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Is shared custody on the horizon?

by | Feb 25, 2022 | Child Custody, Child Support, Children and Divorce |

There’s a move lately in West Virginia to move to a 50/50 shared custody plan for parents at the start of divorce proceedings, in a bill that has been dubbed the “Parenting Fairness Act.” According to the Herald-Dispatch, it’s the second time in three years that such a bill has moved through the state’s legislature, and it would require family court judges to give equal parenting time to each parent once divorce proceedings start, unless there’s evidence of abuse or other concerns around a child’s safety.

That’s now part of a larger conversation that we’ve seen around the country – whether we should move from a more standard system for allocating parenting time for what’s sometimes referred to as a custodial parent and a non-custodial parent, to one that’s more equitable and allows each parent a true 50/50 divide.

A New York-based lawyer, Patricia Fersch, wrote a guest column in Forbes earlier this week asking whether all states should move to 50/50 custody as a baseline.

“Kentucky was the first state to enact into law a rebuttable presumption of joint legal custody (decision-making authority) and equal physical custody,” she noted, adding, “It was reported in the NPO (National Parent Organization) Report Card of States that incidents of domestic violence went down more than 10% after the law went into effect because ‘if there is less conflict post-divorce, there is going to be less domestic violence.’”

While that’s an interesting correlation, and one that might be a bellwether of an option that creates less discord between divorced parents, she also expressed some concerns that should give lawmakers pause before moving to this kind of shared parenting system. As she observed,

Shared parenting limits a parent’s physical mobility. Parents who are serious about co-parenting must make personal sacrifices in their mobility. If the family lived as an intact unit in one geographic area then both parents will need to continue that living arrangement in order to maintain co-parenting. One parent may not be able to financially afford the area alone and yet cannot move outside certain those geographic boundaries because of the co-parenting agreement.

An anxious child may have difficulty going back and forth between homes. Many parents separate when the children are infants or toddlers. They may have never lived together. One parent may have little experience parenting. They may not have good parenting skills. While there may not have been domestic violence or another event to rebut the presumption of joint custody, there may be other issues that make shared parenting both unhealthy for the primary parent and unsafe for the child. Mandated shared parenting does not consider the child’s wishes and overrides his/her “best interests” by its very presumption. 

It’ll be interesting to see how this debate unfolds in West Virginia and in other states — including here in Texas, when the legislature reconvenes next year to possibly entertain changes to the Texas Family Code. Fersch’s article concluded that a default 50/50 plan might not serve all parents well, and underscores the idea we emphasize to clients — every family is different, and parents should be able to decide and negotiate (with the guidance of an experienced family lawyer) which parenting plan works best for them. For some, the standard Texas Family Code plan might serve parents well. Others may benefit from a week-on, week-off 50/50 plan, and yet others might see advantages to a 2-2-5-5 plan.

At the Law Office of Lisa A. Vance, we emphasize that one size does not fit all when it comes to decrees and parenting plans. As we’ve noted in our blog before, though a great four-part series we featured, the needs of children from 0-3 years old differ from those who are 3-6, 7-12, and 13-17. When you’re thinking about the parenting plan that’s right for you and your children, it’s not enough to think about where you’re all at right now – you need to think about what will serve your children’s needs as they progress to high school graduation. We can help you not only think about those changing needs, but also help you arrive at a decree that takes those into account.