The Inequity of “Equal Everything”

As a family law attorney, I often see parents in child custody litigation approaching it as a tug-of-war, or as a zero-sum game. Each overnight awarded to one parent is a damning characterization of the other parent. In the warped world of child custody litigation, how much “custody” (read: overnights) you have defines how good a parent you are. Having a babysitter look after the child, especially on weekends, means that you don’t really want custody, and that you are missing out on time that is only precious if you and your child are together every minute.

This is a dangerous way of thinking. It would better serve the whole family if family law litigation culture did not push each parent to achieve “equal everything”.  In some cases, two parents having careers may mean that shared physical custody is not very workable, especially once you throw in distance between households, work hours, and travel schedules. But in many cases, parents can work out a shared physical custody arrangement that is not “equal everything”.  There is plenty of room for flexibility within the “shared physical custody” space that does mean defeat when measured by the “equal everything” stick.

Needless to say, all parents want their children to be happier and better-adjusted. But the chase for “equal everything” often results in children being jostled between two households for the sake of their parents’ sense of equality rather than in service of the children’s own needs.

We can move toward a system where it’s OK for both parents to work and achieve, and for the child or children not to be shoehorned into the parents’ schedules, by:

1. Not stigmatizing the non-custodial parent or the “less than 50%” parent as the worse parent. Let’s dispose of phrases like “primary parent”.
2. Not stigmatizing the use of helpers (babysitters, nannies, family), whether on weekdays or weekends, if a parent is working.
3. Encouraging flexibility between the parties, so that they are open to adjusting their access time depending on their work requirements. This means that neither parent can be allowed to weaponize the other parent’s flexibility by twisting it into a concession of custody.
4. Making it easier for parties to define child support parameters regardless of who has the magical number of overnights to tilt physical custody from shared into primary. Giving the Court more discretion to calculate child support based on a primary- or shared physical custody schedule will go a long way.

Child custody litigation often forces parents to pit their own professional and personal needs against the needs of their children. A parent is expected to combine a fulfilling and lucrative career with chasing the irrational custodial goal of “equal everything”. Trying to combine the two will trap the parent between the twin failures of feeling like a bad professional and an inadequate parent.

Thankfully, there are many tools available to help parents work together to make up a custody schedule that works. Mediators, parenting coordinators, and divorce coaches work toward facilitating the transition from life together to life apart. But one’s worth as a parent cannot be a tally of who has the most hours with the child. If we make it about that, everyone will be the loser.