VOTERS SAY 'YES' TO CUSTODY, MARIJUANA BALLOT QUESTIONS

PITTSFIELD -- A leading proponent of a "yes" vote on a nonbinding
referendum concerning child custody in divorce cases said yesterday
that he was "utterly shocked" by the depth of voters' support for his
position.

The ballot question, which asked if citizens want their state
representative to vote in favor of legislation that would create a
presumption in favor of shared legal and physical custody of children
in divorce cases, was answered "yes" by an overwhelming majority of
voters in Tuesday's election.

In Berkshire County, where the question appeared on all ballots,
unofficial figures placed the "yes" tally at 51,799. Some 17,355
Berkshire voters said "no."

Equally high returns of "yes" votes were reported throughout
Massachusetts, where the referendum appeared in some 30 of the state's
159 state representative districts.

"I wasn't 100 percent confident that it would win," said Rinaldo Del
Gallo III of Pittsfield, who led an effort to collect sufficient
signatures of registered voters -- 1,000 -- to place the question on
the ballot. "I knew most people supported us, but when we got 78
percent of the vote in Berkshire County I was utterly shocked. I
thought it would be in the low 60s."

Del Gallo said the statewide totals were 557,615 "yes" votes and
90,708 "no" votes.

The question is nonbinding, but Del Gallo believes that legislators
will be hard pressed to ignore the message and would do so at their
political peril.

"Politicians don't like to do things that are unpopular," he said.
"When you win with 80 percent [of the vote] -- and we won in some of
the most liberal and conservative places in the state -- it's highly
unlikely that people are going to ignore us, and they won't if they
care about their political future."

The vote, said Del Gallo, "gives legislators a measure of confidence
that it won't cost them political capital" to support measures that
create and/or strengthen presumptions in favor of shared legal and
physical custody of children in divorce cases.

Del Gallo said the "yes" vote may have been increased by what might be
called editorial backlash.

"I think the reason we were so successful is that we didn't bear the
curse of The Eagle's endorsement," he joked.

An editorial in the newspaper advocated a "no" vote on the question;
Del Gallo implied that many voters virtually always adopt the position
opposite to that taken by The Eagle.

The referendum asked whether voters want their state representative
"to vote for legislation to create a strong presumption in child
custody cases in favor of joint physical and legal custody, so that
the court will order that children have equal access to both parents
as much as possible, except where there is clear and convincing
evidence that one parent is unfit, or that joint custody is not
possible due to the fault of one of the parents."

Supporters of a "yes" vote have argued that some judges in divorce and
child custody cases are inclined to favor the mother when deciding
which parent should have legal and physical custody. They contend that
state law should guide judicial action more firmly in the direction of
joint legal and physical custody and of assuring children's "equal
access to both parents as much as possible."

Some proponents of a "no" vote have argued that good, postdivorce
family relations cannot be legislated. In addition, they contend that
joint legal and physical custody can worsen disputes and be used to
avoid payment of child support.

Two other nonbinding questions appeared on some ballots in Berkshire
County and were overwhelmingly answered "yes" in the county and a few
other locations in the state.

One of the questions, which asked if the growth and possession of
small amounts of marijuana should be allowed for seriously ill
patients who secure their physician's recommendation, was answered
"yes" by 10,821 voters in the 3rd Berkshire legislative district. Some
4,139 voters answered "no," unofficial figures show.

Another nonbinding referendum, which appeared on ballots in the 3rd
and 4th Berkshire districts, asks if voters want their state
representative to vote in favor of resolutions and/or legislation that
help assure "that the campaign against terrorism should not be waged
at the expense of constitutionally protected civil rights and
liberties of Massachusetts residents."

Unofficial results from the two districts show 22,634 "yes" votes and
8,752 "no" votes.

Similar vote margins were reported in all other legislative districts
in which the question appeared on ballots.

The question also asks whether voters want their representatives to
support legislation that would bar the use of "state resources or
institutions to carry out actions that violate constitutional rights,
or actions such as racial and religious profiling, conducting secret
investigations without reasonable grounds, and maintaining files on
individuals and organizations without reasonable suspicion of criminal
conduct."

A "yes" vote on the question also expresses support for a resolution
urging the Massachusetts congressional delegation to vote to repeal
provisions in the federal USA Patriot Act "and other laws that
infringe on civil rights and liberties and to oppose any future
legislation that infringes on civil rights and liberties."