Against Presumptive Joint Custody:
A Custodial Father Explains the Issues

by Derek Dahlsad

I'm going to get a little political on you here; it's a rare occasion, so don't get too worried about it.

I've been hearing a lot about the Shared Parenting Initiative here in North Dakota. A group of non-custodial parents wants the child custody and divorce laws to reflect their desires as an absent parent. In summary, they are asking:

In part #1, all parents retain joint custody, legal and physical, regardless of living situtation;

In part #2, parents are required (or court-ordered) to develop a coparenting plan, which may be amended by cooperation at any time;

In part #3, child support shall not exceed the basic level of caretaking.

Despite my liberal leanings, reading their Initiative tells me what's above is a Bad Idea. I won't use my particular experiences as examples, because that's easily disputed as a rare occurence or inconsequestial. However, I'll point out the greediness of the Initiative. When accused of selfishness, the NDSPI replies that, as citizens, they are allowed to take things before the courts for a decision. However, it does not change the underlying selfishness of the Initiative.

The way things are now, in situations of disputed custody, the court assigns physical custody to one parent or the other; for better or worse, it often goes to the mother (although I am evidence of the other; I was granted custody without my exwife being legally determined unfit or abusive). The absent parent retains joint legal custody, which entitles them to all their former parenting legal rights: medical records, attending teachers conferences, talking to coaches or babysitters, and so forth. Absent parents are also expected to pay child support, based on a set percentage of their income.

What this amounts to is: one parent becomes responsible for all day-to-day activities, recieves a portion of the other parent's income to offset the cost of such, and the other can continue to be involved in the child's life, as a whole.

So, let's look at how #1 in the SPI will change this. Joint physical custody for all parents means both parents, including those who do not live in the home, become responsible for the day-to-day lives of the children. However, the Initiative's focus is on equal time to both parents for the raising of the children. In some divorce situations, this may work fine: both parents may live a reasonable distance from the same school, and both may have enough time to truly take half of the child's caretaking duties on. However, the Initiative assumes that this is the only situation: all parents are presumed to have the resources and situation which accomodates joint physical custody, because this is assigned to all parents regardless of the situation. The simplest of problems arises when each parent lives in a different school's area. Which one does the child attend? Neither parent has any legal standing, because neither can say their child lives there any more than the other home. Or, let's say one parent stays at home, and the other works. This situation immediately results in a bias of time to one parent. If one parent even lives 20 miles away, the possibility of reliable or easy exchange of the child becomes at risk. However, remember: #1 assumes all parents are available and able to have 50% physical custody, regardless of situation, unless that parent is determined unfit.

#2 would like to fix the problems of obligatory joint custody: the parents are required, or forced by the courts, to create a cooperative parenting plan, which would account for the shortcomings of one parent or the other by putting accomodations into the parenting plan outlining responsibility. If either parent wants a change, they either must get the other parent to agree, or present their case to the courts.

Under current laws, parents in agreement are perfectly fine; no legal intervention is required. Parents in agreement can create parenting plans all they like, without restraint. #2 addresses conflict. If the parents have a conflict, the SPI requires them to go to court.

Wait a minute: back in #1, they cite: "Acknowledging the long established legal tenet that fit parents act in the best interest of their children..." If neither parent is unfit, because joint custody was put into place, either parent's decisions are equally valid - requiring them to "demonstrate how the modification serves the child?s best interest" in decision making invalidates #1's assertion that each fit parent acts in the child's best interest. They violate their "long established legal tenet" by asking for the law to assume the parent is making a bad decision simply because the other parent disagrees with it. So, then, how #2 works is to assume that either parent's decisions are bad, unless their ex agrees or the courts uphold their decision. Even the wording itself places that responsibility on the decision-maker; it does not discuss burden of proof for the other parent's veto. This, by far, is the most dangerous part of the SPI.

#3, however, shows the most blatant selfishness: the money the child would have been entitled to during the marriage will no longer be a part of that child's life. It acts on the assumption that no parent during marriage spends more than the bare minimum on supporting their own children, because expecting that after divorce is unreasonable. The current laws work on the basis that, if a parent made $###, they would have spent at least a certain large percentage on raising their children.

Again, wait a minute: if there is joint custody all around, why would child support be in place in the first place? Ah, because one parent may have an undue load placed upon them in their parenting duties. But it must not be too large of a burden, because they are legally obligated not only make up the difference in parenting but balance out the loss of household income as well.

So, what we have is:

#1: All parents act in the child's best interest, and should get joint custody;

#2: No parents act in the child's best interest, so their decisions are subject to scrutiny;

#3: No parents should be required to provide more than basic care for their children after divorce.

How is this about raising children? It is about how absent parents feel. Absent parents hate being called 'absent parents.' They don't like being told they have had custody taken away. They don't like parenting decisions being made without their input. They don't like having to pay a big chunk of their paycheck to somebody they argued with all the time.

Under current laws, if your can handle more visitation or if your ex is refusing your visitation, you go to court to get it. If you can't get school or medical records, you go to court and get it. If something bad is happening to your child, you call CPS and have them intervene. Absent parents, however, have done all that and were told their case wasn't sufficient enough, or have heard stories from their friends about how the system failed them. Nothing bad enough has happened to require legal intervention, so whatever it is continues happening. The absent parent feels invalidated, and would like the laws to validate them.

That, dear readers, is selfish. The SPI gives all control to the parent who would otherwise be considered an 'absent parent', yet places all responsibility on the parent that would otherwise have been considered a 'custodial parent'. Pre-divorce, the child had $### income to live off of? The custodial parent must make up the difference. Want to make decisions about how to raise the child? Check the court-ordered plan, but if it's not there and your ex doesn't agree, you're off to court to prove your case. Oh, and your absent ex -- who will not contribute to your child's well-being equally to pre-divorce levels and can stop your decision-making at any time -- has equal legal standing in court as you, because they are assumed to be acting in the child's best interest.

Congratulations, primary caregiver: the SPI wants to assume you are doing a poor job, unless your ex says you are, because your ex is assumed to be acting with the child's well-being in mind. You think you're acting in your child's best interest, too? Well, let's ask your ex about that.

Not that the courts can do much about it; they are subject to legal precedence. They can either require a mediator, or take on parental decision-making themselves. What legal basis do the courts have to say how late a child should stay up at night, or whether the 17-year-old should have a dirt bike or not? Wait, let's check with what the ex thinks; that appears to be the only 'fact' being considered in these cases. Maybe turn it over to a mediator and both parties share in the cost...if both parents can afford it (which one is hit harder financially by the SPI? Let's see...). The SPI would have you believe that parenting decisions are to be made on what the ex-spouse thinks and whether you can afford to defend the decision in court, not on any interest in the child's wellbeing.

Notice that my accusations are against the SPI itself; I do agree that current child custody laws are insufficient, possibly destructive in some cases. My current wife's situation is one of the worst situations for an absent parent: the divorce was due to physical abuse, but custody went to the abuser. However, the SPI does not help anybody parent, nor does it cultivate a child's wellbeing. It promotes selfish desires of parents who do not want responsibility for parenting, but wish to be treated as parents.

So, let's cover some of the arguments here:

1. "Not all divorces weigh heavier on one parent or the other; many absent parents can coparent fine." Well, then do it: something must be preventing it from happening, and you should look hard and long at what that is, and whether you really can coparent 50% of the time. My problem is the assumption that all divorcing parents can coparent; that is irresponsible. Divorced couples that can cooperate are not affected by the SPI -- only families in conflict will be forced, by the SPI, to change the way they parent.

2. "But my ex has custody, has a known drug dealer for a babysitter, and goes out drinking every night - how can I save my kids?!" This is an actual statement I heard during the court-ordered pre-divorce parenting class. This is CPS' job, let them do it; if - if - it's bad enough, something will be done. What parents fail to realize is that the laws protect stupidity and negligence. People can get by with a hell of a lot of bad decisions before the courts intervene. That's why #2 won't work: people;s ability to make a stupid decision is protected by law. No, it isn't fair -- it pisses me off to no end as well. However, it allows for difference of opinion without the law having to decide which opinion is valid, and that stance benefits everybody. When the law begins to dictate opinion, we've got something to worry about. A blanket law that requires a parent to justify any disputed opinion will not be enforcable unless there's some facts there to prove right and wrong without a shadow of a doubt. If those facts don't convince the courts and CPS now, they should not be more valid in the future.

3. "Kids in coparenting families are better off than single-parent kids." The SPI cites a study about it. Unfortunately, their citation proves nothing; it has no statistics, no description of how the study was done. In fact, this study proves that the current situation works without coparenting laws: parents who voluntarily coparent product better adjusted children. It does not, however, address compulsory coparenting. When one parent is forced to bend to the will of the other parent or defend themselves in court, is that going to benefit the children?

4. "This isn't about forcing parents to give in; it's about coparenting, which #3 says is good." I refer you to #1. Those who can and do coparent are proven, according to the above study, to be a beneficial for the children involved. However, the divorced families who cannot or will not coparent are the only ones affected by the SPI. Those environments are the ones that will be changed substantially, not the cooperative ones. Coparenting works -- there's proof of it -- but forcing coparenting by changing laws is not proven by any evidence the group has shown.

5. "But coparenting is better!" Then the courts should assign joint custody more often. The SPI doesn't address the court's evaluation of custody; it makes all custody equal, when a poll of divorced parents would show just how unequal child custody situations are. To directly address this problem, pass laws that require the courts to weigh joint custody heavier, and outline exactly what conditions they are to consider. The SPI assumes that because one or several divorces are failing under single parenthood and would work better under joint custody, that all custody arrangements must fail unless they are joint custody. This is a logical fallacy, and should disqualify the SPI. The SPI isn't about causing successful coparenting; it is about bandaging the feelings of parents who think they were wronged.

Derek Dahlsad

This article was originally posted at Derek's blog at http://www.blacksunn.net/11111001111/2006/8/.