Should shared custody be the new norm?

Posted on Jan 5, 2018 by Katie Carter

When it comes to custody, there are a lot of opinions out there. If you’ve stumbled across our site, you’re probably one of us. That is to say, you’re likely an advocate for women in divorce and custody cases.

Custody cases are hard. There are so many emotions involved. And, unlike in divorce, there’s no hard and fast rules about how things are divided. After all, you can split a pension, but you definitely can’t split a baby. …Right?

More and more of the time, we’re seeing shared custody arrangements take center stage. Whether by agreement or because mom and dad have litigated their custodial arrangement in the circuit or juvenile courts, shared custody is happening more and more often.

What is shared custody?

Because I do this every day, I sometimes take for granted that regular people don’t know what shared custody means. There’s this idea out there that shared custody means – quite literally – splitting the baby. Well, not physically, obviously, because that would be totally awful and brutal and no court would do that, but literally in the sense that the baby’s time would then be split between parents.

Shared custody, though, doesn’t mean a 50/50 split necessarily – though it could. Shared custody mostly means that both parents have a greater role in the childcare responsibilities than under a primary physical custodial scenario (where the non custodial parent, the parent who has the child less, has 89 or fewer days with the child in a calendar year).

Shared physical custody means that the non custodial parent has the child 90 or more days per year. It could be as few as 90, or as many as 182.5—splitting the year exactly in half. The degree to which custody is shared depends on the parents, where they live, what their work schedule is like, and so on (and, of course, what they’re able to agree to or what the judge awards).

Shared custody sounds awful!

Most moms come to us with the goal of getting primary physical custody, or, sometimes, sole physical custody. As a mom myself, I can understand how scary it must sound to have so much time away from your kids.

In most cases, though Father’s Rights groups tend to make much of the idea that moms are controlling and want to relegate dad’s to a sideline position when it comes to parenting, I think it has less to do with control and more to do with being the kind of mom you want to be. The kind of mom who, in the most simple terms, is there every morning when her child wakes. Who celebrates major holidays with the child. Who is present at every point in the child’s life.

It’s hard to do that with shared custody. It’s hard to go from a point where you were present at every turn to an arrangement where your presence at every moment is no longer acceptable. Where dad can physically oust you. I haven’t been there personally, but I’ve been there alongside lots and lots of clients, friends, and family members as they grapple with potential custody arrangements and family changes.

Advantages of Shared Custody

That’s not to say, of course, that there aren’t advantages to a shared custody arrangement – even if you can’t see it right now. More and more judges are ordering shared custody anyway, at least in cases where custody is litigated (as opposed to cases where parents reach an agreement regarding custody and visitation).

Shared custody would give you some “me” time. Time to go back to school. Hang out with girlfriends. Get your nails done. Go grocery shopping. Go to the gym. Whatever your thing is (or was, before you had kids), you’ll have time to do it.

There’s also some credence to the argument that kids do better when both parents are involved. Though that evidence doesn’t specify a particular custodial relationship (that is to say, there’s not some magical difference between kids where parents have shared versus one having primary physical custody), there is a definite benefit to children having both a loving mother and father present.

Most of the evidence DOES say, though, that children are happier and better adjusted when their parents get along. That might be unsurprising, but lots of parents fight and fight and fight over their kids, using them as pawns, and that, obviously, can be damaging. There are certainly benefits to stopping before your custody case rises to that kind of level.

Disadvantages of Shared Custody

You probably don’t have any difficulty in seeing the disadvantages of shared custody. First and foremost, it means less time with your kids!

It also, maybe surprisingly, means less child support. The way the law in Virginia works, a non custodial parent has to pay less in child support if he takes on more of the childrearing responsibilities. That makes sense, if you think about it – if he’s taking the children more, he has to have a dwelling suitable for them (rooms, beds, etc), he has to feed them, has to provide them with clothes, has to pay for some of their activities, on and on and on.

In practice, it’s often not quite so clear cut. Just because a dad has the kids more doesn’t necessarily mean that he’s providing those necessities of life. I’ve heard of dads borrowing all of mom’s stuff (clothes, toys, etc), and refusing to return them at the end of visitation. It might not be a big deal in the case of, say, a pair of flip flops, or a single dance leotard, but it can become a bigger and bigger problem in the case of more expensive items not being returned. In many cases, it’s still mom who bears the financial brunt, and there’s no way to counterbalance the presumption that dad’s increased childrearing responsibilities will result in him taking on a bigger financial responsibility.

Should shared custody be the new norm?

Personally, I think no.

These days, most custody decisions are made by looking at the best interests of the child factors, and taking into account what’s best in certain, specific circumstances for each particular child. There are those who argue that automatically awarding shared custody doesn’t take those circumstances into account – and, I have to admit, I count myself among that number.

Though I support dads taking on an active role in children’s lives, it doesn’t necessarily follow that shared custody is the best arrangement. It could be, I suppose, but it’s often not, especially not if you follow the week on/week off model that, lately at least, I’m seeing courts gravitate towards.

More and more states are supporting shared custodial arrangements, and the days are long past where moms experienced preferential treatment in the courtroom. These days, custody isn’t so much a win/lose proposition (which is maybe reassuring) in the sense that it’s not like you’ll often (though it can happen) come out with only visitation, but it can be a dramatic shift in the way moms like to think about their families.

What’s best? Well, it’s hard to say. As an attorney representing moms only, I see mostly one side of things. As a mom myself, I have to admit, I tend to agree. But if you’re a mom facing a Virginia custody case, it’s all very unsettled, and it’s hard to know exactly what will happen. One thing’s for certain, though: you’ll want an experienced Virginia custody attorney on your side to help you navigate this particular minefield.

For more information, request a copy of our custody book for women only or one of our free reports, covering all sorts of issues moms with custody cases face – relocation, sexual and physical abuse, reunification, how moms lose custody, and more. Need help right away? Schedule a consultation with one of our attorneys today by calling 757-425-5200.