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Is 50 / 50 Residency the Right Target?
April 14, 2004
by K. C. Wilson

It was bold, and possibly suicidal, for the Shared Parenting Council of Australia to make 50:50 residency its seminal target for family law reform.

Organizations around the world call for "equal parenting," but there is scant agreement on its definition. What, exactly, is equal parenting? How do you measure, much less legislate, it; how do you know when you have it? Some use 50:50 residence for their definition and will settle for nothing less.

There is clearly a need for some operational definition, the question is, what?

For three decades, the laws of jurisdictions such as Pennsylvania, Australia, California, and the UK have strongly supported, if not equality, active involvement by both parents in the raising of their children. That is the stated target of their laws. But to this day, all these jurisdictions experience as high a rate of father elimination as jurisdictions with less family-friendly legislation such as Canada. Since judges can cite "best interests of the child" to do anything they please, fathers are still ordered such insignificant "visitation" without any protection of even that, that only half of chid-father relationships survive the first two years of divorce.

So those struggling to ensure that children have two parents irrespective of marriage, now seek legislated, operational equal parenting, not soft words and good intentions.

That is the political story behind 50:50 time. It's the only thing believable. The question remains: what is equal parenting and how well does 50:50 residence assuring it? Are there other options that would create it just as readily, or better?

The most obvious deficiency is that it is as arbitrary as sole custody. It presumes one size fits all, when not every family can manage 50:50 time for any number of reasons including employment and interest. But as a starting point to tailoring a couple's own, unique arrangements, it puts both on a the same playing field. So, were equal time presented as only an initial premise for further negotiations, or only as a fall-back, it might make more sense to more people.

The second shortcoming is that it omits parental decisions. It hardly matters that your child spends half her time with you if you have no say in whether she goes to school or not, or whether his medical care comes from science or folk lore. Parenting is neither time nor money. It is active care, and that care does not always require the presence of the child. So another definition of equal parenting is functional equality.

Early attempts to implement functional equality appeared as "joint legal custody." But these laws, too, used soft words such as "consult" and "joint" and "significant matters" without operational definition nor means of enforcement. It has proved another cover for sole custody.

That doesn't mean we should give up on functional equality, just be better at its definition. For as long as we think equality is sameness and both parents doing all the same things, it will not work. Once we realize that equality is derived from our differences and providing different things (differentiated parenting roles that the parents themselves define), we may get somewhere.

The final problem with unqualified 50:50 time is Joan Kelly's concern. Kelly has had an illustrious career as divorce counselor and researcher and, though I've never heard her use the word "equal," is an advocate of children having both parents.

Yet she called presumed 50:50 residency, "irrational."

Scratching below the surface, Kelly may not object to it as a principle so much as worry about its implementation. Infants should have 4 to 24 hours with each parent at a time, and not be separated from either for much longer. So if 50:50 is implemented as a weekly schedule, it may work well for a seven-year-old but be a disaster at six months.

The opposite problem appears at adolescence. Even at age 12, they're not children any more. What matters to them is their peers more than their family, and that there be one place their friends can always find them. While 50:50 time is a good measure for all ages pre-teen (so long as it is tailored to the child's age and temperament), it can be damaging for many teenagers.

The answer may lie in a presumption of 50:50 time whose implementation is left to the parents so they can tailor it to their children's changing needs, when and as they need to. Combined this with division -- or rotation -- of major parental functions, and we may have something. That is, leave what is in a child's best interests up to the child's parents, the same as we do for married parents. (At least, so far we do.)

Assertions for equal parenting may only need some refinement and clarification to gain broader acceptance.

Copyright © 2004 K.C.Wilson. K.C. Wilson is the author of Co-parenting for Everyone, Male Nurturing, Delusions of Violence, and The Multiple Scandals of Child Support, all available as e-books at http://harbpress.com.

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