Almost like King Solomon suggesting that a child be cut in two so that each parent can have half, more and more, I am hearing about judges and custody evaluators who default to 50-50 shared parenting. Now, that isn’t the law. It isn’t even what the social science says is best.

In fact, I recently had a long trial centering primarily on custody, where at issue was dad’s steadfast demand for 50-50, though when he first made his proclamation that it was 50-50 or nothing, he admittedly had not even bonded with his infant child. When deposing his expert, who, as you can imagine opined that 50-50 was in the child’s deposition, I asked him what treatises or articles he was relying on for the proposition. He cited one treatise and one article so I bought the book and located the article.

Guess what? Nowhere did it say that 50-50 was the preferable parenting plan. Rather, the comparison was between shared parenting (but not necessarily 50-50) and something that was very restrictive and old school (think alternate weekends and a night for dinner.) Moreover, the sources seemed to suggest that this was not appropriate in matters of high conflict. Of course, if custody is getting tried, it is high conflict.

So let’s go back to the law. The very first factor in the custody statute is “the parents’ ability to agree, communicate and cooperate in matters relating to the child.” Seems pretty important if it is the very first factor, though admittedly, the law does not rank or rate the factors.

Now let’s look at the seminal case addressing joint custody. Back in 1981, so more than 40 years ago, in Beck v. Beck, the New Jersey Supreme Court held that for there to be a viable joint custody order, the following criteria must be found to exist: 1) court determination of whether the children have established such a relationship with both parents that they would benefit from joint custody; 2) are the parents fully capable of physically and psychologically fulfilling the role of a joint custodial parent; 3) each parent must be willing to accept custody; and 4) each parent must exhibit a potential for cooperation in matters of child rearing. The Court in Beck was even more explicit, holding:

The judge must look for the parents’ ability to cooperate and if the potential exists, encourage its activation by instructing the parents on what is expected of them. . . [W]hen the actions of [an uncooperative] parent deprive the child of the kind of relationship with the other parent that is deemed to be in the child’s best interests, removing the child from the custody of the uncooperative parent may well be appropriate as a remedy of last resort.

In the Nufrio case, the court held that “the prime criteria for establishing a joint legal custodial relationship between divorced or separated parents’ centers on the ability of those parents to agree, communicate, and cooperate in matters relating to the health, safety, and welfare of the child notwithstanding animosity or acrimony they may harbor towards each other.”

In the famous Baby M case, the court held that this does not require an amiable relationship, but it does require the parents be able to isolate their personal conflicts from their parental roles. There is another case that notes that ccnsidering that “[t]he most troublesome aspect of joint custody decree is the additional requirement that the parents exhibit a potential for cooperation in matters of child rearing”, that an award of equal parenting time would be inappropriate in that case.

It is more than just the ability to cooperate and agree that is important. The ability to communicate effectively arguably falls within the ambit of the first statutory factor and what the court was talking about in Beck and Baby M. If a parent is unable to communicate, whether because they are seldom truthful about the child or anything else, are unwilling and/or unable to share information about the child with the other parent, constantly gaslights the other parent, and/or is almost always oppositional, this too must be taken into consideration.

Co-parenting is more than just coming to agreement on major issues, it is the ability to deal with day to day issues where there should be little debate, in an effective matter. Should a parent be forced into co-parenting therapy because the other parent has serious communication deficits. Should one parent be forced to engage with and pay for a parent coordinator because the other parent is problematic more/most of the time?

In those cases, unless the parties agree to 50-50 or some other shared parenting arrangement, why should the default be 50-50 or shared parenting? Why should the defiant or impossible parent be rewarded for their bad behavior and/or refusal to co-parent?

In my trial that a referenced above, dad did not get 50-50 because of his inability to communicate and his inability to co-parent in an effective manner. In fact, he got far less. While shared parenting can work if the parties can put aside their differences for the sake of a child, court and experts should not just default to 50-50 and then put therapists or PCs in place, after the fact, to address the obvious and expected deficits.

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