In a bit of a deviation from my usual blog topics, I feel the need to address the topic of shared parenting. The issue has often become a political one, including in South Dakota. I have seen a number of misconceptions and just plain bad arguments from people on both sides of the issue. I hope to briefly address some of them, but given the sheer number of misconceptions and bad arguments, I suspect this post may still get quite lengthy. Due to time constraints, it will lack many of the citations I would often prefer to provide.
What is “shared parenting?”
Different researchers and groups use different definitions of “shared parenting.” This can create significant confusion. Many social science researchers define it as a parenting arrangement where a child spends at least 1/3 of the time with each parent. Many legislative battles focus on presumptions that a child would spend almost exactly half of the time with each parent. I have seen others confuse the concept of joint legal custody (joint decision making) with shared parenting, and then contend that most states have presumptions in favor of shared parenting (which is totally false if one uses one of the more common definitions based on time with each parent).
In this post, I am going to use shared parenting to mean a parenting arrangement where the child is with each parent essentially equal amounts of time. This usage is consistent with what it means to have “joint physical custody” in South Dakota (see SDCL 25-5-7.1 and SDCL 25-4A-24).
Is shared parenting inherently detrimental?
I have seen two arguments advanced by detractors of shared parenting that are essentially a blanket condemnation of shared parenting arrangements. The first of these is that kids need the stability of a single home base rather than two separate homes. The second is that children need to form an attachment with a primary parent. Neither of these assertions is well-supported by social science in this context. Both are based at least in-part on a monotropic version of attachment theory that theorizes that children need to have a primary attachment figure. This theory has not withstood the test of time (The South Dakota Parenting Time Guidelines are also based on this outdated attachment concept).
The data is clear regarding what parenting arrangements tend to produce the best outcomes. If we look at real-world children, we find that they tend to fare best in the following family structures, in this order: (1) two married parents, (2) parents with a shared parenting arrangement, (3) a primary residential parent with a highly involved non-residential parent, and (4) a primary residential parent and an uninvolved non-residential parent.
I believe there are some questions that still need to be answered regarding very young children, but I have found the research trying to suggest a detriment in shared parenting situations to be quite speculative and unconvincing, especially in light of the other apparent advantages of having both parents heavily involved.
Does the success of shared parenting suggest that it should be ordered in most cases?
Correlation is not the same as causation. The fact that shared parenting often works so well is almost certainly due in large part to co-occurring factors that result in shared parenting arrangements. Most shared parenting arrangements are the result of settlements between parents that are relatively low-conflict, willing to cooperate for the sake of their children, and economically advantaged. These factors are also highly predictive of child outcomes in and of themselves. Forcing parents without these traits into shared parenting arrangements is unlikely to produce the same outcomes (although it may still be the best option).
Another common theme of any policy debate regarding shared parenting is the parade of horrible statistics demonstrating that children whose fathers are not involved tend to fare significantly worse in life. The implication is supposed to be that a shared parenting presumption will fix that. The problem with this line of reasoning is that the majority of parents who are not involved with their children are not involved because they are crummy parents who are either disinterested, incarcerated, drug or alcohol dependent, or just not good at parenting. Crummy parents leads to crummy outcomes for children. Our legal system does create a barrier for many parents, and this should not be overlooked. But, the legal system is certainly not the primary factor behind the parade of horrible statistics.
In situations involving two high-quality parents who cannot live together anymore, shared parenting is often the best arrangement for the children.
When is shared parenting a bad idea?
Shared parenting is likely not the optimal parenting option in the following situations:
- When it’s logistically impractical. Shared parenting can be logistically impractical due to schedules or distance. Once a child is of school age, the child needs to be in the same community for school about nine months out of the year. This makes shared parenting impractical when parents live a significant distance apart. If the work schedule of a parent is highly irregular, unpredictable, or simply too time-consuming, that can also make shared parenting impractical.
- When it will perpetuate domestic violence and coercive control. Abusers can and do use children to hurt and control an ex. Women are also very capable of the coercive control aspect of this dynamic.
- When it will result in excessive conflict. If the parenting arrangement results in substantial and ongoing conflict between the parents or a parent and child, it is likely to be detrimental to the children. This should not be used to brush aside shared parenting too quickly though, because conflict can decrease as time goes on.
- When one parent is just not very good. I encompass a lot under this factor, and emphasize that shared parenting is only a good idea when both parents are good parents. Some things that can detract from parenting ability include drug and alcohol use, abusive behavior, neglectful behavior, disinterest in parenting, mental illness, poor morals, and an inability to work with the other parent on matters involving the children.
How does shared parenting interact with child support?
In South Dakota, shared parenting does not mean that there is no child support. In such situations, child support is calculated using the “shared parenting cross-credit” described at SDCL 25-7-6.27. Basically, the parent with the higher income will end up paying support to the other parent, unless there is a reason to deviate from the prescribed amount.
Unfortunately, child support considerations can and do motivate parents’ negotiations regarding custody. Some parents are motivated to try to obtain shared custody just to get themselves out of child support. I have seen a father who had not taken any initiative to see his kids in over a year (despite the fact that he could have easily done so) try to modify custody to get shared parenting. His obvious motivation was child support. I have also seen multiple parents who did not want to allow more time to the other parent because it would impact the child support they received. However, although child support motivates some parents, I do not believe it is the primary motivation for most people when deciding custody issues.
Does one parent have to be designated as the primary parent?
South Dakota law does not require that any parent be named as “primary.” I have written many custody agreements without any such language. Who gets to claim the child for various tax purposes needs to be resolved, but that does not mean someone needs to be designated as the primary parent.
I would not have even thought to include this topic if I had not received a call from a prospective client who had been advised by both an attorney and a mediator that someone had to be named as the primary parent, even though he and his wife were in agreement on equally shared parenting. This, and criticism by the mediator of the schedule they had chosen, (a 2-2-3 schedule that also made sense) was on the verge of killing the reasonable parenting arrangement they thought they had agreed on. In my opinion, these parties were done a significant disservice by the professionals they had been working with.
What is the law in South Dakota regarding shared parenting?
South Dakota courts can order shared parenting (joint physical custody), even over the objection of one or both parents. In addition to the factors outlined in the Fuerstenberg v. Fuerstenberg case, courts are now supposed to consider factors listed at SDCL 25-4A-24 when a parent requests joint physical custody. South Dakota does not have a legal presumption in favor of shared parenting. The ultimate question for the court is what is in the child’s best interests.
Despite the long list of factors a court is to consider, the bottom line regarding custody decisions in South Dakota is that, for most practical purposes, they are based on whatever the individual judge hearing the case believes to be in the child’s best interests. Unfortunately, this can vary significantly from judge to judge. Some judges almost never order shared parenting in contested cases, and some judges order it in almost all cases absent a really good reason not to. Appellate review borders on non-existent in custody cases because almost any result will be upheld as long as it appears that the court considered the factors it was supposed to. Many mediators and custody evaluators also seem to be woefully unaware of the empirical research related to this topic.
My hope is that we can move towards a consistent and empirically-sound method of determining custody issues that results in better outcomes for the children involved.