Family Court Review
Shared parenting after separation or divorce is one of the most hotly debated issues in family law today. Just as many parents are in conflict, professionals with different perspectives, experiences, and educational backgrounds disagree about the best direction to take in both global family policy and in particular cases. While professionals agree that children of separation and divorce fare best when they have stable, healthy, and continuing contact with both parents, reaching a consensus about shared parenting policy has been elusive. Professionals, as well as parents, seek guidance from both social science research and the legal system. This sensible quest must deal with two contrasting fluidities: the change as experienced by individual families and the far slower flow of transformation in legislatures and courts.
Shared parenting consists of two distinct conceptual and legal entities that are combined: joint decision making (joint legal custody) and shared parenting time (joint physical custody). Diverse opinions exist in the field about the appropriate policy for each of these. Many professionals favor a legal presumption of joint decision making, while some are opposed. An even wider diversity of opinion seems to exist regarding shared parenting time. One perspective is that parents should be encouraged to agree to a significant minimum quantum of time for each parent unless there are reasons to conclude that it would not be in their child’s best interest. Others contend that shared parenting time should be the default presumption. Still others raise concerns about the wisdom of any legal presumption, particularly in cases involving infants and toddlers, high conflict, and domestic violence. Some of these professionals take a more circumspect approach, contending that, because one size never fits all, parenting time must be determined on a case-by-case basis, preferably by the parents themselves. These various perspectives have been highlighted by recent legislative activity across the globe. Shared parenting legislation has been passed in the United Kingdom, reversed in Denmark, and revisited in both Australia and Israel. In the United States, a statute lengthening the minimum amount of parenting time was recently passed by the Minnesota legislature, but vetoed by its governor, while a comprehensive parenting law was enacted in Arizona. Bills on this subject are being studied in numerous jurisdictions and the pace of legislative proposals has been increasing over the past several years.
Marsha Kline Pruett and J. Herbie DiFonzo,
Closing The Gap: Research, Policy, Practice, and Shared Parenting, 52 Fam. Ct. Rev. 152
Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/400