Will equal parenting time be the next big thing from America?

United States

I’m not sure that it still applies today, but there used to be a common expression that went along the lines: where America leads, the rest of the world follows. Or something like that. Could this be true about family law in this country? A movement for the introduction of what they call ‘shared custody’ is gaining ground in the USA, and could be a catalyst for a similar change over here.

I’m sure I’ve never based a post upon the contents of an article in The Washington Post before, but there’s a first time for everything. The headline to the article sets the scene by telling us that: “More than 20 states in 2017 considered laws to promote shared custody of children after divorce”. The important word is of course ‘considered’. The proposals, more of which in a moment, have not necessarily found their way onto state statute books. Yet. But the issue is clearly on the political agenda driven, as over here, by ever more vociferous lobbying from fathers’ rights groups.

Now at this point you may be asking: don’t we already have a shared parenting presumption in this country? Well, yes, we have the presumption that, unless the contrary is shown, involvement of each parent in the life of the child concerned will further the child’s welfare. But that presumption does not of course say anything about how much time the child should spend with each parent. I think it is a common mistake to equate the presumption with equal shared care, i.e. the child spending equal time with each parent.

The new laws being considered in various states across the USA are given the umbrella name ‘shared custody’, but they vary considerably. They include one that would simply state that the reasoning behind judicial decisions relating to child custody should be put in writing, so that parents could evaluate whether there has been judicial bias in favour of the mother or the father. But the proposal that I want to concentrate on here is that there should be a presumption, or starting-point, that the child should spend equal time with each parent. Such a presumption over here would be something new.

An equal parenting time presumption in this country would, of course, be extremely welcome to fathers’ rights groups in this country. It has been their goal for as long as I can recall. There is, however, a trap that such groups fall into when they push for equal parenting time, and that is revealed in the article when it states:

“The legal push for custody arrangements is in large part a result of years of lobbying by fathers’ rights advocates who say men feel alienated from their children and overburdened by child-support obligations. These groups, including the National Parents Organization, are gaining new traction, with support from across the political spectrum, as more lawmakers respond to this appeal for gender equality and, among some conservatives, the frustration of a newly emboldened constituency of men who say they are being shortchanged.”

The revealing point comes at the end: men who say they are being shortchanged. The central issue on this side of the Atlantic is not the ‘rights’ of parents but the welfare of children. It is nothing to do with equalising parenting time so that one parent is not ‘shortchanged’. If equal parenting time is ordered by a court that is because that is what the court considers is in the best interests of the child.

So an equal parenting time presumption or starting-point could never usurp the overriding principle that already guides the law: that the welfare of the child is paramount. Still, it would give a different emphasis, and could, as its supporters hope, lead not just to children spending a more equal amount of time with each parent. It could also, as a campaigning father mentioned in the article says, lead to a move away from the idea that when parents leave the courtroom (or even when they separate) one is a parent and the other is no more than a visitor. It could mark a sea change, not just in the way that the law works, but also in the way that society in general views parenthood after separation.

So we should carefully watch developments in America. Governments and those involved in the making of law in this country have long paid close attention to how they do things on the other side of the Pond, and it may just be that any changes over there will tip the balance for similar changes over here.

You can read the full article here.

Photo of the United States flag by JeromeG111 via Flickr

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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Andy - December 14, 2017 at 6:13pm

If this is the case, Fathers will shout from the roof tops that LAW has given a right without dragging through the courts and financial penalty to do so.

In reality the saying that you have to fight to see your children with court involvement.Now if this is the case the saying may be what right have you got for shared care so the term used will change in law as have you the right for shared care…

Trouble will be if this is the future then what will the Incompetant CMS do about shared care…probably pass some sort of law that means you will still have to pay your ex partner…
Just because they can…I look forward to the the future ruling that will stop the costly arguments that when fathers fight to see children as the law should support not one sided GOLDDIGGER Mothers at present..

spinner - December 14, 2017 at 7:28pm

Considering they have had prenuptial agreements, appropriate rules on length of spousal maintenance and strict rules on what constitutes matrimonial property for many years if not decades I don’t think there’s any danger of the backward and out of touch English family law adopting what many would now think very fair approach to co parenting for another twenty or thirty years, if at all.

Cameron Paterson - December 15, 2017 at 9:45am

On the other hand…..

spinner - December 15, 2017 at 11:41am

This is one state and there is a vigorous ongoing campaign to end this obscene practice. Shall we list out the other countries in Europe, North American and even Scotland that have a more advanced family law system than our own?

Cameron Paterson - December 15, 2017 at 11:59am

If you like. I was just trying to make the point that the United States isn’t necessarily the paragon you were suggesting

spinner - December 15, 2017 at 12:19pm

I agree there are one or two states in the US with family law as backward and out of touch as English family law but that will likely change in the next year to so due to pressure from campaigners.

Paul Massey - December 15, 2017 at 8:54am

The Tories had a chance to introduce this (as promised by them), instead we got the insipid s 1(2b). Labour oppose 50-50 as they think it threatens the paramountcy principle.

The point is only that 50-50 should be a REBUTTABLE presumption. If the judge thinks the child’s best interests would be served by spending 70% of its time with its father, the judge can order this, of course.

The point is that the paramountcy principle has nothing to fear from a rebuttable presumption of 50-50 parenting. The child’s best interests would still, and should always, trump other considerations.

This is not an equal rights issue, really – it’s about what’s best for the child and we need to start to accept in the 21st century (!) that there are many many cases where a child will be better off spending more time with a loving father than a less emotionally-available mother.

Stephen Cruse - December 15, 2017 at 6:55pm

There are 52 studies in English of shared parenting, more written up in other languages. All 52 are either peer-reviewed or done by government agencies. Of those 52, 51 unambiguously support shared parenting as being the best arrangement for children when parents are fit and non-violent. The findings of the 52nd are ambiguous. In Sweden, Malin Bergstrom has conducted at least two studies of huge databases and found that, when it comes to the psychological health of children, shared care is second only to intact families, with sole or primary custody coming in a distant third. Mr Bolch needs to acquaint himself withthese studies before spouting off Best Interest of the Child from biased courts that previously used the Tender Years Doctrine and are in much the same mindset

Lee - December 16, 2017 at 11:44am

As someone with three years experience of a completely equal shared parenting arrangement I can say that, in my opinion and experience, they do not work. I say that because my ex and I have strongly differing views on how to raise children. As such our child is torn one way half the week and torn another for the other half. Every time the child returns to me I have to reinstill values and behaviours which have been ignored when at my ex’s.

Things such as religion, activities, homework, standards of behaviour at home and when out. All are different depending on which parent the child is with.

My ex and I cannot agree on basic things and conflict is ever present between us so as both of us have absolutely equal responsibilities our child has to live with two radically different lives. This is difficult for them. Neither of us can compromise because both of us fervently believe we are doing the right things for our child and to compromise would be to raise them in the wrong way.

Don’t suggest mediation etc as all of that has been tried and failed.

I feel that a less equal arrangement would have avoided this.

Andrew - December 18, 2017 at 11:27am

I’m not sure what is wrong with John Bolch but he appears to be totally opposed to progress. Most of the contemporary research now suggests that the current systems and practices in the UK family courts actually damages children. Relegating a parent to a “visitor” status whereby they have less than 35% of the parenting time is damaging to children. Their future outcomes are demonstrably worse.

Children need the legal protection of being able to be parented by both parents after separation and anyone who opposes this is a dinosaur. The “fathers being shortchanged” argument is the different side of the coin to the “children being shortchanged” (disadvantaged) by a system that “says” it has their “welfare” as the “paramount consideration”. The fact is however that neither the Judges or those “experts” from CAFCASS who they rely on to advise them are capable of assessing a childs’ needs and welfare.

Its a long overdue change that a rebuttable presumption of 50-50 care is introduced into legislation. Put the onus on the opposing parent to demonstrate that this is not the best thing for the child.

Yvie - December 18, 2017 at 6:13pm

Totally agree Andrew.

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