Response to comments on Shared Parenting Presumptions

Thanks for all your thoughtful comments about my Shared Parenting Presumption postings earlier this month. First, I’d like to clarify some of the effects of presumptions in a legal context, in response to some concerns. A legal presumption (like the criminal presumption “innocent until proven guilty beyond a reasonable doubt”) puts a burden on the person who wants to overcome the presumption. In reality, such a burden can be very hard to overcome and therefore the presumption stands. In many (most?) states, the parenting schedule for separated parents is based on the “best interests of the child,” as interpreted by the specific judge involved in the case (unless the parents reach their own agreement). This is not normally considered a presumption, although you are right to be concerned about an unofficial presumption in favor of one primary parent (a “de facto” presumption, as one commenter put it). Presumptions, whether official or de facto, are not very easy to overcome. That is why I do not support a shared parenting presumption – because it imposes something that can only be overcome by a parent who is sufficiently knowledgeable about legal procedures, has the finances to hire an attorney and experts (often necessary in custody disputes), and has the emotional strength to fight a battle that may be very critical of one or both parents – with the resulting aftermath of greater conflict between the battling parents.

To me, the much-preferred approach is to help parents learn skills to reach their own agreements that fit their own situation, without having to fight in a public courtroom over the most valued parts of their lives (their children). I agree with several of the commentators, who pointed out that only those cases in which one or both parents are unable to learn sufficient skills should be handled in court (perhaps only 10-25% of those who appear in family court today). Educating parents as soon as possible is so important (such as by our New Ways for Families method, and lawyers educating about the realistic legal aspects of their case), so they don’t have to wait to be informed by a mediator much later on – although it’s still better to learn from a mediator at any time than in family court.

In terms of comments about custody and visitation and parenting time: I totally agree that custody and visitation need to be eliminated from our vocabulary – they create much more conflict than they resolve, but implying “ownership” by one parent and insignificance for the other. Parenting time is non-adversarial and actually focuses on what it is – time with one’s child or children. Of course, the term “legal custody” means decision-making in most states, and “joint legal custody” is what most parents have (at least in California where I practice). This may continue to be a useful term – until someone thinks of a better one.

In terms of ages and stages, I don’t want to suggest a rigid formula under 5 years old. Instead, I want to suggest that there are two important developmental tasks: (1) Developing a secure attachment with at least one person, so that the child is not pulled away from at least that one person against his or her will very often – up to about age 3. Concurrently, children need to be encouraged to have confidence in many people close to them starting at birth, especially at least one other person – so that they learn confidence in the world and differences. Of course, we must admit that children have been raised by families and villages for thousands of years and that everything we are doing now with widespread separate homes for children of separation and divorce is very new in human history. There’s no absolutely right answers here, so let’s do everything we can to support parents learning skills for supporting each other.

Overall, I believe it is much more important WHO makes parenting decisions and HOW they are made. Parents should make almost all of these decisions and with skills they have learned, if they don’t have them now. Percentages shouldn’t drive an issue as important as parenting. Skills and training are what’s needed, not an imposed formula. With that said, I still recognize and believe that family courts will have to make the final decision in some cases – but much fewer than today, if we really commit to helping parents succeed more than pointing out how they have failed. Our courts and all professionals need to shift from logic and lectures, to helping parents learn the skills for shared parenting themselves. We have seen that most parents can learn these skills, when they are outside of the adversarial process and when all professionals involved in a case make this shift.

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Bill Eddy is a family law attorney (Certified Family Law Specialist), a therapist with children and families (Licensed Clinical Social Worker), a family mediator (Senior Family Mediator, National Conflict Resolution Center) and President of the High Conflict Institute. He has handled over 400 divorces as a lawyer and over 1100 divorces as a mediator. He is the developer of the New Ways for Families method in use in five jurisdictions in the United States and Canada. He has taught at the University of San Diego School of Law, the Pepperdine School of Law and is on the part-time faculty of the National Judicial College. He is the author of several books, including The Future of Family Court: Structure, Skills and Less Stress and It’s All Your Fault! 12 Tips for Managing People Who Blame Others for Everything. For more information about his seminars, consultations and books: www.HighConflictInstitute.com.