Arguments Against a Presumption of Shared Physical Custody in Family Law

Abstract

ABSTRACTThe introduction of the “best interests of the child” standard as a legal presumption in family law in the 1970s signaled an important transition away from a maternal preference standard in child custody disputes, toward a recognition of the centrality and importance of both parents in the lives of children after parental separation. Paradoxically, this reform resulted in an increase rather than decrease in court-determined maternal sole custody. Despite robust empirical evidence in support of shared parenting, a gender convergence in child care roles, and increasing public support for shared parenting, the idea of shared parenting as a legal presumption has been met with skepticism and resistance among some legal and mental health professionals. This article traces the evolution of arguments against shared parenting since the concept was first introduced, from the early 1970s until the present day.