From the Rule of One to Shared Parenting: Custody Presumptions in Law and Policy

• DOI: http://doi.org/10.1111/fcre.12086
• Author: J. Herbie DiFonzo
• Published date: 01 April 2014
• Date: 01 April 2014

SPECIAL ISSUE ARTICLES

FROM THE RULE OF ONE TO SHARED PARENTING:

CUSTODY PRESUMPTIONS IN LAW AND POLICY

J. Herbie DiFonzo1

Child custody presumptions have formed part of Anglo-American law for centuries. Both the paternal preference rule at

common law and the tender yearsdoctrine that supplanted it in the nineteenth centur y signaled the law’sconviction that custody

was indivisible:after a marital breakup, children could be entr usted to onlyone parent, with the other an infrequent visitor. This

“rule of one” began to weaken in the last third of the twentiethcentur y,as the movement toward gender equality called attention

to the importance of both parents in the care and nurturance of children and loosened the link between gender and parenting

role. Left without a presumption to direct their custody deliberations, courts turned—often by legislative fiat—to the more

inclusive but less definitivebest interests standard. Although sole custody decrees were still the norm, some courts began to see

in joint custody an opportunity for a child to continue a strong and meaningful relationship with both parents. Courts,

legislatures, and commentators are changing the vocabulary of child custody to reflect the evolving reality of twenty-first

century family life. Parental responsibilities after separation or divorce are increasingly referred to as “decision-making”

instead of “legal custody” and as “parenting time” in lieu of “physical custody.” Calls for a 50/50 joint parenting time/physical

custody presumption have sparked controversy. In some states, legislation already aims to ensure frequent and continuing

parent–child contact with no specific temporal sharing formula. But putting any of these presumptions into effect in light of the

statutory “best interests” concerns make the court’s task—absent parental agreement—extremely complex. The interplay of

domestic violence and “friendly parent” provisionswith joint custody presumptions pose another ar rayof complicating factors.

Context is critical in assessing these statutory choices, on which no consensus currently exists. The task nowis to avoid using

the hard edge of legal presumptions to undermine the lived experience of children, while at the same time circumventing the

perils of unpredictable case-by-case determinations unguided by presumptions or preferences.The most promising efforts chart

a third course: nudging separating and divorcing parents into a frameworkthat encourages them to implement shared parenting.

Shifting the parental focus from litigating custody to jointly crafting a parenting plan also may serve to alleviate the worst

aspects of the trauma children often experience when their parents break up.

Key Points for the Family Court Community:

• Until recently, child custody presumptions adhered to a “rule of one”: courts generally insisted that only one parent

could properly be awarded child custody.

• Child custody law is movingtoward a norm of shared parenting, with frequent and continuing contact provided for each

parent.

• Legal terminology is also shifting to encourage collaborative parenting. “Decision-making” is replacing “legal

custody,”and “physical custody” is giving way to “parenting time.”

• A legal presumption of joint custody may mean no more than a generalized shared parenting arrangement, but applying

the emerging statutes and case law to award joint custody can involve a quite complex determination process.

• Shifting the parental focus from litigating custody to implementing a shared parenting plan may avoid the pitfalls of

litigating under the “best interests” standard either with or without a legal presumption.

Keywords: Child Custody;Decision Making;Parenting Plan;ParentingTime;Presumptions;and Shared Parenting.

INTRODUCTION

Presumptions have played a decisive role in child custody determinations. This article aims to

place these presumptions in historical context as well as setting out their current scope and policy

rationales, particularly in light of the current debate over joint custody presumptions and other

Correspondence: lawjhd@hofstra.edu

FAMILY COURT REVIEW,Vol. 52 No. 2, April 2014 213–239

© 2014 Association of Familyand Conciliation Cour ts

proposals. This article is also intended to provide the historical and legal background for this Family

Court Review Special Issue on the AFCC Think Tank Symposium on Closing the Gap: Research,

Policy, Practice and Shared Parenting. Five years ago, two prominent scholars wrote about the many

“paradigm shifts and pendulum swings” in child custody which had taken place in the preceding

half-century.2Those turbulent twists haveonly increased in momentum in recent years, and this article

modestly hopes to set the landscape for further discussion.

CHILD CUSTODY PRESUMPTIONS:AN HISTORICAL PRIMER

At common law in matters of child custody,the English did much as the Romans did. Well into the

late 18th century, ancient legalcodes assured f athers of absolute dominion over children and property.3

Courts dealing with marital dissolution were primarily concerned with the allocation of material

goods, and child custody doctrines evolved as a subset of property rights.4Colonial Americans

adapted these traditions to include a quid pro quo between father and child.5The male parent retained

a right to the physical custody,labor, and earnings of his children in exchange for the duty to support,

educate, and train them to earn their own livelihoods. Since custody was originally incident to

guardianship of lands, the father was seen as the natural guardian of the child. Thus, in virtually all

cases, common law courts awarded sole custodial rights to the father,unless the cour t had determined

the father to be an unfit parent. Colonial mothers, though deemed worthy of honor and deference, were

not endowed with natural or legally enforceable parental rights and responsibilities.

Beginning in the late eighteenth century, English courts invoked the doctrine of parens patriae to

sidestep paternal supremacy and further the welfare of children. Although a father’s custodial right

remained paramount, judges became more willing to balance a mother’s childrearing capabilities

against a father’s superior economic and political standing. These equitable, less formalized familial

notions took root in American courts, altering the concept of children as property and legitimating the

parental role of women. While nineteenth-century American courts acknowledged the common law

rule, they were confronted with tworelated cultural shifts: the industrial revolution’s remaking men into

marketplace wage earners and the emergence of a “separate sphere” for womenas domestic caregivers.6

Mothers were seen as the instinctive custodians for both young children and those with disabilities.

In following these dictates, courts crafted a “tender years” doctrine that allocated custody of young

children to their mothers upon divorce or separation. A mother was “God’s own institution for the

rearing and upbringing of the child,” and thus maternal custody placed “child culture in the hands of

an expert.”7The nineteenth-century cult of domesticity extolled wifely virtues and elevated mother

love to near-mythic heights. In the courts, paternal supremacy gave way to an almost reflexive and

routine application of the tender years doctrine. Progressive Era legislation fortified the role of the

state as parens patriae, increasing the powerof judges to evaluate parental fitness, and thereby further

undercutting absolute male authority within the household.

It took a social revolution to unseat the tender years doctrine and replace it with gender-neutral

custody standards. Mounting divorce rates in the 1960s and ensuing decades provokeda lively debate

about custody issues and parental roles. The movement for gender equality, along with the rise of

father’s rights groups, called attention to the importance of both parents in the care and nurturance of

children, as well as a loosening of the link between gender and parental role.8Meanwhile, the demise

of the tender years doctrine left courts without a presumption to direct their custody deliberations. In

lieu of gender-based theories, judges substituted the more inclusive but less definitive best interests

standard. Unwittingly, courts succeeded in burdening themselves with case-by-case custody determi-

nations, often involving a battle of experts, in lengthy and hotly contested custody litigation. What is

more, the best interests standard seemed to many to engender a risk of excessive judicial discretion as

well as a threat of inconsistency and subjectivity on the part of judges.

Courts in the 1970s began to realize that “the assumption a mother keeps the home, performs

household duties, and will have more time to devote to the children and their welfare” was simply not

true for many mothers.9Gendered doctrines also yielded in the face of an emerging belief that “what

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