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Is making joint legal 50/50 the norm a good idea?

Posted by on May. 5, 2015 at 8:42 PM
  • 131 Replies
From the Wall Street Journal


Big Shift Pushed in Custody Disputes

About 20 states are considering measures that would change the laws governing which parent gets legal and physical control of a child after a divorce or separation. WSJ's Ashby Jones reports.

By
Ashby Jones

Some of the biggest battles over child custody are playing out not in courtrooms, but in statehouses.

Prompted partly by fathers concerned that men for too long have gotten short shrift in custody decisions, about 20 states are considering measures that would change the laws governing which parent gets legal and physical control of a child after a divorce or separation.

The proposals generally encourage judges to adopt custody schedules that maximize time for each parent. Some of the measures, such as those proposed in New York and Washington state, take an additional step by requiring judges to award equal time to each parent unless there is proof that such an arrangement wouldn’t be in a child’s best interests.

Critics of the bills contend that they threaten to take discretion away from judges and risk giving leverage to abusive men. They also say the laws are poorly targeted because typically the only custody cases that end up in court are ones in which former spouses are too hostile toward each other to effectively practice shared parenting anyway.

Supporters maintain that the opponents, which include many family lawyers and bar associations, are trying to keep alive an adversarial culture that leads to lengthy—and often lucrative—court battles. They say the law should better reflect recent studies that show children are better off when both parents play a meaningful role in their lives.

“If dad is subject to the typical ‘Wednesday dinner and every other weekend’ arrangement, he’s not doing the kind of parenting that benefits kids, making sure the homework is done, getting them up for school,” said Linda Nielsen, a psychology professor at Wake Forest University. In such situations, a father “is basically reduced to an uncle.”

Legal views on custody have swung considerably over the years. The “tender years” doctrine came into vogue early in the last century, said Donald Hubin, an emeritus professor of philosophy at Ohio State University who has written on parenting and parental rights. That doctrine stated a child should stay especially close to his or her mother during infancy and toddler years.

About 50 years ago, that notion gave way to the idea that custody should be decided according to a child’s best interest.

Advocates of shared parenting say the “best interests of the child” standard gives judges too much latitude to employ latent biases and unfairly encourages parents to diminish each other’s abilities in a public forum.

Statistics on shared parenting are fragmented. But several studies in recent years show that while shared parenting is becoming more popular, it is far from the norm. A 2014 study showed that the percentage of cases in Wisconsin that ended in “equal shared custody” grew from 5% in 1986 to 27% in 2008.

“The court system too often creates winners and losers out of well-intentioned parents,” said Carl Roberts, an Arvada, Colo., software salesman in the midst of a six-year custody battle involving his sons, aged 11 and 12. “The winner gets the child, and the loser often hardly gets to be a parent.”

After an initial ruling in 2009, Mr. Roberts was allowed custody of his sons every other weekend. In 2012, that time was expanded by two days a month. Earlier this month, he and his ex-wife agreed to a plan that could further increase his parenting time.

“It’s absurd that the law says nothing about the benefits of two-parent child relationships, and does nothing to encourage them,” he said.

The Colorado senate introduced a shared parenting bill in January. The measure, which Republican co-sponsor Sen. Kevin Lundberg said was prompted partly by Mr. Roberts’s pleas, requires courts to explain in writing why a custody order that “does not order substantially equal parenting time between the parties” is in the best interest of the child. The Senate unanimously passed the legislation last month and it is pending in the state House.

Joni Roberts, Mr. Roberts’s ex-wife, said the measure largely was unnecessary given that the vast majority of couples settle their custody disputes out of court. “Our situation has gone on for six years, and we reached agreements every time,” she said.

Other opponents of shared-parenting legislation reject claims that it is simply designed to protect a system that pays lawyers’ bills. They say that while role-sharing is a laudable goal for parents who can make it work, a presumption of a 50-50 split shouldn’t be baked into law.

Peter Salem, executive director of the Association of Family and Conciliation Courts, a Wisconsin-based nonprofit organization that studies the best ways to resolve family conflict, said such situations are highly nuanced. “It doesn’t make sense to force this on couples that really deeply don’t get along,” he said.

Some domestic violence experts fear a presumption of shared parenting will give men with histories of emotional or physical abuse more bargaining power during divorce negotiations. “You’re going to see victims pressured to cooperate with their abusers, which is completely harmful to children,” said Barry Goldstein, a domestic-violence expert who practiced family law in New York for 30 years.

Write to Ashby Jones at ashby.jones@wsj.com
by on May. 5, 2015 at 8:42 PM
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Replies (1-10):
pusheen-kitty
by Battler on May. 5, 2015 at 8:45 PM
1 mom liked this
The part about domestic violence aside ( no judge would allow that) I think change is good.

I wonder what 20 states are considering it though....
packermom4ever
by on May. 5, 2015 at 8:50 PM
3 moms liked this

nope. Once custody is decided it is hard to change and so you have to put kids into potentially bad situations just to have the parents go back to court with proof that one is causing issues.

It is about parents, not kids best interest in every situation when you have that be the norm. If we truly want it be about kids we need to focus on keeping marriages together as that will be what truly benefits the kids (there is a line in there about kids doing better when both parents have a meaningful parenting role)

luckyinlife
by on May. 5, 2015 at 8:50 PM
1 mom liked this
I believe that, notwithstanding abuse, it is best for an infant and toddler to be primarily with their Mother and gradually increase father visitation to 50/50 as they get older.
Free-Bird
by Bronze Member on May. 5, 2015 at 8:53 PM
4 moms liked this
I didn't read it all but I'm not a fan of 50/50 anything. I agree with the statement that says former spouses usually end up in court custody battles because they are too hostile to practice shared parenting effectively anyway. I firmly believe all children need a primary home.
PumpkinSpice8
by Silver Member on May. 5, 2015 at 8:53 PM
2 moms liked this
I think custody should go on a case-to-case basis. Not automatically to the mom, dad, or 50/50. There are too many factors in each individual case to have a norm.

Sure, that backs up the courts, but then perhaps the answer is expanding the courts not making a norm out of sensitive situations.
SnapIt
by Bronze Member on May. 5, 2015 at 9:01 PM
6 moms liked this
It's about time!

I do 50-50 and SO does 50-50 and we have no issues
Kids are doing great and aren't effected.

When the kids get effected is when they can't see the one parent because they have to be with the other parent more.
Don't parents ever think the kids miss the parent? Want to spend time with the parent?
They are missing out if they are prohibited from being with the one parent.
Men have been getting the shit end for years!

It's changing!
As long as the kids aren't with an abuser or parents are in a different state, there isn't anything wrong with splitting the time 50-50.
Parents will have to keep within the same school district. That helps a lot.
Parents need to get that stick out and put their egos to the side.
pusheen-kitty
by Battler on May. 5, 2015 at 9:05 PM
1 mom liked this
Well I see it like this.

You are in a "mom" state. custody primary to mom regardless of red flags ( lets say).

This state now considers 50/50.

This would:

1. allow NCP to be more in kids daily lives;
2. Make it more reasonable to ask for in court
3. keep some marriages together. If you know yr spouse has a chance to get 50/50 , and the marriage is salvagable... see where I am going with this?

In some states kids go primary to mom. not so much a case by case basis, if anectodal evidence on SMC is correct, lol.
GlockMom
by Platinum Member on May. 5, 2015 at 9:16 PM
4 moms liked this
I would rather be the EOWE NCP than have my child have to do a 50/50 schedule. I think a child should have a primary home base.

chanizen
by on May. 5, 2015 at 9:24 PM
1 mom liked this
No. 50/50 sucks rocks.
runinpinkshoes
by Gold Member on May. 5, 2015 at 9:31 PM
2 moms liked this
I'm curious how many of you opposed to 50/50 had that experience as a child? My parents had 50/50 and it was fine. I'm not sure what seems to be so bad about it?

DH is one day short / week of having 50/50 of his kids, and they all wish they were with him more.
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