Report: States fail on shared parenting laws
Jonathan Ellis, USA TODAY
November 13, 2014
“It’s been a hard slog, and there’s not a lot to show for those efforts,” said Dr. Ned Holstein, the founder of the National Parents Organization.
Holstein’s organization and other supporters are trying to reverse decades of family law tradition where judges often award custody to one parent – typically the mother – while the non-custodial parents receive less time with their children. In cases that don’t involve allegations of physical abuse, substance abuse or other issues, supporters argue that both parents should have a 50-50 split with children.
But the difficulty in convincing state lawmakers to buck tradition was reflected in a first-ever report card released Thursday by the National Parents Organization. The study evaluated state custody laws and found that most of them are not friendly to shared parenting.
Nearly half the states received a D, while New York and Rhode Island received Fs. No state received an A, but seven states and the District of Columbia received a B. The top scoring states were Alaska and Arizona.
Holstein said judges across the country still rely on decades-old research rooted in Freudian psychoanalysis about what’s best for children. More recent studies have discredited theories that children should only be with their mothers, he said.
Linda Nielsen, a professor of adolescent and educational psychology at Wake Forest University in North Carolina, agrees. Nielsen has reviewed dozens of studies comparing children who had one custodial parent with children in shared parenting situations. Children in shared parenting situations had lower levels of depression, anxiety, substance abuse, truancy and other negative behaviors than children who lived primarily with a custodial parent, she said.
Nielsen said that judges, lawyers, psychologists, mediators and others who work in family law are often unaware of the research supporting shared parenting.
“We’ve done a very poor job of getting the data to those people,” she said. “That’s the fault of social scientists.”
Despite research showing otherwise, many people believe that mothers are better parents than fathers, Nielsen said.
“It’s almost one of those issues where people don’t want to look at the research because they have those gut feelings,” she said.
But Linda Scher, a family mediator in Portland, Ore., said judges need flexibility to determine custody issues on a case-by-case basis. She notes that within family law, there is an ongoing battle between those promoting parental rights versus children’s needs.
Shared parenting works well in the right situations, she said. But not necessarily for children who are very young, or for those who need consistency.
“You have to look at a menu of factors,” said Scher, who serves as the chair of the Parental Involvement Work Group of the Oregon State Family Law Advisory Committee.
Ultimately, she added, the law in Oregon doesn’t weigh in on whether shared parenting is a good or bad idea.
“The parents are in the best position to make that call,” she said.
Despite limited success in legislatures, Holstein said supporters plan to focus efforts in 2015 on legislation that would require judges to consider shared parenting when issuing temporary orders. Those orders are the first step in a divorce proceeding in which a judge establishes initial custody and makes other orders regarding money and living arrangements for the separating couple.
Parenting, Holstein said, is a constitutionally protected practice, and judges who issue temporary orders often know nothing about the couple or about what’s in a child’s best interest.
“How can a court honestly declare that they are fashioning something in the best interest of a child when they don’t know the child? They can’t. It cannot be done by definition. Here’s a newly divorcing couple walking into the courtroom, but you know nothing about them,” he said.
And absent changes in family law, Holstein said he can envision a court challenge arguing that parents are being deprived of their constitutional rights to be parents.