© 2012 By Bill Eddy, LCSW, ESQMay, 2012
A controversial issue today in family law is whether there should be a presumption that parents should have equal shared parenting time after a separation or divorce. I just returned from speaking for two days at a Minnesota Family Law Judges conference about managing high-conflict parents. While I was there, I learned that their legislature is considering a shared parenting presumption which would require judges to make sure that both parents had at least 45% of the parenting time (a 35% minimum is also being considered as an alternative), or write an explanation about how the presumption was overcome by clear and convincing evidence.
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.
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.
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.