Social policy drives child custody laws. Until now, common “wisdom” has told us that kids are generally better off with one parent primarily; usually that has translated into maternal sole custody.
Where intimate relationships are fractured, dads have to bring forth much more evidence just to maintain, let alone expand, their residential time with their kids. It’s the same whether in court, in mediation, or in negotiations. We are imprisoned by our gender biases, myths, and stereotypes. So, how do we change child custody laws?
One myth is that high conflict parents can’t possibly share their children’s time with anything approaching equality. Judges, custody evaluators and other professionals involved in making custody decisions will tell you that where there is high conflict, one parent’s time with the kids needs to be limited in order to shield the kids from the discord. The rationale for this position is the common wisdom that we all know that being repeatedly caught in the middle of high, ongoing conflict is surely bad for kids in intact or in separated families.
But after parents separate, the question is whether having the children live primarily with only one parent in sole physical custody is a better outcome for kids?
Prof. Linda Nielsen (Wake Forest University) has published a ground breaking paper in the American Psychological Association’s journal – Psychology, Public Policy, and Law 2017, Vol. 23, No. 2, 211-21.
Nielsen analyzes scores of social science studies on conflict, coparenting and children’s outcomes in shared vs. sole physical custody. Her discoveries are as surprising as they are mind boggling. Nielsen concludes:
Recent research does not support the idea that conflict-including high legal conflict-should rule out joint physical custody as the arrangement that best serves children’s interests. Parents with joint physical custody do not generally have significantly less conflict or more cooperative relationships than parents with sole physical custody. Conflict and poor coparenting are not linked to worse outcomes for children in joint physical custody than in sole physical custody. The quality of the parent-child relationship is a better predictor than conflict of children’s outcomes, with the exception of the most extreme forms of conflict to which some children are exposed. While continuing our efforts to improve parents’ relationships with one another, we should become more invested in helping both parents maintain and strengthen their relationships with their children.
Our social policy is based on a plethora of distorted and outright wrong assumptions (Colman’s interpretation, not the professor’s words). Nielsen’s impeccable research strongly supports her key findings. Here are the four bedrock takeaways from her astounding paper:
1. Limiting Time
Limiting the time that children spend with one of their parents through Sole Parental Custody (“SPC”) is not correlated with better outcomes for children, even when there is considerable conflict and a poor co-parenting relationship.
The role that conflict plays is surprising based upon the empirical research:
a. Conflict and poor co-parenting are not linked to worse outcomes for children in Joint Physical Custody (“JPC”) than in SPC.
b. Conflict should not rule out JPC as the arrangement that best serves children’s interests.
c. JPC is not a panacea for conflict. Most JPC parents do not have substantially less conflict or more collaborative co-parenting relationships than SPC parents.
3. Quality of Relationship is key
The quality of the parent-child relationship is a better predictor than conflict of children’s outcomes, with the exception of the most extreme forms of conflict to which some children are exposed.
4. JPC = Better Outcomes for kids
While JPC may not be a panacea, JPC is indeed associated with better outcomes for children than SPC, even when their parents do not initially both agree to the parenting plan and even when the conflict at the time of separation or in subsequent years is not low.
The implications are startling:
1. It is the quality of the relationship between parent and child that is all important as predicting better outcomes for kids on a wide range of axes.
2. Quality of relationship is enhanced by having the opportunity to parent your child normally – not just on weekends and not just occasionally on holidays. If you want children to be happier, better adjusted, and have fewer mental health issues, then taking all of the available data, JPC is your very best bet – even for high conflict cases.
It follows that if we want to do better for children, then we have to legislatively abolish the outmoded and scientifically incorrect assumptions that have until now driven our social and legal policies. We need a rebuttable presumption in favour of JPC, also known as “Equal Shared Parenting”. Nielsen has drawn together the data from disparate sources and has shown that children benefit most from shared physical custody even when conflict is high and the parents cannot co-parent well. It’s time for Canada to step up on child custody laws.