California law notably avoids stating any preference for any particular type of parenting plan. Instead, our courts have the “widest discretion to choose a parenting plan that is in the best interest of the child… .” (Family Code § 3040(d).)
The California Family Law Practice and Procedure Guide states that, “Many courts strongly favor equal custody sharing arrangements assuming they find it truly in the best interests of the children.” (2 California Family Law Prac & Proc 2d ed. § 33.01 (2019).) What often happens, however, is a court will start with the assumption that an equal custody sharing arrangement is —by definition—in the best interests of the children. In one local proceeding, the court stated, “[t]ypically speaking a 50/50 custodial arrangement is considered to be the ideal … .” In another proceeding, the court’s tentative decision stated, “The court does not find that it is in the children’s best interests to modify the current [equal timeshare] schedule,” even though the children themselves requested a change, because “the court finds that their preferences do not outweigh … the court’s general preference for 50/50 schedules… .”
This mistaken “general preference for 50/50 schedules” reflects a prevalent societal view. In a 2011 survey published in the journal Psychology, Public Policy, and Law, researchers found that the public had a strong preference for equal shared custody (1). Contrary to popular opinion, however, equal shared custody is generally not beneficial to children unless the parents choose that plan for their family. Otherwise, a Solomonic 50/50 split-the-baby approach is usually contraindicated.
As Peter Jaffe, psychologist, professor and faculty member of the National Council of Juvenile and Family Court Judges observed, “parents who enter the justice system to litigate about child custody or access have passed the point where shared parenting should be presumed or even encouraged.”(2) By the time parents appear at a hearing, they have demonstrated their inability to choose any shared parenting arrangement. The imposition of a “Rodney King” approach (“can’t we all just get along?”) (3), or the imposition of a 50/50 timeshare based on an ideal, is not in their children’s best interests.
Practitioners must provide sufficient facts to help the courts make orders based on the child’s best interests, not faulty societal assumptions, even at the risk of angering one or both parents.
Notes:
Braver, S. L., Ellman, I. M., Votruba, A. M., & Fabricius, W. V. (2011). Lay judgments about child custody after divorce. Psychology, Public Policy, and Law, 17(2), 212–240. https://doi.org/10.1037/a0023194.
Jaffe, P. (2014), A Presumption Against Shared Parenting for Family Court Litigants. Family Court Review, 52: 187-192. doi:10.1111/fcre.12081. See also Bala, N., Birnbaum, R., Poitras, K., Saini, M., Cyr, F. and LeClair, S. (2017), Shared Parenting in Canada: Increasing Use But Continued Controversy. Family Court Review, 55: 513-530. doi:10.1111/fcre.12301 (“Social science research does not support enactment of a presumption of equal parenting time. … The research also reveals real concerns about the negative effects of high parental conflict or violence, especially if there is shared custody.” (Emphasis in original.))
Christopher Emley, Certified Family Law Specialist and Fellow of the American Academy of Matrimonial Lawyers, is credited with the phrase “Rodney King framework of child custody.”
About the author:
Liat Sadler is a Certified Family Law Specialist in San Francisco, California. She earned her BA from the University of Michigan, her master’s degree from the London School of Economics and her JD from the Benjamin N. Cardozo School of Law.
