Points of discussion
- Why parenting arrangements matter
- High conflict cases
- History of court orders-current trends and state guidelines
- Types of orders-emergency, temporary and final
- Resident options
- In essence...
Introduction
Why do parental parenting arrangements matter? The simple answer is that parenting arrangements can significantly influence parent-child relationships that form the basis of the family unit, which is the foundation of society.
Previous research discusses the implications of the child maintaining contact with extended family (Bruna, 2019) and the long-term negative effects on the child of restricting their communication with their parent, which can continue through adulthood (Baker & Verrocchio, 2015).
In essence...
“Divide the living child in two, and give half to the one, and half to the other” (JPS Hebrew-English Tanakh, 1985/2014, 1 Kings 3:26). King Solomon possessed the wisdom to discern the true mother, sparing the child from the sword.
In family court, matters regarding parenting arrangements are less straightforward. Judges have the responsibility of King Solomon, yet familial dynamics can complicate the decision-making process.
Unfortunately, for too many children today, parents involved in family court battles may focus on their co-parent rather than their child’s welfare, engage in egregious behaviors, compromise the parent-child relationship, and ultimately, divide the child in two.
Parental alienating behaviors
The impact of parental alienating behaviors on a child’s mental and physical health is well documented (Doǧan & Aytekin, 2021; Hands & Warshak, 2011; Harman et al., 2018; Johnston, 1990; Lamela & Figueiredo, 2016; Nielsen, 2014).
Nevertheless, research shows that high-conflict family court cases in the U.S. are not always driven by the interest of the child or the parent-child relationship (Rosenfeld, 2020).
Concept of shared parenting
In some cases, the concept of shared parenting, in which the child resides with their other parent at least 50% of the time, may be to the child’s benefit (Nielsen, 2018a).
However...
…in cases when the child is unsafe (Polak & Saini, 2015; Sullivan, 2020) and in situations with DV, IPV, or other parent-specific factors (Jaffe et al., 2005) affect the parent’s ability to have a healthy relationship with their child, these arrangements may be to the child’s detriment.
High conflict cases
In 90% of family court cases, parents can reach a mutual agreement independently or with assistance from an attorney or mediator (Rosenfeld, 2020).
However...
…litigation in family court may ensue when parents who are legally entitled and able to care for their child disagree on parenting arrangements (Horvath & Ryznar, 2015).
Indicating...
Cases in which no progress is made on the parents’ issues after repeated court appearances are considered high conflict, and research shows that these high-conflict court cases, estimated at approximately 10% of family court matters, utilize the majority of court time (Rosenfeld, 2020).
Notably...
High-conflict family court matters have been extensively researched, highlighting the negative impact on the children involved (Bernardi, Boertien & Harkonen, 2017; Nielson, 2015, 2017; Vessetti, 2016).
Researchers characterize high-conflict court matters as involving anger and distrust (Saini & Birnbaum, 2007), hostility, verbal and/or physical abuse, long-term communication problems between co-parents (Johnston et al., 2009), threats of litigation (Johnston, 2006), and sabotaging parenting time (Johnston, 2006).
Why...
Parents might seek continued litigation to antagonize their co-parent (Francia et al., 2019; McIntosh, 2003).
A 2003 study by Kelly found that “some entrenched child disputes are primarily the result of one parent’s actions” (Kelly, 2003, Parents with Enduring Disputes, para. 2) and further shared her experiences as a mediator, reporting “(in) as many as one-third of entrenched parental disputes, several years after separation or divorce, one parent is clearly the high-conflict parent” (Kelly, 2003,
Parents with Enduring Disputes, para. 3), and the sole instigator in adversarial communications.
History of court orders
When parents are unable to agree on the legal and physical aspects of their child(ren)’s lives, they will involve family courts to make the decision.
Once involved, family courts will determine each parent’s rights and responsibilities based on the best interests of the child (Sammut, 2018; Stewart, 2019).
At the same time, although current court guidelines focus on the needs of the child, a common concern regarding the family court process is the lack of uniformity in decision-making (National Conference of Commissioners on Uniform State Laws ASpector, 1998).
This is exemplified in the earlier “tender years” doctrine, the Best Interest of the Child Standard (BICS), and other guiding principles that affect family court decisions in each of the 50 states.
Over the years...
Tender years doctrine
The tender years doctrine, established in 1881, posited that children up to age seven required the love and affection of their mother to survive.
This doctrine evolved from the historical status of wives and children as property of the male head of household to allotting primary parenting responsibility to the mother (Scott, 1992).
However...
…the gender equality movement in the 1970s saw a societal shift in the view that mothers were the most qualified parent to care for the child (Gresk, 2013).
With time, the practice of entrusting the care of the child to one parent faded (DiFonzo, 2014), and starting in the 1980s, mothers were no longer automatically considered the best parents solely based on their gender (Fuhrmann & Zibbell, 2012).
Best interest of the child
The tender years doctrine was abolished in almost all 50 states by the mid-1990s (Warshak, 2011), and court decisions based on the needs of the child, known as the Best Interest of the Child Standard (BICS), began to take hold.
The shift from gender-based decisions in parenting arrangements toward the BICS standard can be seen in the 1989 United Nations Convention on the Rights of the Child, where the BICS was determined to be foundational to children’s rights (Assembly, 1989).
As a member nation of the U.N., the idea gained currency in the U.S. and became increasingly influential in child custody matters.
The BICS ruling empowered judges to make legally binding decisions based on the child’s needs (Kohm, 2007), and continues as a topic of discussion in legal matters involving children, due in part to the latitude afforded judges in family court matters.
Current trends
Legal statutes and societal changes play an important role in family court decision-making.
To address child welfare matters and court rulings, the Children’s Bureau, a division of the U.S. Department of Health and Human Services (DHHS), developed a factor system with guiding principles for states to consider in family court matters.
This section outlines
- Guidelines presented by DHHS
- Types of court orders
- Resident options
Guiding principles developed by DHHS
- DHHS provides factors for states to follow
- 32 states have developed guidelines for courts to follow
- Each state has discretion in the number and prioritization
Guiding principles are provided by the Department of Health and Human Services (DHHS) for states to consider when determining the best interests of the child’s welfare.
The DHHS outlines 14 guiding principles for family court decisions.
Currently, 32 states participate. Each state establishes distinct criteria and prioritizes them differently.
Note: States are granted flexibility in making judicial decisions leading to a subjective interpretation of these laws.
32 states participate
Alabama | Alaska | Arkansas | California | Colorado | Georgia | Hawaii | Idaho | Illinois | Indiana | Kansas | Kentucky | Maine | Massachusetts | Mississippi | Missouri | Montana | Nebraska | New Jersey | New Hampshire | New Mexico | New York | North Carolina | North Dakota | Oklahoma | Pennsylvania | Rhode Island | South Carolina | Utah | Washington | West Virginia | Wyoming.
DHHS provides factors for states to follow.
- California has five factors (Custody of Children 2020 (Ch 370, Sec.1 115) (CA))
- Florida has nine factors, one of which has 20 subsections (Support of Children, Section 13 2018 (FL))
- Michigan has 12 factors (Child Custody Act 2016 (Act 95).
Three Principles are Widely Accepted and Supported
Factor 1
Family integrity and a preference for avoiding removal of the child from the home.
Factor 13
Providing courts with more guidance and more discretion to make determinations.
Factor 16
Considering the wishes of the child when ruling on parental arrangements.
Factor 11
Eight states emphasize the need to consider all factors in court decisions.
(Georgia, Illinois, Maine, Maryland, Michigan, Oregon, Vermont, and Virginia).
States are given latitude in making the court decisions
Each state implements different factors and assigns varying levels of importance to each.
Consequently, the understanding of these laws is subjective and open to individual interpretation.
|
No. |
Factor |
Count |
States |
|
1 |
Family integrity and preference to avoid removing child from home. |
32 |
Ala.; Alaska; Ark.; Calif.; Colo.; Ga.; Hawaii; Idaho; Ill.; Ind.; Kan.; Ky.; Maine; Mass.; Miss.; Mo.; Mont.; Neb.; N. J.; N. H.; N.M.; N.Y.; N.C.; N.D.; Okla.; Pa.; R.I.; S.C.; Utah; Wash.; Wis.; & Wyo. |
|
2 |
Health, safety, and/or protection of the child. |
31 |
Alaska.; Az.; Ark.; Colo.; Ga.; Hawaii; Idaho; Ill.; Kan.; Ky.; La.; Maine., Mass.; Miss.; Mt..; Neb.; N.H.; N. J.; N.M.; N.Y.; N. C.; Okla.; Pa.; R.I.; S.C.; Utah; Vt.; Wash.; W. Va.; Wisc.; & Wyo. |
|
3 |
Preserving and strengthening the child’s ties to their family. |
20 |
Ala.; Alaska; Ark.;. Calif.; Colo.; Ga.; Idaho; La.; Miss.; Mt., Nev.; N.H.; N. J.; N.M.; Okla.; Pa.; Utah; Vt.; W. Va.; & Wyo. |
|
4 |
Importance of timely permanent decisions. |
22 |
Ala.; Alaska; Ark.; Calif.; Hawaii; Idaho; Ill.; Iowa; Kan.; La.; Maine; Neb.; N.J.; N.M.; N.Y.; N. C.; Okla.; S.C.; Texas; Vt.; Wash.; & Wy. |
|
5 |
Assurance child removed from home will be placed in the least restrictive setting that will meet the child’s needs. |
14 |
Ala.; Colo.; Ga.; Hawaii; Idaho; Kan.; Miss.; Okla.; Pa.; R.I.; S.C.; & W. Va. |
|
6 |
Provision of services, treatment & guidance to assist child to develop into a self-sufficient adult. |
18 |
Al.; Ark.; Calif.; Colo.; Ga.; Hawaii; Idaho; Kan.; Minn.; Miss.; N.H.; N.M.; Okla.; Pa.; R.I.; S.C.; W. Va.; & Wyo. |
|
7 |
Emotional ties & relationships between child & parents/siblings, household members and caregivers a . |
22 |
Conn.; Del.; Fla.; Ga.; Hawaii; Ill; Kan.; Md.; Mass.; Mich.; Minn.; N.M.,; N.C.; N.D.; Ohio; Ore.; Pa.; S.C.; Tenn.; Vt.; Va.; &Wash. |
|
8 |
Parents ability to provide a safe home, food, clothing &medical care. |
12 |
Fla.; Ga.; Hawaii; Ill; Md.; Mich.; N.M.; N.D.; S.C.; Texas; Vt. & Wis. |
|
9 |
Mental & physical health needs of child. |
15 a |
Conn.; Del.; Fla.; Ga.; Kan.; Maine; Mich.; Minn.;, Miss.; Nev.; N.M.; Texas.; & Va. |
|
10 |
Mental and physical health of parent. |
12 a |
Del.; Ga.; Ky.; Mich.; Nev.; N.M.; N.D.; S.C.; S.D.; Tenn.; Texas; & Va. |
|
11 |
Presence of domestic violence in the home. |
12 |
Del.; Ga.; Idaho.; Ky.; Mich.; Nev.; N.D.; Ore.; S.C.; Tenn.; Texas.; & Va. |
|
12 |
Federal & State constitution protections to recognize & enforce rights of all individuals. |
17 |
Calif.; Ga.; Mo.; Mont.; Nev.; N.H.; N.M.; N.Y.; N.C.; Okla.; Pa.; S. D.; Tenn.; Utah; Vt.; Wash; W. Va.; & Wisc. |
|
13 |
Maintain sibling and close family bonds. |
32 a |
Alaska.; Ark.; Calif.; Colo.; Conn.; Fla.; Ga.; Hawaii; Idaho.; Ill; Ind.; Iowa; Kan.; Maine.; Md.; Miss.; Mt..; Neb.; Nev.; N.H.; N.M.; Ohio; Ore.; Okla.; Ore.; Pa.; Vt.; Va.; W. Va.; Wash.; & Wisc. |
|
14 |
Consider child’s wishes in making best interest decisions. |
22 a |
Alaska.; Ark.; Calif.; Del.; Fla.; Ga.; Idaho; Ill; Maine; & Mass. b; Mich.; Minn.; N.D.; Ohio; Pa.; R.I.; S.C.; Utah; Tenn.; Va.; Wash.; & Wis. |
Guiding principles presented by HHS for states to consider when making best interest decisions about the child’s welfare.
Count is the number of states implementing the factors is provided and states are listed.
a represents District of Columbia.
b represents child is age 12 or older.
(Child Welfare Information Gateway, 2020).
https://www.childwelfare.gov/resources/determining-best-interests-child
Emergency, temporary and final orders
Three common orders are rendered in court-
Terminology for these orders varies among the states.
- Emergency or protective
Emergency orders (Oswald, 2003), ex parte (Liotta, 2019), or protective orders (Cordier et al., 2021) may be issued at the onset of the court case or when parents cannot agree on a parenting plan.
Note-Temporary emergency orders, including ex parte, are used in cases when an expedited hearing is needed due to questions regarding the child’s safety (Liotta, 2019).
- Temporary
Temporary orders, also referred to as initial (Glade-Wright, 2016), interim (Dick, 1998), or maintenance orders (Liotta, 2019), apply to the legal and physical aspects of custody.
These orders remain in effect unless circumstances change or until the final court order is filed (Dictionary, 2022).
- Final
Final (Schlissel, 1992) or permanent (Elrod, 2003) orders are issued after custody matters are resolved and the temporary order is superseded.
Typically, temporary and final court rulings stipulate the parenting percentages of the legal and physical aspects for minor children until they turn 18 or graduate high school.
Resident options
Parenting plan software company CustodyXchange suggests an array of custody arrangement options for parents and offers a subscription software package with a scheduling tool (CustodyXchange, 2023a).
Parenting plans...
Common parenting plans outlined by CustodyXchange for 50-50 custody arrangements.
For example...
a 2-2-5-5 schedule, representing overnights on Monday and Tuesday with one parent, Wednesday and Thursday overnights with their other parent, and alternating three-day weekends.
Other 50-50 arrangements may include alternating every two days and exchanging with the other parent on the third day; alternating either weekly, every two weeks, monthly, or yearly; or parents selecting days for a calendar year.
Additional options may involve spending the academic year with one parent and vacation breaks with the other parent (Emery, 2016); first, third, and fifth weekends or second, fourth, and fifth weekends with one parent; or every third weekend with one parent.
In short, parenting time schedules may vary based on the parents’ schedules and the age-appropriate needs of the child.
Shared Parenting
At the International Conference on Shared Parenting (2018), a group created by the International Council on Shared Parenting that supports research and makes recommendations on the rights of children, experts Braver and Vortruba (2018) concluded in part:
Stating...
“A great many studies, with various inferential strengths, suggest that shared parenting will bestow benefits on children on average, and few if any studies show that it harms them.”
Indicating...
The concept of shared parenting, in which a child resides with their other parent at least 50% of the time, has been understood and implemented in many ways over the decades.
For example...
Suggesting...
From the 1980s to the late 1990s, the idea of shared parenting was defined as 25% (Nielsen, 2018c) in which parents see their child every other weekend, one night per week, and time over summer vacation, translating to 15-20% parenting time (Nielsen, 2018b).
Living arrangements have transitioned over the years to reflect societal changes of parental involvement and childcare (Berman & Daneback, 2022) in order to accommodate court rulings for the physical care for their child.
For example...
- Bird-nesting parenting
One arrangement, referred to as bird-nesting parenting (Kruk, 2013), involves the parents taking turns living in the family home while the child(ren) remain.
In this model, the parents have the option to reside with a family member, another individual, or in a separate residence that they both share.
It is important to note that the bird-nesting option is not suitable for high-conflict situations.
- Parallel parenting
Parallel parenting, can be effective in high-conflict court cases.
Parallel parenting is a method of shared parenting in which parents interact as little as possible with each other while maintaining relationships with their children.
In this method, each parent has certain responsibilities and day-to-day duties which they carry out without involving the other parent, while still following the court’s guidelines.
Note-An online platform like Our Family Wizard (https://www.ourfamilywizard.com) can be used for parallel parenting situations, allowing parents to share information while minimizing or avoiding verbal communication (Kruk, 2018; (Kline Pruett & DiFonzo, 2014).
This solution is also applicable in cases involving domestic violence (Stark et al., 2019).
Considerations for shared parenting
Assessing the living situations and dynamics of each parent presents an opportunity to address the emotional and physical requirements of the child.
Several studies indicate that the post-divorce adjustment of children is shaped by three key factors: 1) The relationship between ex-spouses; 2) post-divorce parenting and parent-child relationship quality; 3) and the availability of economic resources (Amato, 2010; Kelly & Emory, 2003; Lansford, 2009, as cited in (van Dijk et al., 2020).
Suggesting...
These adjustment preferences may arise during the court’s evaluation process when each parent’s relationship with and influence on their child is assessed.
From the child’s perspective, one parent may work longer hours, travel for work, or reside closer to or further from the child’s school, extracurricular activities, and social network (Garber, 2020).
Because...
FrAlternatively, a child may choose to be with one parent due to discord with the other parent, disagreements between the parents, the characteristics of one home compared to the other (Kelly & Johnston, 2001) (van Dijk et al., 2020), or because a parent has more economic resources (O’Brien, 2021).
From the court’s viewpoint, these parent-specific factors must be evaluated.
For example...
…a parent may not be deemed competent to parent their child (Nielsen, 2018a) or be unable to attend to their child’s emotional or physical needs due to the parent’s mental or physical health issues or substance use problems.
Assessing for DV and IPV
Another important factor that affects the court’s decision-making process involves evaluating cases for DV or IPV (Stark et al., 2019) and considering instances of coercive controlling violence and situational couple violence (Hardesty et al., 2015).
Within the context of DV and IPV, the characteristics and occurrence of abuse become essential components in the court’s assessment and determinations.
Coersive control
Understanding the distinctions between these types of violence is crucial. In coercive control, also known as intimate terrorism, the objective is to control the partner through the use of physical violence Johnston (2008).
Situational couple violence
In situational couple violence, the physical acts arise from an argument or situation without the intent to control the partner (Hardesty et al., 2015, Introduction, para. 1).
Within the context of DV and IPV, the characteristics and occurrence of abuse become essential components in the court’s assessment and determinations.
In essence...
Both proponents of maternal and child rights, as well as those advocating for fathers and shared parenting, are striving to interpret parenting arrangements with a focus on the child’s needs.
It is essential to acknowledge the necessity of safeguarding the child and recognizing any signs of emotional or physical abuse (Ebling, 2009; Harman et al., 2018; Lamela & Figueiredo, 2016) or trauma (Deutsch et al., 2020), which must be prioritized in the decision-making process regarding parenting arrangements.
Related articles
Over the past few decades, family court determinations for parenting time have evolved. Here is a breakdown of court decisions and terminology.
“Divide the living child in two, and give half to the one, and half to the other” (JPS Hebrew-English Tanakh, 1985/2014, 1 Kings 3:26).
It is necessary to consider multiple factors, adopt a child-centered approach, and thoroughly examine all elements of the situation to ensure that court decisions are made in the child’s best interest.
