A New Era of Family Law - "50/50 Custody"
The following article discusses the movement to pass legislation in all 50 states mandating a presumption of 50/50 custody.
Food for thought?
By Lynne Gold-Bikin
A movement by fathers' groups and their current wives to have every state legislature mandate a presumption of 50/50 custody for all children as a starting point in every contested custody case has created a new area of family law. If you inquire about the rationale behind this movement, the groups will respond that they have a constitutional right to raise their children and, further, that this presumption will alleviate all custody problems. Further, they say, the "best interest of the child" standard is bogus and is just used to deprive fit parents of their rights. Other arguments made by these dads include: the criteria used to award custody are unconstitutionally vague; there are no scientific data to support the continued use of the "best interests" standard, and the standards are arbitrarily utilized. If the legislatures would only mandate a presumption of 50/50 custody at the outset, these groups claim, there would be no interparental conflict, no wasting of family resources, and no shattered lives.
A Bad Idea
Mandating a presumption of 50/50 custody is a bad idea. The attempt to mandate 50/50 as a starting point in a custody case completely obviates 30 years of research and case law on the issue of "best interest of the child." Despite the position taken by these groups that there is no scientific data on the "best interests" standard, psychologists and psychiatrists around the country have withstood Daubert challenges, with findings that their research is scientific. There is an abundance of literature supporting the standard, beginning with "Beyond the Best Interests of the Child," by Goldstein. Freud and Solnit have published research and case studies, and peer-reviewed articles on this standard have been published for years in scientific journals. (See, eg, "The Scientific Basis of Child Custody Decisions," edited by Robert M. Galatzer-Levy and Louis Kraus, published by John Wiley & Sons, Inc. 1999). While there are continued challenges to the use of psychometric tests in custody litigation, there should be no question that the focus of all such litigation should be what is best for a child, not the so-called "rights" of the parent.
The issue of a constitutional right comes out of a misinterpretation of statements by Justice Sandra Day O'Connor in Troxel v Granville,120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). This Supreme Court case, pitting grandparents against a surviving parent, held that a parent's rights prevail over the rights of the child's grandparents. The holding stated, in pertinent part, that "... it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody and control of their children." The Washington statute in question, it was held, "unconstitutionally infringes on that fundamental right." The case held that the statute was overly broad because it permitted any third party to bring an action for custody rights. Justice O'Connor opined, in dicta, that fit parents had a constitutional right to raise their children and make educational decisions concerning them. She did not say that this was true, one parent against the other; nor did she say that the "best interest of the child standard" would not prevail between parents. These statements have been taken out of context and used as a mantra in a mad dash to undermine the idea that the focus of the litigation should be on the environment in which the children should be raised to enhance their lives when their parents cannot jointly agree. Instead, these groups say that all parents have a right to demand 50/50 custody in all cases and that it is the greedy lawyers that stand between parents getting along. If the lawyers would only step back and allow the legislatures to mandate the 50/50 presumption, all would be right with the world and everyone would just get along.
Such a presumption and this demand for a blanket decision of equal physical time for all parents imposes a cookie-cutter solution on a complex problem. All parents are not the same. All parents do not raise their children in the same manner. All parents do not dedicate themselves to their children. All children do not necessarily want to spend equal time with both parents. All mothers should not necessarily have 50/50 custody time; nor should all fathers. All children should not be forced to live with their little suitcases, prepared to shift households every few days between feuding and dissimilar parents.
Custodial Parents
Custodial parents, some of whom have given up careers to raise their children, should not necessarily have to prove in a court of law why the status quo should not prevail. To force a parent who has been the primary caretaker in a child's life suddenly to give up half of the custodial time he or she has had with the children simply by virtue of such a "presumption" would not necessarily serve the children well. A custodial arrangement for children impacts on their entire lives. Therefore, the arrangement should be looked at carefully and with the appropriate analysis. Testimony concerning parenting styles, bonding, availability to parents, access to friends and families, appropriate schooling, interaction with teachers and doctors - all these are significant factors that must be explored in determining where children should be raised. It is the child's best interest that should be the focus, not property rights that one or the other parent wishes to maintain. Children are not little packages that should be passed back and forth in a parking lot between feuding parents.
The suggestion that making a presumption that all custody cases should result in a 50/50 division of time would somehow or other do away with custody litigation is a ridiculous conjecture. In some states, such as Iowa, such a presumption has become the law. Despite that, these courts look at the "presumption" and then immediately use the best interest of the child to determine the resulting schedule. This "presumption" has done nothing to set forth more 50/50 custody time for the dads.
This is not to say that the system is a perfect one. Many fathers have stories of sad results where they have been denied total access or reasonable access to the children. This is a tragedy that should not occur. Good parents should not be denied access to their children, either by the courts or the primary custodial parent. Prompt intervention by the courts when there is interference by one parent to access by the other should be of primary concern. Such interference is not in the best interest of the children, nor is the undermining of the relationship by one parent to be tolerated.
How to Improve the System
There are other things that could improve this system; however, the blanket presumption is not the answer. Demanding an automatic 50/50 is like throwing the baby out with the bath water. Using 30 years of research and good case law where there are actual case studies makes more sense than simply imposing a presumption. Remembering that the child, not "parents' rights," should always be the focus, will make a better result.
What, then, could enhance the system in the best interests of all concerned? Three suggestions for improvement include: 1) appointing knowledgeable judges in family law cases. Too often, the newest judges to the bench are thrown into Family Court as their "initiation" to the bench. This is neither appropriate nor fair to the thousands of families that pass through the courts. Family law is complex, and appointing untrained, new judges to this bench, some of whom have never presided over a family law case, results in many unfair and incorrect decisions; 2) providing special training for those judges who sit in family court. Custody or placement cases take a particular understanding of child development and the psychological interests of children that could help frame the ultimate custodial schedule. Children should not be denied access to either parent, even if it is not equal access, without good reason; 3) judges should be trained in domestic violence issues. This should not be "on-the-job-training" and, because abuse issues often arise in custody cases, judges should understand the impact of abuse in a family, even if the abuse is between the adults. It is not only the judges who should be trained. Custody is complex litigation and should not be undertaken by just anyone. This type of litigation requires trained professionals. A good custody lawyer will not only know how to try the case, but will also know how and when to settle it. Competent experts are another key. The choice of expert witnesses, when experts are necessary, ought to be made based on their expertise, not their cost or their relationship with the lawyer.
Conclusion
One further point: There are many states that have a "cliff" in their support guidelines. In other words, if there is greater than 40% custody time to what would otherwise be the financially independent and non-custodial spouse, there can be a reduction in the amount of child support paid to the other parent. For example, Pennsylvania's guidelines state, "When, however, the children spend 40% or more of their time during the year with obligor, a rebuttable presumption exists that the obligor is entitled to a reduction in the basic child support obligation to reflect this additional time." (Rule 1910.16-4c (1)) It would be unfortunate if the motive for parents to attempt to mandate a 50/50 schedule was to reduce their child support obligations.
Custody schedules are complex. Absent compelling reasons, a child's need to have access to both parents is a necessity. A blanket provision for equal physical custodial time is not the answer. The best interest of a child should continue to be the focal point for parents and the courts.
