Should shared custody be the new norm?

When parents get divorced, Minnesota has a law that presumes each parent should have at least 25 percent of the parenting time with their children. That means that the custodial parent — meaning the parent with whom the child actually lives — will have 75 percent of the parenting time.

Most people assume that it’s the mother who will have that 75 percent of the parenting time. And, when I first started practicing family law, that was true. The mother was typically granted “sole physical custody”, and fathers would have every other weekend, a few extra weeks in the summer and some time during their children’s school break.

Historically, though, it has only since been the mid-20th century that women began to have sole custody of their children. Before that, men typically were granted sole custody in a divorce.

The conventional wisdom at the time was that it was better, for children, to be primarily with one parent or the other, for consistency and stability of the children. After all, the policy of the State has always been “what is best for the children” NOT “what is best for mom or for dad.”

There’s a movement underfoot to change the law, so each parent is presumed to have 50 percent of the parenting time with his or her children.

About 10 years ago, divorce lawyers started advising their clients to agree to a 50-50 custody split, where both parents had about equal time with the children. It took some time to gain acceptance, but now most divorce attorneys — and many judges and custody evaluators — agree that 50-50 custody is in the best interests of the children.

Children, for the most part, seem to adapt well to a 50-50 custody split. So much so that many practitioners want the law changed to make the courts presume that a 50-50 split is appropriate.

Not all families are ready to share equal custody of their children following a divorce. In many cases, it’s best for the children to be, primarily, with one parent over another, especially in cases of domestic abuse, inappropriate conduct, and battling ex-spouses. But the trend is to endorse a 50-50 custody presumption.

The State Legislature is sure to address the issue this session. Bills have been presented in the recent past that would create a presumption that parents should expect 50-50 legal and physical custody. There will be the opportunity to try to convince a court otherwise, but the court would be obligated to start from the assumption that joint 50-50 custody is best for the children.

But not all the evidence is yet in. I would be cautious expecting that each parent should have the same amount of parenting time. While divorcing parents almost always once loved each other greatly, most — at the time of the divorce — have ill feelings toward their spouse. It would be great if parents could get along to co-parent their children. But it’s naive to assume all parents will get along after a divorce. If they were so able to get along for the sake of their children, they probably wouldn’t be getting divorced.

I am nervous about changing the law to presume divorcing parents should share joint physical custody equally.

But I’d love to hear what you think.

E-mail me your thoughts at [email protected].

Pete Radosevich is the publisher of the Pine Knot News community newspaper and an attorney in Esko who hosts the talk show Harry’s Gang on CAT-7. Reach him at [email protected].