Faculty Notes

Prof. Herbie DiFonzo’s Presentation on Shared Parenting Featured in Mediation Report

J. Herbie DiFonzo, Professor of Law

A lengthy summary of Professor J. Herbie DiFonzo’s plenary presentation “Shared Parenting Yesterday, Today, and Beyond” appears in the Spring 2015 issue of Mediation Report, the newsletter of Arnold Swartz and Associates in Lakewood, Colorado.

Professor DiFonzo delivered the presentation on March 13, 2015, at the Boulder & Metro Denver Interdisciplinary Committees Annual Conference in Westminster, Colorado.

The newsletter article appears below.

Parenting Time Presumptions

This article is a summary of a recent presentation in Colorado by J. Herbie DiFonzo, a professor of law at Hofstra University. The subject matter is quite timely since there is a bill pending in the Colorado legislature to establish a “substantially equal” parenting time presumption.

Over the last few centuries there has been an evolution of presumptions about child custody arrangements, which reflect changes in society and culture. From the earliest days of our country until well into the 19th century, we adopted the English common law rule that fathers retained custody of their children. Starting in the early 20th century, there was a shift to the “tender years doctrine” which gave preference to mothers, especially for young children.

Starting in the 1960’s, parallel with the changes in gender roles, there was a loosening of the presumption in favor of mothers. However, there still was a strong preference for arrangements that resulted in children living primarily in one household. It wasn’t until the late 20th century that a movement recognizing the importance of both parents’ role in child rearing began to take hold. As a result, joint custody became more and more acceptable.

Since 2000, there has been a trend away from “custody” and towards “shared parenting”. (Colorado was well ahead of the curve, as it changed from custody to the allocation of parental responsibilities in 1999). The overall approach is to develop a parenting plan based on the best interests of the children, which delineates a specific shared parenting time schedule as well as determines how major decisions about the children are to be made. It is left to the parents to design a plan that works for them and their children. A “custom made” plan, if you will.

In recent years, there has been a movement in different parts of the country for a presumption of equal parenting time. Many professionals who work in the area of divorce believe that a presumption based on a formula is no better than a presumption in favor of dad or mom. A formulaic presumption is focused on fairness to the parents. A general presumption of shared parenting is focused on the needs of the children because it leads to a parenting plan based on specific factors that are applied to each family.

One of the arguments for a formula is that it will reduce the amount of custody litigation. However, there is no evidence to support that notion. Such a presumption shifts the burden of proof to the parent who does not believe that equal parenting time is the best option for his/her family. This becomes more problematic if the standard for overcoming the burden is endangerment as opposed to best interests. If divorcing parents are inclined to fight, the focus of the fight becomes what structure they will use for the equal parenting time schedule.

One of the reasons parents often want their children exactly 50% of the time is a desire to play a significant role in their lives. A child can have a meaningful relationship with each parent if they have regular and frequent contact with that parent, even if the amount of time is less than fifty percent. Most researchers consider joint physical custody or joint parenting time to mean that the children are in the care of each parent at least thirty to thirty-five percent of the time.

Taking the view that divorce requires a “reorganization” of the family rather than a “dissolution” of the family, a parenting plan becomes the blueprint for that reorganization. Since every family is unique, it seems more appropriate to develop a plan based on that family’s circumstances rather than to apply a rigid formula.