Fabricius Study Destroys Two Objections to Shared Parenting

January 19, 2018 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

A soon-to-be-published survey of Arizona family court judges, attorneys, mental health providers and mediators drives a stake into the heart of two of the common objections to shared parenting laws raised by (usually) family attorneys. The survey was designed and led by Dr. William Fabricius of Arizona State University, a long-time researcher in the area of shared parenting and children’s well-being. It will soon come out in the Journal of Divorce and Remarriage.

Dr. Fabricius has now weighed in on the debased and debunked editorial in the Washington Post opposing a presumption of shared parenting on which I commented here (Baltimore Post Examiner, 1/18/18). In his rebuttal to the Post editorial Fabricius explains the methodology and results of the survey.

Most importantly, in 2013, a new parenting time statute went into effect in Arizona. The purpose of Fabricius’ survey was to learn how the new law has affected outcomes in those cases. First, Fabricius describes the changes to existing law produced by the new statute.

As a researcher who studies the effects of divorce on children, I led the landmark reform of Arizona’s child custody statute, and the evaluation study. Both were large, team efforts, crafted by the people who live and work with the realities of child custody, including judges, attorneys, court staff and mental health professionals who provide mediation and evaluation services to parents, domestic violence experts, and mothers and fathers who had gone through the old system and could offer their perspectives on how it should be fixed…

The new statute was carefully worded to promote equal parenting time while still requiring judges to weigh the traditional children’s best interest factors, such as parental mental health, that might disqualify either parent. We removed the traditional factor that gave preference to the parent who had provided primary caretaking in the past, and added a new one stating that “absent evidence to the contrary, it is in a child’s best interest to have substantial, frequent, meaningful and continuing parenting time with both parents.” The statute states that “consistent with children’s best interests, the court shall adopt a parenting plan that maximizes the parents’ respective parenting time.”

By not giving any target numbers, the law puts the focus on providing the child with as close to equal parenting time with both parents as possible for that family.

So the new law states that the best interests of children is still the gold standard of custody and parenting time orders, but adds that courts are required to maximize parenting time for each parent. The survey found that, as a practical matter,

All four groups agreed that the courts are interpreting and applying the law as a de facto presumption for equal parenting time and that as a result, good dads are highly likely to have their petitions for equal parenting time awarded.

In short, there’s no actual presumption in the law, but judges treat it as if there is one.

Now, one of the issues raised in opposition to shared parenting by the Post editorial is one we see all but invariably by those similarly opposed, i.e. that maximizing parenting time for each parent constitutes a “cookie-cutter” approach to custody and parenting time. That is one of the shibboleths the Fabricius survey puts an end to once and for all.

This law thus provides a very strong test case of whether a parenting time presumption constrains judicial discretion and exposes children to harm.

The findings show that the Arizona law does neither. On average, the four groups of family law professionals rated the law positively overall, and positively in terms of children’s best interests. The survey also allowed participants to express their own ideas about what is good and bad about the law. Judges seldom said anything about their discretion to individualize parenting time being constrained by the law. On the contrary, they often said that they had to correct some parents’ misunderstanding that the law was a one-size-fits-all rule.

So, if judges’ discretion is hamstrung by Arizona’s shared parenting law, they’re not aware of it. Plus, those surveyed have a generally positive response to the new law. And, perhaps most important, it hasn’t exposed children to an increased risk of abuse. That of course lays waste to the argument by the domestic violence establishment that routinely claims that allowing children to see their fathers post-divorce means they’ll become victims of domestic violence.

The claim has never made a particle of sense. In the first place, if a parent doesn’t abuse the child during marriage, why would he do so following divorce? If he does, shared parenting statutes invariably provide an exception for child abuse. Plus, for many years now, data submitted to the Administration for Children and Families demonstrate mothers doing about twice the abuse and neglect of children as do fathers. So the DV establishment’s claim has never held water.

Interestingly, one group surveyed by Fabricius wasn’t enthusiastic about the law. Guess who. That’s right, about half the lawyers polled had a negative view of shared parenting. Ever the circumspect academic, Fabricius suggests that might have something to do with financial disincentives.

It is not clear why they differed from the rest of their colleagues, although perceived financial interests among some private professionals can’t be discounted.

Indeed they can’t be.

Fabicius ends by urging Maryland’s lawmakers to pass a presumption of shared parenting. After all, it’s been the law in Arizona for four years and the sun still rises every morning and sets at night. Moreover, the usual arguments against such bills have all been put to rest. Kudos to Dr. Fabricius for making clear that the concerns voiced by those opposed to shared parenting have no basis in fact.

Maryland lawmakers should take heed. In fact, so should those of every other state.

 

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