A recent international conference made one thing clear: the evidence is overwhelming that shared parenting, in general, and for most children, is superior to sole physical custody arrangements after parents separate. That was the consensus of 111 social science researchers and practitioners, who reached this conclusion in 2014, and the most recent research supports their conclusion.
What does this mean for family law? A very large international group of highly accomplished and prominent experts who reviewed the literature believe that science supports custody policy favoring shared parenting for children whose parents separate. This does not mean that the arrangement is for everyone, or that every professional supports the consensus viewpoint.
Professional recommendations and public policy necessarily deal with generalities. The fact that some smokers avoid health risks associated with smoking does not keep doctors from warning patients to stay away from cigarettes. The consensus on shared parenting explicitly acknowledges that the recommendation applies in normal circumstances and does not include, for example, parents who abuse or neglect their children. But the existence of children who need protection against abuse should not dictate policy for the majority of children being raised by parents who live apart from each other. Some commentators miss this point. Instead, they oppose shared parenting because they can think of situations in which children might be better off spending most of their time with only one parent.
A new argument resurrects a very old way of viewing child custody, where shared parenting can be denied to any parent who voluntarily walks away from a marriage, especially if this person was unfaithful. This proposal treats child custody as a parental entitlement, and the loss of custody as a punishment for bad behavior, much like common law in earlier centuries. But ever since the best-interest-of-the-child standard mandated a focus on children’s welfare instead of parents’ prerogatives, courts are not supposed to use decisions about parents’ time with their children as tools to reward or punish parents.
It might be argued that children’s interests are best served by spending less time with a parent whose moral and spiritual flaws contributed to the failure of the marriage—that children need protection from exposure to a toxic environment. We may forgive a betrayed spouse for temporarily feeling this way in the immediate aftermath of discovering a partner’s infidelity. But the argument that limiting children’s time with an adulterous parent is in their best interests has zero scientific support.
In fact, if the betrayed spouse is unable to keep his or her pain from polluting the child’s view of the other parent, the child might very well need protection from “divorce poison,” rather than protection from the adulterous spouse.
The proposal that adultery should be prima facie evidence of unfitness to share custody has several problems in addition to the lack of any research support. First, does the child lose a parent completely, or is some contact with a morally flawed parent acceptable? On what basis could we conclude that a child will be okay spending 25% of their daytime hours with a parent, but any more time than that, or overnights, will compromise the child’s development? Second, reducing infidelity to the adulterer’s moral flaws overlooks the fact that when a spouse is unfaithful in a marriage, often (but not always) the marriage itself was in trouble and the affair was the symptom of the underlying problems. That is, both spouses contributed to the marital problems. Third, and most important, do we want courts to use an award of sole custody to one parent as a punishment to the other parent for being a bad spouse? In other words, do we want courts to punish children for the sins of their parents?
Other opponents of public policy favoring shared parenting rely on unusual interpretations of research. For instance, a study by UVA professor Robert Emery and his student Samantha Tornello was widely reported as evidence that overnights with their fathers harm young children. What the press coverage did not report is that the majority of the children classified as spending frequent overnights with their fathers were actually living primarily with their fathers. And these children actually had superior behavior when assessed at age five—another fact left out of the media accounts. In fact, UVA’s press release incorrectly claimed that infants who spent at least one night per week away from their mothers had more insecure attachments than babies who saw their fathers only during the day. Fake news. (Also, the attachment measure used in that study is non-standard and invalid; the behavior measure is a standardized, valid instrument.) The press release overlooked the key finding of interest for those interested in whether shared parenting should become public policy: the children who did the best were those who spent the most time with their father.
In contrast to “nutpicking” worst case scenarios to show that shared parenting is bad for kids, denying custody as a punishment for infidelity, and bending the evidence to support a bias against fathers having overnights with their children, new trustworthy research continues to add to our knowledge about the long-term outcome for infants whose fathers care for them at night and in the mornings.
The clear-cut conclusion is that children of all ages—including babies—whose parents separate do best when they have the same opportunities to spend time with their fathers as do children whose parents live together. We have no good reason to postpone fathers’ overnight care until children enter kindergarten. This was the view of the 111 experts in 2014, and the widespread acceptance of their conclusions and recommendations for overnights and shared parenting remains supported by science.
Richard A. Warshak is a former clinical professor of psychiatry at the University of Texas Southwestern Medical Center. He is the author of “Social Science and Parenting Plans for Young Children: A Consensus Report,” published in Psychology, Public Policy, and Law, and the books, Divorce Poison: How To Protect Your Family From Bad-mouthing and Brainwashing, and Welcome Back, Pluto: Understanding, Preventing, and Overcoming Parental Alienation. Find him on Facebook: @RichardAWarshak.