Being a co-parent with an ex-spouse can be a challenge. Emotions and past history often find themselves clouding decision-making, and children of divorce can find themselves in the crossfire, unable to take sides. This can lead them in an endless struggle that can lead to mental and emotional problems for these children for years to come.
Part of the divide stems from the court decision regarding custody. Due to the Tender Years Doctrine and how it has influenced the perspective of family law litigation for over a century, it can be difficult for a father to have faith in the system, when so many in the system are so willing to give the mother custody, rather than what is in the best interest of the child.
With courts beginning to shift their perspective, legislators are continuously looking to improve the system, in order to ensure the best situation for the child. Since much of family law is dependent on the regulations of the individual states, the state legislators are the ones making the decisions.
Discussions in Michigan
Legislators in the Michigan state House are looking to pass legislation requiring judges to award joint legal custody of children to divorcing parents, so as long as there are no reports of domestic violence, according to the Detroit Free Press.
State representative Jim Runestad, R-White Lake, believes that with the standard of parenting changing dramatically, legislative action is necessary in taking this decision out of the hands of judges.
He said that they looked at how custody arrangements were determined in various counties and found that the custody arrangements were not being determined by the kind of parent that was petitioning, but rather, the judge in the county.
This bill is causing a little bit of controversy in family law circles. Many groups, such as the family law section of the State Bar of Michigan, advocacy groups against domestic violence, and employees of family courts, find that the bill presumes that one form of custody is best for all families and that form is always equal.
Many look at the idea of the shared parenting model and believe it to be a way of limiting access to the child. They also feel that if the parents cannot get along, the damage to the child could be devastating. According to Divorce Magazine, cutting back on communication can prevent the pathological bitterness that fuels high levels of conflict.
Some also see the moving around from home to another to be an unhealthy exercise for a child and feel that one parent may have more experience in the parenting department than another. Some feel that this type of environment can create parallel parenting, where each parent makes decisions about the child with little discussion with the other parent. This can leave a child stuck in the middle, forced to carry messages and face questions from one parent about another.
However, recent studies from the University of Arizona have suggested that children benefit from having parenting time with both parents, regardless of age.
These studies were published in the American Psychological Association’s journal, “Psychology, Public Policy, and Law.” The results showed the entire family was better off when fathers were granted overnights while their child was a toddler or infant. The results also showed how crucial it is to have parenting time with both parents while they are infants and toddlers because the amount of parenting time small children had with their fathers later in childhood failed to make up for a lack of overnight time in the first few years of their lives.
Similar legislation has been passed in the state of Missouri, where HB 1550 was signed into law in 2016. This law states that no court shall adopt any local forms, rules, or default parenting plans. In addition, this law states that written findings of facts and conclusions must be prepared so that all know exactly why certain decisions were made and that motions to see one’s children must be explained, made readily available, and do not require legal counsel.
The law continues, stating that the court shall not presume that a parent is more qualified solely based on his or her sex and that the State Courts Administrator shall develop parenting plan guidelines that maximize to the highest degree the amount of time the child may spend with each parent.
At of the time of publishing, the bill in Michigan has passed the House Judiciary committee, but according to Runestad, a vote on the bill is not expected in the full House of Representatives before they adjourn for the summer.