States Are Making Shared Custody the Default—Could This Be the Arrangement We've Been Waiting For?

Shana Swain is one of many single moms who is doing more than, at times, seems possible. She separated from the father of her two daughters Zuri, 10, and Amara, 7, when she was pregnant with Amara. The couple was never married, but at that point they had lived together for a decade. Although Swain, now 42, has attempted to share parenting time with her ex, she says they never made any sort of on-paper arrangement except a brief string of child support payments. Her ex has not shown interest in a legal arrangement and their home state of South Carolina has a law that grants custody of the children of unmarried parents to the mother unless family court says otherwise. Their custody arrangement was decided for them.

It would be a game-changer, she says, if her daughters had another parent she could juggle logistics with. Instead, she recalls that her ex's stance on parenting is that the mother should be in charge until the kids are older.

Swain's ex is essentially espousing the tender years doctrine, which guided custody decisions for more than a century, based on the idea that women are natural caregivers. In the 1960s and '70s, the doctrine fell by the wayside as more women joined the workforce and no-fault divorce laws became standard. Custody rulings began to default to a "best interest of the child" standard, which is based on a variety of factors, including the child's age, both parents' financial stability, and any history of domestic abuse.

But in practice, more than three-quarters of custodial single parents are mothers. Research shows that while this can be in the best interest of children and parents, it isn't always. In fact, gender bias in the family courts system is often failing families—and many advocates say it's time to consider how a 50-50 custody default could be best.

A System of Gendered Laws

According to Emma Johnson, founder of WealthySingleMommy.com and Moms for Shared Parenting, both the courts and our culture have ingrained sexist biases. In cishet family dynamics, many women are "shoehorned by way of a family court order and culture to be the primary caregiver, while the male parent is most often expected to be the primary breadwinner," she wrote in an essay last year. Child support is seen as the equalizer, Johnson further explains, but that is far from the reality for most single-parenting households. When she got divorced, Johnson became the primary caregiver and breadwinner, and quickly realized that this arrangement was not a "win." On top of that, she was worried this was sending an anti-feminist message to her kids.

"The Bible and our culture tells us that, as women, motherhood is enough for us," says Johnson. "We don't need romantic love, we don't need professional success, we don't need political powers. Even though I was raised by strong women and had a progressive upbringing, I unconsciously bought into this idea that I should be a stay-at-home mom, because that would be better for everybody, that my kids benefited from me being with them 24/7."

It was her own work that helped convince her otherwise. Through talking to and studying single moms for almost a decade, she found that they often fared better financially and personally in equal co-parenting relationships. Her survey of 2,279 single moms, conducted during the summer of 2020, found that single moms with a 50-50 parenting schedule are more likely (54%) to earn at least six figures annually than moms who take on most of the parenting. (Anyone who has tried to work with a rambunctious toddler in the room will immediately understand why.)

What's more, the single moms she surveyed wanted shared-parenting arrangements: Only 13% of moms she surveyed have a 50-50 schedule, and nearly all of them (98%) said they like it. Of those who said they have majority time, about half said they wish they had a 50-50 arrangement. At the same time, three-quarters of the moms who want 50-50, like Swain, said that the father does not—and any benefits of 50-50 custody would of course be unlikely if one parent were an unwilling participant.

While Johnson's survey does share that 56% of respondents are white, 23% are Black, 9% are Latinx, and 2% are Asian (the other 10% either did not identify or identified as "other"), the breakdown of custody scenarios was not clearly defined for each of these communities. Experts say that race can play a role in access to reaching a shared parenting agreement in states where it is not the default. Race can also play a role in conversations around child support.

Family courts often stereotype many Black parents, particularly men, as lazy and uninvolved, says Cassandra Hargrave, an attorney in Virginia Beach who focuses on custody, visitation, and child support cases. "In reality, they may be great fathers who are very much involved in the lives of their children, but cannot afford the amount [of child support] that has been ordered," she says. "Since the number of days that a parent has the child is a part of the child support calculation, a shared custody arrangement could significantly lower a parent's child support obligation, making it easier to keep up."

Hargrave, who is Black, says that in Virginia, where shared parenting is not the presumption, a move to 50-50 custody could help alleviate the lack of resources in many predominantly Black communities. "Some people don't have anyone to watch their children when there is an emergency. But if parents are sharing the parenting, one parent may be able to rely on the other parent's resources for child care. This creates a scenario where it is less likely for a child to fall between the cracks."

For Johnson and her ex, their shift to a 50-50 arrangement happened organically over time. She says she is seeing a larger culture shift toward equal parenting as well. Celebrities like Amber Rose, Reese Witherspoon, and Russell Simmons publicly share their experiences with co-parenting, which makes all of us more aware of the options. On Facebook, parents connect on their own experiences in groups like Positive Co-Parenting After Divorce.

A Legal Presumption of 50-50

Across the country, activists are advocating for bills that would make equal parenting the default. In 2018, Kentucky was the first state to pass a law that makes equally shared parenting time the starting point, and in 2021 Arkansas followed. Most recently, a bill is making its way through the Ohio legislature (House Bill 508) that would set equal residential time as the default.

In Kentucky, after the 50-50 default law was passed, family court filings in the state dropped by 11%, and filings that involved domestic violence declined by almost 700 cases, advocates say. "We went from a situation in which the law was instigating conflict to where the law is now supported by things like the shared parenting factor, which encourages cooperation," says Matt Hale, Kentucky board member of the National Parents Organization (NPO), a group that advocates for shared parenting laws.

Some parents entering these agreements question how it will work. Jordan Pyles and Ashlyn Harrell, who shared their experience with Kentucky law in The Washington Post Magazine, worried about the impact living between two homes would have on their 4-year-old daughter and if they could get past their own differences to continue parenting together. But as they learned, shared parenting can be a flexible arrangement. It is not one-size-fits-all, explains Christian Paasch, the Virginia executive committee chair of NPO. But it is important to start at an equal parenting presumption, both from a legal and a cultural standpoint.

"A lot of judges, if 50-50 is not possible, they will not even look at 60-40. They consider it an all-or-nothing scenario and will just default back to the old 'every other weekend' standard," says Paasch—a standard that, he explains, is not always what's best for kids.

Even if a state doesn't have a rebuttable presumption of 50-50, strong language encouraging maximum parenting time for each parent is a step forward, explains Paasch. "Arizona allows the courts the flexibility to adjust to individual circumstances, depending on the parents' jobs, or where they live, or the needs of the child," he says. "If the child has some medical condition where they have to live near a certain hospital, that can be accounted for. If dad drives a truck on the weekends, and his weekend is actually Wednesday and Thursday, let's see if we can work that in somehow. If mom's a nurse and works two weeks straight and then has five days off, let's work with that."

When Hargrave began practicing in Virginia 14 years ago, she says the trend was that one parent was the primary custodian and the other had visitation every other weekend. Now, the state's code says the courts have to assure that children have "frequent and continuing contact" with both parents and must "encourage parents to share in the responsibilities of rearing their children." Judges may interpret these phrases differently, but it's still a good start.

Currently, according to NPO, 11 states have a presumption of joint or shared legal custody, nine states have a presumption of joint or shared physical custody, and seven states have language in the law that maximizes parenting time. While legislation is not the end-all-be-all of shared parenting, even those who choose parenting plans and mediation over expensive, and exhausting, battles in court are typically told to consider what would happen if they did have to negotiate in a courtroom, says Don Hubin, chair of NPO's national board.

In the Best Interest of the Child

Shared parenting advocates point to a review of 60 studies that all conclude children are better off when they spend equal time with both parents. "While we found one study indicating the quality of time is the key factor [that can affect well-being and functioning in children], all of the other studies we reviewed suggest that quantity of time is key," according to Lisa Herrick, Ph.D. and Adele D'Ari Ed.D.

Some studies have also found that dads with minority-time custody are more likely to "check out" of their children's lives. That's something Swain can relate to: In the past couple of years, her only correspondence with the father of her children has been over text messages. She's sent brief ones like: "Hey, do you want to come see our kids? Hey, can I drop our kids off? I don't mind even taking them to where you are. I don't mind picking them up from where you are," describes Swain. She says she relies on her own mother and local family friends to fill the gaps for her kids when she needs to work. She says her ex responds by saying, "I'm not home." Or, "Not today." She adds that he hasn't visited with them since spring 2020.

"When they check out, the ramifications for the kids is devastating," says Johnson.

That said, there's no telling which came first in this chicken-or-egg situation: the "checking-out" or the minority-time custody. If one parent is ordered a 50% custody arrangement that they weren't initially interested in, will it change their level of interest and motivate them to be a more engaged parent? There isn't enough research yet to know.

In addition, critics of 50-50 default custody bills say they could roll back important protections for victims of domestic violence and abuse. "What these 50-50 things do is they take kids away from, often, their safe, secure, nurturing relationship and force them to split their lives between a parent who's neither safe, secure, or nurturing and a parent who is," says Joan Meier, a law professor at George Washington University who studies family violence.

Meier conducted a study that she says proved that courts routinely ignored mothers' and children's claims of abuse by fathers and that fathers' claims of parental alienation were being used to ignore allegations of abuse, frequently putting children into potential abusers' care and leading to women being more likely to lose custody. Some other researchers in the space, on the other hand, have found issues with that study's design.

Advocates for shared parenting point to the fact that the laws supporting 50-50 custody as a baseline do provide protections for abuse situations. Kentucky's law, says Hale, has 11 factors for a judge to consider, ranging from domestic abuse to logistical matters such as proximity. "Every state has levels of evidence that can be used to override the presumption for shared parenting," says Hale. "A presumption for shared parenting just means the starting point. But if one of the parents doesn't meet the criteria, then they wouldn't qualify."

Ready for 50-50? What Co-parents Should Know

There are many (largely urban and progressive) areas around the country where there is a strong shared parenting culture, even in absence of specific laws, says Johnson. If you are considering entering a shared parenting arrangement, step one is to sit down with your co-parent to get on the same page with expectations.

1. Talk about logistics

"You're requiring kids to basically have two equal homes," says Josh Brand, an attorney in Nashville. "Parents have to be on the same page about when each kid has to get to their extracurriculars, how they're getting to and from school, if they have carpools or anything like that. Think about your kid, not just the plan that's most convenient for you."

2. Communication is key

"Communication from a parenting perspective is sometimes the hardest part of adjusting to parenting in two households," says Brand. "But it's probably the most important thing you can do. It's the key to parenting in a 50-50 arrangement—or any kind of arrangement. From my perspective, the number one reason why people end up back in court is because they're not communicating, or they're communicating in a mean or spiteful kind of way."

3. Utilize technology

Johnson includes tools on her website that could help with both communication and logistics, such as a list of co-parenting apps like OurFamilyWizard. This app allows you to download submissible records for a judge, mediator, or attorney. It also has a "ToneMeter," which the app claims "helps you type emotion-free texts and emails to your ex by flagging inflammatory words—before you hit send."

Whatever your custody arrangement, says Johnson, it's important to "take the long view" and remember that people are humans with flaws—and capacity for forgiveness.

"I hear stories from people every day who say, we set off down this path where I was fighting for primary custody, and over time, it changed—now we have equal time, and it is wonderful," she says.

"We're in a revolution here," Johnson continues. "We're trying to undo millennia of sexist culture that marginalizes men as fathers and puts the burden of parenting on women." So what's the solve? "We need to keep pushing our culture and laws," she adds. That, and supporting one another to promote equal parenting time in the cases where it truly benefits everyone.