Is Shared Custody or Shared Parenting the New Norm in Virginia?

Recently, there has been a large push in statehouses across the nation by fathers, and legislators acting on their behalf, to ensure that men are on a more equal footing with women in receiving child custody rights.  According to a recent Wall Street Journal article, many fathers are concerned that men have been historically disadvantaged when it comes to custody decisions and there is a responsive legislative trend to encourage or even mandate a more equitable distribution of parental custody rights. 

Legislative Initiatives to Give Fathers More Time

In an effort to introduce greater equities into court-ordered custody arrangements, about twenty states currently are considering measures that would alter the laws governing which parent gets legal and physical control of a child when a divorce or separation is finalized.  The proposals generally encourage judges to adopt custody schedules that maximize time for each parent and give them equal time with their children.  Shared Custody

Some of the measures actually go so far as to require judges to award equal time to each parent in a custody arrangement.  Earlier this year, for example, the Colorado Senate introduced shared parenting legislation that requires courts to explain in writing why a custody arrangement that “does not order substantially equal parenting time between the parties” is in the best interest of the child. 

Changing Historical Views on Child Custody: Father’s Rights?

The increasing emphasis on ensuring equitable distribution of parental time into custody arrangements represents the most recent trend in legal views on child custody which have changed considerably throughout the years.  Over a century ago, the “tender years” doctrine was proposed by Donald Hubin, a philosophy professor and parenting expert.  This doctrine -- holding that a child should stay close to his or her mother during infancy and the toddler years -- largely governed parental rights decisions until well into the second half of the last century. 

About fifty years ago, experts began to believe that the tender years doctrine was overly broad and too rigid.  In its place emerged the view that custody should be decided based on the “best interests of the child,” a doctrine that gave broad discretion to judges in resolving child custody disputes.  However, advocates of shared parenting suggest that the “best interest of the child” standard may give judges too much power to employ biases and may unreasonably invite animosity in custody proceedings as adversarial parents attempt to diminish each other’s parenting and nurturing abilities before a deciding court. 

While shared parenting has emerged as an increasing response to such criticisms of the “best interest” doctrine, it remains far from the norm in custody arrangements nationally.  Many parents believe that the court system continues to create winners and losers in custody cases, with the winner capturing a dominant share of the child’s time and the loser barely allowed to parent at all.  The historically traditional custody arrangement that limits a father’s oversight of his children to one night per week and alternate weekends essentially deprives the father of meaningful parenting of the variety that benefits the children.

Even as shared parenting becomes more popular, the emergent doctrine that encourages both parties to a custody arrangement to optimize their parenting time has both supporters and detractors and continues to spark debate in courtrooms and social media. 

Criticism of Shared Parenting – Is Shared Custody Best?

            Some critics of legislation that encourages or mandates shared parenting claim that such measures threaten to take power away from judges and remove judicial discretion in a manner that could risk giving power to some fathers with alleged histories of emotional or physical abuse.  Specifically, there is concern that shared custody requirements could give such individuals more bargaining power during divorce negotiations in a manner that ultimately could prove harmful to the children involved.

Critics also say that shared custody laws are poorly targeted because often the only custody cases that actually end up in court are the ones in which the spouses are too hostile toward each other to reach an agreement.  Such individuals, critics argue, are highly unlikely to be able to effectively put into practice the joint parenting arrangements that may be thrust upon them.  While equitable distribution of parenting roles may be a commendable goal in circumstances involving parents who can make such arrangements work, critics argue, a rigid legal presumption that a 50-50 parenting split is appropriate in all circumstances should be highly disfavored.

Support for Shared Parenting and Equal Time

Supporters of shared custody legislation say that such laws are a logical response to recent studies that show children are better off when both parents play a meaningful role in the child’s life.  They further contend that shared custody opponents are only trying to maintain an adversarial culture that leads to lengthy court battles focused on “best interest” debates.   

The Shared Custody Path Forward

As more states consider whether and to what extent shared parenting should be recommended or mandated in custody arrangements, considerations of meaningful parenting access and residual “best interest” factors should remain part of the equation.  This suggests that the most effective legislative initiatives should allow for continued exercise of some discretion on the part of domestic relations judges when assessing the advisability of shared custody arrangements in particular circumstances. 

Attorney Van Smith believes that the Virginia General Assembly should consider implementing an equitable visitation standard, but should ensure that courts retain discretion to consider such factors as whether the child is of an appropriate age to benefit from such an arrangement and whether there is any prospect for demonstrable harm to the child’s well-being from a shared parenting arrangement.