Science can now confirm, albeit cautiously, that the best interests of children are commensurate with a legal presumption of shared parenting after divorce.

In the 1970s, the “best interests of the child” standard in family law was established internationally as a gender-neutral criterion replacing maternal preference statutes after divorce. Since then, however, the impact of more equally shared parenting arrangements on child development has been intensely scrutinized, more so than sole custody arrangements.

Edward Kruk from the University of British Columbia in Canada has analysed three stages in the critique of shared parenting after divorce, moving from outright dismissal to cautious acceptance that the idea of shared parenting may have some merit. He believes that a tipping point has now been reached where science can, albeit still with some caution, confirm that the best interests of children are commensurate with a legal presumption of shared parenting responsibility.

First wave arguments: outright rejection of shared parenting after divorce

Arguments against shared parenting The response from research
Children have a single primary attachment figure, almost always the mother. Separation from the primary attachment figure will damage child development.

 

Child development research discredits the idea of a single attachment that is a template and foundation for all other attachments. Children have more than one primary attachment and these attachments are different from each other and equally important. Children tenaciously continue these attachments in changing circumstances, including after divorce.

 

Child development will be harmed if children are yanked around “like a yo-yo”, with constant movement, two sets of home rules, and different parenting styles.

 

Children themselves generally do not report problems associated with living in two places.

Sustaining child-parent attachments tends to protect children from adverse child development outcomes following divorce or separation.

Child-parent bonds benefit from sharing in the full variety of daily activities, including those that take place at bedtime, during the night, and in the morning.

Lengthy separations from any attachment figure are detrimental to child development.

 

Disrupting the caregiving status quo harms child development. Mothers should retain their role as the primary day-to-day caregivers of children.

 

Sharing of care before separation is becoming more and more widespread and is not undermining child development

 

Second wave arguments: shared parenting after divorce only if there is no conflict

 

Arguments against shared parenting The response from research
Shared parenting after divorce exacerbates conflict and can lead to violence between parents who are already in conflict over child custody arrangements. Children will be drawn into the conflict, particularly if shared care arrangements are imposed on families against the will of one or both parents. Shared parenting, therefore, is suitable only for parents with little or no conflict who get along relatively well as coparents. (This view has had a profound impact on court decisions. Sole custody arrangements have routinely been imposed when parents cannot demonstrate a capacity to cooperate.) The possibility of ‘winner takes all’ sole custody after divorce tends to exacerbate parental conflict, which undermines child development. Conflict tends to drop more quickly if one parent does not feel marginalized.

Empirical evidence shows that children tend to do better in shared care arrangements, even when there is conflict between the parents. Sustaining both relationships seems to be a protective factor from the conflict.

Not all kinds of conflict are the same. Some are worse for children than others, particularly persistent unresolved conflict that drags children into the middle. Some forms of conflict preclude shared parenting after divorce, others do not.

Rather than depriving children of a relationship with one parent, other interventions should be implemented to reduce conflict and support child development, such as assisting parallel parenting, therapeutic family mediation, and parenting education programs.

Shared parenting exposes women and children to family violence and child abuse. Shared parenting is a tool for abusive men to continue their abuse. There is consensus that controlling and systematic abuse by a father of a mother precludes shared custody after divorce. Similarly, neglect or abuse of the child by either of the parents precludes shared parenting. Any presumption of shared care is subject to rebuttal by courts in such circumstances.

Third wave arguments: shared parenting after divorce can be OK, but not a presumption in law

Arguments against a presumption The response from research
Shared parenting after divorce might be beneficial for child development in some cases, but there should not be a presumption in law of shared parenting. Children’s best interests will be different in each individual case. A legal presumption of shared parenting would prioritize parental rights over healthy child development. It is possible, through empirical research, to define what arrangements are more likely to support health child development. Without guidance, judges and court evaluators will make decisions based only on idiosyncratic biases, leading to inconsistency and unpredictability.

The possibility of a ‘winner-takes-all’ outcome exacerbates parental conflict.

With two adequate parents, the court has no basis in law or psychology for distinguishing one parent as “primary” over the other.

The future

Has a tipping point been reached where we can conclude with confidence that the best interests of children are commensurate with a legal presumption of shared parenting responsibility after divorce or separation? (This would be rebuttable in cases of family violence, negligence, child abuse or other situations where the child is in danger.)

Edward Kruk quotes another researcher, Sanford Braver, who believes the answer is yes. “To my mind, we’re over the hump, Braver says. “We’ve reached the watershed. On the basis of this evidence, social scientists can now cautiously recommend presumptive shared parenting to policymakers … 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.” (For a report on Sanford Braver piece on the Child and Family Blog, see A panel of leading child development experts answer the burning questions about shared parenting after divorce.

References

 Kruk E (2018), Arguments against a presumption of shared physical custody in family law, Journal of Divorce & Remarriage