Biggest Child Custody Battles Playing Out in Statehouses

April 16, 2015 1:22 p.m. ET

Prompted partly by fathers concerned that men for too long have gotten short shrift in custody decisions, about 20 states are considering measures that would change the laws governing which parent gets legal and physical control of a child after a divorce or separation.

The proposals generally encourage judges to adopt custody schedules that maximize time for each parent. Some of the measures, such as those proposed in New York and Washington state, take an additional step by requiring judges to award equal time to each parent unless there is proof that such an arrangement wouldn’t be in a child’s best interests.

Critics of the bills contend that they threaten to take discretion away from judges and risk giving leverage to abusive men. They also say the laws are poorly targeted because typically the only custody cases that end up in court are ones in which former spouses are too hostile toward each other to effectively practice shared parenting anyway.

Supporters maintain that the opponents, which include many family lawyers and bar associations, are trying to keep alive an adversarial culture that leads to lengthy—and often lucrative—court battles. They say the law should better reflect recent studies that show children are better off when both parents play a meaningful role in their lives.

“If dad is subject to the typical ‘Wednesday dinner and every other weekend’ arrangement, he’s not doing the kind of parenting that benefits kids, making sure the homework is done, getting them up for school,” said Linda Nielsen, a psychology professor at Wake Forest University. In such situations, a father “is basically reduced to an uncle.”

Legal views on custody have swung considerably over the years. The “tender years” doctrine came into vogue early in the last century, said Donald Hubin, an emeritus professor of philosophy at Ohio State University who has written on parenting and parental rights. That doctrine stated a child should stay especially close to his or her mother during infancy and toddler years.

About 50 years ago, that notion gave way to the idea that custody should be decided according to a child’s best interest.

Advocates of shared parenting say the “best interests of the child” standard gives judges too much latitude to employ latent biases and unfairly encourages parents to diminish each other’s abilities in a public forum.