May 11, 2018 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Prof. Edward Kruk’s article in the Special Issue of the Journal of Divorce and Remarriage should be required reading for legislators, family court judges, custody evaluators, social workers, psychologists and everyone else involved in child custody decision-making. Kruk reviews the long history of resistance to the idea of shared parenting and the burgeoning science refuting that resistance. He leaves the reader with the feeling that (a) that resistance has never been particularly scrupulous and (b) it no longer has even a pretense of validity.
The article provides a historical perspective on the battle for shared parenting that’s much-needed today.
As research evidence on child and family outcomes supportive of shared parenting as a foundation of family law has proliferated, counterarguments to shared parenting have likewise evolved. Since the 1970s, after the introduction of the “best interests of the child standard” in family law internationally, a gender-neutral criterion replaced maternal preference statutes. This was intended to encourage greater sharing of parental responsibility of children after parental separation. Yet, three distinct “waves” of arguments against shared parenting have placed researchers and shared parenting advocates on the defensive…
These “waves” of arguments against shared parenting as a family law presumption were, first, an outright dismissal of shared parenting as an unworkable and preposterous notion; second, more concentrated and in-depth rebuttals; and third, a cautious but increasing recognition that the idea might have some merit. Today we find ourselves at a watershed moment in regard to recognizing and establishing shared parenting as in the best interests of most children of divorce, and as beneficial for parents as well.
That watershed moment reflects the great increase in scientific support for shared parenting at the same time that opponents find themselves empty-handed. For all intents and purposes, the science supporting shared parenting is unopposed by scrupulous counter science. As Braver, et al point out in the last article in the Special Issue, we can now venture to say that shared parenting causes better outcomes for children than does sole care.
In the first of these waves, an important early argument against joint legal custody was that it would disempower mothers, allowing fathers control over their children and ex-wives without any demonstration of responsibility for child care on their part (Polikoff, 1982; Weitzman, 1985). It was argued that “the search for symbolic equality has led to a sacrifice of equity” (Fineman, 1988, p. 4). A number of feminist scholars argued that when joint custody dispositions continue to resemble de facto sole maternal custody, the social role and functions of custodial mothers are maintained in practice but their legal rights and control over their children’s lives are diminished.
Hmm. That strikes me as a straw man argument at best. After all, where was the evidence that fathers with significant shared custody didn’t use it to maintain meaningful relationships with their kids? It certainly doesn’t happen now and I doubt it did then. Nothing in the literature I’ve read over the years indicates any such thing.
Another concern about the granting of joint custody to fathers was the assumption that the primary motivation of divorced fathers seeking joint custody and shared parenting arrangements was to avoid child support obligations (Polikoff, 1982).
Both the claim that fathers only want shared custody to take power from mothers and that they do so only to take child support from mothers were answered by research demonstrating fathers’ actual motivations.
This research concluded that although fathers envisioned the concept of shared parenting as encompassing a sharing of both parental rights and responsibilities, their primary motivation was to maintain meaningful day-to-day relationships with their children. Fathers experienced a profound grief reaction related to the absence of their children and saw themselves at high risk of becoming alienated from their children within traditional custody and access arrangements.
Having tried the tactic of denigrating fathers, opponents of children maintaining real relationships with their fathers post-divorce next resorted to science. According to Kruk, they did so in three waves.
The first wave was based on an outdated form of attachment theory that focused on children’s need for maintaining attachments with their primary caregiver, and the mother’s supposedly natural position as the primary parent. The second wave focused on children’s exposure to high conflict and family violence in shared parenting arrangements; these arguments persisted despite an initial lack of research on the link between the two. Finally, the third wave of arguments acknowledged that shared parenting might be beneficial for most children, but cautioned against the idea of presumptions in family law, focusing on subgroups of children and families such as children in high-conflict families, or infants and the very young. Again, these arguments persisted despite new research supportive of shared parenting that challenged outdated assumptions about these populations.
Each successive wave found itself submerged under a tide of scrupulous scientific inquiry demonstrating what common sense tells us – that humans, being bi-parental animals, their children need both parents and suffer when either is removed from their lives.
I’ll do more on this next time.
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