Throughout our American history, custody law has taken wide swings. Following English common law, American colonists awarded fathers exclusive custody of their children after a divorce so that he could benefit from their labor and earnings. Colonial mothers had no legal parenting rights.
A paternal legal preference continued well into the 19th century until the industrial revolution steered men into the workforce and mothers into a new realm of domestic housekeeping and caregiving. In the early 20th century, mothers were given custody of young children under the “tender years” presumption.
A social revolution has replaced the “tender years” doctrine with a “best interests of the child” inquiry. Father’s rights groups and a movement toward gender neutrality in custody decisions have raised awareness to the importance of having both parents in a child’s life.
However, the “best interests of the child” doctrine has given wide latitude to judges and sparked expensive and lengthy custody battles. Costly custody evaluations have become commonplace in custody litigation. Until the late 20th century, judges preferred awarding custody to one parent which promoted animosity and vicious litigation between parents.
As parents both pursued careers outside the home and began sharing child rearing responsibilities, shared custody began to emerge as a desired resolution. Research supported shared and equal custody plans, giving children the benefit of two parents and reducing the trauma of divorce for children.
Sharing custody is now emerging as a way of circumventing the adversarial dynamics of custody litigation. 50/50 parent time orders are now common in resolving petitions for custody, especially in “high conflict” divorce cases.
However, 50/50 parent time plans sometimes serve the best interest of the court system or the parents rather than the child. If you disagree, try living the most popular 50/50 plan, a 2-2-3 plan. See how you like spending Monday and Tuesday at one home; Wednesday and Thursday at another home; and then alternating homes for weekends. See how easy it is to sleep in different beds, adjust to different home routines, and keep track of all your stuff on a week to week basis!
A new concept has emerged that gives parents more freedom and control. Many state legislatures are now requiring parents to work together in designing a joint parenting plan rather than having one parent compete against the other for custody.
Parenting plans allow parents do truly decide what is in the best interests of their children. Parents can design a parent time schedule that works for their children as well as themselves. Parents can design shared custody plans in hundreds of creative ways.
Parenting plans empower parents to design their own custody resolution, saving time and thousands of dollars in litigation expenses. Parents can negotiate these plans on their own or with the help of a divorce consultant or mediator. The best parenting plans are detailed and flexible as families transform in the future and as the developmental needs of children change.
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