May 20, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

The third and final wave of objections to shared parenting identified by Prof. Edward Kruk is that, while shared parenting has been demonstrated to be the best post-divorce arrangement for kids in all but a small percentage of cases, we shouldn’t enact it as a presumption in the law on custody.  Those advancing this objection pretend that the existing standard - the best interests of children - is (a) better for kids and (b) in opposition to shared parenting.  Both pretenses are just that.

Included in that objection is the notion that judges must maintain discretion in deciding custody and parenting time because all cases are different.

Kruk buries all those claims under an avalanche of facts and common sense.

First, the best interests of the child standard is vague and indeterminate, as children’s best interests are largely undefined, lack legal consensus, and are based on speculation about future conduct. The absence of a clear definition of best interests renders the standard unworkable. Second, the standard gives judges unfettered discretion in decision making, based on their idiosyncratic biases, in an area around which they have little or no training or expertise, and is thus subject to judicial error. This discretion can result in unpredictable and inconsistent outcomes. Third, decisions based on the best interests of the child reflect a sole custody presumption and judicial bias; judges might hold stereotyped or outdated ideas about fathers’ and mothers’ roles that bias their decisions. Fourth, the discretionary best interests of the child standard sustains, intensifies, and creates conflict, and fuels litigation because of the incentive of a winner-takes-all context where such an undefined standard provides a context of anything goes. Fifth, the best interests of the child standard makes the court dependent on custody evaluations lacking an empirical foundation, as the scientific basis for child custody evaluation is hotly contested and the qualifications for becoming an expert are nebulous at best. Sixth, the views of children and parents regarding the best interests of the child, which focus on children’s needs and parents’ responsibilities to those needs, are radically different to the views of the judiciary, which are deficit-based. Seventh, with two adequate parents, the court has no basis in law or psychology for distinguishing one parent as “primary” over the other. Finally, despite the rhetoric of children’s best interests, children’s interests are largely unrepresented in the court proceedings, as a custody contest instead pits the rights of mothers against the rights of fathers (Brown, 2014; Kruk, 2013).

I would add that the notion that judges tailor their decisions carefully to each individual case is so much bunk.  In many states, it can’t be anything but.  In Texas, for example, the statute governing those issues spells out in great detail the parenting time of each parent and all but requires the naming of one the primary and another the secondary parent.  Meanwhile, Ohio courts are astonishingly uniform in their preference for mothers over fathers and their willingness to reduce dads’ time with their kids to something far below the minimum required for children to reap the benefits of paternal involvement.

The point being that the system we have now is the very “cookie-cutter” approach the anti-dad crowd claims is a fault of shared parenting.

Plus, with all the science on the benefits to children of shared parenting, it’s hard to avoid the conclusion that, in the great majority of cases, a child’s best interests and a shared parenting arrangement are much the same thing.  Certainly, the latter tends strongly to beget the former.  If judges really want to do what’s best for kids, they’ll order shared parenting in all but rare cases.

Finally, the same science that shows that shared parenting is best for kids demands the conclusion that sole or primary parenting arrangements aren’t.  And yet sole/primary parenting is what judges order in the great majority of cases and have for decades.  In short, while they intone the mantra of the best interests of children, what they do is quite the opposite.

As with the previous two waves of opposition to shared parenting, the third has neither scientific nor logical nor factual support.  It is yet another excuse – not a reason - for opposition to kids maintaining meaningful and salutary relationships with their dads.

Dr. Kruk closes by quoting Dr. Sanford Braver who spoke at last year’s Conference on Shared Parenting sponsored by the National Parents Organization.

“To my mind, we’re over the hump. We’ve reached the watershed. On the basis of this evidence, social scientists can now cautiously recommend presumptive shared parenting to policymakers.” He further added, “I think shared parenting now has enough evidence [that] the burden of proof should now fall to those who oppose it rather than those who promote it” (Braver & Lamb, this issue).

I’ve argued the same many times.  It is far past time that shared parenting proponents must continually produce more and better evidence of its many benefits, while those opposed do little but cast brickbats.  What is the evidence that sole parenting is best for kids?  To those opposed to children maintaining healthy relationships with their fathers following divorce, I say, “Produce your evidence.  Demonstrate that losing a parent to the divorce system benefits kids, dads, moms or anyone else.”

They can’t do it and never could.  As Dr. Kruk makes clear, they are now left with nothing with which to oppose shared parenting.

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