Equality, I spoke the word as if a wedding vow,
But I was so much older then; I’m younger than that now.
–Bob Dylan (“My Back Pages”)
Debates about custody law reform typically are framed as disagreements about whether the law should serve the goal of parents’ rights, on one hand, or the best interests of children, on the other. Parents’ rights advocates vie for recognition of the right to be treated as equals under the law. Opponents contend the law should ignore what parents want, and focus instead on children’s interests and what best serves them, apparently assuming that recognizing parental rights does not.
Of course, this is a false dichotomy. It is entirely possible that it could be in children’s best interests for society to give recognition to parental rights. I have made that argument elsewhere.1 The belief that there is some inherent conflict between children’s interests and parents’ rights stems from a misunderstanding of what a “right” is.
There are a lot of misunderstandings about what “equality” means, too. A first step in any movement either toward or away from equality, therefore, should be to define the term. If it means different things, then the first step in any discussion about it should be to identify which meaning of the term is being employed in the discussion.
The multiple meanings of equality
According to Webster’s, “equal” can mean four different things:
(1) equivalency of quantity, quality, etc.;
(2) regarding or affecting all things in the same way, meaning that the things have the same status with respect to how they are regarded or affected; e.g., equal opportunity;
(3) free from extremes; tranquil; or
(4) capable of meeting the requirements of a task.
Only the first two definitions are pertinent to discussions of custody law.
The first step in any discussion of equality in the context of custody law reform, then, must be to clarify which meaning of the term is being used: equivalency of quantity, quality, etc., or being regarded by the law as having the same status.
Equivalency vs. equal opportunity in the custody context
As applied in the context of custody law, the dual meanings of equality would be:
(1) Equality of the quantity and quality of custody each parent possesses;
(2) Equality of status with respect to the right to possess and enforce custody rights (entailing a right not to be subjected to discrimination on the basis of sex.)
Put more simply, the difference is between equal time and decision-making power, on one hand, and an equal right to ask a court for (and to have a court make an award of) sole custody, on the other.
If breath were helium, then the quantity of breath that has been expended in debates over “equal” custody that have gotten nowhere because the participants were not talking about the same thing would be adequate to power a fleet of zeppelins for many centuries.
Legal vs. physical custody
In discussions about “equal custody,” it is also important to be clear about which meaning of the second half of the phrase is intended. Custody can mean two different things in family law. It can mean the legal authority to make major decisions about a child’s upbringing (sometimes called “legal custody,” or “decision-making responsibility”); or it can mean physical possession of a child (sometimes called “physical custody” or “residential responsibility.”)
Unfortunately, terminology is not consistent across states. Depending on the state, the word custody, standing alone, may refer only to legal custody; or it may refer only to physical custody; or it may refer to both legal and physical custody. If the Commission on Uniform State Laws were to issue a new uniform law on custody standards, a clear definition of the term would be a good thing to consider including in it.
Different meanings of “equal legal custody”
Given the two different meanings of equal, it should be obvious that the phrase equal legal custody is susceptible to two fundamentally different interpretations. It could mean giving each parent an equal amount of decision-making authority, or it could mean giving each parent an equal right to ask a court for an award of sole decision-making authority.
Equal opportunity, in the context of legal custody, would mean the equal right of fathers and mothers to earn decision-making rights, regardless of their sex. The decision-making rights so earned, however, could differ greatly in terms of quality or quantity from those earned by the other parent. So long as it is not based on sex, a parent could legitimately be awarded sole legal custody under an equal-opportunity model without violating anyone’s rights. An equivalency model, by contrast, would favor a joint legal custody outcome.
Although some people use the phrase joint legal custody in the equal-opportunity sense (arguing, for example, that it means courts should not discriminate against fathers in custody cases), I suspect most people who use it intend the equivalency sense.
Assuming it is being used in the equivalency sense, it then becomes necessary to define what equivalency means in the context of legal custody. Does the desired equality relate to the quantity of decision-making authority, or to the quality of it? Will a law giving each parent “equal legal custody” mean that each parent is entitled to make as many child-rearing decisions as the other parent does, or will it mean that the parents are to make decisions jointly with neither one having a superior right to “make the call” in cases where they are not in agreement?
Different meanings of “equal physical custody”
Similar considerations apply to the phrase equal physical custody.
To begin with, it could mean equivalency of the amount or quality of custody each parent has. Alternatively, it could refer to an equal status under the law, which, in turn, would connote equal opportunity under the law, not necessarily saying anything about amounts or quality of time.
Equality of status, in the context of physical custody, would mean the equal right of fathers and mothers to earn rights to physical possession of children, and to have courts decide the issue without discriminating on the basis of sex. The amount or quality of the time so earned, however, could differ greatly between the parents. Under an equal-opportunity model, a court could legitimately award sole physical custody to one parent alone, so long as it did not do so on the basis of sex. Such an award would be an equal rights violation only if the term equal is being used in the equivalency sense, not the equal-status/opportunity sense.
Most states that have adopted equality-oriented legislation in the context of physical custody have adopted the equality-of-status model rather than an equivalency model. For example, the Minnesota legislature, in Minn. Stat. § 518.003 (2014) has defined “joint physical custody” to mean only that “the routine daily care and control and the residence of the child is structured between the parties.” Nothing is specified about the amount of time each parent has with the child, much less about whether it must be equal or not. Minnesota has also enacted a statute, Minn. Stat. § 518.17 (2014) prohibiting courts from deciding custody solely on the basis of sex. These statutes clearly adopt the equality-of-status concept of equality, falling short of addressing equivalency with respect to quantity or quality.
In discussions about whether a right to equality in the equivalency sense should be made a part of the law of physical custody, then, the first issue that should be addressed is what equivalency means in the context of physical custody. Does the desired equality relate to the quantity of time each parent gets, or to the quality of the physical custody each parent gets?
Note that the definition the Minnesota legislature has provided identifies two distinct aspects of physical custody: (1) residence; and (2) “routine daily care and control.” The first part is fairly straightforward, but what does “routine daily care and control” mean? Remembering that legal custody means the right to make major decisions about child-rearing, “routine daily care and control” logically must be referring to a right to make minor child-rearing decisions. Examples might include such things as what the child will be served for breakfast, lunch and dinner; what style of clothing will be selected for the child; whether the child will be required to brush his teeth before going to bed; and so on.
Even when the equivalency sense of equality is intended, then, equal physical custody can mean different things. It can mean equal time; or it can mean equality of decision-making authority (or status) with respect to ordinary, every-day child-rearing decisions, during the time a child spends with the custodian; or it can mean both.
Those with an interest in moving custody law toward “equal physical custody” in the equivalency sense will need to consider whether it is to mean that each parent is entitled to spend as much time with the child as the other parent does, or whether it is to mean that neither parent has a superior right to make ordinary, everyday child-rearing decisions even while the child is in the other parent’s care. Or will it mean both things?
Why all this boring junk about definitions matters
It’s a fair question. The best answer is that being clear about definitions can help people avoid wasting a lot of time in pointless, unproductive debates.
As helpful as defining terms is in debates, it is absolutely critical when drafting legislation. Failing to be clear about the meanings of the terms used can have unintended consequences. In some cases it may lead to disastrous judicial interpretations.
Take the phrase equal physical custody. A court that is hostile to the idea of making an award of an equal amount of time to each parent could construe this term narrowly to refer merely to equal status as physical custodians. Under this interpretation, each parent would have the equal right to be called a physical custodian (as distinguished from a “visitor,” for example.) Each parent would also have an equal right to make his or her own decisions about the ordinary, everyday care of children while they are in his or her care without being required to take directions from the other parent. The court could then go on to hold that these things signify nothing about the amount of time each parent is entitled to spend with the children. If equality with respect to quantity of time is the desired outcome, then that should be made very clear in the draft legislation.
Conversely, law reform proposals that define physical custody solely in quantitative terms, or that are focused exclusively on ensuring that courts award “equal time” to both parents, run the risk of being construed as authorizing, or even encouraging, unequal awards of physical custodial status. Laws in some states require or encourage courts to strive for “substantial” or even “substantially equal” amounts of time for both parents. Courts in these states have not construed such requirements as necessitating awards of joint physical custody. A court can comply with a requirement of this kind by granting one parent sole physical custody, and then granting the other parent a “substantial” amount of visitation.
In a related vein, merely changing the statutory definition of “joint physical custody” to mean an equal division of time will not necessarily ensure that a court that orders a substantially equal division of time will be obliged to call the arrangement joint physical custody. It is not unusual for a court to name one parent the sole physical custodian while at the same time awarding 40%, 50%, or even a majority of the time to the noncustodial “visitor” parent.
It is always tempting to try changing an existing statutory definition of a term to get it to do more work than it currently does. For example, calls are often made to change a state’s definition of “joint physical custody” to make it mean an “equal or substantially equal division of time.” This may seem like a good way to prevent judges from nominally awarding “joint physical custody” to both parents while still only awarding 14% of the time to the father. Redefining joint physical custody in purely quantitative terms, however, can have some serious unexpected consequences.
To begin with, redefining physical custody in purely quantitative terms implies that the qualitative aspects of the former definition are no longer applicable. If, for example, Minnesota’s statutory definition of joint physical custody were changed to say “an equal or substantially equal amount of time,” a court could reasonable construe the amendment to express a legislative intention that a joint physical custodian is no longer to have the authority to make ordinary, everyday decisions about child-rearing while the children are in his or her care. A court could reasonably infer a legislative intent to require joint physicians to confer with each other about everything, even to the extent of requiring the parents to meet and confer with each other about the brand of toothpaste their children should use. Evidence that the parents are not willing or able to go to that extreme could then necessitate a finding that the presumption in favor of joint physical custody is rebutted and the court should therefore award sole physical custody to one or the other parent.
Another unintended consequence of defining joint physical custody to mean equal time is that courts would then have to deny joint physical custody to parents in those cases where an exactly equal division of time is not feasible. This could happen, for example, when the parties live so far away from each other that their children would have to enroll in two different schools in order for each parent to get an exactly equal amount of time with them. It could also happen in situations where the parents do not desire an exactly equal division of time, whether due to work schedules or for some other reason.
If a statute defines joint physical custody to mean an equal division of time, but an equal division is not feasible, then a court would need to either issue an unworkable order with which the parties cannot comply, or order sole custody instead. In most cases, the latter option would probably be the one selected.
A statutory definition of joint physical custody as an equal division of time would also significantly limit a court’s power to order joint physical custody when parents wish to share joint physical custody but do not want an exactly equal division of time. For example, if John and Jane Doe amicably agree to joint physical custody, agreeing that John will have the children for 4,382 hours of the year, while Jane will have them for 4,384 hours of the year, then a judge complying with the statutory definition would be required to name one of them a sole custodian instead of awarding the couple joint physical custody.
Rather than re-defining joint physical custody in purely quantitative terms (a la “equal or substantially equal time”), the better approach (assuming equal status and substantially equal time are the goals) would be to retain a qualitative component in the definition; or, if a statute does not already contain a qualitative component, then to add one.
Another option would be to adopt (or retain, as the case may be) an equality-of-status type of definition of joint physical custody or shared residential responsibility, while addressing the question of quantity of time separately.
This could be accomplished in Minnesota, for example, by retaining the existing definition of joint physical custody, while addressing in a different provision the amount of time each parent should be awarded.
Laws and law reform proposals having equality in custody proceedings as their objective should make clear whether the equality sought is equality of status (equal opportunity; freedom from discrimination); equivalence of quantity and/or quality (equal time, equal decision-making power); or both.
When equality in the equivalence sense is the objective, further care should be taken to specify the intended object of equivalence. Is the intent to talk about equivalence with respect to the quantity of time a parent spends with children, or equivalence with respect to quality, such as equal authority to make decisions about upbringing? If it is about equal decision-making authority, does it involve all decisions or only major ones, and does the equivalency relate to the quantity of decisions or to the quality of the authority?
Carelessly drafted legislation can have serious unintended consequences. Therefore, it is imperative to think very carefully about even the most basic things, like what the words equal and custody mean.
My book, The History of Custody Law, is available in paperback and Kindle e-book formats at Amazon.com:
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- Tom James, Parent, child and state: Choice and interest theories revisited (2013), available at https://www.academia.edu/10132229/Parent_Child_and_State_Choice_and_Interest_Theories_Revisited ↩