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May 2, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

As I said yesterday, opponents of shared parenting are continuing their Long March to the Rear. Bereft of any science to support their position, they’ve stopped attacking shared parenting and begun attacking science. In a nutshell, the three pieces authored by Dr. Robert Emery and six others and published in the Family Court Review convey but a single message – “We need more research.” According to them, the existing 42 studies demonstrating the many benefits of shared parenting to children, parents and the court system aren’t enough. What would be enough? They don’t say.

Still, it’s hard to argue. After all, social science itself is all but invariably insufficient to answer all questions, account for all possible variables, etc. It’s simply the nature of the game. Human behavior in social settings is complex and isolating specific causes is well-nigh impossible. That of course points to what is perhaps the salient feature of Emery, et al’s complaint; because there is always more research to be done, their argument that we shouldn’t embrace shared parenting until the research is complete is little more than an argument against shared parenting at any time. If complete, airtight, unassailable social science is the hurdle to be cleared, the race must be called off. And if it’s called off, that means shared parenting can never be the default position of family law.

But I’ve gotten ahead of myself. Here’s the authors’ “bottom line.”

If there is a unifying theme to this issue of FCR, it is that children and families undergoing stress and conflict require a variety of creative interventions targeted for their specific needs. Underlying this assumption is the requirement that valid, unbiased research support the logic behind these interventions. In the absence of competent, well-balanced social science scholarship and research, we risk harming families and children in need rather than providing them with the tools to help them heal and thrive.

Let us assume for now that Emery, et al are correct that there is indeed an “absence of competent, well-balanced social science scholarship and research…” I don’t agree, but for the sake of argument, I’ll assume with them that the existing 42 studies that all come down on the same side of the discussion about shared parenting are in some way insufficient to the task at hand. (And, as I said, more research is always nice. It may provide much-needed information on any number of possible issues relating to children’s welfare.”

So what could possibly be wrong with a call for more research and the valuable information it may bring? Just this: Every day in this country, family court judges are required to issue orders in divorce and custody cases. When Mom and Dad divorce, the judge can’t simply refuse to make an order of custody. He/she can’t say “All remains in suspension until such time as Emery, et al inform me that, at long last, there is sufficient social science on the subject of children’s welfare post-divorce.” The children and parents don’t simply freeze, like a paused TV movie. In fact, the children will live with someone; they’ll stay with each parent half the time or some imbalance of time between zero and 100%.

Assuming Emery, et al to be correct, what’s a judge to do? The answer is obvious. He/she can issue the parenting time order informed by existing research or informed by something else. That “something else” might be research that’s opposed to shared parenting or it might be no science at all. The judge might rule using his/her bias or its close relative, his/her “gut feeling.” But whatever the judge relies on, a decision will be made.

Accordingly, the reality of Emery, et al’s argument is that those 42 studies that support shared parenting are inferior to everything else on which our putative judge might rely in issuing the necessary order for parenting time. Perhaps the laughably bad studies by McIntosh and Tornello could suffice or, since the science is insufficient, simple bias should do the job. Did the judge have a saint for a father and a drunk for a mother? Then in that court Dad wins the winner-take-all sweepstakes. More likely, the judge holds the extremely pro-mother/anti-father bias that’s rife in so many aspects of our culture. After all, numerous surveys indicate significant pro-mother/anti-father bias on the part of judges. So perhaps we should stop carping and give judicial bias full sway.

Again, whatever the judge uses to make the custody and parenting time decision, according to Emery, et al, it can’t include the dozens of studies all of which point to the benefits of shared parenting. Tossing a coin or mumbling incantations over a bubbling cauldron? Fine. Existing social science? Nope. This makes sense?

Emery’s call for more research is all very well. But until that bright day when the anti-dad crowd finally admit they’re wrong, judges must rely on something to guide them. That Emery, et al wants it to be something other than existing science reveals once again their true agenda.

Of course in another context, I might completely agree with them. If the state of the science consisted of two poorly-done studies on small cohorts of subjects and nothing else, then I too would say “we need more information before making a decision.” Or if the research were generally balanced between pro- and anti- findings, I’d say the same. But neither of those is the case with shared parenting. Decades of research, virtually all of which point in a given direction, are too much to ignore. In fact, existing science is essentially all on one side of the issue; there’s virtually nothing to support sole custody or the system of primary custody/visitation that so often characterizes judges’ orders.

Emery, et al’s position is an excuse, not a reason. It laudably calls for more research, but asks judges to decide custody and parenting time on some unstated and mysterious something that can’t possibly be as sensible or scientifically-based as a presumption of shared parenting.

The science on children’s well-being and parenting time may not be perfect, but it’s by far the best thing we have to guide the millions of judicial orders made in family courts every year. Emery, et al want us to wait indefinitely. We’ve already waited long enough.

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