OK, so Dads are important. We got to this funky situation by arranging things so that Moms stayed home and Dad's earned the money and so when separations and divorces got more common, Dads started disappearing from kids' lives. We need to fix it.
I suggest three things. The first is something that many states' laws already require. First, we need to treat Moms and Dads the same in divorce. We cannot give Moms a preference for custody just because they are female. Most states' laws require this, but in practice, what is happening is that judges looking for what to do with the kids, will bring in psychologists to interview and evaluate the custody situation.
Unfortunately, as I mentioned in Daddies are important Part 2, the current theory of psychology is that children should have as little change as possible. They rely upon studies of foster and adopted children to say that children should not be moved, as much as possible. They forget that the loss of the father from the household constitutes a huge change, and they don't seek to minimize this part of the change in their lives (for example, via trying to organize a significant post-separation role for the father in the child's lives). Instead of working to find a way to resolve the issues that arise from that change, they advocate that the mothers should be the primary parent (especially if the Mom says she is already), and that the children should stay in the same school district (as if keeping the same friends is more important than keeping the connection with the father), and then the father can become a frequent visitor in the child's life (often, under these circumstances, a visitor whose presence annoys Mom, which the kids know about, so it's a setup for the relationship to deteriorate).
If we start with a law that says Moms & Dads need to be considered equally, and that custody should be whatever is in the best interests of the child, but we give the custody decision to a person who is not trained to evaluate the facts of various accusations that are flying this way & that, and who just tries to find some happy medium where the kids have one primary household and do not have to move too much, we will often end up with Mom being primary parent and Dad being a visitor.
In some states (Arizona is the one I'm most familiar with), the lawmakers have tried to fix this. For example, they specifically changed the law reads, to say "parenting time", instead of "visitation". From now on, any time a parent has with a child is called "parenting time", NOT "visitation". Unfortunately, a change of terminology does not solve the problem if the parenting time the kids spend with Dad is only 10% of their lives, and does not constitute the serious times when they need to learn to work, study, and organize themselves. It may feel expedient to give primary parenting to one parent and split the rest of the time, but as the kids get older, the fact is that REAL parenting takes place in the snippets of time between when they wake up and when they are at school... between the end of their football or cheer practice and the end of dinner. because otherwise, they are on the phone, visiting friends, at school and activities, texting and e-mailing and facebooking... and so our only opportunity to influence them is in these moments of time we can catch from them... and this happens on the weekdays... when we have to tell them that they don't get to turn on the computer until they're finished with their Math assignment... they can't answer their texts at dinner time, and that they need to be part of the household and help with the dinner dishes. If we don't let dads have the kids during this time, we're making a big mistake for the kids.
You can call it parenting time, but if you do not give them a significant amount of time, it will always be vacation, NOT the same kind of parenting that the kids need.
Another positive change in Arizona is that parents who intentionally manipulate the situation to make it appear that they are primary parent when they are not, who make false or exaggerated accusations against the other parent, will not be able to profit from these manipulations or accusations. This law does not go far enough. When judges rely upon counselors and counselors have a bias towards mothers being the primary parent, there will not be a change in their recommendations that reflects the reality that most families have daddies who are very much more involved than the daddies of previous generations.
The legal change we need is a rebuttable presumption of equal parenting time. 50-50. There are a few different schedules that can accomplish this, either week on-week off, or 5-2-2-5, but whatever plan is used, 50-50 is appropriate.
I can hear some of my friends groaning. They insist that they, the mommies, know better what is best for their families and there should never be any presumption. They don't understand the concept of a rebuttable presumption. And this one can and should be rebuttable.
In this option, parents who cannot come to an agreement, but who still live near enough to each other to maintain the continuity of the children's current schedules in each household, will get 50-50 time, unless one of several things happens. First, parents should not have equal parenting time if they live too far away from each other to maintain their regular school & extracurricular schedule in each parent's house. Another way to rebut the presumption can and should be if the parents choose a different schedule for themselves. Perhaps Mom is in the military and can only promise 4 weeks a year in the children's hometown. Maybe Dad is a firefighter and works 72 hours on, 48 off, which makes his schedule rotate every week. I've also had flight attendant parents who needed parenting schedules that matched their work travel needs. These parents might find their own solutions to parenting time that are not equal, but that needs to be something they can cooperate about.
And of course, if either parent is unfit to have the children overnight, then they should not have 50-50 time with the children. But in that situation, we have to hope that the parent claiming that the other is unfit, would have been acting as though the other parent was unfit well before the disintegration of the romantic relationship between the two parents, and that this is not just an accusation born of anger over the separation.
I have an acquaintance who, every time I mention this idea that 50-50 needs to be the presumption, gets very angry at me. She says "it's up to whatever the CHILD can handle". I agree. But children can NOT handle having either parent marginalized in their lives EVEN if it's ONLY the daddy who is being marginalized. So we need to START with the presumption that, if the parents can come to an agreement otherwise, it will be a 50-50. And then if there is cause for it to be something other than 50-50, let each parent have the opportunity to explain to the judge why it should not be 50-50...
Certain things need to stop being considered... if the kids LIKE either parent more than the other, that needs to not be a reason to change parenting time... kids will like or be angry at a parent for not giving them enough STUFF, for being disciplined, or because the other parent wants them to show anger. Sometimes kids will align with the parent they perceive as being victimized by the romantic breakup, other times they will align with the parent they perceive as being stronger. Another thing that should not be considered... if either parent has a nicer house or more family or more money... it's not a good thing to let the kids move to live with Mom if she has married into money, or to live with Dad just because he is a higher earner. If Dad has lots of family in the area who can help him with daycare, hooray! This is a good thing, not a bad thing, but it should not mean that Dad gets more time with the children than Mom... just that she will have to either stay amicable with his family so she can get daycare from them, or she needs to find a different solution for when the kids are with her.
And we shouldn't try to equalize income in the child's two households, just let the children learn how the different households manage. Let one parent provide expensive toys, and the other parent provide inexpensive togetherness. If they do it right, the kids will learn that both places have advantages, and both have disadvantages. It is not fair or right to make one parent pay part of their income to increase the lifestyle that the other parent can afford (this is above & beyond support, food & basics, for the child), and it is not fair or right to make one parent give up time with the child because they don't live an expensive lifestyle. We also need to give parents a dis-incentive for bribing the children with expensive toys. If we enforce parenting time equally with the poorer parent, then the richer parent who plays the "who is your favorite parent?" game, will not benefit from it. The incentive to playing this game is greatly reduced if it will not result in the ability to cut the other parent out.
I'm not saying the children's interests should not be heard, just that you should give them as much weight as you give, say, their interest in choosing not to go to school. Unless someone at the school is abusing them, you make them go. They need to learn the things that are available to learn at school, and they need to learn to deal with it. If it becomes detrimental for them to go to school, then bring in the therapists and create a plan to make it work, or find another placement, but you don't let the kid say, "I don't like school" and honor that decision. You listen to the complaint, and try to figure out how to fix it. This is how things should progress in custody determinations. If the child wants to say "I like Dad better than I like Mom", then fine, but don't let it change the 50-50 schedule unless there is a significant reason behind the preference that would require stripping Mom of her parenting duties.
So what is the custody evaluator's role in this 50-50 rebuttable presumption? First, the evaluator needs to check to see if there are credible reasons that either parent should be removed from the child's life or restricted to supervised visits only. If they do not see credible evidence that requires such removal, they need to be more pro-active in recommending specific remedies to help the family in it's new, separated status. They need to make suggestions for helping the parties learn to co-parent equally and properly. Sometimes, the parents will need to learn to come to some basic agreements about things like bedtime and diet and hairstyle for their children. Sometimes, they will need ongoing support in handling these kinds of rules (particularly for parents who have very different parenting styles). Sometimes, the evaluators need to address a process for the children to learn to stop playing favorites, or to help the parents come to some agreement on how to split the children's toys between the two houses.
Under this theory, sometimes the parent who is busily trying to tear down the co-parent, will lose parenting time until they can moderate their behavior, and the custody evaluator will need to recommend specific limits to this temporary separation so that the parent who loses custody temporarily can get appropriate intensive counseling to help return to full participation in their children's lives.
Under this proposal, we come from a "make it work" theory. We are no longer looking for ways to decide which house should be primary and who should therefore "lose", but rather we are looking for ways to make everyone a winner.
If we did this, and enforced it, then ultimately, the incentive for nastiness during a custody battle would be minimized, and the ultimate winners in that solution would be the children. And isn't this who it's all about in the first place?
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