Family court decisions can unfairly decide holiday family time

By Ryan Johnston and Chris Nelson, M.D.
National Parents Organization in Virginia

newspaperAre you celebrating the holidays with your children this year?  Are you wondering why I would ask such a question?  For thousands of Virginians, whether or not they spend a holiday with their children depends on the year and details of their custody agreements.

With America’s family courts consistently ordering “primary custody” arrangements, holidays are often big commodities and listed out in many custody arrangements.  While not required in Virginia, this kind of documenting (called a Parenting Plan by some states) is a very important place to start and should be required.  More than 80% of split families are unnecessarily ordered into primary custody arrangements – and only 30% of those have the father as primary custodian.  As more and more data supports the fact that shared parenting, after divorce or separation, benefits children the most, we must ask ourselves: What is taking our family courts so long to catch up to modern research?

A number of studies in 2014 and 2015 repeatedly show that the consistent, predictable and maximized presence of both parents in a child’s life will help that child’s intellectual and social development into a well-balanced adult.  These children show better achievement in school with lower dropout rates, less aggression (particularly in boys), higher self-esteem (especially in girls), and better overall mental health for all children.  In a word, it is far healthier for children to have close contact with both parents.

However, current Virginia laws promote the opposite.  Nothing could be more important than ensuring the welfare of our children, but in Virginia in 2015, nearly 573,000 children, or 32% of all children lived in single parent households, where contact with the other parent was minimal or even non-existent.  The truly tragic thing is that in many of these instances that minimal contact is unnecessarily ordered by our family courts.  While it is certainly prudent to limit contact in cases of documented abuse, the reality is that such situations are rare.  The vast majority of the time, there are two fit, loving and devoted parents, one of whom is relegated by the courts to the status of visitor in the lives of their children.  This is immoral, is directly against the best interest of children, and has to stop.  Children whose parents have divorced need both parents actively involved in their lives.  Updates to current laws are urgently and immediately needed to reflect what is best for children after divorce or separation, and also to reflect the modern, American family.

Current Virginia laws do not “officially” favor one parent over the other…nor does it presume shared parenting (a critical omission).  Instead, it lists some minimal criteria and then defers to the infamous and nebulous “best interests of the child.”  This “best interests of the child” standard can cause difficulties for our courts.  The clause lacks a formal definition and essentially allows each court/judge to rule as they believe, except in cases of abuse.  In Virginia, our courts have fallen into a rut, specifically that unwritten “standard deal” which statistically results in one parent being awarded “every other weekend” (less than 25% of the year) with their children.  Does this sound like the best interests of any child?  Furthermore, judges are not elected (or appointed) on any regular basis, and while they are required to take a certain number of hours of “updates” in law each year, those updates do not have to be related to family law itself.  Our judges could routinely miss out on the latest research on what is truly best for children, which only results in a disservice to themselves and to thousands of families and children across our state.

Some Virginia lawmakers and attorneys fear that a “rebuttable presumption of shared custody” would automatically cause some judges to order a 50/50 split no matter what, every single time.  Shared custody does not necessarily equal a mandatory 50/50 split of time – it certainly, if a judge thinks that is appropriate, but there are a variety of time shares that are not 50/50, yet still constitute shared custody.  We hope our judges know that they would still have the latitude to deviate from 50/50 wherever and whenever warranted.  If we cannot assume that our judges have the wherewithal and capacity to deviate, as they can, from a 50/50 starting premise, then we have a problem with the judges we appoint, not the law itself.  In a state that continues to move towards equality in all sorts of areas, why is Virginia not moving towards doing the same for our children?

For some of us, this year is not “our year” for the holidays. Our families will be a few short; while many of our custody agreements included the big holidays, they lost when it came to shared parenting. We are however grateful for our “better than the standard deal” when it happens. As we reflect on this year, we certainly count our families as blessings, and we are also thankful for organizations like the NPO Virginia Chapter. We are an organization of men and women, who seek to improve the lives of children and strengthen society by protecting every child’s right to the love and care of both parents after separation or divorce. We seek better lives for children through responsible family court reform that establishes equal and shared responsibilities and rights for every parent. Join us at www.nationalparentsoganization.org, and we will have one more 2016 highlight. Happy Holidays!

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