Thoughts on Shared Parenting Presumptions – Part I

A controversial issue today in family law is whether there should be a presumption that parents should have equal (or nearly equal) shared parenting time after a separation or divorce. I posted this blog series in 2012, but with growing interest in this area I thought it relevant to engage in this discussion again. In theory, I can understand the drive for such a presumption and have a lot of empathy for parents seeking this, because it is important that children are raised by both of their parents and research shows that children do best with “significant” involvement of both parents (although this is generally not defined as a percentage of time).

I have had “non-custodial” clients as a lawyer and as a high-conflict consultant, who have wanted a 50-50 presumption, as in their particular cases there has been a disturbed, high-conflict other parent who has the majority of the time and 50-50 would at least reduce the impact of that. In some of those cases, I have fought for and won schedules that were approximately 50-50 (usually parallel parenting with little direct contact between the parents), because the courts were open-minded and focused on the standard of the “best interests of the child” and that was satisfied by 50-50 in these cases.

But I recommend strongly against a presumption to impose relatively equal parenting time. Parenting schedule decisions should be made by parents based on their own circumstances. If they have difficulty making such basic parenting decisions, they should get training in shared decision-making. They should only be handled in court if they fail to learn these skills. Then, the judge should find out what is wrong with one or both parents and make appropriate orders based on “the best interests of the child,” rather than overcoming a burdensome presumption.

The Problem with Child-Rearing Presumptions

A presumption takes away the flexible thinking that parents should use when raising their children and the benefits of requiring parents to work together to develop a plan that fits their own circumstances. Children will go through many stages growing up, including times when it may be very appropriate to have more time with one or the other parent. There are also many cases of abuse and alienation in which such shared parenting time is really inappropriate and would be particularly harmful to a child.

While a presumption could be overcome in theory, in my work I have met many parents who would be too intimidated by such a presumption or lack the resources for a big court battle against a high-conflict parent. In addition, most of the families who end up in family court are there because one of the parents (sometimes both) has a serious problem: domestic violence, child abuse, child alienation, false allegations, substance abuse and so forth. These are problems that should be examined without hurdles that will make it harder to find the truth and deal with it appropriately. I have worked hard against presumptions that fathers are abusive or that mothers are alienating. After growing success at opening the minds of legal professionals, it seems like it would be a step backwards to now impose such a broad presumption.

Agreed-Upon Schedules

In reality, as a lawyer, counselor, mediator and consultant, I have worked with many parents who use shared parenting schedules that are approximately 50-50. However, these are determined by the parents by agreement, based on their own circumstances, resources, and history of flexibility and sharing. I have many more parents who have schedules in which one parent has less than 30% of the parenting time and it works very well. The key factor in these successful schedules is that these decisions are being made by the parents, not imposed on them by the court. The child feels that both parents are generally satisfied with their parenting time and both parents make the best of their parenting time in giving the child good experiences.

There is also flexibility in these families, so that they may change to more or less time as work schedules change and the child grows older. I have had cases in which the child changed from being primarily at one parent’s house to the other parent’s house, and then back a year later – all based on the good cooperation of the parents and the comfort of the child to express changing preferences without upsetting one or both parents.

When I started my law practice in 1993, I represented clients in family court and also did divorce mediations in my office. I went to a presentation by William Hodges, Ph.D., a divorce researcher and author of the highly regarded book Interventions for Children of Divorce (1991) which is still quite relevant. He said that research was making it clear that the best parenting schedule was one which both parents supported. Even if it was an odd schedule, including lots of exchanges or long stretches of time, what really mattered was the agreement of the parents.

Children follow their parents’ lead emotionally when learning what is “normal” and what helps their parents feel “okay.” On the other hand, even a very normal schedule won’t work, if one or both parents are upset about it. The children absorb their parents’ emotions much more than most parents realize. Dr. Hodges also said that research showed that parents followed their own agreements over 80% of the time, but only actually followed court-ordered schedules slightly more than 40% of the time.

With this in mind, I have told parents for the past 19 years in my practice that they need to put more effort into reaching an agreement than into fighting for the “right” parenting schedule for a child. It needs to be a team effort, otherwise it tends to pull children apart. However, I tell them that there are general principles for at least 3 basic age groups, which most parents take seriously in making their proposals to each other:

*Stay tuned for Part II: Different Needs at Different Ages, to be posted Friday July 26, 2013. Comments welcome throughout this blog series. Bill Eddy will respond to blog comments in a few weeks, after Part IV has been posted.)

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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 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, Splitting: Protecting Yourself While Divorcing Someone with Borderline or Narcissistic Personality Disorder, and Don't Alienate the Kids!: Raising Resilient Children While Avoiding High-Conflict Divorce. For more information about his seminars, consultations and books: www.HighConflictInstitute.com.