Shared Custody After Divorce – A Growing Trend

Shared Custody

As our society evolves more and more parents are adopting a new policy when it comes to fighting for child custody after they divorce: collaboration.  The old model of the weekend dad born from generations of rising divorce rates is giving way to a more thoughtful, and healthy form of parenting.  Family lawyers are also jumping on board with these new ideas.

Even lawmakers are getting in on this trend.  In many jurisdictions, the legislatures are considering bills that would encourage shared parenting or even make it the legal presumption in divorces.

One particular law this year made joint physical custody and equal parenting time standard for temporary orders while a divorce was finalized.  One governing body passed a law mandating equal time for parents in custody plans.  Others are considering laws requiring equal parenting time as a starting point when considering parent arrangements.

As lawmakers respond to the appeal of gender equality the legal push for equal time among parents is gaining strength.  Fathers say that without equality they become alienated from their children and overburdened with disproportionate support obligations.  There is a new constituency of men emboldened by the argument that they are being shortchanged.

Critics of these new laws, including women’s rights groups and some legal associations, argue that they would roll back protections against abusive and controlling fathers and remove the needed discretion judges have in making real-world decisions.  They also say that only a small fraction of divorced couples actually argue about this topic and creating laws would undermine these already well thought out agreements. 

Some state that laws requiring joint custody could lead to the end of child support, effectively eliminating a system designed to help women who have traditionally earned less than men in the workplace.

Advocates for these new laws argue that many family courts are out of step with the realities of modern parenting, benefit highly paid lawyers, and deny children lasting and meaningful relationships with their fathers.  A presumption of shared parenting would replace the “winner takes all” attitude currently employed in courts and replace it with a different message emphasizing that both parties will still be parents, and that both matter to their children.

Historically, mothers have been treated in society as the “natural caregiver” and even with the societal changes in the 1960s and 1970s where more women entered the work force judges still overwhelmingly award primary custody to the mother.  Many say this perpetuates a lingering bias.

One “baby-step” approach employed in some jurisdictions requires judges to document their rationale for custody decisions.  A written ruling could give parents something to appeal and show where certain bias comes into the judge’s decision.

There are many benefits from this new co-parenting style.  Social research has shown that children benefit from having a father who is actively involved in their life.  Important emotional, behavioral and physical health measurements improve dramatically with a co-parenting lifestyle.

Some criticize these findings, questioning what conclusions can be drawn from co-parenting studies since children raised in joint custody arrangements have parents who get along better than a typical non-shared custody situation.

While there are arguments for and against a co-parenting presumption in divorce, there is definitely a trend in the direction of shared custody and many jurisdictions are following the desires of parents to raise their children in this way.