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After Divorce: Mandatory Shared Child Custody Could be the Future

Divorces today are very different from the divorces available to your parents and grandparents. If your grandparents wanted a divorce, they had to explain to a judge why a divorce was necessary and who caused the split. If your parents want to end their marriage, the court would assume that Mom would raise the kids while Dad would provide her the money she needs.

Today, no-fault divorce is the norm. Instead of blaming one spouse for alcohol abuse, spouses can just check off a box on their dissolution petition called “irreconcilable differences.” The assumption that women are the primary caregiver has waned over the last few decades, but state laws are just now catching up to this reality.

What States Apply Mandatory Shared Custody?

Throughout 2017, twenty states, including Virginia, Kentucky, Texas, and Oregon, have considered laws promoting shared custody among parents. State laws may change so that instead of giving one parent physical custody and both parents legal custody, both parents maintain physical and legal custody after the child custody order is signed.

Proponents of mandatory shared custody laws believe that changing custody structures post-divorce would be in the children’s best interest and help remove decade old stereotypes that women are only caregivers. Mandatory shared custody would require that fathers play a greater role in their child (ren)’s life. The wisdom that children who grow up with two parents are better off than children who only grow up with one is still true. Mandatory shared custody would lift the burden of parenthood from single mothers and provide more stability for children.

child custodyOpponents argue that mandatory shared custody laws are unnecessary. Most couples today agree on some form of shared custody. The 10 percent of parents who don’t agree on shared custody usually have a good reason: abusive spouses are always a concern. Many state laws that require joint physical custody also end child support. Overcoming sexism is an important state goal, but the reality is that many women still make twenty cents less for every dollar a man earns. Child support often bridges the income gap between Mom and Dad. States shouldn’t ignore such realities.

The Importance of Judicial Discretion in Child Custody

One of the biggest debate points of mandatory laws is the loss of judicial discretion. When the legislature mandates certain outcomes in a one size fits all approach, there will often be cases where that approach is wrong and judicial decision making would have been preferable.

Criminal law provides a roadmap of what mandatory laws can do. Mandatory minimum sentencing laws for drug crimes have been decried as cruel and unusual punishment. Regardless of background, facts, or mitigating factors, criminal law judges are often compelled to gives harsh sentences for drug crimes that the public are increasingly seeing as light offenses. On the other hand, judicial discretion can open the door for equally unpopular sentences. The Brock Turner case illustrates that individual judges can frustrate the public by being too lenient.

A mandatory law would likely punish a percentage of spouses who need to be protected from abusers, but achieve a degree of equity for everyone else. Leaving the decision to judges might protect potential victims, but there is a possibility that a judge might make the bad ruling for a bad case.

Since the laws are still being shaped, this need not be a binary choice. States can have a system where shared custody is the default, but there should be greater protections for those who may be victimized by an abusive spouse. Child support has traditionally favored women because women were the primary caregivers. However, this cuts both ways. If men are called upon to be better fathers, they must also have time to raise their kids. As women have known for centuries, balancing one’s career with one’s parental duties may require a sacrifice from the former. In that case, both sexes should be expected to pay child support if the other parent is in the home instead of the office.

Jason Cheung

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