Some global and wrap-up items from the International Conference on Shared Parenting 2017…
Researchers assembled on a panel pointed out that the typical primary/second parent outcome for American children was “ridiculous for building a relationship. Would you get married to someone and agree to see them only every other weekend? How would you build a relationship with that person?”
Attendees came from approximately 30 countries. It quickly became apparently that, though the U.S. has the most children of divorced and never-together parents, the U.S. has gathered the least amount of data on how these kids are doing. “Look at revealed preference,” said one social scientist. “The U.S. says that the family courts run ‘in the child’s best interest,’ but nobody is interested in the effects of family court decisions. Based on what American courts do, you’d have to conclude that what Americans care about is getting the mother, the lawyers, and the court bureaucracy paid.”
Americans working in the family law industry, either as attorneys or psychologists, tended to frame things in terms of marriage. It is “divorce” that leads to separated parenting. They are all aware that the majority of U.S. family court cases involve people who were never married (chapter), but their minds apparently always run to scenarios in which currently separated biological parents were at one point in what was supposed to be a long-term stable relationship. The opposing litigants in family court are described as “couples” when it may be that one was already and remains married to a different person and the “coupling” lasted only for a few drunken hours.
Although the legal system is set up so that it is the child’s interests that are supposed to be considered by judges, attorneys, and psychologists, industry members nearly always refer to adult interests. As we saw in court documents when researching Real World Divorce, they’ll say “The Father’s weekend” or “The Father shall have parenting time.” If we were to take the statutes and caselaw seriously it would be “the child’s weekend with the father” or “the children’s time with their father,” but after a few years in the industry everyone seems to get comfortable that it is all about adults fighting for what they want. (A European ex-litigator said that she was tired of being “a hired weapon against the other parent.”)
Separated biological parents often end up before a judge whose task is to decide whether both or just one will be real parents going forward. Researchers noted that, especially in the winner-take-all jurisdictions, the loser parent will be held to much higher standards than would be applied to married couples. Researchers described a world in which mothers ask for sole parenting [not mentioning the cash that goes with it!] and fathers ask for 50/50 parenting. Judges then use the existence of conflict between the mother and father to deny the 50/50 shared parenting request: “Married couples argue about child-related issues all the time.” The “best interests of the child” standard was identified as “obviously flawed” due to the fact that married parents often cannot decide, after weeks of careful thought, what might be in the best interests of their child. How is it conceivable that a judge is going to do it in 15 minutes?
Academics seemed completely ill-equipped to deal with the creativity and intelligence of litigators. Many of their ideas for legislation and process rested on the assumptions that (1) everyone would come to court telling the truth without any consideration of the financial consequences, and/or (2) that trained psychologists would be able to discern the truth. For example, they described the idea of exceptions in the case of domestic violence without any consideration of the fact that plaintiffs and litigators may then simply allege domestic violence in order to get what they seek.
The conference was a truly international event. One constant was that people seldom questioned the basics of their home countries’ divorce, custody, and child support systems. Researchers who came from countries where divorces could be obtained by walking into City Hall and filling out a form never said “Wow, now that I’ve heard about American-style litigation, we need that in our country so that we can really get at the truth!” Researchers from fight-to-the-death/spend-it-all-on-legal-fees countries such as the U.S. and Canada never said “Maybe now that we have no-fault and we know that the plaintiff is guaranteed to prevail, it shouldn’t be in a court anymore.” (see our Rationale chapter, however, for quotes from some litigators who do think the system that has supported them should be scrapped). People from jurisdictions in which collecting child support is more lucrative than working as a university professor didn’t say “maybe it should be capped so that people aren’t motivated to lie about the co-parent”. People from jurisdictions in which child support is capped, e.g., at about $2,500 per year (Sweden), never said “Child support from a casual sexual encounter should be sufficient so that the child and mother have at least as much spending power as the father.”
Researchers generally advocated tweaks to whatever system was established in their country. Americans therefore didn’t question that two adversarial litigants should spend all of their savings, including what would have been the kids’ college funds, on lawyers and expert witnesses. They would describe how nearly every case they’d seen had resulted in an outcome that was harmful to children and then suggest that what we needed were better expert witnesses, better-education for judges regarding research psychology papers, and maybe nudges to the statutes, e.g., a presumption of 50/50 shared parenting (but still with enough room for years of litigation to argue about exceptions).
[The handful of folks who questioned the basics? Like the litigators who question the adversarial litigation-based system, they want it torn down. One psychologist: “Parenting is a voluntary activity. You give your time to a child voluntarily. You give money voluntarily to a child. Court-ordered parenting is an oxymoron. When a judge orders a father to pay money and spend time with children on a court-determined schedule, the father might comply with the order but he isn’t a parent anymore.”]
Presenters described a lot of pressure to retain the status quo. In the world of statutes, Professor Sanford Braver of Arizona State University said that state Bar Associations (i.e., the litigators) would use their funds to lobby against shared parenting presumptions that might streamline lawsuits. Richard Warshak described pushback by other researchers against a “consensus report” to be signed by 110 researchers in this area. The consensus report was a meta-study and concluded that shared parenting was better for the typical child of separated parents. Warshak said that Jennifer McIntosh, a researcher in Australia, had threatened to sue him for defamation (the consensus report contradicts a study that she did) and that Marsha Pruett, a professor at Smith College, had pressured the journal’s editor to strip the 110 signatures from the report (so it would be “Warshak’s opinion” instead of a “consensus”). In a business that consumes 3 percent of GDP, not too many people want to rock the boat.
That humans might be motivated by cash was seldom mentioned except to deny it. The conference took place in a hotel in Boston. Therefore, if two people had been upstairs in a room and the result was a baby, that kid could have a cash value (under Massachusetts law) that far exceeded the earnings of any of the researchers or attorneys present. The abortion of that baby could be sold for $500,000+ (see the “Child Support Profits Without a Child” section within “Child Support Litigation without a Marriage”). Yet litigants’ actions were attributed to feelings, e.g., “A lot of moms believe children are damaged by paternal care,” rather than a desire to maximize personal income and spending power. Researchers described mothers as “gatekeeping” when they sought to exclude fathers from their children’s lives. But in nearly all of the cases, the mother had a rational financial reason for wanting to minimize the father’s role. Why wasn’t the mother characterized as “trying to make a living” or “trying to avoid a 35 percent cut in her spending power”?
The social scientists’ favorite way to show that humans aren’t motivated by cash was proof by assumption. Sanford Braver, for example, simply asserted that, given a “days for dollars” child support system such as present in his home state of Arizona, parents would not fight over the schedule due to what he characterized as the small dollar amounts involved for each additional day. This directly contradicts what litigators in every similar U.S. jurisdiction told us (see the Guide for Citizens and Legislators) and directly contradicts Angie Hallier, one of the best litigators in his state (see the Arizona chapter). Yet he was as confident in his assumption as a Physics 101 teacher would be in the period of a pendulum being independent of its mass.
One day of the conference was on Memorial Day. I buttonholed a few researchers at breaks and lunch with “All of the folks in the Westin here today serving us are giving up a holiday with their friends and family. What do you think their motivation is?” and the answer was always “Cash payment.” We would agree that they might raise their annual total compensation by 0.5 to 1 percent by working on a holiday. I then said “Do you think any litigant in family court would seek a greater share of parenting time in order to boost his or her spending power by 1 percent?” The answer was always “no” with an explanation that the amount was too insignificant to motivate behavioral change.
Big picture: Although psychologists are a fixture in America’s family courts, their attitude toward the courtroom cannot be reconciled with that of the litigators. For the psychologists, family court is a place for people to talk about their feelings and for the truth to be discovered by a sophisticated professional. For the litigators, family court is a place their plaintiff clients go to get cash without working and where their defendant clients go because they will get put in prison otherwise.
Single-topic posts from the same conference:
Summary of shared parenting research from Linda Nielsen
William Fabricius on conflict, relocation, and shared parenting
Promise of divorce ruined by children (Australia parental relocation study)
Instead of fighting in court about parental quality, run training to improve it?
Practice versus theory in shared parenting
Shared parenting in Belgium since 2006
How would young people resolve custody and parenting time disputes?
Practical ideas for resolving custody disputes
Best way to avoid adult-adult conflict in your household: have a child without a co-parent
Promise of divorce ruined by children (Australia parental relocation study)
Swedish gender equality scolds
Divorce litigation, child support, and Costco in Iceland
The happiest children in Spain live with two daddies
Scotland: full-scale divorce litigation without marriages
German family law, shared parenting, and conflict with European and UN law