Finally some good news for songwriters

The Internet is transforming the music industry from a sales-of-copies model to a sales-of-access model. Instead of buying CD’s, more and more people are subscribing to digital plans that allow them to listen to music without ever buying a record, CD, cassette, or any other kind of physical copy of it. Naturally, this threatens to turn recording artists, songwriters, and record company employees into paupers, much in the way that Google Books, broad judicial interpretations of “fair use,” and online royalty-free sales of so-called “used” books are hampering the ability of all but a select few book authors to receive a reasonable return on their investments of time and creativity in writing.

Record companies responded to this development by prevailing upon Congress to enact the Digital Performance Rights Act (DPRA), establishing for the first time an exclusive digital performance right for the owners of copyrights in sound recordings. The DPRA allows traditional radio stations (“terrestrial” stations licensed by the FCC, as distinguished from Internet transmitters) to continue to freely broadcast sound recordings without paying royalties to the owners of copyrights in the sound recordings, but Internet services offering pre-programmed or on-demand streaming and/or digital downloads have to pay record companies and recording artists royalties.

This is all very well and good for record companies and recording artists, but it does nothing for those who hold the copyrights in the musical compositions embodied in the recordings. As too often seems to happen, the focus on protecting and advancing the monetary interests of record companies and their “stars” has eclipsed concern about the rights and interests of songwriters and lyricists.

It looks like there could soon be some good news on the horizon, though. OK, it’s good news for music publishers, but some of the benefits might potentially “trickle down” to songwriters, too.

The good news is that the U.S. Department of Justice (DOJ) is considering amending an old consent decree to allow performance rights organizations (ASCAP, BMI, and SESAC) that handle copyrights for songwriters and publishers to bundle digital mechanical licenses along with performance rights licenses. Currently, performance rights organizations are only permitted to license performance rights of musical compositions, such as live concerts, radio and television broadcasts, and the “performance” aspect of Internet streaming. They are not permitted to license the making and distribution of physical or digital copies. If composers and lyricists want to be paid royalties when someone makes or distributes a copy of their compositions, they need to turn to a different agency for licensing of those rights. Making one-stop licensing possible by allowing bundling of these licenses could make things more convenient for songwriters. It would also benefit those songwriters (especially the independents) who mistakenly believe ASCAP, BMI or SESAC licensing gets them all the royalties to which they are legally entitled.

The DOJ is also considering allowing music publishers to withdraw digital rights from the blanket licenses of performance rights organizations. This could give publishers room to negotiate better individual deals with particular music distributors.

Next, the Justice Department is considering requiring a negotiated interim royalty for the songwriter (or publisher) to be set before a digital service can begin streaming the music, and limiting the length of time during which the interim rate could be paid before a final royalty rate would have to be established.

And it is rumored that the Justice Department may require higher levels of transparency and accountability from music publishers and performance rights organizations.

Taken together, these changes could help songwriters (or at least those songwriters with good publishers) get better royalty deals, and could also help them get paid the money to which they are legally entitled but which they too often never receive.

The comment period appears to be closing, so a decision could be coming very soon.

 

Why the Custody “Label” Matters

(Scene from "I Am a Fugitive from a Chain Gang," Warner Bros., 1932)

(Scene from “I Am a Fugitive from a Chain Gang,” Warner Bros., 1932)

Before closing down the custody litigation side of my practice, I had opportunities on several occasions to hear judges attempt to explain why it is necessary, after a divorce, for one parent to be designated the “custodian” while the other parent must be demoted to the status of a “visitor.” Of course, none of their explanations made any sense.

To deflect resistance on the part of some parents to being relegated to visitor status, one judge I knew asserted that there is no qualitative difference between physical custody and visitation; that “custody” is merely a label. During pretrial conferences in chambers, if I was representing the father, this judge would turn to me and say, “So your client is all hung up over a label, huh? He’s going to waste his children’s college education fund fighting over a label.” I never heard this judge pose the same question to a mother who was fighting for the “mere label” of custody.

I remember turning to this judge once and asking, “Well, if it’s just a label, then why can’t the mother just throw my client a bone and agree to share the ‘label’?”

I never got an answer to my question. Why? Because he knew very well that custody is more than a mere label. It is true that the rights of noncustodial parents are stronger now than they were in the twentieth century. The increased legal protection for the rights of noncustodial parents has not obliterated the distinction between custody and visitation altogether, however.

Why the custody “label” still matters

 Child support

Historically, only a physical custodian of a child had a right to receive child support. The right was contingent on the label; it was not based on the amount of time a child spent with a parent. Even if a court order granted both parents exactly equal amounts of time, only the parent with the custody “label” could claim a right to receive child support payments from the other parent

This was due, in part, to the way child support laws were worded. They usually specified how much money a “noncustodial” parent must pay to a “custodial” parent. From a historical point of view, this made sense, conceptually at least. Visitation was merely a right to spend some time with a child. A custodian, however, had the responsibility for the care of the child (providing a home, clothing, food, etc.)

It is sometimes asserted that the law did not really treat custodial and noncustodial parents differently; that each had the same support obligation, but custodial parents were permitted to discharge their obligation by providing direct support. On closer analysis, however, the equivalency argument does not hold water. A custodial parent is only required to provide a minimum level of care necessary for the child’s survival, i.e., sufficient level of care to avoid a charge of criminal child neglect. A noncustodial parent must provide more than a minimal amount of care. In most states, the amount of care the noncustodial parent must provide is keyed to the amount of his income: the more income he earns, or has the ability to earn, the more care he is legally obligated to provide, even if it is far in excess of what is needed to meet the child’s needs – that is to say, even if it is far more than what is needed to avoid a charge of criminal child neglect.1 If he is unable or unwilling to provide that level of care, then the state may garnish his wages, suspend his drivers license, suspend his professional license, seize his assets, deny him a passport, and send him to jail. None of these things can be done to a custodial parent solely on the basis of failure to spend more money on a child than what is required to meet the child’s basic needs.

In Kammueller v. Kammueller2 the Minnesota Court of Appeals had occasion to consider whether the system of classification in which a parent with more than 50% of the parenting time is prohibited from seeking child support from the other parent solely because a court has labelled him “noncustodial” violates the Equal Protection clause. The Court held it did not. Why? Because a custodian has a legal duty to provide direct care for a child; a noncustodial parent with visitation does not.

Some states, like Minnesota, have abrogated the rule that only custodial parents may have a right to receive child support from the other parent. This is still the law, however, in others.

Modification standards

It is generally more difficult to modify custody rights than visitation rights. Modification of custody may require proof of something extraordinary, such as endangerment, impairment of health or emotional development, or proof that a child has been integrated into the noncustodial parent’s home with the custodial parent’s consent. Modification of visitation, on the other hand, usually only requires a showing that a desired change is in the child’s best interests.

Some states have begun to impose the higher standard on motions to make significant modifications to a visitation schedule, too. Nevertheless, the fact remains that any modification of the custody “label” is deemed “significant,” while only certain kinds of modifications of visitation rights are considered significant. This, in itself, suggests that there is something inherently significant about possessing the custody “label.”

“The final say”

A grant of joint legal custody is supposed to mean that the parties are to make decisions jointly. In several states, however, courts will give a parent with sole physical custody “the final say” in those cases where the parties are unable to reach an agreement on a decision. This may not be the case in every state anymore, but there are places where it is still either the law of the state or a custom of local courts.

Tax benefits

Federal and state income tax laws generally give the custodial parent, not the noncustodial parent, the right to head of household filing status, and to claim the child as a dependent, the child tax credit, the exclusion for dependent care benefits, the earned income tax credit, and the child-care credit. This may be true even if the noncustodial parent pays all of the child-care costs. A noncustodial parent may claim a dependency exemption for a child if the custodial parent signs a tax form giving her consent to the noncustodial parent to do so. Unless a court orders this to be done, however, a custodial parent is under no legal obligation to sign such a consent form.

International abductions

The Hague Convention gives custodial parents a right to the return of children who have been abducted to a foreign country, and provides remedies for the enforcement of that right. It does not give a noncustodial parent a right to the return of children whom the custodial parent has abducted to a foreign country.3

Criminal penalties

At one time, only a noncustodial parent’s interference with the custodial parent’s rights was a crime. In the late twentieth century, most states made interference with visitation rights a crime, too. Nearly every state made a distinction, however, in terms of the severity of the offense. Interference with custody rights was classified as a felony while interference with visitation rights was classified as only a misdemeanor.

Many states have been moving toward treating interference with visitation rights as a crime of the same severity level as interference with custody. Nevertheless, because there are still some states and foreign countries that continue to treat interference with visitation rights as a non-felony-level offense, the distinction can be very important in terms of interstate and international enforcement.

Tort recoveries

Physical custody includes the right to a child’s services as well as companionship; visitation only provides a limited right of companionship. For this reason, some states allow recovery of damages for tortious interference with custodial rights but not for tortious interference with visitation rights.4

School enrollment

Some states requires that either the custodial parent or the child “reside” (as distinguished from “visit people”) within the school district.

Authority to pick a child up from a school or child-care facility

State and municipal laws and regulations vary widely on the point, but a law or regulation in a particular jurisdiction may specify that only a parent with physical custody is permitted to pick up a child from a school or a child-care facility. In these jurisdictions, a noncustodial parent may do so only if the custodial parent expressly consents to it.5

Public assistance

Some public assistance programs limit eligibility to custodial parents only, or they increase the level of benefits in proportion to the number of children who “reside” in a parent’s home.

Miscellaneous

These are just some examples. There are other rights, benefits and privileges that laws, regulations and contracts (public or private) afford to custodial parents that are not granted to noncustodial parents. In Minnesota, for example, there are Minn. Stat. §§ 62A.046 (2012) (authorizing payment of dependent health care benefits to the custodial parent, but not to the noncustodial parent); 119A.37 (2012) (requiring the creation of standards for the protection of the safety of custodial parents, but not for the safety of noncustodial parents, during parenting time exchanges, and authorizing parenting time centers to offer classes and support groups to custodial parents, but not to noncustodial parents); 168.021 (2012) (authorizing only the custodial parent of a disabled child to obtain, display and use handicap license plates); 349A.08 (authorizing payment of minor child’s lottery winnings to a custodial parent, but not to a noncustodial parent.) This is not, by any means, an exhaustive list.

The most important reason

As significant as all these things are, the most important difference between the custody and visitor “label” has to do with something much more intangible, the legal status and dignity of the person to whom the “mere label” is affixed.

A pragmatist who has no experience with being treated as a second-class citizen might find it difficult to understand why a legal status can seem so important to some people. An analogy to the civil rights area might help clarify.

Suppose, instead of the Fourteenth and Fifteenth Amendments, Congress had simply enacted laws giving slaves a right to be paid the same wages they would be paid if they had the label “employee” rather than “slave.” Suppose, in addition, that Congress had enacted a law to the effect that henceforth every slave who can establish that his or her vote will be in the best interest of the country shall enjoy a privilege to vote in elections. Shouldn’t this be just as good as giving all slaves the label of “citizen”?

What do you think?

The need for reform

By showing that the custody “label” does matter, it is not my intention to encourage people to fight for custody. As I indicated at the beginning, I no longer participate in custody litigation. There is a reason for that. In the civil rights analogy, it would be tantamount to helping slaves fight each other to prove whose vote is in the best interest of the country. The needed fight is not one pitting parent against parent; it is one for the restoration of rights to all parents.

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My book, The History of Custody Law, is available in paperback and Kindle e-book formats at Amazon.com:

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  1. See, e.g., McNulty v. McMulty, 495 N.W.2d 471 (Minn. Ct. App. 1993).
  2. 672 N.W.2d 594, 600 (Minn. Ct. App. 2003)
  3. Compare Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, 99 U.S.T. 11 (codified as 42 U.S.C. §§ 11601-11610 (2011) art. 12 and art. 21; see also Gonzalez v. Gutierrez, 311 F.3d 942, 945 (9th Cir. 2002); cf. Abbott v. Abbott, 560 U.S. ___, 130 S. Ct. 1983 (2010) (holding that a parent who, though nominally designated the noncustodial parent, is expressly granted ne exeat rights (i.e., the right to veto the other parent’s decision to move the child to a foreign country) in a custody order has “custody” rights for purposes of the Hague Convention, and therefore can invoke the right to return of a child who was taken to a foreign country over his objection.)
  4. See, e.g., Cosner v. Ridinger, 882 P.2d 1243 (Wyo. 1994); compare Spencer v. Terebelo, 373 So. 2d 200 (La. Ct. App.), writ refused, 376 So. 2d 960 (La. 1979) and Owens v. Owens, 471 So. 2d 920 (La. Ct. App. 1985)
  5. See, e.g., Office of the General Counsel, Los Angeles Unified School District, Help Manual III.A.3 (2003); Child Care Law Center, Child Care and Family Law: Child Custody and Releasing Children From Care 3 (2012) (asserting that “only a parent with physical custody at the time of the pickup can make decisions about picking the child up from care.”)

Presumptive joint custody

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“Presumptive joint custody” refers to the idea that parents should share custody of their children unless some good reason is shown to exist, in a particular case, for only one parent to have custody.

In popular usage, the term is often used interchangeably with “shared parenting.” They do not really mean the same thing, though. Shared parenting refers to a paradigm in which both parents have the right and responsibility to participate in parenting. Like presumptive joint custody, it rejects the former paradigm of assigning all parenting rights and responsibilities to one parent, while granting only visitation privileges to the other. It says nothing about the legal status of each parent, though. States that have enacted shared parenting legislation typically provide for changing the terminology used in custody orders from “custodial” and “noncustodial” to “the parent with residential responsibility” at a given time  and “the parent without residential responsibility” at a given time. Almost invariably, though, the statute will specify that it is still necessary to designate a custodial parent in the order, if only for the purposes of enforcing the order in other states. The legislation is usually silent about whether the designation of custody that is made “solely for enforcement” should be sole or joint.

What a presumption is

A presumption  is a  rule of  law according to which a finding of one fact gives rise to a finding of another fact.

Presumptions are either rebuttable or conclusive. A rebuttable presumption is one that  may be rebutted by introducing evidence to show that the presumed fact should not be inferred in a particular case. A conclusive presumption is one that requires the presumed fact to be taken as true in every case.

Almost all legal presumptions are rebuttable, not conclusive.

What “joint custody” is

Joint refers to something that is shared by two or more people. In the custody law context, it refers to sharing the right to the care and control of a child.

Custody has two different meanings pertinent to family law. It can refer to the right to make major decisions concerning a child, or the right to the physical care and control of a child. Decision-making authority is sometimes called legal custody. The right to the physical care and control of a child is sometimes called physical custody.

A number of states have already enacted a presumption in favor of joint legal custody. Very few have enacted a presumption in favor of joint physical custody. Since the subject of this blog is the future of custody law, the focus here will be on proposals to establish joint physical custody as the presumptively correct outcome in custody contests between parents.

What is the “presumed fact” in presumptive joint custody?

All states provide for deciding custody of a child on the basis of what is in the best interest of the child. Therefore, custody-related presumptions usually relate to what is in children’s best interests. Many states, for example, have established a presumption that an award of custody to a parent who has perpetrated domestic abuse against the other parent and/or the child is not in the best interest of the child.

In most proposals for presumptive joint custody, the presumed fact is that joint custody is in the best interests of children.

Assuming it is a rebuttable presumption, then, it could be overcome by introducing evidence to show that joint custody is not in a child’s best interest in a particular case.

Best interest” vs. constitutional rights

Child-custody-related presumptions, and proposals for them, tend to identify the presumed fact as being that some specified custody arrangement is in children’s best interest. The primary caretaker presumption asserted that placement in the custody of a child’s primary caretaker is in the best interests of the child. The ALI’s approximation rule holds that continuing the same percentages of parenting time as the parents exercised before their divorce is in children’s best interest. It is tempting, therefore, to follow the same approach when trying to establish joint custody as the normative outcome in custody cases. In custody contests between parents, though, there is another consideration that comes into play: the constitutional rights of the parents.

As has been covered in previous blog posts, parents have a fundamental right to the care, custody and companionship of their children. Parents also have rights under the Equal Protection clause of the Fourteenth Amendment. In an intact marriage, parents have joint custody of their children, so why shouldn’t divorced or never-married parents? Moreover, since parental rights are fundamental rights, a grant of joint custody to divorcing parents should be considered1 constitutionally mandated unless the state can show some compelling reason for treating divorced parents differently from married parents in this respect.

Unlike other custody-related presumptions, presumptive joint custody has a constitutional dimension that arguably should not be rebuttable merely by proving that it is not in a child’s best interest in a particular case. At least, it should not be possible to do that with any greater ease than removing children from one or the other parent’s care during an intact marriage should be.

Presumptive joint custody gives legal effect to the truism that the dissolution of the relationship between two parents does not dissolve the relationship between either parent and their children. Properly understood, it says nothing about what is best for children. An army of social scientists could concur that only maternal custody is essential for healthy child development, but that does not change the fact that the dissolution of a marriage does not dissolve the relationship between each parent and his or her children.

The curative function of presumptive joint custody

How a preference for sole custody is built into statutory “best interest” lists

Statutory lists of “best interest” factors direct courts to engage in a process of evaluating and ranking the parties to a custody dispute on a number of different attributes (health; stability; level of attachment; etc.) This presupposes that one or the other parent must be determined to be the one who is the most suitable to have the custody of the parties’ children.

In the absence of any other guidance or direction as to what it is supposed to do with a list of “best interest” factors that relate to the qualifications and abilities of the parties as parents, a court must assume that its job is to rate each party on each of the factors, compare each party’s total score with the other party’s score, and then declare the higher-scoring party the winner. Although not explicitly mandating sole custody awards, the structure of such statutes clearly contemplates an award of custody to one or the other party, i.e., sole custody.

Some states have tried to rectify this implicit preference for sole custody by enacting legislation asserting that there is no presumption or preference either for or against joint custody. If the basic structure and wording of the “best interests” statute is left intact, though, then such enactments are really only meaningless verbiage, in practice. In the absence of a fundamental revision of the “best interests” statute, the insertion of such language enables and invites the following kind of judicial thinking process:

 Example. Parent A scores higher than Parent B on the ‘best interest’ factors that I choose to treat as the most important ones in this case. Parent B scores higher on the others. Therefore, Parent A should be awarded custody. But the statute says I am not supposed to disfavor joint custody, so I will now proceed to consider whether the parties in this case are cooperative enough, and whether there are other facts in this case that would support an award of joint custody. If not, then I will award sole custody to Parent A. Even if the parties are cooperative and all the necessary facts to establish that joint custody is feasible are present, though, I will nevertheless need to take note of the legislature’s directive that I am not to favor joint custody, either. Therefore, I may or may not award it, depending, in part, on how I am feeling today, in part on my preconceived notions about the appropriate sex roles for men and women, and in part on whether I personally like, or have more sympathy for, the mother or the father in this case.

Presumptive joint custody proposals attempt to prevent this reasoning process from occurring, so that ongoing deprivations of fundamental parental rights are not made arbitrarily and capriciously.

What a constitutionally compliant joint custody presumption should look like

Properly drafted presumptive joint custody legislation would require a court to make an initial determination whether a compelling state interest would be served by divesting one or the other parent of the kind of custody of his or her children that he or she would enjoy if he or she were in an intact marriage.

The state has a compelling interest in protecting children from harm. Very few statutory “best interest” factors are related to that compelling interest, though. Take the “primary caretaker” factor, for example. The fact that one parent has been the child’s primary caretaker might possibly furnish a reason for allocating more time to that parent, but it would not furnish a reason for divesting the secondary caretaker of physical custody of the child. Accordingly, the “presumed fact” in a joint custody presumption should not be that joint custody is in a child’s best interest, but that a joint custody order is appropriate in all cases, unless a showing is made that it would be harmful to a child in a particular case.

Instead of saying, “Joint custody shall be presumed to be in the best interest of the child,” a parental joint custody presumption should say, “The court shall order joint custody unless it is shown that doing so would be harmful to the child.”

Statutory “best interest” factors were implemented to provide courts with a gender-neutral basis for selecting a custody winner, after the maternal preference doctrine was abolished. As a result, they are not the same considerations that are relevant to the question whether a parent should be divested of the right to share custody of his or her children with the other parent.

Conclusion

With respect to contests between parents, a presumption in favor of joint custody of children should not be phrased in terms of what is in a child’s best interests, where the determination of what is in a child’s best interest is governed by a list of factors that was developed at a time when sole custody was assumed to be in children’s best interest. Instead, it should provide that a parent is presumed to be entitled to the continued custody of his or her children, the presumption being rebuttable upon proof that the parent poses a specific danger of harm to the child. In custody disputes between non-parents, where fundamental constitutional rights are not involved, a rebuttable presumption that joint custody is in children’s best interests may or may not be appropriate, depending on which theory of child development a majority of legislators favors.

 

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My book, The History of Custody Law, is available in paperback and Kindle e-book formats at Amazon.com:

Purchase The History of Custody Law
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  1. I say “should be considered” instead of “is” here only because courts do not always apply constitutional principles consistently.