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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

May 18th, 2012 by Robert Franklin, Esq.
Here’s an article that should be required reading for every family court judge (Psychology Today, 5/15/12).  In fact, they should be tested over the material and, if they don’t pass, replaced by someone who knows it better.

It’s no surprise that the article is so spot-on; it’s by our old friend Dr. Edward Kruk who’s on the social work faculty at the University of British Columbia.  As usual, Kruk is on the cutting edge of social science regarding custody matters.  His focus today is on the best way to handle custody of children in high-conflict divorces.

Until fairly recently, it’s been an article of faith with many social scientists, judges and legislators that, while shared parenting may be fine when the exes get along, it only exacerbates conflict between those who don’t and the children suffer as a result.  But it turns out that the reported conflict is an artifact not of shared parenting, but of the number of pick-ups and drop-offs of children the typical orders entail.  Put simply, when parents don’t get along, the way to lessen the strife between them is to decrease the number of times they have to interact.

So the typical order of custody and visitation gives the kids to Mom for two weeks, during which Dad gets them for either one or two overnights and one weekend.  Assuming only one overnight during the two weeks, that means the children get exchanged between the parents six times in a four-week period.  During those 28-days, Dad’s parenting time is a little over 20%.  By contrast, a parenting arrangement in which Mom had the kids for two weeks and Dad had them for two weeks would mean only two pick-up/drop-offs and the kids would see their parents equally in the same 28-day span.

That was the Achilles heel of the parenting studies that found that shared parenting exacerbated conflict.  The conclusion followed, not from shared parenting itself but from the way in which judges arrange parenting time.

Previous research examined the frequency of alternating contact, and found negative outcomes for children in situations of high conflict and a high frequency of alternations between mothers’ and fathers’ homes; that is, children were being exposed to their parents’ conflict during frequent transitions between the two households. When the frequency of transitions is reduced, and high conflict parents avoid direct contact with each other during the transitions and shield their children from their conflict, these negative effects disappear.

But shared parenting, when correctly ordered, not only need not exacerbate conflict, it actually can improve relationships between parents and be a protective factor for children.  Indeed, that children suffer from parental conflict stems more from their tendency to lose their fathers post-divorce rather than from the conflict itself.

A consensus seems to have emerged within divorce research on the matter of high conflict and parenting after divorce. In 2002, Robert Bauserman, in his metaanalysis of 33 studies that compared child outcomes in sole custody and shared parenting homes, concluded that the benefits of shared parenting on children’s well-being exist independent of parental conflict. The negative effects of parental conflict are likely the result of the fact that fathers lose contact with their children in high parental conflict situations. In a 2003 article, Marsha Kline Pruett found that the effects of parental conflict on child outcomes are mediated by paternal involvement. In 2007, Fabricius and Luecken concluded, from children’s own perspective, that shared parenting is beneficial for children in both low and high conflict situations. Thus research does not support a presumption that the amount of parenting time should be limited in cases of high conflict. High conflict should not be used to justify restrictions on children’s contact with either of their parents.

In fact, it is sole custody that tends to produce conflict between parents.  That’s not only the finding of recent research, but common sense as well.  Face it, divorce and child custody are a winner-take-all proposition under current practice.  So it’s no surprise that parents, who are at odds with each other anyway, when faced with a legal situation that may deprive one of them of the kids almost exclusively, ramp up the hostilities.  Throw a couple of attorneys into the mix who know full well that the greater the conflict, the greater the fees, and you have a recipe for the most bitter acrimony.  No wonder there are so many false allegations of abuse in custody cases; Mom’s vital role as primary parent is under siege.

Other research has demonstrated that sole custody is associated with exacerbation or creation of conflict, as fully half of first-time violence occurs after separation, within the context of the adversarial “winner-take-all” sole custody system. Given the high stakes involved, this should come as no surprise, as fear and hostility runs high when parents are threatened by the potential loss of their children. Studies have found that limiting fathers’ involvement in their children’s lives is correlated with their reported level of hostility toward their ex-wives. Interparental conflict increases in sole custody arrangements, and decreases over time in shared parenting arrangements; when neither parent is threatened by the loss of his or her children, conflict goes down.

Kruk goes on to point out that parents can learn to deal with their animosity toward the other parent via therapeutic intervention.  Focusing on the children’s well-being seems to be the key, and shared parenting can assist with that.

Finally, the adversarial legal system is responsible in no small part for increasing conflict between parents.

The culture of animosity created by litigation and the adversarial sole custody system, however, seems tailor-made to produce the worst possible outcomes when there are two capable parents who wish to continue as primary caregivers, cannot agree on a parenting plan, and are forced to disparage each other in an effort to simply maintain their role as parents. Children’s safety in the majority of divorces is best assured when both parents are actively and responsibly involved in their lives, and when social institutions support them in the fulfillment of their parental responsibilities.

I’ve argued before that lawyers and judges should be entirely removed from the process of deciding custody.  Lawyers make matters worse and judges are frankly unqualified to decide the matter.  In cases in which the parents can afford it, judges usually resort to a bevy of experts to recommend what custody should be ordered, so why not take the judge out of the mix altogether?  But if a judge needs to be involved, certainly there’s no need for lawyers.  Custody matters should proceed immediately to parenting experts who would interview all concerned and make recommendations about custody that a judge would then order.  Custody matters need to become much less confrontational than they are now, and removing lawyers from the process is one place to start.

And of course shared custody with equal parenting time will, as Dr. Kruk so persuasively states, tend to reduce conflict between parents and keep both parents in their children’s lives long after they’ve separated from each other.  What’s not to like?

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