Closing the Gap: Research, Policy, Practice, and Shared Parenting

• DOI: http://doi.org/10.1111/fcre.12078
• Author: Marsha Kline Pruett,J. Herbie DiFonzo
• Date: 01 April 2014
• Published date: 01 April 2014

AFCC THINK TANK FINAL REPORT

CLOSING THE GAP: RESEARCH, POLICY,

PRACTICE, AND SHARED PARENTING

Marsha Kline Pruett and J. Herbie DiFonzo

TABLE OF CONTENTS

I. Overview......................................................................................................153

II. Definitions Relevant to Shared Parenting............................................................154

III. Social Changes Leading to the Emergence of Shared Parenting as a Major

Family Law Controversy..................................................................................155

IV. Legal Changes Leading to the Emergence of Shared Parenting as a Major

Family Law Controversy..................................................................................156

Presumptions in Custody Law: A Brief Historical Introduction...............................156

The Current Status of Shared Parenting Presumptions...........................................156

Domestic Violence and “Friendly Parent” Provisions.............................................157

Parenting Plans ..............................................................................................157

V. Priorities at Issue............................................................................................158

VI. The Evidence Social Psychological Research Brings to Bear on Potential

Policy Directions............................................................................................159

Shared Parenting: Sharing the Parenting Rather than Dividing the Time................... 161

Parent Involvement......................................................................................... 162

Young Children’s Overnights............................................................................163

Domestic Violence/IPV....................................................................................164

VII. Complications in Applying Shared Parenting Research to Family Law.....................164

Making Comparisons of Studies that are Not Directly Comparable..........................165

Research Rarely Answers the Specific Question Policy Makers are Trying

to Address.....................................................................................................165

Recognizing Trustworthy Research ....................................................................165

Static versus Dynamic View of Parenting............................................................166

VIII. Presumptions and Factors about Shared Parenting and Joint Decision making...........167

Presumptions................................................................................................. 167

Factors..........................................................................................................168

IX. Role of the Family Courts in Shared Parenting Dispute Resolution..........................169

X. Future Research .............................................................................................170

Shared Parenting Arrangements.........................................................................170

Parent Involvement......................................................................................... 170

Young Children and Overnights.........................................................................170

Domestic Violence/IPV....................................................................................171

Family Court Processes....................................................................................171

XI. Conclusion....................................................................................................171

Appendix: Think Tank Contributors...........................................................................171

Notes................................................................................................................... 172

References............................................................................................................ 173

Correspondence: mpruett@smith.edu

FAMILY COURT REVIEW,Vol. 52 No. 2, April 2014 152–174

© 2014 Association of Familyand Conciliation Cour ts

I. OVERVIEW

Shared parenting after separation or divorce is one of the most hotly debated issues in family law

today. Just as many parents are in conflict, professionals with different perspectives, experiences, and

educational backgrounds disagree about the best direction to take in both global family policy and in

particular cases. While professionals agree that children of separation and divorce fare best when they

have stable, healthy, and continuing contact with both parents, reaching a consensus about shared

parenting policy has been elusive. Professionals, as well as parents, seek guidance from both social

science research and the legal system. This sensiblequest must deal with two contrasting fluidities: the

change as experienced by individual families and the far slower flow of transformation in legislatures

and courts.

Shared parenting consists of two distinct conceptual and legal entities that are combined: joint

decision making (joint legal custody) and shared parenting time (joint physical custody). Diverse

opinions exist in the field about the appropriate policyfor each of these. Many professionals favor a legal

presumption of joint decision making, while some are opposed.1An even wider diversity of opinion

seems to exist regarding shared parenting time. One perspectiveis that parents should be encouraged to

agree to a significant minimum quantum of time for each parent unless there are reasons to conclude that

it would not be in their child’s best interest. Others contend that shared parenting time should be the

default presumption. Still others raise concerns about the wisdom of any legal presumption, particularly

in cases involving infants and toddlers, high conflict, and domestic violence. Some of these profes-

sionals take a more circumspect approach, contending that, because one size never fits all, parenting

time must be determined on a case-by-case basis, preferably by the parents themselves.These various

perspectives have been highlighted by recent legislative activity across the globe. Shared parenting

legislation has been passed in the United Kingdom, reversedin Denmark, and revisited in both Australia

and Israel. In the United States, a statute lengthening the minimum amount of parenting time was

recently passed by the Minnesota legislature, but vetoed by its governor, while a comprehensive

parenting law was enacted inArizona. Bills on this subject are being studied in numerous jurisdictions

and the pace of legislative proposals has been increasing over the past several years.

Across the range of views about shared parenting, experts agree on the need for reliable informa-

tion to better inform family courts, policy makers, practitioners, and parents. Social science research

has provided much of the information relied upon by the family lawfield, but researchers acknowledge

that the types and specificity of information desired and needed is not always available. Moreover,

research that is available and on point is not always interpreted or represented accurately in legal and

policy advocacy processes.

With an emphasis on the role that research plays in the process of legal controversy and decision

making, as well as in policy formulation, the Association of Family and Conciliation Courts (AFCC)

convened a think tank of 32 family lawexperts (e.g., legal experts, mental health practitioners, conflict

resolution practitioners, educators, judges, court services administrators, and researchers; see the

Appendix) to examine the issues surrounding shared parenting.2The think tank focused on the gaps

between research, practice, and shared parenting policy and began identifying where and howto offer

guidance to policy makers and practitioners.

Challenging and at times uncomfortable discussions were had over the course of the three-day

think tank in January 2013. It is notable that, among the group of professionals selected intentionally

for both their expertise and divergent perspectives, there were important points of agreement, evi-

denced by a majority view, although the conclusions and consensus statements do not reflect the

unanimous view of the participants. Areas of agreement typically revolved around general proposi-

tions, the specifics of which were debated as points of tension with areas of disagreement and dissent

were noted as they arose.

Regarding shared parenting time:

1. The most effective decision making about parenting time after separation is inescapably case

specific.

Pruett and DiFonzo/CLOSING THE GAP 153