Family Court is Broken. But there’s a wrong way to fix it.

Apparently, South Carolina is one of at least 17 states considering fixing something that isn’t broken. That’s not true- the family court is broken. Many assume it’s broken because horrible lawyers who profit from every petition and motion whip their clients into a lather over every custody detail.

This is a convenient worldview. We like blaming lawyers for society’s problems. We’ve all seen “The War of the Roses”, and most of us have witnessed a divorce that reminds us of that. It’s convenient to believe lawyers have made someone we care about act badly. It’s not convenient to believe someone we care about is in abusive relationship or an abuser. And no one wants to believe someone they know abused a child.

Good public policy is only made by looking at facts, not convenient worldviews. Fact number one is that most parents love their children. They love their children enough that they usually put a lot of work into coming up with a parenting plan that works for their children. And if they’re both active, engaged, loving parents they can figure out what that plan will look like better than a judge.

The paper the American Psychological Association published really doesn’t endorse co-parenting. It says that having young children spend the night with more than one loving, engaged caretaker isn’t bad for them. That’s good to know. It means parents of small children who choose to co-parent needn’t worry about harming them. It means extended family who regularly take a small child for an overnight visit aren’t doing any harm. It means a child in foster care who is being transitioned to a permanent home can have the transition happen slowly, with overnight visits as part of the plan. However, there is absolutely nothing in the paper suggesting laws we need laws instructing judges to make shared parenting the norm.

Laws assuming coparenting is necessary remove the flexibility divorced couples have to solve their own problems their own way. Even in the throes of divorce, most parents want their children to emerge unscathed, with a good relationship with their other parent.

And, of course, the other very good reason to keep shared parenting laws from passing is because a lot of the “high conflict divorces” are actually divorces with domestic violence. Think about that for a minute. Doesn’t the whole dynamic of a “high conflict” divorce now make a little more sense? It’s not actually otherwise rational people getting so filled with hate and vengeance that they try to destroy their former partner in court- it’s about control.

There is a deep-seated, erroneous belief that we “just know” a domestic violence (or sexual assault, or child abuse) victim when we see them. This causes problems in judicial processes, as victims seldom “look like” we expect them to. Surviving a huge amount of violence at the hands of someone you love doesn’t automatically make you stop loving them. Batterers usually habituate their victims to huge amounts of violence by starting them with small amounts of violence. So it’s rare for an abuse victim to have documentation of the abuse when they file for divorce. Without the right documentation, judges and court staff often assume the DV accusations are malicious. The same goes for children, and accusations of child abuse that are insufficiently documented are also often disbelieved. So many cases involving domestic violence and child abuse that aren’t marked as such.

But a “high conflict” divorce can’t truly be that if both parties don’t conflict, right? Contrary to popular belief, the things the non-abusive parent usually fight for are custody of the children, or things needed to raise children like child support and a fair share of assets. Abusers will often seek custody of their children. This is largely a way of bullying the victim into dropping charges or even the divorce. Even terribly abusive parents will try to get custody of their children, and they very often succeed.

Sometimes non-abusive parents vigorously fight their abuser in court is because their judge was more interested in instances when their ex violated a court order than in instances when their ex abused them or their child.

So how bad is it to let an abusive parent participate in shared parenting? If they don’t abuse their ex, their new partner, and their child, it’s probably not too bad. However, that’s rare- especially if they never experience consequences for the abuse. Domestic violence happens due to a belief system, not mental illness or lack of impulse control. Batterers are more likely to abuse their children, often in an attempt to hurt or control their partner. You may have heard of “batterer class” as something batterers are ordered to attend after they have been accused of domestic violence, and it is usually a compliment to or alternative to a prison sentence. There is nothing magic about them- taking them does not mean a batterer is “cured” and can automatically be trusted to not abuse their partner or child. The ACE Study proves that witnessing domestic violence and experiencing any type of child abuse are not to be trifled with, as they have severe, long-term effects on a child’s lifelong health. It’s also worth noting that the APA study the author cites states many times that shared parenting is not for situations where either a parent or the child have been abused.

Children have a right to a relationship with both parents. Parents have a right to a relationship with their child. And children have the right to not suffer the life-long consequences of abuse or domestic violence. The Safe Child Act ensures that the health and safety of children is the top priority in custody decisions. It also lays out a plan for what kinds of experts evaluate claims of domestic violence and child abuse, and it ensures that abusers don’t get unsupervised time with their children.

This is a bill that will help the small percentage of divorcing parents for whom no version of shared custody will work. It will protect the children involved from massive, life-threatening harm. And unlike the proposed legislation the author of this op-ed is lauding, it does nothing to interfere with parents who deserve the flexibility to come to a parenting agreement on their own.