In my work writing about women, money and family in the United States, there are two prevailing issues:
- Dads who do not live with their kids are barely involved. (Just 22% of dads who live apart from their children see them more than once weekly, per Pew.)
- That pay gap will. not. close.
Here’s the answer:
Start all custody negotiations at a default 50/50 equally shared parenting time and custody, with no child support or alimony.
- Child custody in divorce: Common terms
- 50/50 custody states
- Joint custody and child support
- How does time-sharing affect the pay gap?
- Why is child support so unfair to fathers
- Child support reform promotes father involvement
- 50/50 parenting and time-sharing
Child custody in divorce: Common terms and FAQ
How is child custody determined?
How child custody is determined for separated and divorced parents varies widely from state to state and community to community. You can ask an attorney in your area what to expect, as well as look up the custody laws for your state. The following can be considered when determining the parenting schedule:
- Willingness of each parent to be equally involved
- Most recent parenting arrangement — if one parent has been more involved in the child’s care, a judge may want to continue that
- Parents’ schedule — how much time do parents have outside of work and commute to spend with the child?
- Parents’ proximity to one another — does one parent live far away, requiring a long commute to school or the other’s home? Does one parent live out of state or the country?
- Past or current struggles that may suggest a threat to the child: Mental health, addiction
- Abuse of the other parent or child
- Reliability. If one parent has a history of not showing up, or arriving late to switch off the kids.
- Parent’s gender. In most states, judges are not required to state why they order any particular parenting schedule. However, some determine these orders based on sexist notions that mothers should be primary caregivers.
Best interests of the child
Historically and to this day, child custody cases defer to “the best interest of the child” — an arbitrary term that was once rooted in early social sciences that found that children bond deeply with one adult, and less so with other, secondary adults.
This research has been over-run with dozens of studies that find that approximately equal parenting time between mothers and fathers (or two moms and two dads, for gay families) is the best interest of the child.
Best interest of the child standards and its wide room for interpretation promotes highly contentious divorce proceedings that have been the norm for decades.
Types of custody
Custody is a broad term. Here is what you need to know about child custody in divorce:
Legal custody refers to the legal rights a parent has to decision-making rights for major issues, including education (which school the child attends), religion, and medical decisions.
Physical custody refers to who has the majority time with the children — this can refer to sole physical custody or shared physical custody.
Joint custody or shared custody
Joint legal custody is the most common agreement, in which both parents have equal rights to have a say in major decisions affecting children, including medical, education, religion, and where the child lives.
Sole custody or full custody
Sole custody means that one parent has all the legal rights to make major education, health and legal decisions about the child’s — and all or most of the time with the child.
Visitation, or time-sharing, or residential custody are all terms that refer to the amount of time the children spend with each parent. Children live with parents who have “primary physical custody.”
50/50 custody / parenting time
Several states have officially changed their laws to require that reference to child custody be referred to as parenting time. 50/50 parenting time can be called many things:
- Equally shared parenting
- Joint physical custody
- Shared residential custody
- Shared physical custody
- Equal legal custody
- Equal parenting time
In this post, I’ll use the term “50/50 custody.”
Is joint custody the same as 50/50?
Custody term definitions really depend on where you are who you are talking to, so it is best to ask for clarification. Custody can refer to legal custody or physical custody. Both types of custody can be split equally, or one parent can be granted primary or sole custodian of the child — in regards to either/or legal or physical care.
Who claims child on taxes with joint custody?
Which parent claims the children on taxes with equal parenting time can be decided between the parents, and with the help of an accountant, you both may be able to work out an arrangement that saves you both on taxes. However, if you can’t figure this out yourselves, your state’s family law may have a law that will guide you, or a judge will make the determination.
What rights does a father have with joint custody?
Technically, if parents have equal custody, they both have equal say in how the child is raised regarding large decisions, equal time with the children, and the right to parent how they like during their parenting time.
Unfortunately, it can be messier than this.
What is the disadvantage of joint custody?
I have studied parenting for single parents for nearly a decade and I have seen no real evidence in the scientific literature to find any large-scale negatives for equally shared parenting. Children fare best when they spend equal time with both parents. Mothers earn more and are happier and more well rested when they share parenting time equally with their kids’ parent. And men who are engaged fathers are suffer les mental and physical health issues.
On an individual level, some parents may not want to share parental control, or miss out on time with their children.
Can a mother refuse joint custody?
Anecdotally I know that women are raised to believe we are the dominant parent, and we behave accordingly. The question here only supports this notion that mothers have within our power to refuse or grant father access to their own children.
Technically, mothers do not have this power in any state. However, mothers do have an upper hand in the domestic sphere and in family court, and when in question, most judges do grant mothers primary parenting time.
Why would a judge deny joint custody?
There are many reasons a judge would deny equal parenting time, or order an unequal parenting schedule:
- One parent has a history of abuse of any kind
- One parent has a history of addiction
- One parent has a history of mental health issues
- One parent has unstable housing
- The judge is not educated about the most recent, and very established science that proves that children fare best when they spend equal time with both parents, and instead defaults to erroneous presumptions that children need on primary home
- The judge is sexist and believes mothers are better parents
- The judge is sexist and has a history of punishing women
- The judge is sexist and has a history of punishing men
- The judge is jaded after hearing too many false allegations and grants primary time to the accused parent
- There is evidence of parental alienation, and the judge grants primary time to the alienating parent
- One parent wants less than 50% parenting responsibility and time
- An equal parenting schedule would dramatically reduce child support for one parent, and the judge wants to prevent that
- The judge owes one of the parties’ attorneys a favor, or is otherwise a friend
- The judge is sick of one parent filing frivolous and petty claim and is retaliating
- The judge is having a bad day and one parent ticked her off
The ambiguity about what to expect in family court is a good reason to find a way to stay out of family court if you can. Here is a free parenting plan template you can use with your kid’s other parent, or with a mediator. You can come up with your own agreement, and file it in your local court if you prefer, saving you untold sums of money, time, stress and loss of control.
50/50 custody states
In 2017, Kentucky became the first state in the country to pass an equally shared parenting law, one which creates a rebuttable presumption of equal parenting time for separated and divorced parents. That means that when you split in Kentucky, time with the kids is equally split in half — and the onus is on one parent to argue the other should have less time.
Within two years of the law passing, the number of family court filings in Kentucky dropped by more than 11%, and the number of family court filings involving domestic violence dropped by 4%.
Other states including Arizona, Missouri and Minnesota also have very progressive and strong shared-custody laws, and at any time about 20 states are debating legislation that would do the same.
However, there is a long way to go. In 14 states, when parents are not married when the child is born, sole custody is automatically awarded to the mother, even when the father signs a paternity acknowledgment form.
Joint legal custody is the most common agreement, in which both parents have equal rights to have a say in major decisions affecting children, including medical, education, religion, and where the child lives.
50/50 time-sharing means that the time the kids spend with both parents is approximately equal.
It is very common for parents to be awarded joint legal custody — presumably deeming both fit enough to make sound decisions for their children. However, equal parenting time far less common.
Neither joint legal nor joint physical custody automatically have any bearing on one another, nor any child support paid. In other words:
A father with 50/50 custody can pay child support — and even alimony.
Who pays child support with joint custody?
Each state has its own laws and child support calculator and in some of them the sum of time each part spends with the children is factored into the sum owed.
However, there is no state in which equal parenting time equals no child support owed. That said, parents can make any agreement between them and deviate from their local family court child support standards, and agree on a 50/50 time-sharing with no child support paid to anyone, while the parents figure out how to equitably split out-of-pocket expenses like health insurance, child care and extracurricular activities.
While there is a great movement towards 50/50 equally shared visitation time, the majority of family courts still default to some version of a model that has prevailed in separated families for decades:
- Dad pays mom child support, and maybe alimony.
- Mom is the primary custodian and dad gets the “Friday night special” — every-other-weekend, and Wednesday night dinners.
This antiquated arrangement only reinforces the sexist notions:
- Women are incapable of supporting themselves.
- Fathers are inferior parents.
- Women’s job in society as unpaid caregiver, financially dependent on a man.
- Men’s job in society is to be the breadwinner, reliant on a woman to care for his loved ones.
These notions are supported by Pew research findings:
About three-quarters of Americans (76%) say men face a lot of pressure to support their family financially, compared with 40% who say the same about women. And while about two-thirds (68%) say men face a lot of pressure to be successful in their job or career, fewer than half (44%) say women face the same type of pressure.
By contrast, far larger shares of the public say that women are pressured to be an involved parent. 77% say women face a lot of pressure to be an involved parent; 49% say the same for men.Pew
This outdated arrangement holds women, men, families and the economy back.
I can tell you first-hand it is a heck of a lot harder to get ahead professionally and financially if you are the sole – or majority care provider for children.
If we unburdened the 10 million single mothers in this country from this responsibility (64% of millennial moms have had at least one baby outside of marriage, according to Johns Hopkins), and forced fathers to be true co-parents, gender economics in this country would look very, very different.
Listen to my Like a Mother podcast episode on the topic:
How does time-sharing affect the pay gap?
When parenting time is shared equally, single moms would have so, so much more time to invest in their careers and businesses.
When parenting is equal, moms are not the default caregiver when kids barf in the night and need to stay home from school.
50/50 custody means moms would not automatically be the parent that must leave work early for teacher meetings, or systematically forgo career-advancing work travel or evening networking events.
More equal time affords moms much-needed time to rest, exercise and develop relationships and interests outside of their kids that make women happier mothers and more productive citizens.
When dads not only have equal parenting time, but also equal parenting responsibility, fathers are forced to make the hard work-life decisions that women have known for generations, leveling the workplace playing field.
Decisions like whether to take time off after having a child, or scale back a career to nurture young children — the very hard decisions that women have made for generations, and are at the root of the pay gap.
Finally, joint physical custody equalizes parents not only in separated and divorced families, but all families. Laws supporting 50/50 custody change family culture. If equal parenting were the norm, this would create a collective mind shift at home, work and in the bedroom.
After all, time and again when asked how we will ever close the pay gap, experts cite affordable child care. Having half of the time off from your kids, who are in the safe and loving care of the other parent, is as good as it gets. No expensive state or federal budgets required! No politically charged policy to pass! JUST SPLIT TIME EQUALLY BETWEEN PARENTS!
Why is child support so unfair to fathers
While the world is changing for the better in many ways, the majority of child support payors are men. Here are all the reasons this is unfair to dads:
- Child support is built on the presumption that one parent (mothers) care for the children while another (father) pays for them. This shoehorns men and women into sexist roles, with men forced to be the breadwinner.
- Often, whether by law or practice, child support is tied to the amount of time a man is allowed to spend with their children — heightening an already adversarial family court system, and making men pay to see their children.
- Child support calculations rarely factor in a man’s ability to afford payments, and in states where failure to pay leads to jail time, forces poor men trapped in a cycle of imprisonment, unemployment, and more imprisonment. Meanwhile, no money is paid in child support, and fatherlessness is perpetuated, as outlined in this New York Times article:
Though the threat of jail is considered an effective incentive for people who are able but unwilling to pay, many critics assert that punitive policies are trapping poor men in a cycle of debt, unemployment and imprisonment.
The problem begins with child support orders that, at the outset, can exceed parents’ ability to pay. When parents fall short, the authorities escalate collection efforts, withholding up to 65% of a paycheck, seizing bank deposits and tax refunds, suspending driver’s licenses and professional licenses, and then imposing jail time.
“Parents who are truly destitute go to jail over and over again for child support debt simply because they’re poor,” said Sarah Geraghty, a lawyer with the Southern Center for Human Rights, which filed a class-action lawsuit in Georgia on behalf of parents incarcerated without legal representation for failure to pay. “We see many cases in which the person is released, they’re given three months to pay a large amount of money, and then if they can’t do that they’re tossed right back in the county jail.”Skip Child Support. Go to Jail. Lose Job. Repeat. — The New York Times
While many assume child support mandatory in divorce — it does not have to be. If you settle out of court through a low-cost online divorce service, you can negotiate joint, 50/50 custody, equal parenting time, no or lower child support, and any other arrangements that you and your child’s other parent agree to.
If you go to family court, however, a judge will likely apply your state’s child support calculator, with no flexibility.
Child support reform promotes father involvement
Fatherlessness is a public health crisis, that affects every facet of American life. Antiquated child support laws and collection enforcement are at the root of this issue.
A whole body of work studying lack of father involvement finds that when a child is raised without active involvement of a father, they are likely to suffer:
- Diminished sense of physical and emotional security (children consistently report feeling abandoned when their fathers are not involved in their lives)
- Behavioral and social problems, including with friendships
- Poor academic performance. 71% of high school dropouts are fatherless
- High crime, as 85% of youth in prison have an absent father
- Fatherless children are more likely to have sex before age 16, not use contraception during first intercourse, and become teenage parents, and transmit STDs.
- More likely to use and abuse alcohol and other drugs.
- 90% of runaway kids have an absent father.
- Mental health disorders (father absent children are consistently overrepresented on a wide range of mental health problems, particularly anxiety, depression and suicide)
- As adults, fatherless children are more likely to experience unemployment, have low incomes, remain on social assistance, and experience homelessness)
- Poor future relationships (father absent children tend to enter partnerships earlier, are more likely to divorce or dissolve their cohabiting unions, and are more likely to have children outside marriage or outside any partnership)
- Higher mortality rates (fatherless children are more likely to die as children, and live an average of four years less over the life span)
50/50 parenting and time-sharing is better for all families, everywhere
If women know they can never rely on a man outside of marriage for income, we will make different, better decisions about our careers, and money.
When divorce courts force both sexes to participate in the workforce and with children in equal measure, that message trickles into all families — including married and single-people homes.
When both sexes are forced by court or social pressure to parent equally, men and women on corporate boards, in Congress, in C-suites, and on down make different, better policies for workers and families.
Plus, this presumed, equal and fair arrangement relieves courts of the endless bickering and petitions that distract from extreme cases — like actual abuse and neglect — for which deviation from this rule would be appropriate.
Strong workforce participation by women is great for children, as studies have shown. Strong workforce participation by women is great for the economy, national security and societal stability.
I know the pushback:
I am the better parent. I am the mother! I don’t want him to have more than 30% visitation. It’s not good for the kids.
If he is safe to be with the kids 30% — or 10%, or 20% — he is safe to be with them 50%.
This is true even in cases where there is high conflict between the parents, or one is richer than the other.
Just because the child lived in your uterus does not mean you get more say in how they are raised.
However, if you work on practicing equally shared co-parenting, you may find that both parents can grow in their parenting — and know that their children benefit from it. More tips on how to co-parent in this post.
Men will never step into their full father potential if we keep assuming they are the inferior parent. In fact, many men and women both attest to the fact that fathers really improved their parenting after divorce. These parents say that this happened because:
- They were forced to — the mom wasn’t there all the time to swoop in when parenting was stressful. This is hardly surprising. Parenting is not rocket science, and men and women are born equipped for the job. Keep in mind that humanity has thrived based on the model of very young, uneducated people raising other to adulthood. Parenting is not a higher calling requiring of special skills or education.
- There was no mom nearby micromanaging his parenting. Now alone with the kids, the dad now had room to grow into the father he was meant to be.
We agreed I would give up my career to stay with the kids, and it is not fair that my standard of living is compromised because he wants to divorce!
You’re not a child, and he is not your father. You entered into marriage knowing the risks.
You are an adult woman who as political and economic rights that you chose not to exercise.
That was not a good decision, and I am sorry you made them, but it is not another person’s responsibility to pay for those decisions.
If you want a higher standard of living, you are free to pursue a career that will afford you that.
Now that he has the kids 50%, you have plenty of time to do that.
He is supposed to take the kids half the time but never shows up. I still shouldn’t pursue child support?
That is a decision that you have to make.
Yes, if he doesn’t care for the kids half the time, he should step up and care for them financially.
But keep in mind these things:
- He will always and forever resent giving you that money and it will be a wedge between you in any co-parenting.
- Psychologically, taking that money will likely hold you back. He is a man you are no longer tied to romantically, and from whom you are (or should be) striving to create a separate life. Money ties people together. You risk being dependent on him. Tread carefully.
My kids are so little! My baby is nursing! 50/50 doesn’t make sense!
I agree. This is about being reasonable and what is good for the greater sum, without abandoning the individuals.
Nursing babies and their moms, temporarily, require certain circumstances. So do disabled adults, and deployed military.
If today you commit to 50/50 parenting starting at age 1 with increased time with the father now, that defuses conflict and builds trust that the spirit of your agreement is indeed fair.
A broader societal move to default, equal parenting and no child support will not be painless. But they are necessary steps in an evolution towards financial and parental equity.
Note that in cases where ‘standard’ visitation is awarded — every-other-weekend — fathers become depressed and non-involved, and within 3 years, one study found, 40% of children in an unequal visitation arrangement had lost complete touch with their non-custodial parents, which are nearly always the father.
Related documentary and books on shared parenting:
Blend, The Secret to Co-Parenting and Creating a Balanced Family, By: Mashonda Tifrere
Co-parenting with a Toxic Ex: What to Do When Your Ex-Spouse Tries to Turn the Kids Against You, By: by Amy J. L. Baker, PhD and Paul R Fine, LCSW
Divorce Poison: How to Protect Your Family from Bad-mouthing and Brainwashing, By: Dr. Richard A. Warshak