How America fell in love with joint custody

In the past, people assumed that getting divorced meant only one parent could keep the kids, and that parent was “naturally” the mother. Attitudes have shifted dramatically.

Today, fewer than 10 percent of divorced respondents, according to a relationship survey conducted by Avvo, identified disagreements over how to raise kids as a contributing factor to their divorce—indicating that whatever their other differences, parenting decisions could be shared.

Joint custody recognizes that both parties to divorce can be competent parents and that children are better off with both parents in their lives.

New rules

A 2014 study found that between 1986 and 2008, maternal sole-custody dropped from 80 percent to 42 percent, with very little increase in paternal sole-custody. One of the first states to legislate a preference for co-parenting was Arizona in 2012. A few other states, including California, presume joint custody in the absence of domestic violence.

In 2017, nearly half of the states—including Missouri, Washington, and New York—have introduced legislation that favor joint custody in divorce proceedings.

Potential pitfalls

The argument that moving between households is too stressful for children was disproven in a recent study that found stress-related health issues were only slightly higher for children in joint-custody families than for children in nuclear families, and were much lower than those for children in single-parent households.

Some critics claim that legal presumption of equal parenting shifts the focus from a child’s welfare to a mathematical formula. Others argue that equal custody is a questionable approach for divorces that are hostile enough to end up in court. Another concern is that presumption of equal custody may privilege parental rights over child welfare and give more power to abusers.

It’s complicated

Some concerns may be valid, and the specifics of proposed bills vary widely. Some bills merely add equal access to both parents as a consideration in determining a child’s best interest. Others establish a presumption of equal custody in divorce, unless one parent can demonstrate a valid reason why the other should be denied equal parental rights.

Parental rights are divided into “legal” and “physical” custody, both of which may be awarded along a continuum from sole custody to equal or joint-custody. Parents may have equal legal say in a child’s upbringing while the child continues to reside primarily with one parent.

The proposed bills in different states vary in specificity as well. Some leave courts very little room to adjust for individual situations; others give a great deal of leeway in applying the law. An experienced divorce attorney can help divorcing parents determine how they may be affected by new laws.