Separating parents often want to share physical custody of their children and these disputes can be fraught with high conflict. Australia’s and other jurisdictions’ recent experience setting guidelines for shared custody is cautionary as regards enacting a legislative presumption of joint physical custody and instructive in identifying issues that should be addressed.
The long-term, hotly debated controversy over whether Minnesota should enact a presumption of joint physical custody surfaced again in the last legislative session and will likely reappear in the upcoming session. Minnesota has a rebuttable presumption that on the request of either or both parents, joint legal custody (decision making on medical care, education, religious upbringing) is in the children’s best interests.1 Physical custody, on the other hand, is a much less settled issue.
Terms such as joint physical custody, parenting time, residential custody, shared care, substantially equal shared care, custodial and noncustodial parent, and nonresidential and residential parent are imprecise. They are used to characterize custody arrangements and to describe parents who do not live together but who share responsibility for the physical welfare of their minor children. The Minnesota state court system traditionally has handled custody issues by assigning physical custody to one parent and assigning the other parent the right to spend one night a week and every other weekend with their children.
Divorcing, separating, or never-married couples who end their relationship and have children together may want to share custody. These parents face challenges, such as Minnesota’s statutory rebuttable presumption that, in the absence of other evidence, a parent is entitled to at least 25 percent of the parenting time for the children.2 Other challenges they may encounter include that a court’s legal designation of “joint physical custody” does not necessarily mean equal time, that a district court has discretion to determine if a child is mature enough to express a parental preference, that court-ordered arrangements may not be durable over the long term, and dealing with adverse custody expert recommendations.
The Australian Model
Australian initiatives in devising “shared care or near equal shared care” arrangements for child custody have recently drawn strong interest in the family law community. These arrangements are considered for implementation where parents of minor children do not live together but want a relationship with their children and share legal custody. Each parent takes responsibility for part of the care and control of their children.
After much heated debate, the Australian legislature in 2006 adopted family law reforms that include a presumption of equal, shared parenting responsibility but not a presumption of shared equal time. The legislative intent that was evinced made clear that the family justice system should move away from the assumption that the normal pattern of contact for the nonresidential parent should be every other weekend and half the school holidays.
The legislation requires decision makers, mediators, lawyers and parents to first consider the merits of shared parenting where shared responsibility is not rebutted.3 Social science research on this Australian emphasis on shared responsibility for care of children4 has shed new light on the risks and benefits of these arrangements and generated prodigious interest in the findings and what they may mean for families and family law practitioners. These study findings may help the legal community to better construct shared care options to the benefit of parents and children.
Shared Care Trends
Equal or near-equal shared care of children in post-separation parenting arrangements has become an international trend in the Western world. Belgium, Italy, and Australia5 have enacted such legislation, as have Wisconsin6 and Iowa7 whose legislative amendments endorse shared parenting. A 2010 Australian study on post-separation shared care parenting found “[t]here has been a steady increase in the proportion of parents who have a shared care arrangement since the late 1990s, and this is consistent with the experience of other countries.” 8 The study noted further that “[a]s many as a quarter of recently separated parents may try shared care for a period of time.”9 The Australian family law reforms of 2006 favor a presumption of ”equal shared parental responsibility” except where there is violence or abuse.
However, the Australian experience with equal time or near-equal shared care indicates these arrangements tend to be short lived. Findings of the 2010 study mentioned above demonstrated that such shared care arrangements often revert to a pattern of one parent with primary care within a few years of the initiation of shared care.10
California repealed its presumption of joint physical custody in 1994 because equal shared care arrangements were generally not stable over time. Parents who started post-separation arrangements as shared care tended towards primary custody by one parent, generally within three years of the initiation of the arrangements.11
Similarly, Sweden enacted legislative changes in 1998 that allowed courts to order joint parental responsibility against the wishes of one parent; however, this enactment was modified in 2006 by a new provision that directed family courts to consider the parents’ ability to cooperate when deciding whether to order sole or shared parental responsibility.12
Presuming Joint Physical Custody
The fact that each individual family has unique characteristics and needs makes it inadvisable to enact a presumption of joint physical custody. Parents who can cooperate on custody and parenting time do not need such a presumption. Therefore, the presumption would apply to parents who cannot cooperate together. If parents need to litigate because they cannot agree on custody and parenting time, how reasonable is it to presume that they would be able to effectively parent together and agree on the many needed decisions until the children reach the age of majority?
A Blunt Instrument. If joint physical custody is presumed at the outset, there are no second chances to redo shared parenting arrangements to better effect once the children reach their age of majority. It is important to do it “right” the first time and the challenge is that “right” depends on the unique facts, needs, and circumstances of each individual family. A ”one size fits all” statutory presumption of joint physical custody would not take into account all the different factors that need to be considered such as children’s ages, capabilities, special needs, wishes, and the resources (financial and extended support networks) available to an individual family.
Risks of Abuse. Another concern in cases of domestic abuse is that a presumption of joint physical custody can be used by an abuser to control a victim parent in a variety of ways, such as depriving that parent of time with their children. A parent who has a history of control and domination during the relationship is unlikely to cooperate in a system of egalitarian decision making and sharing custody following separation.13 An abuser can use the increased close proximity of joint physical custody to coerce, manipulate, and intimidate the former partner and children. The abuser then has continued opportunity to abuse the victim parent and threaten to or actually take or harm children or try to damage the abused parent’s relationship with the children.
May Be Unnecessary. Placed in historical perspective, cultural norms can demonstrate that a presumption of joint physical custody is not necessary for the majority of parents who can agree on parenting time and custody.
For example, Somali immigrants’ experience with civil war and refugee camps has, for some, eroded faith in government institutions to resolve their problems and affirmed a belief in the need to take care of one’s self without government intervention. Often, when Minnesota Somali individuals or couples approach a divorce attorney they have already received advice and direction from their religious imams, community elders, and extended family. Generally, the parents have relied on semiformal, culturally specific ADR processes to reach agreement on custody and parenting time. And for many, their low incomes preclude resolving issues through custody evaluations, mediators, and experts that may be needed for litigation.14 Meeting with an attorney is then a formality to dissolve the relationship.
May Be Unworkable. Shared care works well for some families but is risky for others. Controversies regarding shared care include such issues as court-imposed shared care; safety concerns in shared care involving a biological parent, their relative, or a new partner; shared care with very young children and older teenagers; and shared care based on adult agendas and interests rather than children’s needs.
Court-imposed joint physical custody without acceptance by parents may adversely affect the durability of such arrangements. When there are safety concerns such as domestic violence, or chemical dependency, mental illness, a high-conflict parental relationship, or very young children just forming a primary attachment, then shared care is more risky for the children than other parenting arrangements.15 A legislatively mandated presumption of joint physical custody, applied to these difficult situations, would tend to have the most detrimental outcomes for the children. Adult-focused custody arrangements that do not consider the needs and desires of children may have long-term negative effects on the children and their relationships with parents. There is currently no research evidence to support enacting a statutory presumption that shared time for litigating parents is more beneficial than other parenting arrangements.16
What Cost to Children?
Primary school age and younger teenagers fare better than preschool children and older adolescents in the shared care studies, however, they all share similar challenges: the stress of continual switching between households; not having what they need because they forgot belongings at the other parent’s home; having to pack and remember what they need for school, sports, and other activities; warranted fear of a parent’s negative reaction to needing to retrieve forgotten belongings from the other parent’s home; and, in some cases, being forbidden to take special comforting items (clothes, toys, blanket) to the other parent’s household.
Infants up to age two have special needs, such as breast feeding, that make shared care exceptionally difficult, if not impossible. Attachment theory tells us that infants need to form a solid bond first with one primary caregiver and then they will be able to form positive attachments to other persons.17 The research suggests that for infants, just one overnight a week with the non-primary parent can have harmful effects on attachments and child development. These may be manifested in the form of biting, kicking and hitting the custodial parent; a higher degree of watchfulness monitoring the custodial parent; less persistence at play; and increased irritability.
At the other end of the age spectrum, older teenagers have special needs of their own that may run afoul of shared care arrangements. They want autonomy, to own their lives, and need more time by themselves to study and develop vocational plans or prepare for college. Time with their peer group becomes increasingly important. Shared care arrangements place additional burdens on both parents and children when this age group is involved.
Children’s Well-Being Paramount
An emerging trend in child custody determinations is to focus on ways to increase children’s well-being by examining what is in children’s best interests after the separation of their parents. Choice-based integration of children’s needs and wishes is the model that Australian social science researchers and legal professionals are working to implement. This is part of the trend towards using children’s interests as a paramount consideration in determining the optimal custody and parenting time arrangements in individual families.
Shared care presents special challenges for infants and preschoolers, among them problems with infant attachments and detriments to their physical and emotional development. Older teens’ needs and wishes for more autonomy and time alone and with friends conflicts with the desires of parents who want enough time with the teenager to develop or continue a meaningful relationship with them. Parental inflexibility in demanding “equal time” with their children in spite of children’s needs and wishes has resulted in more negative outcomes for children across several studies.18
A small Norwegian study demonstrates that when minor children are involved, parents and children experience more positive outcomes in sharing decision making regarding equal- or near-equal-time arrangements. Other factors matter more for children’s well-being than an equal or near-equal split in parenting time. Research consistently finds that parental capacities, skills, and practical resources such as adequate housing and income are closely connected to the best interests of children.19
The quality of interparental and child-to-parent relationships and the availability of resources are key determinants of children’s well-being, rather than equal or near-equal shared parenting time.20
There is consistent evidence that positive outcomes for children in shared-time parenting arrangements are linked to cooperative parenting, flexibility, the availability of quality resources—financial and otherwise, and the avoidance of court involvement.21
Where Do We Go From Here?
This article can only begin to address the many dimensions of this issue; there is much more to be learned, if a reader is inclined to do further research. Nevertheless, future directions for research are suggested by examining what else we need to know.
Children’s views are one of several important indicators of how well shared care is working. We know relatively little about children’s views on shared care. In a small sample in Britain (n=30), children’s reactions to shared care ranged from viewing inflexible equal time as oppressive to appreciating the regular involvement of both parents and the “sabbatical” from the relationship with each parent while visiting the other parent. More research is needed to understand what factors influence the children’s perceptions of equal or near-equal shared time. An unexplored direction in the research is knowing how to accurately measure preverbal children’s shared care experience, if this is even possible.
While the Australian experience and other research are instructive in considering whether to enact a legislative presumption of joint physical custody, alternative approaches to enabling shared or near-equal parenting time should be considered and more information is needed on several questions. For example, what checks, balances and resources are needed to ensure that abused parents and their children are not exposed to further risk of domestic violence and abuse? What kind of information, advice, and support would assist separated families to reach the best decisions regarding post-separation shared care of their children, given each family’s individual circumstances? The goal of the legislature, court system and family law community should be to better assist separated parents to focus on what is in their children’s best interests as their needs change over time, and to put the children’s needs above the agendas and wishes of adults.
1 Minn. Stat. §518.17 subd.(2)(1997) (emphasis added).
2 Minn. Stat. §518.175 subd.(1)(e)(2006) (emphasis added).
3 Interview with Jennifer E. McIntosh, Ph.D., Family Transitions (Victoria, Austl.), in Minneapolis, Minn. (06/07/2011).
4 Jennifer E. McIntosh, Ph.D and Bruce Smyth, Ph.D., “Shared-Time Parenting and Risk: An Evidence Based Matrix” 1 fn.1 in Leslie Drodz & Kathy Kuehnle (Eds.), Parenting Plan Evaluations: Applied Research for the Family Court. New York: Oxford University Press (forthcoming 2011).
5 Family Law Act 1975 (Cth) ss 61 DA, 65DAA (2006) (Australian presumption of “equal shared parental responsibility” except where there is violence or abuse; if the court orders equal shared parental responsibility, then shared time must be considered).
6 Wis. Stat. §767.41 (4)(a)(2) (1999) (court orders must maximize time with each parent, unless the child would be endangered).
7 Iowa Code §598.41(2)(a-b) and (5)(a) (2005) (there is a presumption of ‘joint custody’ and when this is ordered by the court, it may order joint physical care if one parent asks for it; if the court declines it must state its reasons).
8 Bruce Smyth et al., “Caring for Children after Parental Separation: Would Legislation for Shared Parenting Time Help Children?” Family Policy Briefing, 7 University of Oxford Department of Social Policy and Intervention 1, 12 (May 2011) (citing Cashmore, J., et al., Shared Care Parenting Arrangements since the 2006 Family Law Reforms: Report to the Australian Government Attorney-General’s Department. Sydney: Social Policy Research Centre, University of New South Wales, 2010), http://www.ag.gov.au/www/agd/agd.nsf/Page/Families2Family_law_publications/.)
9 Id. The study focused on equally shared custody or near-equal custody, which generally ranges from 30 percent to 70 percent of overnights with the children.
10Smyth, et al., supra note 8, at 13.
11 Minnesota Joint Physical Child Custody Presumption Study Group Report, at 56 (01/14/2009) (citing Thomas J. Reidy, et al., “Child Custody Decisions: A Survey of Judges”, 23 Fam. L. Q. 75, 80 (1989); see also Gerald W. Hardcastle, “Joint Custody: A Family Court Judge’s Perspective,” 32 Fam. L. Q. 201 (1998) (presumptions pressure judges to order joint custody in inappropriate cases), http://www.leg.state.mn.us/docs/2009/mandated/090065.pdf.
12 Swedish Parental Code (2006); (Minnesota has a similar provision: “… except where findings of domestic violence are made, the court shall consider the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child, … .” (sometimes called “the friendly parent provision”) Minn. Stat. §518.17 (1)(a)(13) (1994)).
13 Allison C. Morrill et al., “Child Custody and Visitation Decisions When the Father Has Perpetuated Violence Against the Mother,” 11 Violence Against Women 8 (Aug. 2005) at 1078 (citing D.G. Saunders, “Child Custody Decisions in Families Experiencing Woman Abuse,” 39 Soc. Work (1994) at 51-59).
14 Interviews with Andrew T. Tyler, Attorney, Law Office of Abdinasir M. Abdulahi, LLC in Minneapolis, Minn. (Oct. 3, Oct. 7, 2011).
15 Bruce Smyth et al., “Caring for Children After Parental Separation: Would Legislation for Shared Parenting Time Help Children?” Family Policy Briefing, 7 University of Oxford Department of Social Policy and Intervention 1, 13 (May 2011).
17 McIntosh, supra note 3.
18 McIntosh & Smyth, supra note 4, at 15.
19 Smyth, supra note 15, at 12
21 Smyth, supra note 15, at 13.