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Henry Gornbein

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Why Equal Child Custody Should Not Be Presumed

Posted: 08/29/2012 1:35 pm

I recently read a blog on the Huffington Post advocating for a statutory policy in all cases that children should spend equal time with both parents. I've specialized in family law for over 40 years and have handled many custody disputes. I've seen a trend for shared or equal parenting time, though I do not believe that it should be statutorily mandated.

Divorce is not a situation -- especially with children -- where one size fits all. It is important for an attorney and for the courts to look at each case differently. In many cases, families that break up have had a shared parenting time arrangement and it is in the best interests of the children that this should continue. But what about the situation where this is not the case? There are many marriages where one parent has been the primary caregiver. In the past, it was usually mom, but I have seen more and more situations where the dad is primarily in a care-giving role. Should these cases then have a presumption of equal parenting time when that is not the reality?

What about a situation where one parent is extremely controlling? Should there be shared parenting time in that case? What about situations where there is abuse of alcohol or drugs? These are clear cases that should not have a presumption favoring joint physical custody and shared parenting time.

I feel strongly that we must analyze every divorce involving children on a case-by-case basis. Mandating joint custody will take away the ability of attorneys and judges to look at each situation and fashion a result based upon the best interests of the children.

In many cases, there can be shared or joint physical custody awarded, but it does not have to be equal. I have seen arrangements for parenting time that run the gamut. In some cases, mom or dad have primary physical custody and the other parent has parenting time/visitation on alternate weekends and perhaps one evening a week for dinner. There can also be a shared custodial arrangement, but not necessarily a 50/50 arrangement. To me 50/50 means equal. A typical arrangement is called a 2-2-5, with the children being with mom on Monday and Tuesdays, for example, and dad having them on Wednesdays and Thursdays, and then they alternate weekends. It is called a 2-2-5 arrangement because the children go two days with each parent and then they will never go more than five days without seeing the other parent. I have some arrangements where it's one week on and one week off, with perhaps an overnight in the middle. These are truly shared custodial arrangements.

On the other hand, I have worked on many cases where we approach a shared custodial arrangement, but it is not necessarily equal. It can be a situation where the children have alternate weekends with one parent, from Friday until Monday, and perhaps every Wednesday overnight. This is not a 50/50 arrangement, but is one where one parent has 5 out of 14 overnights, and the other has 9 out of 14 overnights. In some arrangements, it makes sense for the children to spend the school year primarily with one parent for homework purposes and to have a regular schedule. There can then be more broad shared parenting time during the summer and vacation periods, or one parent can have a lot of extra time with the kids during the summer.

What about situations where there is abuse or domestic violence? In these cases, there should clearly not be a shared custodial arrangement.

What about situations where the parents cannot communicate? They cannot agree on the simplest issues. These are cases where there clearly should not be a shared or joint custodial arrangement.

I am against the statutory mandate for joint physical custody and feel that one size does not fit all. We as lawyers, judges, family counselors and mediators need to tailor each case involving children with a custodial arrangement that is based upon the best interests of the children, and not what some legislators mandate. These are my thoughts. What are yours?

 

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