Excepts from one chapter of Family Law and the Indissolubility of Parenthood
with permission and by Patrick Parkinson

Growth in shared parenting arrangements

Definition of shared parenting

• widespread agreement that it need not mean equal time.
• Utah – joint physical custody is defined to mean that the child stays with each parent overnight for more than 30 percent of the year.
• Australia – shared care is defined as 35 percent of nights or more per year for each parent
• Sweden – equal time, or alternating residence arrangements, have become quite common

Increase in shared custody with given that most people manage to resolve parenting disputes without the need for a judicial decision

Require the court to consider particular factors before ordering joint custody

• the risk of harm to a child
• the risk of harm to any other member of the family
• the consequence of abuse
• the child being unlawfully abducted
• the parties’ ability to cooperate

Father’s motivation includes that they have no need to pay child support if there is an alternating residence arrangement

Couples with one-year old

• children found that when women were working full time, men shared the child care responsibilities equally (although they were less likely to do the laundry and cleaning).

Children aged four to fifteen

• In Canada, a national longitudinal survey in 1998–99 found that 8 percent of children aged four to fifteen were in equal time arrangements.

A shared parenting arrangement is defined as involving at least 30 percent of the time with each parent, the incidence of shared care among divorced couples increased from 2.2 percent to 14.2 percent between 1980 and 1992.  By 2001, it had reached 32 percent.   In a study of 590 divorced mothers and fathers who shared the care of their children, the researchers found that over two thirds had equal time arrangements at the time of the court orders.

Wisconsin statute was amended in that year to provide that the “court shall set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households.

Shared care is dependent on the parents living in relatively close proximity to one another and, for school-age children, to the child’s school. New partnerships or job opportunities for one or other parent, or the need for one or both parents to move to an area of cheaper housing following the property settlement, may necessitate some adjustment to the shared care arrangement. In cases where the move amounts to a relocation, that move may be hotly contested.  Notwithstanding these factors, some research on shared care indicates much higher levels of stability than in previous studies. In Wisconsin, researchers found that three years after the divorce, there had been some diminution in the actual practice of shared care, but 80 percent of fathers with shared care time were still engaged in shared care and 11 percent were looking after the child more than 54 percent of the time.   The researchers found also that children in shared care experience living arrangements that are as stable, or more stable, than children in the primary care of their mothers.

In Australia, the evidence indicates a more complex picture. Researchers comparing the care arrangements in large-scale longitudinal studies at a three-year interval found that where the parents had a shared care arrangement involving 30 percent or more nights in the first survey, many of the children had reverted to the primary care of the mother three years later. Shared care, defined in this way, proved more unstable than primary care with either the mother or the father.

In another large-scale study involving 2,000 separated parents, 60 percent of the children who were in equal care arrangements at separation had the same arrangement four to five years later.  They were much more durable than unequal shared care arrangements in which the child spent the majority of the time with one parent.

Legislative support for shared parenting

Legislatures have resisted the temptation to be too prescriptive. Courts have retained the flexibility to try to discern what will be in the best interests of the child in each case.  California, the law provides: This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

Illinois law provides that there is no presumption in favor of or against joint custody, but this provision is preceded by the statement that: Unless the court finds the occurrence of ongoing abuse … the court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child.

The move toward equal time: developments in the United States

Pressure for change from fathers’ groups based on the idea that for parents to be treated equally, there ought to be a presumption that children should spend an equal amount of time with each parent after separation.

In Idaho, for example, the legislation provides that: ‘Joint physical custody’ means an order awarding each of the parents significant periods of time in which a child resides with or is under the care and supervision of each of the parents … but does not necessarily mean the child’s time with each parent should be exactly the same in length nor does it necessarily mean the child should be alternating back and forth over certain periods of time between each parent.

Shared care in Australian law

The Family Law Act, as amended by that legislation, is to ensure that “children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.

This is importantly balanced by another object of the legislation, the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence, which may necessitate restraints on contact by one parent. When determining the best interests of the child, the “benefit to the child of having a meaningful relationship with both of the child’s parents” and protection from harm.

If there is equal shared parental responsibility, parents have a duty to consult, and to try to reach agreement, on major decisions such as education, health, religion, and changes in children’s living arrangements, at least when that has a significant impact on the ability of the other parent to spend time with the child.

In our view, it can be fairly said there is a legislative intent evinced in favor of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with the children, subject to the need to protect children from harm, from abuse and family violence andprovided it is in their best interests and reasonably practicable.

Origins 

Generally, the evaluation of shared care arrangements was quite positive. The results from the evaluation by the AIFS indicated that children in shared care arrangements (defined as 35 percent of nights with each parent or more) were doing as well as, or better than, children who were in primarymother care. Fathers reported that children in shared care arrangements had higher levels of well-being based on a range of standardized measures, than children who were primarily in maternal care. Mothers reported that the well-being of children in these two groups did not differ significantly.   In another study, based on a survey of more than 1,000 separated parents, over one-third of whom had a shared care arrangement, fathers with shared care arrangements reported that children were faring better than in other forms of care, after controlling for a range of other factors, whereas mothers’ reports did not differ significantly between shared care and moderate levels of care by the nonresident parent.

The issue is that women in particular will feel pressured into accepting a shared care arrangement when they have significant safety concerns for themselves or their children because they feel the system is weighted in favor of shared care.

The researchers found that mothers who reported safety concerns also reported lower child well-being than for children whose mothers did not indicate any safety concerns. This was true irrespective of the care time arrangement, but when children were in shared care time arrangements and the mother had safety concerns, the children fared worse than those who were living primarily with their mother.

Shared parenting and high-conflict families

The attributes that increase the likelihood of shared arrangements working smoothly … are not typically characteristic of parents who litigate or who otherwise require significant support to determine and administer their post-separation parenting plans.

Evidence from the United States also suggests that shared care arrangements in the context of high conflict may not be very durable. The equal time arrangement families appeared to have sorted out this arrangement fairly amicably. The unequal time families were much more likely to have reached such a compromise after protracted legal conflict. This group had the highest incidence of returns to court of any of the custody arrangements in the study.

Children’s views on equal time arrangements

Sixty young people ages twelve to nineteen found that when the young people were asked about how parents should divide looking after children when they divorce, the most common responses were that it should be “equal,” or “half and half,” or fair.

Whereas in that study, 93 percent of the eighty young adults who had actually lived in an equal time arrangement believed it was best.

Thirty children and young people in shared care arrangements in Britain… Smart and colleagues found that for some children, where the arrangement was inflexible and the idea of “equal time” was invested with heavy ideological or emotional significance by a parent, it could be very oppressive and constricting. This was particularly so if the parents were rigid in maintaining the schedule and not focused on the needs of the children. For others, the arrangement worked very well and provided benefits not only in having the regular involvement of both parents, but also in giving chances for a brief “sabbatical” in the relationship with each of them as the child moved from one household to the other.

Children three-to-four years later… Smart identified three factors that made the difference between successful and unsuccessful shared care arrangements.   These were: a) whether the arrangement was based on the needs and wishes of the parents or those of the children; b) whether the arrangements were flexible enough to accommodate changing needs and circumstances; and c) whether the children felt equally “at home” in both of their parents’ homes.

Swedish study involving responses from twenty-two young people in shared care arrangements also found a range of reactions to shared care.   The interviewees were generally satisfied with the living arrangements, with interviewees valuing the opportunity to spend a great deal of time with both parents. However, they also indicated a downside, in particular the feeling of rootlessness deriving from the need to pack up and move between homes. Some would have preferred to have one primary abode but feared to say so for fear of upsetting whichever parent they did not want to live with. Like the children and young people in the study by Smart et al., some young people also expressed frustration at the lack of flexibility, feeling ruled by fixed schedules. The young people who were most satisfied with an equal time arrangement were those who had parents who were flexible, could cooperate, and lived near each other.

An Australian study utilized responses by 136 children and young people to an online survey carried on various Web sites for children seeking help. About 20 percent were in shared care arrangements. There was no significant difference in children’s reported happiness with their arrangements between those in shared care and those living mostly with one parent. What mattered most to children in shared care and other parenting arrangements was having enough good time with both parents – where those relationships were satisfactory – and having some choice and flexibility in the parenting arrangements.

Shared care and traditional parenting arrangements after separation

Shared care will always be a minority parenting arrangement. Shared care is contra-indicated with infants and toddlers, if it involves significant periods of separation from the child’s primary caregiver, thereby disrupting a secure attachment. Shared care probably begins to be compatible with a child’s developmental needs when he or she reaches school age.  With young children, therefore, shared care is not an appropriate option.

There are many other nonresident parents for whom the sole custody/visitation model and its equivalents is the only realistic option. Fathers whose orientation toward the world of work makes it difficult to take on the primary care of children for significant periods of time, especially during school holidays, are likely to recognize the sense in a traditional custody/visitation arrangement. So too may those fathers whose parenting skills are insufficiently developed to make them satisfactory custodians of children for long periods of time following separation. Geographical distance between homes when one or other parent has relocated after separation may make extensive contact impractical. Lack of suitable accommodation for the children may also limit the capacity of the nonresident parent to have the children stay overnight. Shared parenting might be an optimal arrangement for some families if it could be managed, but the logistics and expense of doing so may mean it is out of the reach of many separated parents.

Nonetheless, shared parenting continues to grow in popularity, and laws that at least encourage this option seem to be gaining ground.

 

Editor: This chapter takes the principles presented in “Beyond the Best Interests of the Child” and reviews the current legal realities and the outcomes of these laws and  court decisions on children and families.  The effect on the youngest children is of special concern as when the court responds to the parents’ wishes there is not always a positive outcome for this very vulnerable group.