As reported in The Tennessean, a bill in front of the Tennessee legislature proposes to require custody to be split equally unless there is a showing of “clear and convincing evidence that one parent is unfit.” A clear and convincing evidence standard is a hefty one, lying somewhere between “more likely than not” and “beyond a reasonable doubt.”
The repercussions of this bill, if it passes, will be interesting to see; obviously, there are benefits to presuming that custody should be split equally, but there are also detriments to requiring such a high standard of proof. First, it should be noted that this only applies to cases wherein an agreement for custody cannot be reached by the parties (5-10% of divorces, according to article from The Tennessean linked above; this amount is presumably excluding divorces with no children involved). In cases with no foreseeable agreement and no clear and convincing evidence that one or both parents are unfit to have custody, it seems reasonable to presume that both parents should split the custody evenly. In cases where both parents played a major, if not necessarily equal, role in raising the child(ren) before the divorce, it is hardly fair to deprive one of custody. In some cases, one parent has stayed at home to raise children while the other parent has maintained a career to support the family – in those cases, it is reasonable to say that both have played a role in raising the child and that neither is an unfit parent, even if the working parent was not present with the child the majority of the time.
The detriments if this bill were to pass are many, however. Splitting custody equally, even between two equally perfect parents, is stressful to a child. If the parents live in separate school districts, where should the child attend school? Which parent’s house is the child going to recognize as “home?” A common solution, historically, to both of these has been to declare a primary custodian and then allow ample visitation during school holidays. If custody is to be split equally, though, having a child for two days on the weekend is not the same as five days during the work/schoolweek. If the parents live in different states, the complexities of actually fulfilling the order grow to the absurd – should the child be transported back and forth every six months and have no physical contact with the other parent for half a year?
In addition, if this bill passes it will likely be rare to see a contested divorce without accusations of unfit parenting being thrown around. Not only does this impact judicial efficiency, this also has a detrimental effect on the children involved. A cornerstone of family law has long been that the best interests of the child trump almost every other consideration, and further that each parent must make an effort not to insult the other in the child’s presence. This bill essentially offers a reward for doing just that.
Child custody is a major issue in most divorces and it is important to understand the rights and obligations of parents during and after the divorce proceedings. If you are involved in a custody dispute or divorce, you should seek legal counsel. For more information on custody and other family law issues, click here.