THE BLOG
01/19/2011 08:59 pm ET | Updated May 25, 2011

What's the real agenda behind opposing shared custody?

My previous blog dealing with domestic violence and shared custody generated plenty of response, so much that it warrants a follow-up.

Here's a quick synopsis of the previous post, which can best be summed up in a model I call EAP--Equality with 50/50 shared physical custody as the legal presumption - a starting point in discussions, not a final decree for all divorces. Accountability on the part of judges who rule against shared custody. Prevention of domestic violence through divorce courses and by identifying for the courts potentially high conflict divorces that might lead to domestic violence.

Perhaps one of the main goals should be the elimination of terms like joint or sole physical custody, non-custodial and visitation. Those terms only create more acrimony and allow attorneys to bill more hours. The focus should be on "parenting time," and making 50/50 parenting time the legal presumption.

The overwhelming majority of comments and emails supported the idea of changing laws to reflect shared custody is best for most children of divorced parents. Plenty of data, particularly that supplied by Wake Forest professor Dr. Linda Nielsen support this premise, especially as it applies to non-custodial fathers. She has well-documented research (http://bit.ly/i7Nwtb) that indicates children want to spend more time with their dad, children who live with each parent after a divorce prefer this to living with one parent, and children with a dad actively involved are less likely to encounter problems later in life. Yet it was the criticism I received. I found most interesting, if not down right perplexing.

One lady emailed me that she was "dismayed " that I could support shared custody, citing numerous examples of how this would undoubtedly result in abusive parents getting access to their children. When I noted my proposal would include domestic violence prevention, she went to great length to note all her credentials and pointed me toward studies that did not specifically address my repeated questions about how shared custody and domestic violence prevention could co-exist in legislation.

This same individual suggested since only 10-15 percent of divorce cases actually go to trial and are considered high conflict situations, it would reason that all other cases are resolved amicably and without any conflict regarding custody arrangements. The assertion couldn't be further from the truth. Many divorces that settle before trial are quite heated and often involve compromises on custody because of the absence of a shared custody presumption.

I recently met with a representative from an organization that helps battered women and that group's lobbyist. While portions of the discussion were enlightening, if not helpful, there's one major component that continues to stick in my craw: consistently their focus suggests any shared custody law would result in more domestic abuse. The lobbyist went so far to suggest a legal presumption of shared custody and best interest of the child(ren) are mutually exclusive.

In these and other discussions with would-be opponents of my EAP model, I've never once been given any semblance of an explanation of how shared custody and domestic violence prevention could coexist in legislation, despite repeated attempts to draw an answer from my critics. Nor has any of these individuals offered any reference to legislation - successful or not - they've helped introduced or supported that included custody issues and domestic violence prevention. Instead the focus seems to on complaining how family court judges sometimes give custody to an abuser, not the abused, essentially supporting my argument that there needs to be more judicial accountability and identification of potential high conflict cases. EAP addresses both.

The EAP model I've proposed is a giant step in the right direction by assuring both parents start on a level playing field with custody discussions, a judiciary that will still have power to render decisions as it sees fit in a manner that hopefully will be most beneficial to the children involved and built-in mechanisms to help prevent acrimony between divorcing couples while identifying potential high conflict cases.

If opponents of such a model continue to disagree without offering an alternative legislative solution, then maybe we need to question whether there are deeper issues of control and money at stake.

Rob Hahn can be reached at rob@rflnow.com