Child Custody: Rethinking the System

By Jim Johnston

Todays family law system frustrates maximum dual-parent involvement with children of divorce. The three main elements of the decision-making that is necessary when couples separate and divorce compare to the legs on a three-legged stool. These three legs are:

• Initial allocation of parenting roles and responsibilities at the time divorce/custody orders are filed;
• Visitation time allocated and enforcement applied; and
• Financial child support applied to include needs that children have at both households

Most of the problems with todays approach result from making a decision in each of these areas that is independent rather than interdependent on the others.

Children of divorce suffer a significantly higher risk of childhood pathologies ranging from teen suicide and substance abuse to teen pregnancy and violence. A divorce does not automatically damn a child to these or other disorders, but they are indeed real, and an absent parent is the predicting factor.

Society is at a threshold for dealing with such problems. Divorce is now a common and often expected result of marriage. No-fault divorce makes splitting up much easier, and we are now in at least the third generation of children impacted by it. Change is possible, however, if we have the will and the fortitude.

Change begins with changing expectations. Both the legal system and society must expect parents to continue to be responsible for raising their children in spite of a divorce, including determining themselves how they will co-parent. What they brought into the world together, they should expect to complete together. There simply is no logic to accepting anything else. Society is starting to come around to the idea that both parents are indeed important to these children. Much of this attitudinal change is probably due to the raw numbers of people directly impacted by divorce today. Chances are that if you werent a child of divorce, you are divorced yourself or have family or friends that have been. The expectation that both parents will continue their involvement is slowly becoming evident through changes in custody laws and practices, but much more of needs to happen.

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Society now has enough experience to justify such changes. There are increasing resources available to facilitate educating parents to the fact that children to both of them. There are numerous publications that can be used to help parents establish parenting plans. A good parenting plan is the backbone of any meaningful co-parenting arrangement.

The end result of completing a parenting plan is important, but even more so is the process of getting there. An outline of parenting items to be considered by both parents enables each of them to share a collective wisdom gained from those who put it together. Both can make better-informed decisions rather than simply relying on their attorneys and a judge to do so for them.

Outside of the adversarial system itself, the biggest enemy of divorcing parents is emotional strain and an ignorance of the parenting challenges they will both face. An expectation by society that both should continue to parent their children, supported by parenting plan outlines and a requirement for them to work towards its completion, opens up thinking to the ways both can remain involved. This stands in contrast to the situation today, where we usually expect one to carry the burden of parenting, while making the other parent simply a visitor to their children.

The adversarial process is a disastrous impediment towards maximizing dual-parent involvement. Efforts must be made to reduce the practice of automatically litigating custody. Once attorneys are brought in as representatives, the parents are immediately discouraged from trying to work through details together on how they can co-parent the children. This is especially harmful as they are essentially pushed towards opposite camps, fighting for custody and the rewards that come with todays system. Laws and judicial practice should encourage alternative dispute-resolution processes that facilitate the parents working together towards parenting their children.

After all, who knows the children best? Certainly not a judge who has spent little time with the case. Incentives that encourage a parent who refuses to cooperate should be reduced, if not eliminated. Parenting plans offer up an excellent avenue of ensuring that this happens. A common provision in most is some description of an alternative approach to be agreed upon for problem or conflict resolution that would be used before going to court. This in and of itself could have the greatest impact on reducing conflict between parents as they raise their children in separate households.

A thorough review and change of all laws and practices dealing with determining custody and parental roles is necessary. The goal is to maintain and support the integrity of a childs relationship with both parents. This does not mean the automatic establishment of 50/50 parenting. What it should mean though is that whatever the maximum time-share arrangement can be with both parents depending on their unique family circumstances is reflected in the post-divorce legal agreements, nothing less. Todays system is incredibly skewed towards enforcement of financial child support, while giving little attention to the establishment of continued parental responsibilities of each parent, including the protection of the childs access to and involvement with both. The primary consideration that should drive all such decisions should be the recognition that children want and need both parents in their lives. Maximizing dual-parent involvement should drive custody, residency, parenting time, and financial child support decisions. We have started to turn the corner in fully appreciating that parents are more important to children than a garnished paycheck. Most critical is ensuring that their emotional child support needs are met and supported by each of the legs of our custody stool.

Websters Collegiate Dictionarys definition of the word system is A regularly interacting or interdependent group of items forming a unified whole. If we are truly interested in improving the lot of children of divorce, we need to look at our existing system holistically. The children of divorce do not come from just one parent. They are built from the genes, values, and beliefs of two parents. To minimize one parent following the typical divorce is to rip out a part of a childs identity. Divorce is an unfortunate reality, and is unlikely to go away as a societal norm. With that, we must do all that we can to ensure that children impacted by such decisions are protected both physically and emotionally. If both parents are fit and capable, both should be supported in their efforts at continuing to provide for their children. How wonderful it will be to hear one day that we truly have a system that protects the relationship children of divorce have with both parents.

On any quality stool, the legs must be balanced and work together to ensure the greatest degree of stability and safety for the person sitting on it. Should one leg be weaker and/or shorter than the others, the potential for the stool to tip over is great. When our government in our present system for instance spends in excess of $4 Billion/year on financial child support enforcement, yet hardly a pittance on programs keeping both parents involved, our stool is about to collapse, leaving our children at risk.