The Washington Post recently urged Maryland lawmakers to reject a presumption of shared parenting time for the children of divorced parents. The Post Editorial Board made the false assumption that it would impose a one-size-fits-all rule on the number of overnights and prevent judges from using discretion in individual cases to protect children. This specter is typically raised by those who aren’t familiar with how these laws are written, as well as by those who are ideologically opposed to shared parenting time.
Fortunately, we have a test case to move us past theoretical arguments and allow us to examine the facts of whether a presumption constrains judicial discretion and puts children at risk. Just such a law has been in operation in Arizona since 2013, and an initial state-wide evaluation of the law will soon be published in the Journal of Divorce and Remarriage.
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 legislative process began several years earlier with education about the new research findings on the benefits associated with shared parenting time, delivered at the annual workshops and training sessions sponsored by the State Bar Association. Surveys at the last of these sessions showed that judges were in favor of equal parenting time for fit parents.
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.
The evaluation consisted of a survey sent to all the state’s judges, conciliation court staff, private attorneys, and private mental health providers asking for their perceptions of how the law is working.
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. 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.
There were small increases reported in allegations of domestic violence, child abuse, and substance abuse, which indicates that the law does not dissuade parents from raising these concerns.
There were two subgroups that did not evaluate the law positively. Only about half of the attorneys and about one-third of the mental health providers evaluated the law negatively. 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. The mental health providers who evaluated the law negatively had practiced for fewer years than their colleagues who evaluated it positively, but they did not differ by sex. The two sub-groups of attorneys did not differ by sex or number of years in practice.
Arizonans have found that there doesn’t have to be a trade-off between equal parenting time and judicial discretion when courts are directed to try to maximize children’s time with both parents. With this in mind, I urge Maryland lawmakers to consider the Arizona test case as they determine what’s best for the children they represent.
Dr. William Fabricius is an Associate Professor of Developmental Psychology at Arizona State University. He is an expert on children’s cognitive and social-emotional development, and on the role, fathers play in promoting children’s mental and behavioral health. His research in these areas has been supported by grants from the National Institute of Child Health and Human Development, and the findings have been published in top journals in the field. He worked for several years with all Family Law stakeholders in Arizona to translate research into Arizona’s 2013 shared parenting legislation, and provides expert testimony to policymakers and courts on parenting time issues, especially involving relocation and overnight parenting time for infants.