By:  Susan L. Pollet, Esq.

        Many experts maintain that contact with both parents (or, alternatively, with a noncustodial parent) is beneficial to children if inter parental conflict is low and the quality of parenting is good.  According to some of the literature, approximately eighty percent of children reside with their mothers after divorce, and the majority of fathers have little or no contact with the children.  Despite changing roles in the last few decades, mothers are still typically the primary caretakers of children, especially for infants through preschoolers.  Statistics in the literature indicate that within three years of divorce, fifty percent of fathers have either ceased contact with their children or see them quite infrequently.

        In a meta-analysis of 63 studies, the authors noted that when fathers are abusive or have substance abuse problems, most children are better off with minimal contact.  One study reported that the vast majority of participants form divorced families desired more father involvement than they had received.  Other writings suggest that being together with a child more often or for longer periods of time might not in and of itself guarantee things will be better for that child.  What has been said to count is the quality of the father/child relationship and the nature and quality of the relationship between the parents.

        While the social scientists have been researching these issues, much has been happening in the legal arena regarding the legal treatment of non-custodial parents.  It has been described as a lightning rod in modern family law.  According to one commentator, the trends suggest that fewer than half and perhaps as few as a quarter of all children born today will live with both parents throughout their childhoods.  As a result, a majority of the nation’s children will be affected by the defining of the custodial rights of divorced or separated parents.  

        In an extensive summary of litigation asserting constitutional rights in this context, one commentator concludes that parents are not constitutionally entitled to a co-equal role in raising their children following separation or divorce.  The state retains considerable discretion to allocate parental authority and access, including giving one parent a superior and dominant child-rearing role, without having to prove extraordinary or compelling grounds.

        There is great debate across disciplines as to whether or not a presumption for joint custody is the answer.  One commentator, in summarizing this issue, notes that the data supports the conclusion that joint physical custody seems to be a workable arrangement only for a minority of parents and should not be encouraged as the fair solution for parents who dispute custody or otherwise are in high conflict.

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