In “Equal Custody Between Parents Should Be the Legal Norm,” Attorney Fred Silberberg argued that many custody cases are tied up in court, when, really, both parents should be considered equal parents to the children from their union, just as property owners are considered “equal” owners of their joint residence. He states, in part, that “We let things take their course naturally and people have children whether they are good parents or not. It is not until the parents can’t get along any further that someone is now called upon to determine whether it is in the children’s ‘best interest’ to spend time in the primary care of one parent or another, or whether that arrangement should involve an equal timeshare.”
While he makes a valid point, it is yet to be seen if equal parenting would truly benefit from being statutorily mandated. Like property ownership, it is often the case that one partner has a more prominent role. When a family breaks up, there are shared parenting arrangements, designed to be in the best interest of the children. When one parent works longer hours or is away more, it makes sense that the other parent spends more time as the defacto custodial parent. Should both parents automatically be awarded equal custody when the parenting roles were not equal?
As I see in my own practice far too often, a custody case, as difficult as it can be, is also the time where parenting issues can be raised. If there is concern regarding parental behavior, it is often one where there clearly should not be a presumption favoring joint physical custody and shared parenting time.
Mandating joint custody does not allow for case-by-case decision making, and deciding parental custody for each child continues to be in each child’s best interest.