Column: Shared custody bill ignores reality

John F. Schaefer

Michigan House Bill 4691 would mandate shared custody of children in divorce cases with few exceptions. The law would ensure that no one parent would have more than 200 overnights with their children so that custody is “equitable.”

At first blush, this sounds idyllic and fair. Of course, parents should share equally in the custody of their children; of course, children would benefit from ample time with both parents.

Dig a little deeper, however, and there is a lot wrong with above assumptions and with this legislation.

No one would disagree that it is in the best interests of children to be raised by two loving parents dedicated to their children’s upbringing and wellbeing. This presupposes that every child has two such adults in their lives; that both parents are eager, willing and able -- mentally, practically and emotionally – to provide a loving home for their children.

That, as we know, it not always the case. Many people are not equipped to take on full-time parenting for a variety reasons ranging from time-demanding jobs to the simple fact they are simply not good at it. And, sadly -- it has to be said – many just don’t want to.

This bill also presupposes that all parents are able to get along well enough to co-parent their children and that conflicts in a shared custody situation will be at a minimum. Most people divorce because they can’t get along and concur on parenting issues. The stress from conflict and bouncing back and forth between households can be immense on children and, in the case of very young children, can result in very serious emotional issues.

This bill paints a Norman Rockwell picture of divorce that is not supported by reality. The American Academy of Matrimonial Lawyers has come out against the recent legislative movement toward mandated shared custody in Michigan and other states, and for very good reasons based upon real experience and solid research.

Every divorce situation needs to be examined carefully and individually because every family situation is different. This bill takes that careful judgment out of the picture. Child custody arrangements should take into account the child’s best interest, first and foremost and forever. This bill does not. It is intended for the best interest of some parents, and, I believe, is financially motivated.

If we truly want to do something to encourage parents spending more time with their children -- as proponents of this bill claim is their goal-- we should eliminate any relationship between parenting time and money.

Currently in Michigan, the number of overnights a parent has with his or her children, very much drives the amount of child support paid. That is the worst legislation ever passed. It discourages parents who receive child support payments to be agreeable to their children spending more time with the other parent as it would diminish that support.

Conversely, it has also bred parents who – although not truly interested in spending time with their children – seek overnight visitations to avoid paying higher child support. This results in domestic situations for children that are less than ideal on a lot of levels.

Parents should be encouraged to have their children spend time with both parents without a financial penalty or reward linked to it. This bill does not address this important issue.

Let us remember that children are largely powerless over family matters and the decisions their parents make in the wake of divorce. With the Child Custody Act of 1970, we have 47 years of case law giving judges guidance over a variety of child-related issues. To scrap that would an egregious error.

Each divorce is different and it is a mistake to mandate a cookie-cutter decision without careful consideration into the nuances of each family situation. Again, it is the child in child custody cases whose needs should be the priority, not a parent’s.

John F. Schaefer is founding partner at The Law Firm of John F. Schaefer.