Thursday, March 10, 2011

Should there be a 50-50 Parenting Presumption in Divorce?

In general, I am a strong proponent of shared parenting, at least 70-30, and many of my clients have 50-50 shared parenting. Even in high-conflict cases, I find that “parallel parenting” can work - with no contact between parents, but each with significant time, even up to 50-50 depending on the case. In high-conflict cases there is such a tendency for family and professionals to become emotionally hooked by a high-conflict personality (HCP) parent, that decisions often go against the more reasonable parent at the beginning and possibly throughout the case.

Therefore, to protect against the risk of restricting or eliminating the wrong parent, I believe it is best to have both parents have significant time. Even with 30% of the parenting time, a reasonable parent can help the child learn the important lifetime skills of flexible thinking, managed emotions and moderate behaviors, even when the other parent is demonstrating the opposite.

However, I’m not yet ready to go as far as a presumption for 50-50. I believe that the best approach is for the court to require parents to strengthen their conflict-resolution skills before the big parenting decisions are made, such as with a program like our New Ways for Families method developed by High Conflict Institute. If the court imposes a 50-50, some research shows that children feel trapped and resentful, and I have seen some high-conflict parents do everything they can to sabotage it. I believe it is better to require high-conflict parents to learn some skills to help them make better decisions, rather than just sending them on their way with an order that they will be unlikely to fulfill.

From everything I have observed, as a social worker and as a family lawyer, I think it would be better for the courts to stay out of making custody and access decisions, and just focus on protective orders when necessary – such as in cases of abuse and cases of alienation (which are a form of emotional abuse). The courts should resist the urge to make parenting decisions for competent adults. Instead, the courts should expect parents to make these decisions in mediation, collaborative divorce or other negotiation settings. If they have difficulty doing so, then the courts should require parents to learn/strengthen skills to make their decisions themselves – so long as they are within a reasonable range (such as 70-30). This way the children and the reasonable parent have a chance for a more normal life, in contrast to having a 50-50 imposed and then dealing with the subsequent chaos with an HCP parent who is outraged and has no new skills.

With all of that said, I think the existing “parenting contest” to determine who is the “better” parent is not working and often harmful, especially to the children. Therefore, unless a better approach is developed, I predict that 50-50 will become a presumption within 5-10 years, even though it’s not my first choice.


Anonymous said...

This is an excellent well reasoned discussion of how parents can manage to decide how to divide the time each spends with their child(ren), upon separation/divorce. I would certainly emphasize the advisability if not compulsion for parents to take some kind of course in Conflict Resolution/Making decisions in high conflict circumstances. If one of the parents is truly dedicated to irradicating the other from the lives of the child(ren) their refusal to participate in such would be a clear indicator of non-ability to participate in shared parenting at all, in and of itself, increasing the chances of court associated professionals and judge, to see how an external court decision to protect the child(ren) might be necessary.

Rebecca said...

I used to think the presumption was a good idea, for many reasons. First, I grew up in a 50/50 situation, and it worked for me (personal bias is strong in these discussions). Second, and more important, I think we need to change the paradigm that men are second-class citizens when it comes to parenting. I think the changes over the last 10-15 years have been HUGE, but they are not enough. Until we can just assume that joint physical custody is completely normal, we need the law to force it. That being said, over time, my view on this has shifted. Presumptions cause all sorts of problems, and this one would be no different. I think each case should be decided on its merits, and every family is different, as is every child. I just hope we find a way to balance all of these issues - balance is not always our strong suit in the United States.