Conclusion on a Shared Parenting Presumption

© 2012 By Bill Eddy, LCSW, Esq.

Legislating Shared Parenting

All states and provinces currently mandate significant parenting time for both parents, unless there are compelling reasons (domestic violence, child abuse, etc.) not to do so. It is universally seen as in “the best interests of the child.” However, mandating percentages of time has been avoided, as children and parenting are too complex to resolve with a calculator, the way that child support can be done.

Yet several states and provinces have strong movements desiring mandated shared parenting. While I understand this, as described above, and have clients who are part of such movements, I think that such a mandate will not accomplish its desired goals and will be overturned within a few years of its establishment – because it is too large of an intervention for a problem that is not as widespread as it feels.

For example, in the Australian study of parenting plans developed in court-mandated mediation in which the parents were required to “actively consider equal or substantively shared parenting,” the research showed that shared parenting plans (35-65% or higher) didn’t last more than a year, whereas primary parenting plans (less than 35-65%) were more stable.

  • Primary parenting plan mediated, still in place 49%

  • Shared parenting plan mediated, but now primary 28%

  • Shared parenting plan mediated, still in place 17%

  • Primary parenting plan mediated, but now shared 6%

In the United States, Canada and Australia, the vast majority of separated and divorced parents (approximately 80% or more) reach agreements for parenting on their own, out of court, which is always preferable to a court imposed parenting plan. They don’t need a new mandate. While some parents – especially fathers – would like to have more time, they have reached agreements that appear to fit the reality of their lives, which includes much more time than their fathers had with their children. The fathers’ rights movement dates back to the 1980’s, when partly due to its efforts the courts shifted to standards that no longer gave mothers automatic priority but instead considered “the best interests of the child.” Since then, fathers have dramatically increased their involvement in their children’s lives. Many more have become the primary parent than ever before, and many have had equal shared parenting for some periods of their children’s lives.

The majority of parents who bring their parenting disputes to family court have also been satisfied enough to accept the outcome, although not always happily. I have represented mothers who lost custody and I have represented fathers who won custody. So I know that it is not exclusively a fathers’ rights issue, although that is how it may appear to the public. Nowadays, in court, mothers are getting less time with the children than they did in the past and fathers are getting more. In my almost 20 years as a family law attorney in California, we are much closer to gender neutrality than ever before.

Even when court orders are made, as I explained above, these court orders are not always followed and the parents end up doing some other arrangement anyway on their own – for better or for worse. While some parents may give up on the one hand or grab more time than the order says on the other hand, I don’t believe that mandated shared parenting orders will make much of a difference to them, since their court orders are already not being followed.

There is a small percentage of people who have been to family court about parenting issues and were highly dissatisfied. This includes some people who have been wronged by the court system because they had one of the worst attorneys, evaluators or judges (yes, there are some of each, but fortunately a small percentage – as in all fields). They are sincerely trying to make things better and see a shared parenting mandate as a solution. Unfortunately, it is a universal solution applied to a narrow problem for a few. Our legal system is an incredibly flexible system and I believe a more effective approach would be to educate the courts and the public on their specific problems. Unethical attorneys can be disbarred. Unethical evaluators can have complaints filed. Unethical judges can be relieved of their duties. This does happen.

The other group of people who are highly dissatisfied includes those parents whose own bad behavior was exposed and decisions were made because of that – yet they are unable to see it. Some of these people have high-conflict personalities and blame others for everything to unconsciously deflect from their own behavior. Such high-conflict people will not be satisfied regardless of what happens. For them the “issue’s not the issue,” their personality is the issue.” They will always find a new issue and see others at fault.

Instead of solving a widespread problem, legislating a mandate for shared parenting with a percentage attached will create a widespread problem. Just as many people refinance their mortgages when rates are lowered, I believe that many parents with existing custody and access orders will return to court to change them if such a mandate goes through. Rather than creating less litigation, it will create more.

I also know that when “one size fits all” solutions are applied legislatively to the courts, that they sometimes end up getting overturned. In California we had the 3 Strikes law for criminals, which was supposed to solve the “problem” of judges using too much discretion in making sentencing orders. However, a few years later it had to be changed to allow judges more discretion again.

Judges are not a major problem – in family law or elsewhere.  (Of course there are a few individual exceptions, as in all professions, and there are procedures to remove them.) Family court is not broken – it is just facing mental health problems among litigants that it is just now starting to learn how to handle. Yes, there are huge social problems in society and huge positive social changes. Let’s not try to find a large group to blame. One of the most positive social changes of the last thirty years has been having children raised with substantial involvement of both of their parents, which has been significantly promoted by the courts. Let’s not mess it up with an all-or-nothing solution which ties judges’ hands. Instead, let’s focus on educating parents and giving them the skills to be successful co-parents, so that children are not further caught in the middle. Children should feel that their parents are with them because they love them, not because of a calculation.

Bill Eddy is a lawyer, therapist, and mediator. He is the co-founder and Training Director of the High Conflict Institute, a training and consultation firm that trains professionals to deal with high conflict people and situations. He is the author of several books and methods for handling high conflict personalities and high conflict disputes with the most difficult people.

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