Presenters and attendees at the International Conference on Shared Parenting 2017 had some ideas for improving the way that custody disputes in U.S. family courts are resolved (see Real World Divorce for how they typically are resolved now).
Presenters agreed the the temporary order process, which comes early in what might be years of divorce or custody litigation, is a critical part of why shared parenting is so uncommon in the United States. “That’s the end of the children’s relationship with one parent,” said a panel speaker regarding temporary orders favoring the other parent, and the rest of the panel nodded. Kari Adamsons, of the University of Connecticut (a great state for alimony plaintiffs!), summarized this with “there is a lot of momentum from temporary orders, especially for kids.”
The psychologists suggested mandated 50/50 shared parenting via temporary orders because it gives judges the opportunity to test the workability of shared parenting. When the trial comes around months (or two years, in Massachusetts, or maybe never, in Canada) later, the court will know whether or not shared parenting has been successful. Kentucky has recently put this suggestion into effect (see “New child-custody law lets Ky. children win with shared parenting,” April 12, 2017, Lexington Herald Leader). [Note that litigation over possession of children is less intense in Kentucky than in many other states because it is difficult for a plaintiff parent to get more than $14,700 per year per child in child support revenue.]
Given that a lot of states’ family courts see their mission as “maintain the status quo,” this Kentucky-style temporary order presumption would be likely to change the custody outcome statistics.
Some of the psychologists wanted courts (with the help of paid psychologists, typically!) to investigate “conflict.” Instead of simply ignoring one party’s assertion of “conflict,” as a lot of Western states do when awarding a 50/50 schedule to children, psychologists should try to figure out which parent was responsible for the conflict. The psychologists said that there was usually one parent who had “moved on” with a new lover, maybe some new kids, etc. while the other person had “not moved on” and would generate conflict. They never explained, however, how this was better than a fairly strict 50/50 presumption. Nor did they address “How are people supposed to move on when one person has to pay the other every month?” (unlike in England, for example, where they try to achieve a “clean break” of transferring assets from defendant to plaintiff in one big lump) The most that they came up with was that parents would be “taught” (by psychologists?) how to cooperate. Professor Linda Nielsen didn’t contradict her colleagues directly, but she noted that “most shared parenting arrangements are in fact parallel parenting. There is very little need for communication. Children are not benefiting from parents being buddies. There should be less emphasis on looking at parent-parent relationship and more on the parent-child relationship.”
Psychologists were sometimes realistic about the limitations of their profession. Pamela Ludolph, a PhD in clinical psych at University of Michigan, said “there are some awful custody evaluators out there” but admitted that she doesn’t know how to fix the problem.
Some of the American experts presenting almost tripped over themselves in advocating for victims of domestic violence, though they simultaneously presented statistics showing that domestic violence was generally not a relevant factor for separated parents, whether children in 50/50 or primary/secondary parenting. Richard Warshak, for example, opened his panel talk by saying that judges shouldn’t award shared parenting if there was “a history of intimate partner violence.” He didn’t acknowledge, however, that the financial and practical rewards to becoming the winner parent might shade witness testimony and make it challenging for judges to determine the truth of “intimate partner violence” allegations. Nor did he explain how, if one parent is actually violent, why it is a good idea for the children to be with that violent person roughly 30 percent of the time or for the violent parent and the victim parent to have four or five face-to-face interactions every two weeks (Wednesday pick-up for dinner, Wednesday drop-off after dinner; Sunday night drop-off every other weekend) as opposed to zero face-to-face interactions in a 50/50 week-on/week-off arrangement with exchanges at school or camp.
A European researcher in the audience reacted privately to these righteous sentiments by asking why American courts would even want to hear either parent-parent or parent-child abuse allegations simultaneously with a divorce or custody dispute. “People can have a child and care for the child 100 percent of the time, but the state will take the child away if he is being abused. Why not presume a 50/50 care arrangement and then, separately, the state can investigate whether or not the child is being abused under one or both parents’ care? If one parent is abusive, the child can then be taken away by the child abuse agency and put into the other parent’s care for 100 percent of the time.” (Certainly every state in the U.S. does have the machinery in place to implement her idea. There is always a DSS or DCF or CPS. See Family Law Reform Conference Report, for example: “Child Protective Services [in Texas] gets a report on every father in high-income custody and child support cases. They love to go out and investigate upper-middle-class white men in safe neighborhoods and will spend a whole day with a father who is the target of a custody action. CPS social workers don’t like to go into housing projects where they might get their asses kicked.”)
Summary: It is tough to believe that American voters would, starting from scratch, ask for a litigation-based parenting dispute system like the one that we have. On the other hand, even the experts are reluctant to let it go and their suggestions tend to be tweaks of the legacy system that can easily consume 100 percent of what would have been a child’s inheritance in order to protect his or her “best interests.”
I agree that it is unproductive for family court judges and psychologists to investigate allegations that belong in some other court, such as domestic violence or child abuse.
The criminal and juvenile courts have flaws also, but at least they have some ideas about admissible evidence and due process. The family court judges and psychologists cannot cope with these allegations.