Equal Time Visitation: Is it the Best Interest of Children?
One of the most controversial issues in Texas family law today is whether equal parenting time, such as when mom gets one week and dad gets the next week, is best for children. Our Texas legislators have heard arguments in the past several sessions from various groups proposing a change from our “standard possession order.” Currently, the Texas Family Code contains a presumption that the non- primary parent can exercise visitation as much as 42% of the time, comprised of the first, third and fifth weekends of every month, Thursday overnights, return to school on Monday, extended holidays and summer. Proponents of the change in law want the presumption to be equal parenting time.
Social scientists have long been of the opinion that children need a “home” and that bouncing back and forth between two homes does not promote security and stability in a child. Other professionals believe that whether equal parenting is best should depend on the age of the child, and state younger children would not thrive in an equal parenting arrangement because of their need for the attachment and bonding that happens with a primary parent.
Promoters of equal time parenting say that although parents have decided not to live together, the children should still be allowed to enjoy the benefit of sharing equal time with each parent. In support, they cite a recent Swedish study which states that preschool children in joint physical custody of equal time have less psychological symptoms than those who live mostly or only with one parent after a separation. This study, published in 2017, of 3,656 children shows that 3–5-year-olds living alternately with their parents after a separation show less behavioral problems and psychological symptoms than those living mostly or only with one of the parents.
Those opposing the change in law state it would create a presumption in favor of 50- 50 time, and therefore, remove significant judicial discretion in deciding what is in the best interest of the child on a case by case basis. Certainly how the parents get along with each other should be a factor in granting a 50-50 conservatorship. If such a presumption of 50-50 time exists, the Court will be required to presume parents will co-parent effectively post separation unless one parent proves differently to the Court.
In addition, those opposing 50-50 parenting time fear it will adversely affect child support laws. Parents who spend more time with the child will likely want to pay less child support and that only seems fair. But tying child support to parenting time puts children in the middle of a battle over the money. How many parents will be granted the presumed 50-50 parenting time order, pay less child support and then NOT exercise the visitation they have been awarded? This will require additional litigation to file a suit to modify the order based on less parenting time and therefore, increased child support.
Other issues would be affected by a presumption of 50-50 parenting. This arrangement would be difficult if the parents do not live close to each other. Geographic restrictions as narrow as a school district would likely become presumed to be in the best interest of children, making moves even more difficult for either parent. For those who were in an abusive relationship, requiring parents to live in close proximity to each other could promote future violence and the continued exercise of control over the abused parent – even post-divorce or separation.
It is important to remember the focus should be on what is in the best interest of the children, not just the parents. Over 90% of family law cases settle out of court. Under the current law, parents can agree to 50-50 custody time and judges will approve the agreement. Only those difficult and high conflict cases actually go to a contested trial where the Court determines custody. If a change in law does occur, I would hope it is drafted so that our Texas judges remain free to listen to the credibility of the witnesses and make well-reasoned opinions about custody, child support and geographic restrictions. Robert Emery, psychology professor at the University of Virginia, and author of Two Homes, One Childhood: A Parenting Plan to Last a Lifetime writes:
Children do not calculate percentages. Love is not divisible. Children need parents who keep their life together, across two homes, not parents who divide their lives in precisely equal halves.