Custody wars: ‘Shared parenting’ and divorce litigation across the 50 states
MBRIDGE, Mass. — We’ve interviewed nearly 100 divorce litigators in different U.S. and international jurisdictions for a forthcoming book. We didn’t do this to educate ourselves about Measure 6, the Shared Parenting Initiative on the North Dakota ballot; but inadvertently, we’ve become experts on the practical effects of changes in divorce laws.
Broadly, states fall into three categories:
- 1. Preserve the status quo
- 2. Craft a new optimum
- 3. Don’t take sides
- North Dakota currently falls into the first category. The judge tries to figure out who was the “primary parent” during the marriage, then extends the financial terms of what had been a voluntary partnership out until the children are adults.
The parent identified as more important pre-lawsuit is awarded custody, and the parent who had been the breadwinner will be ordered to pay child support.
This approach is consistent with the best published psychology research of the 1950s. However, the academic psychologists have changed their minds. “A psychologist can’t walk into an intact family, do an assessment and determine which parent is better for which child at which age in that family,” said Linda Nielsen, professor of psychology at Wake Forest University.
“And it is the wrong question to ask, since the importance or effectiveness of each parent will go up and down as the child ages.”
In theory, the decision regarding which parent is to be primary is made after a Perry Mason-style trial with witnesses testifying and being cross-examined. In practice, as its typical nationwide, North Dakota judges make an “interim” decision at a 60-minute hearing shortly after a divorce lawsuit is filed — and that decision is likely to become permanent.
- The second category includes states that recognize parenting is going to be different following a divorce, so the court should “craft a new optimum.” The court may order the parents to assume unequal roles, but not because roles were unequal during the marriage.
This approach, followed by states such as Michigan and Missouri, sounds great in theory. But in practice, it leads to lots of arguments (at $1,000 per hour or more, considering everyone in the courtroom who is being paid) about what the new optimum should be; and no two judges are likely to agree on what is “optimum.”
“I could take the same facts and argument to five judges and get five different results,” was a common refrain.
- Alaska, Arizona, Colorado and Delaware are examples of the third approach: “Don’t take sides.” Either the Legislature or the court will require or strongly suggest that, absent an agreement between the parents, courts award 50/50 parenting.
Effects of Measure 6
Measure 6 would push North Dakota into the third category. Generally, lawyers nationwide say they think that roughly 50/50 shared parenting is best for children. They report that their clients with 50/50 parenting experience less conflict than clients with an every-other-weekend-and-Wednesday-night-dinner schedule.
Among other advantages, “you don’t have a father who is perpetually angry that he pays all of the bills and seldom sees the kids,” as several attorneys observed.
Attorneys and psychologists also report much greater involvement by fathers who had been awarded 50/50 parenting than ones who had been officially deemed “secondary.” “The best kind of parenting is called ‘authoritative parenting,’ as distinct from ‘permissive parenting,’ which is the worst,” Professor Nielsen noted.
“An authoritative parent sets rules and talks to children about important things. He is a child’s parent, not the child’s uncle. For this to be possible, the children must spend ample time with the father and have a full range of activities with him.
“When you cut the parenting time down to every other weekend, there’s not an opportunity to be an authoritative parent. It is not that the dad is a different person. He’s the same person with the same parenting skills, but in a restricted situation.”
Despite saying that 50/50 parenting is better for most children, most lawyers oppose a statutory 50/50 rule and prefer each child’s schedule to be a custom decision. One reason is that these attorneys don’t factor in the cost of legal fees. Maybe a 60/40 schedule is better for Johnny than a 50/50 schedule, but is he better off now that $200,000 has been drained from his college fund to pay for that fight?
One warning, North Dakota: About a third of Measure 6 is given over to an escape clause in the event of domestic violence. Alaska added such a clause to what had been a strict 50/50 system. What happened? “Either there has been an epidemic of abuse since this statute was amended, or a lot of women are lying,” said Pam Sullivan, a divorce litigator there.
“In about 25 percent of the cases now, the man is alleged to be a physical or sexual abuser.”
Lawyers all over the United States report that domestic violence allegations now are standard in custody fights, with up to 75 percent of divorce cases in some states now involving allegations of abuse.
To sum up what we learned from talking to attorneys: Uncertainty drives litigation. Parents like children. Parents like to make money off children.
The typical U.S. state generates a maximum amount of custody litigation by making it uncertain who will win a custody lawsuit and by awarding substantial cash profits, in addition to the enjoyment of time with the child, to the winner.
In Switzerland and Denmark, custody litigation is greatly reduced by a presumption that “Mom wins.” Legal fees in those countries tend to be less than 10 percent of what Americans pay for a divorce. But note that 50/50 shared parenting is common in Denmark, despite the “Mom wins” rule. Why? Child support awards in Denmark are limited to a range of $2,000 to $8,000 per year (compared to a maximum of $25,224 in North Dakota).
Jackie Stebbins, an attorney at Bliss & Stebbins in Bismarck, said “It’s hard for many of us [divorce litigators and judges] to admit that a lot of these custody battles are really about money, but they are.”
After a year of interviewing experts, what’s our expert advice for North Dakota voters? Don’t listen to experts! They aren’t the ones who have to live with the consequences of the law. Talk to adults whose childhood was the subject of custody litigation.
Among us five co-authors, it turns out that one is the child of divorced parents. Here’s her personal perspective: “I am a proponent of the 50/50 custody presumption. The current system forces the parent who does not receive custody too far to the sidelines. Also, Measure 6 should reduce the number of custody battles, which are always destructive.”
We’ve prepared a free excerpt from our forthcoming book for Herald readers. It includes our full North Dakota chapter. Visit tinyurl.com/gfhballot6.