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Big Shift Pushed in Custody Disputes

Big Shift Pushed in Custody Disputes

Some 20 states are considering changing laws to give fathers more rights to their children after divorce

By Ashby Jones,  April 16, 2015 1:22 p.m. ET
About 20 states are considering measures that would change the laws governing which parent gets legal and physical control of a child after a divorce or separation. WSJ's Ashby Jones reports

Some of the biggest battles over child custody are playing out not in courtrooms, but in statehouses.

Prompted partly by fathers concerned that men for too long have gotten short shrift in custody decisions, about 20 states are considering measures that would change the laws governing which parent gets legal and physical control of a child after a divorce or separation.

The proposals generally encourage judges to adopt custody schedules that maximize time for each parent. Some of the measures, such as those proposed in New York and Washington state, take an additional step by requiring judges to award equal time to each parent unless there is proof that such an arrangement wouldn’t be in a child’s best interests.

Critics of the bills contend that they threaten to take discretion away from judges and risk giving leverage to abusive men. They also say the laws are poorly targeted because typically the only custody cases that end up in court are ones in which former spouses are too hostile toward each other to effectively practice shared parenting anyway.

Supporters maintain that the opponents, which include many family lawyers and bar associations, are trying to keep alive an adversarial culture that leads to lengthy—and often lucrative—court battles. They say the law should better reflect recent studies that show children are better off when both parents play a meaningful role in their lives.

“If dad is subject to the typical ‘Wednesday dinner and every other weekend’ arrangement, he’s not doing the kind of parenting that benefits kids, making sure the homework is done, getting them up for school,” said Linda Nielsen, a psychology professor at Wake Forest University. In such situations, a father “is basically reduced to an uncle.”

Legal views on custody have swung considerably over the years. The “tender years” doctrine came into vogue early in the last century, said Donald Hubin, an emeritus professor of philosophy at Ohio State University who has written on parenting and parental rights. That doctrine stated a child should stay especially close to his or her mother during infancy and toddler years.

About 50 years ago, that notion gave way to the idea that custody should be decided according to a child’s best interest.

Advocates of shared parenting say the “best interests of the child” standard gives judges too much latitude to employ latent biases and unfairly encourages parents to diminish each other’s abilities in a public forum.

Statistics on shared parenting are fragmented. But several studies in recent years show that while shared parenting is becoming more popular, it is far from the norm. A 2014 study showed that the percentage of cases in Wisconsin that ended in “equal shared custody” grew from 5% in 1986 to 27% in 2008.

“The court system too often creates winners and losers out of well-intentioned parents,” said Carl Roberts, an Arvada, Colo., software salesman in the midst of a six-year custody battle involving his sons, aged 11 and 12. “The winner gets the child, and the loser often hardly gets to be a parent.”

After an initial ruling in 2009, Mr. Roberts was allowed custody of his sons every other weekend. In 2012, that time was expanded by two days a month. Earlier this month, he and his ex-wife agreed to a plan that could further increase his parenting time.

“It’s absurd that the law says nothing about the benefits of two-parent child relationships, and does nothing to encourage them,” he said.

The Colorado senate introduced a shared parenting bill in January. The measure, which Republican co-sponsor Sen. Kevin Lundberg said was prompted partly by Mr. Roberts’s pleas, requires courts to explain in writing why a custody order that “does not order substantially equal parenting time between the parties” is in the best interest of the child. The Senate unanimously passed the legislation last month and it is pending in the state House.

Joni Roberts, Mr. Roberts’s ex-wife, said the measure largely was unnecessary given that the vast majority of couples settle their custody disputes out of court. “Our situation has gone on for six years, and we reached agreements every time,” she said.

Other opponents of shared-parenting legislation reject claims that it is simply designed to protect a system that pays lawyers’ bills. They say that while role-sharing is a laudable goal for parents who can make it work, a presumption of a 50-50 split shouldn’t be baked into law.

Peter Salem, executive director of the Association of Family and Conciliation Courts, a Wisconsin-based nonprofit organization that studies the best ways to resolve family conflict, said such situations are highly nuanced. “It doesn’t make sense to force this on couples that really deeply don’t get along,” he said.

Some domestic violence experts fear a presumption of shared parenting will give men with histories of emotional or physical abuse more bargaining power during divorce negotiations. “You’re going to see victims pressured to cooperate with their abusers, which is completely harmful to children,” said Barry Goldstein, a domestic-violence expert who practiced family law in New York for 30 years.
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