Sole custody should not be the norm following divorce or separation.

Reining in Our Nation’s Family Courts

Small-government conservatives have largely overlooked the fact that no branch of government other than the tax authorities intrudes more forcefully and intimately into the lives of Americans than do our nation’s family courts. And that where there is forceful intrusion, there is political opportunity — and danger for either party, if it allows the other to grab and run with the issue of family-court reform.

These courts routinely redistribute enormous amounts of wealth, destroy small businesses, mandate when and where parents can see their own children, order people to vacate their homes simply on the request of their former spouse, order people to sell their homes (sometimes unavoidably in an asset division, but often not), and even dictate whether they can change their careers by holding them to a demanding child-support order that could not be obeyed during a temporary decrease in income. 

Even worse is the negative impact they’re having on millions of children across our nation. The family courts continue to award sole custody to one parent after separation or divorce, ignoring the proven harm sole custody does to children compared with shared parenting (joint physical custody). And where does this authority come from?

A so-called “award” of sole custody to one parent is actually the removal of constitutionally protected parental rights from the other parent without any demonstration of a compelling state interest if both parents are fit.

Despite what many believe, shared parenting is uncommon. In fact, family courts award sole custody, usually to the mother, in over 80 percent of child-custody cases. Fortunately, nearly 20 states are now considering shared-parenting legislation to reform our family courts. Utah just passed such legislation.

Last year was a watershed for our understanding that shared parenting is best for children after parents separate or divorce. For instance, the widely respected psychologist Richard Warshak published a review of three decades of child-development research, and his conclusions were endorsed by 110 experts around the world — most importantly, his conclusion that “shared parenting should be the norm for parenting plans for children of all ages, including very young children.”

Later in the year, about 100 child-development experts met in Bonn under the auspices of the International Council on Shared Parenting and concluded: “There is a consensus that shared parenting is a viable post-divorce parenting arrangement that is optimal to child development and well-being, including for children of high-conflict parents.”