It’s often said divorce brings out the worst in people. This is undoubtedly true, but in many cases well-meaning judges often inadvertently make a bad situation worse.
Two recent cases illustrate this problem. In the first case, a stay-at-home mother in a small town had an extra-marital affair, which led her husband to file for divorce. Their neighbors ostracized the mother to such an extent she decided to move 150 miles away and take the kids with her. The father, who had been an active part of the kids’ lives, understandably didn’t want this to happen since he would now see his children only infrequently. While the judge was very troubled by the facts before the court, the mother was allowed to move and take the kids with her. Not only will the kids now see their father only infrequently, they also were uprooted from the only home they had known as well as from their schools, friends and extended family. The judge’s decision relied heavily on the fact that the mother had been a stay-at-home mother and, in the judge’s eyes, had historically been the “primary” parent.
In the second case, a military father deployed overseas returned home to discover his wife engaged in an extra-marital affair. He filed for divorce and, even though he had been an active parent, the court awarded sole custody of his children to his ex-wife. He now sees his children only every-other-weekend. The judge in this case also based his decision on the notion that the mother had historically been the “primary” parent.
Many people are troubled by these cases because it appears the guilty party was rewarded and the innocent parties wronged. The initial outcomes certainly seem unfair. However, this isn’t the worst part of these decisions. Not only are the initial outcomes unfair, these decisions put the children at risk for very negative long-term consequences.
Children affected by divorce fare worse, on average, on nearly every measure of health and emotional well-being including a greater risk of academic problems, alcohol and drug use, poor social skills, depression and suicide, delinquency and incarceration, and poorer physical health and early mortality. The reason for all this has much to do with the fact that one of the two most important people in a child’s life is often relegated to the role of an infrequent visitor, as the above examples illustrate.
This problem may have far-reaching repercussions for all of us. Adam Lanza, the Sandy Hook school shooter, is reported to have gone downhill when divorce separated him from his father. One leading researcher calls this issue “a serious public health problem.”
These cases are based on the myth that one parent is the primary parent. Judges often decide cases this way even though there is no legal or mental health basis for it. More than three dozen studies over the past 20 years have found that when both parents are loving and competent, which is the case most of the time, a shared parenting arrangement -- with joint decision making and near-equal parenting time -- provide the best outcomes for their children.
This myth seems to have arisen from a legal presumption called the “approximation rule,” which was proposed more than 20 years ago and eventually rejected. Nonetheless, many lawyers, psychologists and judges still follow it because of its superficial neutrality and simplicity. Like many simplistic solutions, however, it’s simply wrong.
Besides creating bad outcomes for children, the approximation rule also encourages the very thing it originally hoped to prevent -- parental conflict. This pernicious myth is so destructive that many states have now moved away from it.
In Arizona, for example, that state’s custody law previously allowed judges to consider “whether one parent, both parents or neither parent has provided primary care of the child” when making custody decisions. The Arizona legislature has repealed this language and now directs courts to maximize the parenting time of both parents whenever possible.
In Nebraska, unfortunately, sole custody is still the norm. Mothers are awarded sole physical custody in 62 percent of cases and fathers in 10 percent of cases. Joint custody is awarded in only 25 percent of Nebraska divorces.
There is no legal or medical basis for the primary parent myth. Scientific research shows that every-other-weekend parenting time arrangements are harmful to children, yet they still are ordered routinely in many cases. The Legislature should stop this public health crisis and make shared parenting the norm in Nebraska as it has become in other states.