It was bold, and possibly suicidal, for the Shared Parenting Council
of Australia to make 50:50 residency its seminal target for family
law reform.
Organizations around the world call for "equal parenting," but there
is scant agreement on its definition. What, exactly, is equal
parenting? How do you measure, much less legislate, it; how do you
know when you have it? Some use 50:50 residence for their definition
and will settle for nothing less.
There is clearly a need for some operational definition, the question
is, what?
For three decades, the laws of jurisdictions such as Pennsylvania,
Australia, California, and the UK have strongly supported, if not
equality, active involvement by both parents in the raising of their
children. That is the stated target of their laws. But to this day,
all these jurisdictions experience as high a rate of father
elimination as jurisdictions with less family-friendly legislation
such as Canada. Since judges can cite "best interests of the child"
to do anything they please, fathers are still ordered such
insignificant "visitation" without any protection of even that,
that only half of chid-father relationships survive the first two
years of divorce.
So those struggling to ensure that children have two parents
irrespective of marriage, now seek legislated, operational equal
parenting, not soft words and good intentions.
That is the political story behind 50:50 time. It's the only thing
believable. The question remains: what is equal parenting and how
well does 50:50 residence assuring it? Are there other options that
would create it just as readily, or better?
The most obvious deficiency is that it is as arbitrary as sole
custody. It presumes one size fits all, when not every family can
manage 50:50 time for any number of reasons including employment
and interest. But as a starting point to tailoring a couple's own,
unique arrangements, it puts both on a the same playing field. So,
were equal time presented as only an initial premise for further
negotiations, or only as a fall-back, it might make more sense to
more people.
The second shortcoming is that it omits parental decisions. It
hardly matters that your child spends half her time with you if
you have no say in whether she goes to school or not, or whether
his medical care comes from science or folk lore. Parenting is
neither time nor money. It is active care, and that care does not
always require the presence of the child. So another definition of
equal parenting is functional equality.
Early attempts to implement functional equality appeared as "joint
legal custody." But these laws, too, used soft words such as
"consult" and "joint" and "significant matters" without
operational definition nor means of enforcement. It has proved
another cover for sole custody.
That doesn't mean we should give up on functional equality, just be
better at its definition. For as long as we think equality is
sameness and both parents doing all the same things, it will not
work. Once we realize that equality is derived from our differences
and providing different things (differentiated parenting roles that
the parents themselves define), we may get somewhere.
The final problem with unqualified 50:50 time is Joan Kelly's
concern. Kelly has had an illustrious career as divorce counselor
and researcher and, though I've never heard her use the word "equal,"
is an advocate of children having both parents.
Yet she called presumed 50:50 residency, "irrational."
Scratching below the surface, Kelly may not object to it as a
principle so much as worry about its implementation. Infants should
have 4 to 24 hours with each parent at a time, and not be separated
from either for much longer. So if 50:50 is implemented as a weekly
schedule, it may work well for a seven-year-old but be a disaster
at six months.
The opposite problem appears at adolescence. Even at age 12, they're
not children any more. What matters to them is their peers more than
their family, and that there be one place their friends can always
find them. While 50:50 time is a good measure for all ages pre-teen
(so long as it is tailored to the child's age and temperament), it
can be damaging for many teenagers.
The answer may lie in a presumption of 50:50 time whose
implementation is left to the parents so they can tailor it to
their children's changing needs, when and as they need to.
Combined this with division -- or rotation -- of major parental
functions, and we may have something. That is, leave what is in
a child's best interests up to the child's parents, the same as
we do for married parents. (At least, so far we do.)
Assertions for equal parenting may only need some refinement and
clarification to gain broader acceptance.
Copyright © 2004 K.C.Wilson.
K.C. Wilson is the author of Co-parenting for
Everyone, Male Nurturing, Delusions of Violence,
and The Multiple Scandals of Child Support, all
available as e-books
at http://harbpress.com.
