SHARED PARENTING

+ What does “shared parenting” mean?

True shared parenting requires equal or, when that’s not feasible, nearly equal parental responsibilities

The term “shared parenting” is used in many ways and, as a result, it is easy to be confused. To some, “shared parenting” means only that both parents retain some active presence in the lives of the child(ren). On this understanding, even an arrangement where one parent has minimal visitation could be called “shared parenting.” This is not how National Parents Organization understands “shared parenting.”

Our understanding of shared parenting involves both parents playing a substantially equal role in raising the children. This means that the two parents have equal legal custody of the children. Typically, this means that each parent has full legal custody of the children, just as they did when the parents were married. For that small percentage of parents who are unable cooperate on decision-making, courts can divide decision-making responsibilities or order mediation of disagreements

With respect to physical custody — the day-to-day care and companionship with the children — National Parents Organization understands “shared parenting” to be equal or nearly equal parenting time for each parent

What is important for the children is not the words used to describe the arrangement, but the arrangement itself. Calling a sole-custodial/visitation arrangement “shared parenting” doesn’t change the reality for the children that one parent has been marginalized in their lives.

+ What is “joint custody?"

“What does ‘joint custody’ mean?” It seems like a simple question that should have a simple answer. But, as is often the case, things are a bit complicated.

The term ‘joint custody’ came into use in the 1970s when there was a movement in the United States to allow the possibility of separated parents sharing in the legal responsibilities of raising their children. Prior to that time, one, and only one, parent had to be designated the custodial parent and the other parent lost most parental rights and was typically granted “visitation” with the child.

There are two kinds of custody: legal custody and physical custody. ‘Legal custody’ refers to the right and responsibility to make major decisions concerning the raising of a child, including the right to determine the education, religious upbringing, and medical treatment of the child. ‘Physical custody’ refers to the residence of the child. These are separate matters. Parents can share legal custody without sharing physical custody, which sometimes happens when parents are living far apart. And parents can share physical custody without sharing legal custody, an arrangement courts sometimes impose when both parents are fit and loving parents but they have irresolvable differences about medical, educational, or religious decisions concerning the child.

It is important to keep the distinction between legal and physical custody in mind when people talk about the prevalence of “joint custody”. Frequently they are speaking only of legal custody.

There is a movement away from using the term ‘custody’—a term that is often thought of in connection with incarcerated individuals. Instead of using the term ‘legal custody’, increasingly statutes and divorce professionals speak of “decision-making responsibility”. And, instead of referring to ‘physical custody’, the term ‘parenting time’ is often used.

National Parents Organization typically speaks of shared parenting. The term ‘shared parenting’ entails both joint decision-making responsibility (legal custody) and substantial sharing of parenting time (physical custody).

What constitutes “substantial sharing of parenting time” is, obviously, somewhat vague. Researchers often use a cut-off of a minimum of 35% of the time awarded to each parent. This is clearly a somewhat arbitrary line but it does ensure that both parents are involved in the typical day-to-day child-rearing activities that constitute parenting.

Since research indicates that children’s well-being is maximized when they have equal or nearly equal time in the care of each of their fit and loving parents, NPO advocates for equal shared parenting, by which we mean joint decision-making responsibility and equal, or nearly equal, parenting time.

+ What is a legal presumption of (or preference for) shared parenting?

A legal presumption is formally defined as, “a conclusion made as to the existence or nonexistence of a fact that must be drawn from other evidence that is admitted and proven to be true.” (West’s Encyclopedia of American Law, edition 2. Copyright 2008, the Gale Group, Inc.) Put more simply, a legal presumption requires a court to draw specific conclusions from other facts. Legal presumptions can be either conclusive or rebuttable. Rebuttable presumptions can be rejected if contrary evidence if provided; conclusive presumptions cannot.

A legal presumption of shared parenting could be framed as follows: “when two parents with custody of a child separate or divorce, there is a rebuttable legal presumption that equal legal custody and equal or nearly equal physical custody is in the best interest of the child.” The statement of the presumption would be followed by a specification of the factors that would rebut the presumption

A similar legal effect can be achieved by a statutorily mandated preference for shared parenting. (This is more than a statement of policy.) A statutorily mandated preference would require courts to consider custodial arrangements in a particular order and move to a less-preferred arrangement only when there are grounds for doing so. A legal preference for shared parenting could be framed as follows: “when two parents with custody of a child separate or divorce, a court shall consider the following custodial arrangements of the children in the following order, preferring the higher ranked arrangement unless it finds grounds for concluding that it would be detrimental to the child” and then list “equal legal custody and equal or nearly equal physical custody” as the first alternative. Such an approach should include a requirement that court decisions ordering less preferred options include “findings of fact and conclusions of law” that justify the lower-ranked alternative ordered.

+ Is there currently a parenting presumption of some kind?

It is important to remember that family law is almost exclusively a state matter. There is significant variation between states concerning presumptions about legal and physical custody when parents divorce. Up until the late 19th Century, most U.S. states had a presumption that fathers would retain custody of their children. Late in the 19th and early in the 20th Centuries, that presumption gave way to a presumption in favor of mothers retaining custody. In the 1960s, several factors, including the feminist law reform, resulted in the removal of legal presumptions favoring either mothers or fathers; most states adopted a “best interests of the child” standard for determining custody. (See Joan B. Kelly’s “The Determination of Child Custody in the USA” for more details.)

While there are currently no states with legal presumptions based solely on the gender of the parent, some courts adopt a “primary parent” approach, giving custody to the parent they determine to have been primarily responsible for rearing the children when the marriage was intact. The criteria for determining who was the “primary parent” have been criticizes as gender-biased. (See Ron Henry’s "The Primary Caretaker Theory: Backsliding to the 'Tender Years' Doctrine.")

Some states have a preference for or a presumption of shared legal custody (which is distinct from genuine shared parenting). Sometimes these preferences/presumptions are framed in terms of shared parenting. However, care must be used in evaluating the nature and effect of such presumptions. Sometimes the term “shared parenting” is used so broadly that any arrangement where each parent has any time with the children will count as a case of shared parenting. Sometimes the presumption in favor of shared parenting (or joint custody) is extended only if both parents request it. Do not assume that a legal presumption of or preference for joint custody or shared parenting means that there is a burden on the other parent to show why substantially equal parenting is not appropriate

Two states - Kentucky, as a result of NPO's successful 2017 campaign, and Alaska - currently have legal presumptions of shared parenting during temporary orders (the period when the divorce case is before the court). The Kentucky statutes says: "in making an order for temporary custody, there shall be a presumption, rebuttable by preponderance of evidence, that it is in the best interest of the child for the parents or a de facto custodian joined under subsection (9) of this section to have temporary joint custody and share equally in parenting time" (KRS 403.280). Alaska’s temporary custody statute states: “Unless it is shown to be detrimental to the welfare of the child... , the child shall have, to the greatest degree practical, equal access to both parents during the time that the court considers an award of custody” (AS 25.20.070)

In 2018 NPO was successful in getting enacted a legal presumption of equal shared parenting in Kentucky. The statute specifies, "there shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child" (KRS 403.270). Since that time, Arkansas and West Virginia have enacted legal presumptions of equal shared custody.

Arizona imposes a requirement that "Consistent with the child's best interests ... the court shall adopt a parenting plan that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time" (ARS 25-403-02).

+ What are the main arguments for shared parenting presumptions?

Social/psychological and Economic

Litigation of child custody is costly financially and emotionally. Custody litigation is encouraged by the absence of a legal presumption concerning custodial arrangements that is based in a factor that is clear to potential litigants. Appealing only to “the best interest of the child(ren)” encourages both parents to anticipate “winning” a custody dispute because each parent invariably believes that what he or she proposes is best for the children. Given the overwhelming empirical evidence that, in most cases, children of divorced parents do best in a shared parenting arrangement, courts should be required to begin with a presumption that such an arrangement is in children’s best interest and move away from that only when there is evidence that such an arrangement would harm the children. Such a presumption would reduce litigation of child custody, saving families’ financial resources for the benefit of their children and lessening the antagonism between parents seeking to “win” custody.

Constitutional

A number of legal scholars have argued that a presumption of joint legal custody and substantially equal physical custody — true shared parenting — is a constitutional right of parents.¹ The argument of these authors relies on a hundred-year history of federal court decisions declaring that parental rights are fundamental constitutional rights. The term ‘fundamental constitutional right’ has a very specific meaning in the U.S. legal system. Fundamental rights may not be infringed upon by the government without a showing by the government that there is a “compelling state interest” in doing so that that this interest cannot be achieved by any less constitutionally offensive means. These authors argue that the current procedures for determining custody of minor children when parents divorce do not meet these standards.

¹ See, Ellen Canacakos, “Joint Custody as a Fundamental Right,” Arizona Law Review, 23(1981)785-800; Holly Robinson, “Joint Custody: Constitutional Imperatives,” Cincinnati Law Review, 54(1985)27-65; Cynthia McNeely, “Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family Court,” Florida State University Law Review, 25(1988)891-956; and Donald Hubin, “Parental Rights and Due Process,” Journal of Law and Family Studies, 1(1999)123-150. Jump back to footnote 1 in the text.*

+ How do opponents of a shared parenting presumption respond to arguments for such a presumption?

We know of no published responses to the argument for a constitutional right to a presumption of shared legal and physical custody. And we know of no published responses to the argument that a clear presumption of substantially equal shared parenting would reduce litigation. With respect to the empirical claim that shared parenting is usually best for children, opponents of a presumption of shared parenting cite some research that shows either no benefit of shared parenting or a benefit from sole custody. The research cited, though, does not represent the consensus of impartial researchers in this area.

+ What are the main arguments against shared parenting presumptions?

Opponents of a presumption of shared parenting often point out that shared parenting is not appropriate in all cases. Opponents also believe that courts can be relied on to make decisions that promote the best interest of children without any presumption.

+ How do advocates of shared parenting presumptions respond to these arguments?

Proponents of a legal presumption of shared parenting agree that shared parenting is not appropriate in all cases. This is why a presumption in favor of shared parenting should be overridable when there is evidence that it would be harmful to the children. Proponents of a legal presumption of shared parenting are more skeptical of the ability of our overburdened family courts, which are seeing families often at the height of a temporary conflict between the parents, to reliably determine what custodial arrangements are best for the children. Asking a court to focus only on whether there is evidence that shared legal and physical custody would harm the children presents the court with a much more manageable task.

+ How are these issues different with non-married couples, same sex couples, or any cases different from married, male-female couples?

Cases involving the separation of never-married parents run the gamut from cases that are indistinguishable from a marital situation except for the absence of a legal marriage, to cases where the parents have not established relationship and one (or both) parties may not have desired to become a parent. In some cases, both parents have an established relationship with the child, in some cases not. There is a reasonable argument to be made for greater flexibility in court decisions in these situations to represent the broad range of cases

In the case of same-sex couples, with current technologies, at most one of the parents has a genetic relation to the child. Nevertheless, both parents may have the same sort of social and emotional bonds with the child as are present in traditional marriages where both parents are genetically related to the child. It is the social and emotional bonds that are so vital to protect.

+Does a presumption of shared parenting, or the practice of shared parenting, put victims of domestic violence at risk?

A growing body of evidence indicates just the opposite! The available data indicate that far from fueling domestic violence between the former partners, presumptions of shared parenting reduce the incidences of domestic violence. Available statistics from Kentucky, the first state to enact an explicit equal shared parenting presumption, which happened as a result of NPO’s work, and Spain bear this out. You can read more about this in our Shared Parenting and Domestic Violence-Paying attention to the Data handout

+Does shared parenting put children at risk?

Shared parenting advocates are often met with concerns that presumptions of equal shared parenting will put domestic violence victims at risk and endanger children. National Parents Organization has not seen any data to support such concerns. And, in fact, the data available suggest the exact opposite is true: presumptions of shared parenting are protective of abuse victims and children. You can read more and view data by reading our Shared Parenting News article on the topic.