Shared Parenting—Have We Really Closed the Gap?: A Comment on AFCC's Think Tank Report

• Published date: 01 April 2014
• DOI: http://doi.org/10.1111/fcre.12080
• Author: Nadya J. Chmil,Maria P. Cognetti
• Date: 01 April 2014

SHARED PARENTING—HAVE WE REALLY CLOSED THE GAP?:

A COMMENT ON AFCC’S THINK TANK REPORT

Maria P. Cognetti and Nadya J. Chmil

This article provides a review of the final report of the AFCC ThinkTank on Research, Policy, Practice, and Shared Parenting

from our perspectives as practicing family lawattorneys. Specifically, we call into question some of the consensus points of the

think tank report, particularly related to the term “custody” as defined in family law.We also expound upon some of the legal

rules and doctrines discussed within the think tank report and consider the way some states refer to child custody in their

statutes. We agree with the use of factors in deciding custody arrangements on an individualized case-by-case basis upon

consideration of the best interests of the child,but also consider the reality of the cour t system todayand alternatives to the court

system such as alternative dispute resolution.

Key Points for the Family Court Community:

• The think tank report recognizes that the concept of child custody is evolving, yet the report is idealistic and falls short

in recognizing the reality of custody law and practice today in that our courts and legislatures cannot always keep up

with changing social and psychological beliefs and trends.

• The term “custody” can have several different meanings as it relates to family law, and it is important for practitioners

to be specific in identifying what form of custody is being sought after or referenced.

Keywords: Child/Children;Custody;Joint;Legal;Mediation;Parenting;Physical;and Shared.

The authors of the final report of AFCC’s Think Tank on Research, Policy, Practice, and Shared

Parenting, Marsha Kline Pruett and J. Herbie DiFonzo,provided an overview of discussions, points of

consensus, and outcomes related to family law addressed at the think tank held in January 2013.

Thirty-two professionals1convened to discuss the concept of shared parenting as it relates to child

custody, with an emphasis on the role that research plays in the process of legal controversy, decision

making, and policy formation. The authors have compiled the discussions and consensus points of the

think tank participants in their summary report, with the goal of developing the status of shared

parenting in today’s society.

The report outlines the social and legal changes leading to the emergence of shared parenting as a

major family law controversy; crucial and competing priorities among children, families, and the

state; the evidence that social science research brings to bear on potential policy; complications in the

application of shared parenting research to family law; presumptions and factors about shared

parenting and joint decision making; the role of family courts in shared parenting dispute resolution;

and future research. The report notes twelve consensus points reached by “at least a majority of the

think tank participants.”2The usage of “at least a majority” calls into question the level of agreement

compared with the level of dissent amongst the participants. This generalized language is a common

theme throughout the report. The report makes general assumptions and assertions based on an

ill-defined majority, without putting said majority into context or defining how different disciplines

at the think tank were represented within each of the majorities or minorities. The report is also

contradictory at times, leading one to believe that there may have been less of a consensus among the

participants than what was hoped to be achieved at the outset. Furthermore, it is clear that the think

tank would likely have benefited from the participation of a greater number of actively practicing

family law attorneys. Undoubtedly, the participants are well known and well versedin their respective

fields. However, it would appear that only one of the thirty-two professionals is presently and actively

practicing family law. Without the benefit of this particular legal perspective, that of the practicing

custody law attorney, it may have been difficult to reconcile some of the consensus points with the

FAMILY COURT REVIEW,Vol. 55 No. 2, April 2014 181–186

© 2014 Association of Familyand Conciliation Cour ts