason to believe that in that early period, that there's some attachment to the mother, some bonding to the mother that makes that relationship special. That bonding can occur just as well with the father, and that comes from Professor Arden Miller, Southwest Missouri State, and that's also in the report, The Missouri Task Force on Gender and Justice.

     CASKEY: Do you have a complete of the Cook Article. I noticed that you provided us excerpts from it.

     FIELD: Do I have a copy of the whole book? Was that your question, Senator?

     CASKEY: Of the Cook article?

     FIELD: The Cook article. I may or may not have with me.

     CASKEY: You've provided excerpts from it, but do you have the entire text?

     FIELD: Yes. I'll be able to get the entire article. I'm planning to stay in town overnight and it will be available, certainly, tomorrow.

     CASKEY: Okay. Are there any questions of the witness? Thank you, very much, for appearing. We have about three other folks that would like to give some testimony this seeing, so if we could proceed on.

     Pat, do you know who they were?

     DOUGHERTY: Yes, these are three individuals from out of town, I take it, who cannot be here tomorrow. Is that my understanding? First would be a Mr. David Rutherford. From Bridgeton, Mr. John Painter.

     CASKEY: For those of you that are not on the schedule, let me remind you again that it's necessary that you fill out the occasional witness form and see that we get it. We'd like for you to pretty well hold your comments to about ten minutes, if you would.