Politics & Policy

Reining in Our Nation’s Family Courts

Sole custody should not be the norm following divorce or separation.

Small-government conservatives have largely overlooked the fact that no branch of government other than the tax authorities intrudes more forcefully and intimately into the lives of Americans than do our nation’s family courts. And that where there is forceful intrusion, there is political opportunity — and danger for either party, if it allows the other to grab and run with the issue of family-court reform.

These courts routinely redistribute enormous amounts of wealth, destroy small businesses, mandate when and where parents can see their own children, order people to vacate their homes simply on the request of their former spouse, order people to sell their homes (sometimes unavoidably in an asset division, but often not), and even dictate whether they can change their careers by holding them to a demanding child-support order that could not be obeyed during a temporary decrease in income. 

Even worse is the negative impact they’re having on millions of children across our nation. The family courts continue to award sole custody to one parent after separation or divorce, ignoring the proven harm sole custody does to children compared with shared parenting (joint physical custody). And where does this authority come from? A so-called “award” of sole custody to one parent is actually the removal of constitutionally protected parental rights from the other parent without any demonstration of a compelling state interest if both parents are fit.

Despite what many believe, shared parenting is uncommon. In fact, family courts award sole custody, usually to the mother, in over 80 percent of child-custody cases. Fortunately, nearly 20 states are now considering shared-parenting legislation to reform our family courts. Utah just passed such legislation.

Last year was a watershed for our understanding that shared parenting is best for children after parents separate or divorce. For instance, the widely respected psychologist Richard Warshak published a review of three decades of child-development research, and his conclusions were endorsed by 110 experts around the world — most importantly, his conclusion that “shared parenting should be the norm for parenting plans for children of all ages, including very young children.”

Later in the year, about 100 child-development experts met in Bonn under the auspices of the International Council on Shared Parenting and concluded: “There is a consensus that shared parenting is a viable post-divorce parenting arrangement that is optimal to child development and well-being, including for children of high-conflict parents.”

Likewise, the Association of Family and Conciliation Courts established a think tank of legal and mental-health experts who stated that “considered as a body of work, the efficacy of shared parenting has been supported for children of preschool age and older.”

The accumulated research shows that if we instituted widespread shared parenting, children would do significantly better in school; suffer less depression; exhibit less anger, hyperactivity, delinquency, and truancy; engage in less alcohol and substance abuse; engage in less gang activity; commit fewer crimes; and have fewer teen pregnancies. Of course, shared parenting should be limited to cases in which both parents are fit and there has been no domestic violence.

By comparison, despite often-heroic efforts by single parents, the 35 percent of our nation’s children who are being raised in single-parent homes account for 63 percent of teen suicides, 71 percent of high-school dropouts, 75 percent of children in chemical-abuse centers, and 85 percent of those in prison, among numerous other negative impacts, according to the Centers for Disease Control, the Department of Justice, and the Census Bureau. 

If the winner-take-all battles brought about by the sole-custody tradition were replaced with the expectation of shared parenting, the divorce rate would also decrease, post-divorce parental hostility would diminish, child-support compliance would improve, and the pay gap between women and men would decrease as large numbers of single mothers would have more time and energy to put into their careers.

And all of this without the need for any government programs or taxpayer subsidies. In fact, the costs of the safety net would decrease over time. So we now have the opportunity to create a smaller government while also improving the lives of millions of children substantially.

We now have the opportunity to create a smaller government while also improving the lives of millions of children substantially.

The politics of this simmering issue hold both opportunity and danger for both sides. Blue-collar men, including Reagan Democrats and union members, are those who are most hurt by the benighted actions of the family courts, together with the women who love them — their new partners, their mothers, their sisters. These are huge demographics, numbering in the millions. Conservatives could find that family-court issues become swing issues because of the intensity of the pain and resentment. Blue-collar men, both white and minority, could swing in their favor, as could the women who love these men and have seen the pain of their enforced separation from their children.

On the other side of this coin, the first liberal candidate to express sympathy for divorced/separated men and support for shared parenting could enjoy a big swing of traditionally conservative votes to her or his side of the aisle.

For either side, support for shared parenting would be a politically safe move if done adroitly, causing little or no loss of core constituencies, since many polls and surveys have shown that between 70 and 86 percent of adults support shared parenting as the usual outcome. Conversely, if either party allows the other to identify itself with family-court reform, it could suffer long-term defections.

It’s too bad that children can’t vote, because they want shared parenting most of all. 


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