In most countries, including the United States, court processes are designed for adversaries. A competitive, zero-sum model is used: one party wins something; one party loses what the other wins.
When a couple submits a dispute over custody of their child to a court, it generally will be inclined to deal with it in the same way it deals with all conflicts that are submitted to a court for resolution: It will try to determine a winner and a loser; the winner will be awarded a prize; and the loser will have to pay. The “prize” in a custody case, of course, is a child. To win the prize, the parties will have to compete against each other in a contest to determine which of them is better for the child. In this model, each parent has an incentive to prove the other is a bad parent, or at least a comparatively inferior parent. Since the stakes are high, the parties may be expected to use every possible means at their disposal to do this, so they will bring up – or make up – every fault and shortcoming of the other parent that they possibly can.
Unlike other kinds of court proceedings, in which very few, if any, aspects of the parties’ personal lives are relevant, in a custody war virtually every aspect of the parties’ lives – past, present and future – may be examined, and very often is. In a cruel inversion of 1 Corinthians 13:5 (“keep no record of past wrongs’), the adversary system often will reward the individual who has kept the most thorough record of past wrongs. If parents were not hostile toward each other before they entered into a custody proceeding, they almost certainly will be afterwards. And no matter how the decree is worded, the parties will believe that one of them has been officially declared the better parent, and one has been declared the worse parent.
In many cases, the victorious parent may develop an unhealthy sense of entitlement, privilege and power. The defeated parent, meanwhile, may be expected to resent the other, and either will embark on a quest to right the perceived wrong the court and the other party have committed; or will remove himself completely from the situation. Either way, the child is assured of growing up feeling embattled, guilty, depressed, confused, betrayed, abandoned and angry.1
Recognizing that the adversarial approach to allocating parental rights and responsibilities is a burden on the courts, unhealthy for parents, and detrimental to children’s psychological interests and well-being, some states are beginning to explore alternative methods of dealing with custody issues.2
Several states have enacted parenting plan legislation.
Parenting plan legislation requires or permits the parties to a custody dispute to detail how they plan to allocate decision-making and care-giving responsibilities between themselves. In a very small number of states, they are mandatory.3 In most states that have adopted this kind of legislation, however, they are voluntary.4
The three main purposes of parenting plan legislation are: (1) to shift the emphasis in custody cases from parental rights to parental responsibilities;5 (2) to involve the parties more directly in their own custody determination;6 and (3) to encourage and promote amicable resolutions of custody disputes without judicial intervention.7
To the extent it requires the parties to answer specific questions about how particular responsibilities are to be allocated between them, parenting plan legislation at least partially achieves the first objective. On the other hand, it does not seem reasonable – or for that matter, necessary — to expect parents to lose interest in preserving and protecting their rights simply because they are also thinking about responsibilities.
Parenting plan legislation also partially achieves the second objective. It does not really take the power to decide custody away from judges and give it to parents, though. Even if the parents reach an agreement that they believe is in their children’s best interests, a court retains the power to reject the parties’ plan and impose its own if the one the parents devise is not close enough to the one the judge believes is ideal for them.
A serious question exists as to whether parenting plan legislation accomplishes the third objective, i.e., whether it really yields more amicable settlements without judicial intervention. Achievement of this goal requires an assumption that parents are always motivated by a desire to act in their children’s best interests. That assumption may not be realistic. For example, experience teaches that when child support is inversely correlated with the custody designation, as it is in many states, each party will be motivated by a desire to acquire that designation in order to be the one entitled to receive support instead of being the one required to pay.
Even if the parties are able to agree on that issue, they will still have competing financial motivations. If child support is calculated on the basis of the proportion of time each parent has with the child, as it is in several states, then one party will have an incentive to seek more parenting time for herself in a parenting plan in order to attain a greater amount of child support, and the other will have an incentive to fight for more parenting time for himself in a parenting plan in order to reduce the amount of child support he has to pay.
Even if parents are able to put their self-interests aside, parenting plan legislation does nothing to help people who have reasonable disagreements about how their children should be raised and how time with a child should be structured between the parents.8 The fact that two people are committed to acting in their child’s best interest does not necessarily mean that they will be able to agree what that is.
Another defect with parenting plan legislation is that, in most states where it has been enacted anyway, it is merely permissive, not mandatory. So long as submission of a parenting plan is not mandatory, such legislation really does nothing to change the existing status quo. Parents have always been free to work out settlement agreements between themselves. The vast majority of custody cases were settled by agreement even before parenting plan legislation was enacted. There is no evidence that parenting plan legislation has had any effect on settlement patterns.9 If submission of a parenting plan is voluntary, only those parents who are already disposed to settle their custody dispute will be likely to utilize a parenting plan. Those who are not so disposed will continue to require a judicial determination. Unless the submission of parenting plans is made mandatory, such legislation really does not accomplish much other than add more detail to what must be included in the settlement agreements that are reached by those parents who are already disposed to settle their cases anyway.
Parenting plan legislation has also been criticized on the basis that many, if not most, parents do not know what kinds of custody or shared parenting options are available to them, or what kinds of arrangements are most beneficial to their children.10 Many laypersons assume that the maternal preference is still in force; or they do not understand the difference between custody and legal custody, or between legal and physical custody; or they have not heard or do not know much about newer options like joint custody and shared parenting. As may be expected, most laypersons who are not adequately informed on these matters will designate the mother as the sole custodial and residential parent simply because they believe that is how it has to be, or that fathers have no real legal rights in this area.11 To be beneficial for children, parenting plan legislation would need to be accompanied by a parent education program and, arguably, at least some involvement with a competent, unbiased mediator.12
A final criticism of parenting plan legislation is that it does not go far enough. If either party believes he or she is likely to receive a more favorable award in court than what the other parent is willing to give, then that party will likely opt for a decision by a judge. If the legal standard, or the way that courts apply it, is unfair, then parenting plan negotiations and the results they yield will be, too. Parenting plan legislation will work in a way that is fair and reasonable, and will operate in children’s best interests only if custody law, both in theory and in practice, is fair and reasonable, and operates in the best interests of children.
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- Thomas J. Walsh, In the Interest of a Child: A Comparative Look at the Treatment of Children Under Wisconsin and Minnesota Custody Statutes, 85 MARQ. L. REV. 929, 957 (2002) (recognizing that “laws can create tragic dynamics for the children of divorcing couples.”) ↩
- Mothers, fathers, children, attorneys and judges appear to be in agreement, on the whole, that the adversarial system is not a satisfactory method of deciding custody. See ROBERT E. EMERY, RENEGOTIATING FAMILY RELATIONSHIPS (1994); FRANK F. FURSTENBERG & ANDREW J. CHERLIN, DIVIDED FAMILIES (1991); Francis J. Catania, Jr., Accounting to Ourselves for Ourselves: An Analysis of Adjudication in the Resolution of Child Custody Disputes, 71 NEB. L. REV. 1228 (1992); Glenn Stone & Patrick C. McKenry, Nonresidential Father Involvement: A Test of a Mid-Range Theory, 159 J. GENETIC PSYCHOL. 313-36 (1998). ↩
- See, e.g., WASH. REV. CODE § 26.09.181 (2011). ↩
- See, e.g., MINN. STAT. § 518.1705 (2012) (permitting, but not requiring parties to submit a parenting plan; and authorizing but not requiring court to create one for them if they cannot agree; cf. WIS. STAT. § 767.41 (2011) (requiring each party to submit a parenting plan if the case is not settled or resolved through mediation); ) ↩
- C. Buehler & J.M. Gerard, Divorce law in the United States: A focus on child custody, 44 FAM. REL. 439-458 (1995); K. Czapanskiy, Volunteers and draftees: The struggle for parental equality, 38 UCLA L. REV. 1415-81 (1991); L.S. Hallmark, Chairperson’s message, 24 MICH. FAM. L.J. 1-3 (April 1997); R. Tompkins, Parenting Plans: A concept whose time has come, 33 FAM. & CONCILIATION CTS. REV. 286-97 (1997) ↩
- Heather Crosby, The Irretrievable Breakdown of the Child — Minnesota’s Move Toward Parenting Plans, 21 HAMLINE J. PUB. L. & POL’Y 489, 509 (2000); Walsh, supra note 1 at 957 ↩
- Walsh, supra note 1 at 957. Another purpose of parenting plan legislation is to produce more fact-specific, individualized custody decisions. Jane W. Ellis, Plans, Protections, and Professional Intervention: Innovations in Divorce Custody Reform and the Role of Legal Professionals, 24 U. MICH. J.L. REFORM 65, 70 n.10 (1990); cf. Audio Tape: Parenting Plans, 2000: Hearings on H.F. 3311 Before the House Civil Law Committee, 81st Leg., 2000 Reg. Sess., Tape 1, Side B (March 2, 2000) (statement of Rep. Andy Dawkins) (describing parenting plan legislation as having five goals: (1) reduce the number of custody battles; (2) eliminate the wounds caused by custody battles; (3) improve future relations between the parties; (4) maximize the involvement of both parents; and (5) make families healthier. ↩
- Walsh, supra note 1 at 972 (observing that parenting plan legislation “fails to recognize that parents can oftentimes have a genuine and reasonable disagreement about certain issues involving the raising of their children” and that “|t|hese ‘reasonable disagreement’ situations may not lend themselves to solutions with a parenting plan.”) ↩
- Id. (observing that “most couples who are disposed to reaching agreements with their spouse were already doing so without parenting plans.”) ↩
- See Joan B. Kelly, Developing and implementing post-divorce parenting plans: Does the forum make a difference? in NONRESIDENTIAL PARENTING: NEW VISTAS IN FAMILY LIVING 136-55 (C. E. Depner & J. H. Bray, eds., 1993) ↩
- J.W. Ellis, Plans, protections, and professional intervention: Innovations in divorce custody reform and the role of legal professionals, 24 U. MICH. J.L. REF. 65-188 (1990) ↩
- Kelly, supra note 10; Joan B. Kelly, The determination of child custody, 4 FUTURE OF CHILDREN 121-142 (1994) ↩