Should All States Adopt A Presumption Of Joint Custody?

The prevailing thinking is that successful co-parenting benefits children. A strong co-parenting relationship reduces a child’s stress and provides her with comfort and security.

    But should this come about by force of law or by the parent’s own decision-making process based upon the couple’s parenting history?  Should shared parenting be legally mandated? Follow a young couple’s journey towards shared custody in Kentucky.  

Kentucky is First in the Nation to Enact a Shared Parenting Law

    Kentucky was the first state to enact into law a rebuttable presumption of joint legal custody (decision-making authority) and equal physical custody. A presumption can be rebutted (opposed) by incidents of domestic violence.

  It was reported in the NPO (National Parent Organization) Report Card of States that incidents of domestic violence went down more than 10% after the law went into effect because “if there is less conflict post-divorce, there is going to be less domestic violence.”

    It could also be that women are discouraged from filing complaints of domestic violence fearing they will not be believed and that the new law looks disdainfully at complaints of domestic violence. Issues of coercive control are difficult to prove and may be discouraged under the shared parenting mandate or worse disbelieved.

National Parent Organization

    The NPO’s (National Parent Organization) stated mission is to reform the family court. Listed on its website are Parental Alienation and Child Support from the perspective of the obligor who it claims are pushed below the poverty line by “unrealistic child support obligations”. The organization prepares a report card as to child support obligations and shared custody. New York state receives an F, as does Texas, Washington State, Connecticut, Maine and Arkansas, Mississippi, Alabama and Georgia.

         The NPO does not report on the number of households where there is insufficient child support paid by the obligor and the impact on those families.

    The organization’s primary focus is on promoting shared parenting so that children aren’t deprived of a full relationship with both of their loving and fit parents because of divorce or separation. Reforms of the family courts are integral to this mission.

When Co-Parenting doesn’t work

         Successful co-parenting requires several life choice givens. Among them are: you live within close proximity; You communicate regularly with each other about the children; you create and share joint household rules such as bedtimes, screen time and discipline; and you allow for some flexibility as to the children going back and forth between the households.  

         Persistent, high level of conflict causes harm to children. When high level of conflict is continuing, it might be better to cut back on communications. This may set up the parent who cuts back the communication to complaints by the aggressive communicator of being non communicative and violating co-parenting agreements.

           Shared parenting limits a parent’s physical mobility. Parents who are serious about co-parenting must make personal sacrifices in their mobility. If the family lived as an intact unit in one geographic area then both parents will need to continue that living arrangement in order to maintain co-parenting. One parent may not be able to financially afford the area alone and yet cannot move outside certain those geographic boundaries because of the co-parenting agreement.

           An anxious child may have difficulty going back and forth between homes. Many parents separate when the children are infants or toddlers. They may have never lived together. One parent may have little experience parenting. They may not have good parenting skills. While there may not have been domestic violence or another event to rebut the presumption of joint custody, there may be other issues that make shared parenting both unhealthy for the primary parent and unsafe for the child. Mandated shared parenting does not consider the child’s wishes and overrides his/her “best interests” by its very presumption.  

Cultural Co-Parenting

           Co-parenting is the norm in Sweden.  If the parents get divorced, the joint custody continues without the court’s needing to take any decision on this in connection with the divorce. If either of the parents wants a change in the custody, they must apply for the joint custody to be dissolved. If either of the parents wants a change in the custody, the issue of custody may be settled in court. If the parents are in agreement about a change, they can settle the matter in an agreement, without the involvement of a court.

Cultural Norms Impact on Parenting

           Cultural norms about parenting practices typically influence how children are raised. These norms affect what beliefs and values parents teach their children, what behaviors are considered appropriate, and the methods used to teach these values and behaviors. Differing cultural norms in the same household when married can create parenting conflicts leading to divorce. These conflicts do not evaporate in separation and make it difficult to co-parent.

Mediation and Other Services For Parents

           Many parents may benefit from services outside the courtroom to assist in making parent arrangements for their children post-divorce or separation. While NPO’s goal of family court reform may be necessary, FamilyKind’s stated mission of keeping families out of court, may be better for families.

Concerns Re Presumptions of Joint Legal Custody: Personal Observations

           As a law student I interned at a low fee law practice in Los Angeles, California, Levitt and Quinn. At the time, I both lived and attended law school in NYC. While in Los Angeles, I worked with the California presumption of joint legal custody, a presumption I supported as it meant that fathers in particular could feel that they were not being kept from their children’s lives due to divorce or separation. They would be a part of the child’s life even if the child lived with the mother.  The word “joint” mattered to them.

           In New York, as a practicing attorney in the 1990’s, the mention of a legal presumption re joint legal custody raised hackles among child advocates. It was seen as not in the children’s best interests. I can see and understand the situations where it is not but where there are two similarly situated involved and loving parents, it is in the child’s best interests that both parents conti9nue to be actively involved in their lives.

           Psychologists after years of studying families advise that there is reason for caution about relying on a default or anchor position of plans that require equally shared parenting. Those states that received an F from the NPO may be right after all.

           I close this article with a reference to an article by a woman in a shared custody arrangement. Her article appears in the Harvard Business Review and is entitled, ‘Stop Telling Working Women They Just Need An Equal Partnership at Home.”  I reference you to my article last month, “What Does Caring For Children Cost Mothers?”.

           This debate will continue.