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The Debate Over Equal Parenting Time Presumptions

The Debate Over Equal Parenting Time Presumptions The standard parenting agreement, even one where parents have technical joint custody, often ends with one parent carrying a greater share of the emotional, logistical, and physical responsibilities. That parent is usually the primary residential parent – the one who must plan meals and handle laundry, and ensure the children make it to school most days. Eventually, that parent may be the one making doctors’ appointments, helping the kids with their homework, or making any of the dozens of daily decisions that must be made when you have kids.

This type of split can become untenable for some parents. The one who pays child support feels that he or she is poorly used; the parent who washes the socks feels that he or she is doing all the heavy lifting. Either (or both) parents can become resentful and frustrated, and that tension will almost certainly leak into the interactions with the children. When this happens, it is bad for the parents and bad for the kids, and yet it is the way almost every state in the country handles presumptive child custody arrangements.

Almost.

In 2018, the state of Kentucky did something no state had ever done before: it enacted laws that would force family courts to presume a 50/50 split for parenting time and responsibilities in any child custody agreement. Parties could overcome the presumption, but the burden fell on them to prove why equal parenting time was not appropriate. By enacting these laws, Kentucky was affirmatively saying that the best path forward for raising children after a divorce would require two equally involved parents. By 2020, “Kentucky family court filings dropped by more than 11 percent, and filings that involved domestic violence declined by nearly 700 cases,” according to research by Emma Johnson, founder of WealthySingleMommy.com and the “Single Mom Income and Time-Sharing Survey.”

(Did you miss Emma Johnson on episode 11 of the Schein On podcast? You can listen to her discussion with host Evan Schein here.)

Since then, more than a dozen states have introduced or passed equal parenting legislation. Unfortunately, New York is not one of those states. Whether it should be is a raging debate in matrimonial law circles.

The benefits of 50/50 parenting

There are a lot of benefits to true shared parenting for parents and children alike. One of the most significant benefits is the financial stability and growth for single moms. Data from the National Women’s Law Center shows that “mothers are paid between 52 cents and 85 cents for every dollar paid to fathers,” amounting to a $16,000 annual loss for single moms. The “Single Mom Income and Time-Sharing Survey,” which polled 2,270 single moms across the country, reported an even greater wealth gap:

  • Moms with a 50/50 parenting schedule are 54% more likely to earn at least $100,000 annually than moms whose kids are with them most of the time (with “visits” with the dad).
  • Moms with a 50/50 parenting schedule are more than three times (325%) more likely to earn $100,000 than single moms with 100% time with their kids.
  • Moms with 50/50 parenting schedules are more than twice as likely to earn $65,000+ than those with majority time, and nearly three-times as likely to earn that sum than moms with 100% parenting time.

It is possible that single moms accumulate more wealth when their children’s fathers are equal co-parents, taking an equal share of the responsibility for parenting. Single mothers can invest more fully in their work and educational opportunities, and less likely to be forced out of the workforce entirely. (Admittedly, it could also be true in some instances that moms with pre-existing careers are less likely to fight for primary custody.)

We saw the difficulties faced by custodial parents juggling jobs and kids in action over the last year, as the pandemic forced parents to choose between their jobs and their kids. According to the Center for American Progress, “Over the course of the first 10 months of the pandemic, women—particularly women of color—have lost more jobs than men as industries dominated by women have been hit the hardest. Overall, women have lost a net of 5.4 million jobs during the recession—nearly 1 million more job losses than men.” Yet women make these decisions all the time, even when there is no pandemic. Equal parenting time helps lessen he need to choose between working and raising the kids.

Of course, financial stability is not the only benefit. Having time for yourself and practicing self-care reduces stress and improves overall mental health. It gives a parent time to exercise, allows you to get enough sleep, and to spend time with friends. When a co-parent takes equal responsibility for parenting and caregiving, it lightens the mental load. According to the National Alliance on Mental Illness (NAMI), “Any amount of time you take for yourself is important. Being out of ‘caregiver mode’ for as little as five minutes in the middle of a day packed with obligations can be a meaningful reminder of who you are in a larger sense. It can help keep you from becoming consumed by your responsibilities.”

This matters, because so much of the divorce process when children are involved focuses on what is best for the children – and what is best for the children is having parents who can properly care for and raise them. If you are constantly stressed out, frustrated, and angry, you are in no position to care for yourself, let alone the kids. You need time for yourself, plain and simple.

Emma Johnson’s research also found that equal parenting may reduce the risk of depression and suicidal actions, especially for fathers: “Divorced men who are legally separated from their children are found to be more likely to suffer depression and attempt suicide [and] divorced dads statistically are eight-times more likely to commit suicide than divorced women, and this is especially so for men who have been legally removed or marginalized in their kids’ lives.” Sharing equal responsibility for raising the children is good for dads, too.

In an article for Elle, Johnson cites a “review of 60 studies by Wake Forest University researchers [which] concluded that children with separated and divorced parents fare best when they spend equal time with both parents, and a lack of father involvement is connected to dozens of negative outcomes for children.”

What do those benefits look like?

  1. More time with each parent allows the children to bond with both parents and develop trust. Learning how to trust may allow for more robust friendships and relationships with others are the children grow.
  2. Close relationships with both parents, and especially fathers, may reduce the risk of behavioral problems, substance abuse, and other concerns.
  3. Children who live with both parents equally are less stressed than those who live with only one parent, regardless of the relationships between all parties. It allows for the development of stronger ties between the parents and children, and likely reduces fears of abandonment that the word “visit” may inspire.
  4. Children whose parents equally share in the responsibilities of parenting are less likely to live in poverty. Childhood poverty increases the risk of physical and mental health problems later in life.

It’s indisputable that for some families, shared parenting time can be a boon, and the best arrangement. So why haven’t all states adopted a presumption? The counterargument is that judges should have the ability to make decisions regarding a child’s best interests without dealing with burdens or presumptions. New York lists a series of factors for courts to consider in determining custody, and the thinking is that by giving the court a “clean slate” to make a determination, the best interests of the child come first. Essentially, New York – and other states without an equal parenting presumption – addresses child custody as a “de novo” issue, and asks each parent to make their affirmative case for custody if they choose to do so. Then, based on the evidence and arguments presented by parents, the court is in a better position to come to a conclusion.

What do you think? Is shared custody the way forward? Or should courts address a child’s best interests without presuming that equal parenting time is best?

Berkman Bottger Newman & Schein LLP provides competent guidance to clients seeking a divorce. If you have questions about 50/50 parenting agreements, or wish to modify your custody order, please call 212-867-9123 or fill out our contact form. Proudly serving New York, Westchester, and Bergen County, NJ.

 

 

 

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