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An Alternative to Child Custody Battles That Most Divorce Courts Don’t Use

Child Custody
An Alternative to Child Custody Battles That Most Divorce Courts Don’t Use

27 / January 2015

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An Alternative to Child Custody Battles That Most Divorce Courts Don’t Use

Surprisingly, laws that mandate equal parenting time may not always be in the best interest of the children.

A North Dakota voter initiative included in the November 2014 elections was reflective of heated nationwide debates taking place between courts, child custody attorneys, and parents regarding child custody laws.

The “Parental Rights Initiative” required “equal parenting time” to be awarded to both parents following a divorce or separation. The measure was defeated by a significant margin, 62 percent to 38 percent. However, the vote is only representative of the latest round in a volatile, controversial, campaign to reform child custody laws.

The child custody laws that family law attorneys and divorce attorneys adhere to today are a far cry from generations past.

In keeping with tradition, colonial Americans followed English common law rule that required the father to retain custody of his children following divorce. Colonial mothers were not granted with legally enforceable parental rights. In that case, a child custody lawyer could do nothing for the mother.

This parental preference continued into the 19th century. Accordingly, the 1848 Women’s Rights Convention in Seneca Falls — the first women’s rights convention in the states — listed the fathers’ automatic custody among its chief grievances. It wasn’t until the industrial revolution that women began to gain the legal upper hand, as men became factory wage earners and women emerged as domestic caregivers.

By the 20th century, the Cultural Revolution was well underway and the “tender years doctrine” exclusively awarded custody of young children to the mother following divorce. However, rising divorce rates in the 1960s left family courts and divorce lawyers with their hands full, sparking lively debates over parental roles and custody.

The campaign for gender equality and fathers’ rights called attention to the significance of co-parenting while reexamining the link between parental and gender roles. The social revolution of the 1960s aimed to uproot the “tender years doctrine” and replace it with more gender-neutral standards.

The end of child custody laws automatically favoring one parent over the other gave way to today’s “best interest analysis” where courts and child custody attorneys attempt to determine custody based upon what is in the “best interests of the child”.

Despite same, mutually agreed upon parenting plans are still the most desirable resolution for any divorcing couple. This requires both parents to collaborate in order to create a guideline for their children’s upbringing, including the allocation of parenting time (which may not be equal) and decision-making authority.

If you would like more information on parenting plans, contact the Macomb County family law attorneys at Iafrate & Salassa, P.C. for a free initial consultation.

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