I’m not sure that it still applies today, but there used to be a common expression that went along the lines: where America leads, the rest of the world follows. Or something like that. Could this be true about family law in this country? A movement for the introduction of what they call ‘shared custody’ is gaining ground in the USA, and could be a catalyst for a similar change over here.
I’m sure I’ve never based a post upon the contents of an article in The Washington Post before, but there’s a first time for everything. The headline to the article sets the scene by telling us that: “More than 20 states in 2017 considered laws to promote shared custody of children after divorce”. The important word is of course ‘considered’. The proposals, more of which in a moment, have not necessarily found their way onto state statute books. Yet. But the issue is clearly on the political agenda driven, as over here, by ever more vociferous lobbying from fathers’ rights groups.
Now at this point you may be asking: don’t we already have a shared parenting presumption in this country? Well, yes, we have the presumption that, unless the contrary is shown, involvement of each parent in the life of the child concerned will further the child’s welfare. But that presumption does not of course say anything about how much time the child should spend with each parent. I think it is a common mistake to equate the presumption with equal shared care, i.e. the child spending equal time with each parent.
The new laws being considered in various states across the USA are given the umbrella name ‘shared custody’, but they vary considerably. They include one that would simply state that the reasoning behind judicial decisions relating to child custody should be put in writing, so that parents could evaluate whether there has been judicial bias in favour of the mother or the father. But the proposal that I want to concentrate on here is that there should be a presumption, or starting-point, that the child should spend equal time with each parent. Such a presumption over here would be something new.
An equal parenting time presumption in this country would, of course, be extremely welcome to fathers’ rights groups in this country. It has been their goal for as long as I can recall. There is, however, a trap that such groups fall into when they push for equal parenting time, and that is revealed in the article when it states:
“The legal push for custody arrangements is in large part a result of years of lobbying by fathers’ rights advocates who say men feel alienated from their children and overburdened by child-support obligations. These groups, including the National Parents Organization, are gaining new traction, with support from across the political spectrum, as more lawmakers respond to this appeal for gender equality and, among some conservatives, the frustration of a newly emboldened constituency of men who say they are being shortchanged.”
The revealing point comes at the end: men who say they are being shortchanged. The central issue on this side of the Atlantic is not the ‘rights’ of parents but the welfare of children. It is nothing to do with equalising parenting time so that one parent is not ‘shortchanged’. If equal parenting time is ordered by a court that is because that is what the court considers is in the best interests of the child.
So an equal parenting time presumption or starting-point could never usurp the overriding principle that already guides the law: that the welfare of the child is paramount. Still, it would give a different emphasis, and could, as its supporters hope, lead not just to children spending a more equal amount of time with each parent. It could also, as a campaigning father mentioned in the article says, lead to a move away from the idea that when parents leave the courtroom (or even when they separate) one is a parent and the other is no more than a visitor. It could mark a sea change, not just in the way that the law works, but also in the way that society in general views parenthood after separation.
So we should carefully watch developments in America. Governments and those involved in the making of law in this country have long paid close attention to how they do things on the other side of the Pond, and it may just be that any changes over there will tip the balance for similar changes over here.
You can read the full article here.