It’s Time To Start Thinking About No Fault Child Custody Proceedings

A great op-ed piece in the New York Times by Ruth Bettleheim on February 18, 2010 tackles a important issue in the family courts: no fault child custody proceedings.  So called “No Fault Divorce” which is now 42 years old in California, paved the way for couples to get divorced based on “irreconcilable differences” and removed the parties’ need to state reasons for divorce.  The idea was to do away with much of the ugliness about actions and extracurricular activities that dog many marriages on the brink of failure.  In many instances, this has been a good thing for those of us who work in the family courts – it reduces our need to tell stories and name-call on behalf of our clients and it also reduces the he-said/she-said battles about infidelities and the like.  With much of that ugliness gone between the parents the leftover issues are usually centered around divvying up whatever is left of the family’s finances and deciding where the children will reside.

Unfortunately, support calculations follow the timeshare.  Because the “best interests of the child” standard is how the Court will determine with which parent the children reside (or at what percentage the children will reside with each parent), this often takes the ugliness that was restricted in the “no fault” divorce proceedings and pushes them into the custody and timeshare proceedings.

Support calculations are based on a rather complex formula that accounts for income differential and timeshare.  So, like it or not, timeshare battles are also typically battles over support payments.  Bettleheim notes this in her article and argues for support payments to be split from timeshare calculations allowing both parents to provide a decent standard of living for their children and then requiring mediation so that the parents can figure out how the child spends time with each parent.

Several thoughtful articles responding to Bettleheim’s piece have suggested that there are problems with this approach because the children’s best interests are constantly changing as they get older.

My suggestion, following Bettleheim, is that we use no fault support calculations based on income differential alone, usually a little more than one party wants to pay and a little less than the other party wants to receive.  Then we let parents work things out with strong mediators trained in the family law.  If they cannot work things out there would be some default custody rules – more like Massachusetts’ Father’s Bill of Rights bill that has been circulating in the legislature (see Boston Globe article here), which would have the judges consider joint parenting plans in making their decisions.  By removing timeshare from support calculations, we would likely get more fairness between the parents as agreed upon by the parents.

I have long advocated to both mothers and fathers that I represent that more equal time is better for everyone (usually – the exceptions are glaring and probably should be mentioned: physical, emotional or sexual abuse, drug abuse, or neglect).  What I argue is not grounds for unequal timeshare that really boils down to: the other parent does it differently than I do (i.e., the routines are not the same; the child won’t sleep in his or her “own bed”; the food is not the same; bedtimes are later, is too strict; is not strict enough, etc. ).

We can continue to proceed down the path we are on, but I think the Courts are a little overwhelmed, good fathers are being lumped in with the old, worn stereotype of the “disengaged” or worse “bad” father, and moms who become single mothers often end up overburdened and frazzled trying to work, do all of the childrearing and have a life at the same time.  But the support factor often keeps everyone fighting over timeshare.

Going forward, the family bar and the California Superior Courts should begin to think about how they can get fathers and mothers on board with a system that recognizes each parent’s talents and the children’s need to know them both at their best and on a daily basis (e.g., to see that dad’s house has the structure and rules that come with daily life and is not just every other weekend Disneyland and that Mom’s house can be fun and playful and full of life when she has time to herself every week).