Wednesday, October 9, 2013
Joint Physical Custody - Traditional views vs.reality
I was just told about an article written by Dr. Linda Nielsen and published in the Nebraska Lawyer addressing the ten biggest reasons cited against joint physical custody. Dr. Nielsen also just published a longer journal article on this topic which was published in January of this year in the American Journal of Family Law. A copy of the full journal article can be found at http://www.acfc.org/acfc/assets/documents/research_pdf's/ajfl_linda_SParticle_Jan_2013.pdf
The research pointed out by Dr. Nielsen can be summarized in just a few words: having lots of time with both parents is good for the kids. There aren't very many situations where parenting time for the father should be severely limited because of age, the prior family situation, or anything else. Good relationships are developed by spending time together. Sure, parents are going to have communication breakdowns, but when parents are willing to work together to communicate, they can share joint custody and make it work for everyone. And I think everyone can look at their own families and people they know, and conclude that where divorced parents have roughly equal parenting time, the kids are generally doing all right. And there's absolutely been movement toward courts favoring joint custody arrangements all around the country.
Here's a link to Michigan House Bill 4120 (2013), which proposes the following language: IN A CUSTODY OR PARENTING TIME DISPUTE BETWEEN PARENTS, THE COURT SHALL ORDER JOINT CUSTODY UNLESS THE COURT DETERMINES BY CLEAR AND CONVINCING EVIDENCE THAT A PARENT IS UNFIT, UNWILLING, OR UNABLE TO CARE FOR THE CHILD. Joint custody under the proposed law means that the child "resides alternately for specific and substantially equal periods of time with each parent. This would, in essence, force judges to start with roughly 50/50 arrangements, and the parent who is opposed would have to prove to the court, with a considerable burden of proof, that the other parent is basically a deadbeat. It should be noted that this bill has no support from the Michigan State Bar, the Family Law Section, or the Domestic Violence Committee Section of the state bar. The judges and family law attorneys I've spoken to do not support this.
The issue is, in situations where both parents have lots of time with the kids, often it's because both parents want lots of time with the kids and are willing to put in the work and really be present with the kids. There are still many families where one parent is not as involved with the kids because of forces beyond their control or because that's just the way that it works best for the family. So then what's best for the kids? Forcing one parent who has not done much child care to do half of the child care? That might be the best thing sometimes, but other times it would be disastrous. Something to think about.