Guest Post by Karen Covey
The story is all too familiar. The kids stand on the front steps, consumed by sadness. They watch their father walk toward the car. Silent tears roll down their cheeks while their dad gets in the car and drives away. As soon as he’s out of view, he chokes up and pulls over. He doesn’t want to lose his kids. But shared parenting seems like an impossible dream.
It’s scenes like this one that have fueled the Father’s Rights movement. Over the past few decades, Father’s Rights advocates have slowly been chipping away at the assumption that mothers should always have sole custody of the kids in divorce.
For years, fathers have been fighting to have an equal say in how their kids are raised. They have fought to get more time with their kids. Now, they’re fighting for something more.
They don’t just want more time with their kids. They want equal time with their kids.
Having two parents who are equally involved with their kids is a wonderful goal. But, the bigger question is: Is it a reasonable goal?
Equal Parenting Time: A Blessing or a Curse?
On the surface, equal parenting time seems supremely sensible. Research consistently shows that children benefit when both parents are a part of their lives.
What’s more, these days, both parents are usually employed outside the home. If mothers can juggle their work schedules to have their kids as much as possible, why shouldn’t fathers be entitled to do the same?
That’s the argument that has driven the Father’s Rights movement and organizations like the National Parents Organization that are aligned with that movement to draft legislation that would establish a legal presumption that both parents should have precisely equal parenting time.
50/50 is the “gold standard” that fathers across the country are so desperately seeking to establish. To make sure that they attain that equal parenting time, Fathers’ Rights groups have sponsored laws all across the country that would require courts to grant equal parenting time in virtually all cases.
Two such laws are pending in Illinois.
The Proposed Shared Parenting Law in Illinois
In Illinois, House Bills 4113 and 5509 are currently pending in the Illinois legislature. While these bills are named “shared parenting” laws, they are really “equal parenting” laws. Both bills would establish a presumption of equal parenting in every case.
House Bill 4113 applies in divorce cases. House Bill 5509 applies in parentage actions, where unmarried parents have children together.
In order to overcome the 50/50 presumption that the new laws would establish, a parent would have to prove by clear and convincing evidence that if the other parent had 50% parenting time that would seriously endanger a child’s physical, mental, moral or emotional health.
In addition, if a judge awarded anything other than 50/50 parenting time, s/he would have to file a written opinion justifying his/her award.
But Illinois is not the only state with an equal parenting law pending. Similar bills with virtually identical language are pending all across the country.
Shared Parenting Laws Across the U.S.
All of these laws have been promulgated in one way or another by the Father’s Rights movement.
In most states, the Father’s Rights groups have not been successful in getting most of these laws passed … yet. But public sentiment is changing.
Florida recently passed an equal parenting law, but the Florida Governor vetoed it. Last year Kentucky passed a law making joint physical custody and equal parenting time the norm in all temporary orders before a divorce is finalized.
Not surprisingly, women’s rights groups and domestic violence organizations are vehemently opposed to the proposed equal parenting laws. They claim that these laws will roll back the protections women have finally obtained against abusive husbands. They argue that the laws will strip the judges of any discretion, and throw the “best interests of the child” standard out the window.
Which side is right?
The truth is: Both groups are right. And, both groups are wrong. What’s more important is that both groups are focusing on the wrong question.
Shared Parenting v. Equal Parenting
In order to intelligently discuss the fight over shared parenting versus equal parenting, you’ve got to start by understanding what each of those terms really means.
“Shared Parenting” means that two parents share parenting rights, responsibilities and time with their kids in some proportion. Usually, shared parenting refers to situations where one parent has between 25% – 50% of parenting time. But, the definition of what is or is not “shared parenting” varies wildly from jurisdiction to jurisdiction, and from one research study to the next.
“Equal Parenting” means exactly what it says. Two parents share parenting rights, responsibilities, and time with their kids 50/50.
The differences in the definitions of “shared parenting” and “equal parenting” are important to understand. The two terms are NOT the same. Yet, proponents of the new laws are using these terms interchangeably.
Perhaps one of the reasons is to garner public support for something that their cause is not. “Shared parenting” sounds like a great idea. Who these days could responsibly argue that any non-abusive parent should not share parenting rights, responsibilities, and time with their kids?
But once you start talking about requiring parents to share parenting in exact 50/50 proportions, lots of arguments suddenly pop up. Whether those arguments are good, bad, right or wrong isn’t the point.
The point is, you can’t have an honest discussion about an issue unless you’re willing to define your terms honestly.
The same thing is true when it comes to research.
What Does Parenting Research Say?
When it comes to parenting research, expert opinions are all over the boards. Nonetheless, for the most part, the current research shows that children benefit when their fathers actively participate in their lives.
Research also shows that conflict hurts children. Whether having to share parenting time equally creates more or less conflict in parents who already don’t get along is difficult to determine.
Right now, most of the research that has been done to date on parenting has been based upon “shared parenting,” not “equal parenting.” That doesn’t mean that the shared parenting studies are useless. They’re not. But they only say what they say.
You can’t use a study that examined the effect of having 25% shared parenting to support your argument that parents should have 50% parenting time. That study simply doesn’t support the conclusion you want to draw.
What Do the Proposed “Shared Parenting” Laws Say?
If you read what’s been written about the proposed new parenting laws, it’s easy to get the wrong idea about what they really say. That’s because there’s a lot of misinformation floating around about these laws.
That misinformation starts with the titles of the laws. While the proposed new parenting laws are often framed as “shared parenting” laws, most of them are really equal parenting laws. They require all parents, whether they were ever married or not, to divide time with their kids 50/50.
Another reason it’s easy to be misinformed about the new parenting laws is that what’s written about the laws is often very different from what the laws actually say.
The truth is, if you really want to understand what the new laws say, it’s best to read the laws themselves. If you don’t have time for that, here’s a cheat sheet of what the proposed Illinois laws, and others like it, say.
4 Things the Proposed Parenting Laws Change
They establish a legal presumption of 50/50 parenting time.
The new laws start by establishing a legal “presumption” of equal parenting time in all cases. In legal terms a “presumption” is not just a pretty word. It is a legal inference that the court MUST make in cases where the presumption applies.
A legal presumption strips judges of discretion and requires them to “presume” that something is true. without any proof that it is true.
The proposed shared parenting laws would require judges to presume that every parent should have exactly equal parenting time, regardless of the facts and circumstances of their case.
That’s a significant change from the current laws. The laws today don’t presume that parenting time should be equal or unequal.
They change the burden of proof.
Right now, when a judge makes a decision about parenting time s/he does so based upon “a preponderance of the evidence.” That is a legal standard of proof that requires someone to prove that something is more probably true than not true. It is 50% plus one.
Under the new laws, if a judge awards anything other than 50/50 parenting time, s/he must base that award on “clear and convincing” evidence. That is a much higher legal standard of proof. It requires someone to prove that something is very probably true. That’s significantly harder to do than to prove that something is more than 50% true.
They change WHAT a parent has to prove in order to deviate from strict 50/50 parenting time.
Currently, parents need to prove that the parenting schedule they want is in the children’s best interests. Parents need to prove this no matter what kind of parenting schedule they are proposing.
Under the pending Illinois legislation, a parent wanting anything other than 50/50 parenting time would have to prove by clear and convincing evidence that the other parent’s exercise of parenting time would seriously endanger the child’s physical, mental, moral or emotional health.
That is significantly different than requiring a parent to prove that having more or less parenting time is best for their kids.
They require written court opinions.
Finally, many of the new and proposed laws would require trial judges to write detailed written opinions justifying any award that does not grant 50/50 parenting time.
If you aren’t familiar with the court system, that requirement seems simple enough. If you are familiar with the court system, you understand that this requirement would impose a huge burden on most judges.
Given their enormous caseloads, most trial judges don’t currently provide written opinions in most cases. Writing opinions takes a lot of time. Judges these days don’t have a lot of time. Requiring judges to start writing opinions in any case where they deviate from the 50/50 standard, would make them hesitate to order such a deviation.
That, presumably, is the point.
5 Ways the Proposed Parenting Laws Will Hurt Kids
The new laws put the parents’ “rights” above their children’s best interests.
The new laws would require kids to spend half of their time with each parent. Period.
The laws don’t make any exceptions for kids whose parents live hours away from each other. They don’t take into account how old the kids are, or what their relationship with either parent is like. They don’t make exceptions for the children’s needs, desires, or developmental stage.
As a matter of fact, the new laws don’t focus on the children at all. They focus solely and completely on what’s best for the parents.
That is the main problem with these laws.
The new laws would throw the “best interests of the children” standard right out the window. They leave little room for considerations of what’s best for children, or even what children want.
What do children of divorce want? While the answer obviously differs from case to case, most kids just want to be kids. They want two parents who love and care about them. They want to be able to love both of their parents and live their lives.
As Robert Emery, psychology professor at the University of Virginia, and author of Two Homes, One Childhood: A Parenting Plan to Last a Lifetime writes:
Children do not calculate percentages. Love is not divisible. Children need parents who keep their life together, across two homes, not parents who divide their lives in precisely equal halves.
The new laws endanger children in cases involving domestic violence, abuse, and neglect.
Under the new laws, judges would be required to presume an equal division of parenting time even in cases involving domestic violence. (Remember, the Illinois laws only allow judges to deviate from the 50/50 standard if a parent proves by clear and convincing evidence that the children would be seriously endangered. It says nothing about danger to the spouse.)
What’s more, requiring domestic violence victims to overcome this legal presumption by “clear and convincing evidence” is an unbelievably difficult task. At best, overcoming this presumption requires a skilled lawyer and a lot of evidence. At worst, it will never happen.
Domestic violence victims rarely have access to the money or resources that it would take to wage the kind of legal battle that would be required to prove anything “by clear and convincing evidence.”
Finally, as a purely practical matter, the only way 50/50 parenting time can work is if parents live reasonably close to each other. That means domestic violence victims would be forced to live in the same area as their abusers, and to make child-related decisions with them.
That keeps them in the danger they were trying so desperately to escape.
All things considered, the new laws would make it even less likely that domestic violence victims would ever leave their abusers.
Parenting research does not support the new laws.
Proponents of the new laws claim that studies show that equal parenting time is best for kids.
But the studies they cite don’t talk about equal parenting time. They talk about shared parenting time.
Depending on the study, “shared” parenting time can be anything from 25- 50% of time. Those studies simply don’t support the proposition that 50/50 parenting time is really best for the kids in all cases.
At this point, there simply is not a lot of research on truly equal parenting time.
What the current research DOES indicate is that appropriate parenting plans will vary based upon children’s ages and developmental stages. An appropriate parenting plan for a teenager would be a disastrous parenting plan for an infant.
A law that requires 50/50 parenting across the board, with little room for varying the schedule based upon a child’s age or stage in life is not in line with current research.
The proposed parenting laws will primarily be used by the people who are the least equipped to fight them.
According to most experts, at least 90% of all divorce cases settle out of court. The 10% or so that go to trial are the most difficult, highest conflict, cases.
Amicably divorcing people do not need an equal parenting law. They are able to work out their issues either on their own or with the help of a mediator or collaborative divorce professionals. They are usually able to do what is truly best for their children, regardless of whether that means that they establish a 50/50 parenting schedule, or something else.
It’s the people who can’t work things out who rely on the law and the courts to tell them what to do.
As everyone knows, litigation is expensive. Fighting your divorce case in court can cost tens, or hundreds, of thousands of dollars. Yet, the only way to challenge the proposed equal time requirement if your spouse won’t agree to a different schedule, is by fighting in court.
Poor clients and domestic violence victims don’t have the money to hire expensive lawyers. They are the people who are least able to wage a successful court battle. Yet, if equal parenting time becomes the law, these are the exact people who will likely need to challenge the law the most.
The proposed parenting laws will dramatically affect child support.
In almost all states, the amount of child support a parent pays is affected by the amount of time that parent spends with his/her child. The more time a parent spends with a child, the less child support that parent pays (… or receives).
While adjusting child support based upon time spent with a child seems fair, most men still earn more than most women. Women therefore argue that if their support is reduced based upon parenting time, they won’t be able to make ends meet.
Men counter with the argument that if the kids are with them more, they should pay less in child support. They’re already supporting the kids when the kids are with them.
Both arguments are valid. Yet, both miss the point.
Tying child support payments to parenting time causes many divorcing parents to put their kids in the middle of a financial tug-of-war.
Anyone who has spent more than ten minutes in divorce court can tell you that some parents will do whatever they can to reduce the amount of child support they pay, or to increase the amount they receive. Then, once their court case is over, the parent never uses the parenting time s/he fought so hard to get.
That’s the real problem.
If these new laws are passed, more people will fight longer and harder over parenting time. They will do so not because they want to see their kids more, but because they want to pay less.
The Real Solution to the Shared Parenting v. Equal Parenting Problem
The battle lines over equal parenting versus shared parenting have been drawn based on gender. The Father’s Rights movement is focused on getting equal parenting to protect “Father’s rights!” Women’s organizations favor retaining the current laws just the way they are, with shared, but not equal, parenting.
Domestic violence organizations are focused on keeping the victims of violence and their children safe. Since the proposed equal parenting laws don’t do that, the organizations oppose those laws.
Everyone involved in this issue has valid points to make. But all of the organizations are primarily focused on what is in either mothers’ or fathers’ best interests.
The real focus should be on the kids.
Every child is different. Every family is different. Unless the law is flexible, it will favor some people and disadvantage others. Inevitably, that will hurt a lot of kids.
The Proposed Equal Parenting Laws Are Not the Answer
The proposed equal parenting time laws are not only rigid. They are draconian. They will not put the children first in any situation. Passing those laws will not be best for kids.
At the same time, our current laws, and the way they are applied, is far from perfect, too.
Right now, most laws don’t explicitly favor mothers in custody or parenting battles. But, as a practical matter, in many places there is a judicial bias in favor of keeping kids with their moms. That bias, as well-intentioned as it may be, is not helpful.
It’s not that kids shouldn’t be with their moms. They should. But they should also be with their dads.
How much time kids spend with each parent should be for the PARENTS to decide.
If the parents can’t agree, then a judge will likely have to decide that for them. The judge’s decision should be based on the best research, as well as the individual characteristics of each family. It should be based on gender neutral laws applied evenhandedly to all.
If changes need to be made to the current laws to make sure that judges make their decisions in a less biased way, then THAT’S the discussion we should be having. Arguing over whether parenting time should be exactly equal or not is counterproductive.
Instead of asking, “Which parent should get more time?,” the question we should be asking is, “How can we really do what’s best for these kids?”