When parents split up, divorce is the easy part.
Don’t get me wrong. Dividing up assets, arguing over who gets the house, and going to court are all among the most difficult things you may face as an adult.
Eventually, though, the divorce is final. But if you have children, you have to continue parenting — a thorny task even in the best of times — with the person you just divorced.
In recent years, some lawmakers have tried to make this easier with a new idea called “equal time” parenting. The idea is that when a couple divorces, the parents should be presumed to have a 50/50 role in raising their children.
Kentucky and Arkansas have both adopted legislation requiring it be the presumptive standard in divorce cases. States such as New York and Michigan are also considering it. Florida Governor Ron DeSantis recently vetoed a bill requiring it.
But equal parenting is one of those straightforward, almost elegant ideas that the author H.L. Mencken warned are “neat, plausible, and wrong.”
As a longtime divorce lawyer, I understand the frustration that many fathers feel as they watch judges decide which parent should get custody. It does at times feel like the system is geared more toward recognizing mothers as the primary caregiver.
“Equal-time” laws promise to resolve that by presuming that each parent will be treated the same. Children will spend their time with each parent 50/50, and decisions will be made jointly. That can work — if the two parents get along, live close to each other and important places like schools and have jobs that are compatible with trading the kids off for blocs of time.
Then again, if that were true for most couples, they probably wouldn’t be getting divorced in the first place.
The truth is that most parenting arrangements are, like most divorces, messy and ever-changing. Divorced spouses have different approaches to parenting, different job needs and sometimes totally different lives.
Replacing a flexible court system that takes those differences into account and tries to come up with an arrangement that’s in the best interest of the child with a simple heuristic that everything should be 50/50 ignores all of that.
Equal-time laws also assume a magical parity between parents that doesn’t exist. The intention behind equal time laws is to avoid litigation and promote the concept that both parents are equally important in a child’s life.
But life doesn’t always work that way.
Parenting isn’t an exact science, with perfectly scheduled blocs of time. Most days, outside of school, life is random and imperfect for children as it is, and flexibility rather than rigidity is the key.
For parents of young children, especially, equal-time laws mean shuttling kids back and forth between two homes, which can be stressful at an age when being away from their home for a night feels like an eternity.
That is less of an issue for older kids, but there’s still the problem of travel. At a time when the U.S. housing market is particularly tight, it’s not always going to be the case that parents can afford to live near each other, which means more time spent in the car going back and forth between homes.
Finally, there are some parents who may not be fit to play that large of a role right away. Parents who are currently struggling with substance abuse or mental illness or who have been abusive toward their ex-spouse should not be given the same presumption of parenting time as those who simply decided that their marriage wasn’t working out.
By creating a presumption of parity, equal-time parenting laws actually empower these kinds of parents in the court process, which can only complicate things.
My clients sometimes come to me expecting divorce to be a bitter fight over who gets custody, with the non-custodial parent essentially losing. I explain to them that there’s no reason this has to be the case.
First, parents focus too much on custody. The child isn’t another asset that is awarded to one side; it’s a human being who forms relationships based on different activities and connections with both parents.
The point isn’t just the quantity of time you spend with your kids, it’s the quality of the time and frequency of time spent. Being at the sports events, Scouts, and driving the kids to and from friends’ homes is as important as the percentage of time allocated to the children by the court.
Kids don’t care about court orders – they want to spend time with both of their parents and avoid fighting and stress between them.
As a divorce lawyer, I’ve handled my share of custody cases, and I’ve seen many discussions over parenting arrangements veer into attempts to be mathematically precise about how much time each side gets.
I call these kinds of people “balance sheet parents.” The parents are obsessing over numbers rather than thinking about what is best for the children. In these cases, the kids are sadly beside the point.
Equal-time parenting laws would put every divorcing couple into a balance-sheet parent. Divorced dads deserve more time with their kids, and judges should take care to keep that in mind, but equal-time parenting laws take what should be a case-by-case decision and turn it into a hard-and-fast rule that isn’t always the best solution.