Pennsylvania Equal Shared Parenting Legislation

I recently attended hearings on the Equal Shared Parenting legislation introduced to the Pennsylvania House of Representatives.  As a clinical psychologist with a specialty in child and family therapy, I am in full support of this proposed legislation. 

I’m in California.  I flew back to Harrisburg just to stand with these parents in support of this legislation.

It is well-crafted, thoughtful, and well-considered legislation that will be immensely helpful in solving family conflict surrounding divorce and children.  It will provide substantial support for clinical psychology and for the successful transitions of families to healthy separated family structures following divorce.

As a licensed clinical psychologist with a specialty in child and family therapy, I urge the passage of this bill in Pennsylvania, and of similar legislation throughout the United States and other nations.  Equal shared parenting is the correct thing to do.

Rebuttal to Opposing Testimony

There was testimony in opposition to the legislation.  The opposition arguments were all offered from legal professionals.  The committee did not hear from any representatives from clinical psychology and family therapy.  This was unfortunate, because the testimony from the legal professionals was not consistent with the knowledge from clinical psychology and family therapy.

Their testimony was incorrect.

Absent knowledge from clinical child and family psychology, errors in decision-making surrounding solving child and family conflict will occur.

As a clinical psychologist, I am offering this rebuttal to the arguments presented in opposition to the Equal Shared Parenting legislation.

The two primary arguments were “Best Interest of the Child” and the value of a legal “Presumption” in the court’s decision-making.  An additional argument was offered involving child abuse and Intimate Partner Violence, but this argument was insufficiently organized to warrant response here, and I will address it separately to maintain the clarity to this rebuttal.

1. Best Interests of the Child

This is important, and it will be central to everyone’s understanding in order to reach resolution… what is meant by the term, “best interests of the child,” how is that constuct defined?

I’m certain Nazi Germany had a definition for the “best interests of the child,” and I’m confident that it was not an accurate definition.  It is crucial and central to resolution of this discussion that the term “best interests of the child” receive adequate understanding and definition.

This will then allow us to move forward into developing solutions.

First, it is important to understand that forensic psychology openly admits that they do NOT have an adequate definition for this construct (Stahl & Simon, 2013), and I will argue that an operational definition for this construct is fundamentally impossible, and inappropriate, outside of child abuse and child protection concerns.

Parents have the fundamental right to parent according to their cultural values, their personal values, and their religious values.  If there is no child abuse, then parents have the right to parent, and our society should be extremely circumspect in empowering magistrates to separate children from parents when there are no child protection concerns.

Magistrates should not be empowered to decide on cultural, personal, or religious values in parenting, and any decision beyond a child protection concern will, by necessity, be ruling on just those factors.  By itself, the construct of personal values will have broad latitude in parenting.  Parents have a right to parent.  If it is not child abuse, then empowering magistrates to judge parents as “deserving” or “not deserving” to be a parent should be of concern.

Parents have the right to parent according to their cultural values, their personal values, and their religious values.  Magistrates should allow broad latitude to that foundational parental right before separating parents from children.

Second, forensic psychology has no definition for the construct of the “child’s best interests.”

This is acknowledged by Stahl & Simon, forensic psychologists who literally wrote the book on child custody evaluations for the Family Law Section of the American Bar Association,

Stahl, P.M. and Simon, R.A. (2013). Forensic Psychology Consultation in Child Custody Litigation: A Handbook for Work Product Review, Case Preparation, and Expert Testimony, Chicago, IL: Section of Family Law of the American Bar Association. 

This is what Stahl and Simon say about the definition of the construct “best interests of the child.”

From Stahl & Simon: “A critical subject facing those working in the field of family law, whether they’re legal professionals or psychological professionals, is the concept of the best interests of the children. Even recognized experts in this concept differ with regard to what it means, how it should be determined, and what factors should be considered in determining what is in the best interest of a child. Thus, this ubiquitous term escapes consensus and remains fundamentally vague.” (Stahl & Simon, 2013, p. 10-11)

From Stahl & Simon: “It is defined differently from state to state; and even in Arizona, where there are nine statutory factors associated with the best interest of the child, the meaning behind many of the factors is obscure.  Additionally, when psychologists refer to the best interests of children, they are referring to a hierarchical set of factors that may have different meanings to different children with different families and that may be understood differently by psychologists with different backgrounds and different training.” (Stahl & Simon, 2013, p. 11)

In testimony before the committee in Pennsylvania, a father reported on a period following court restrictions on his time and involvement with his child when he became ill, seriously ill, and potentially terminally ill. We are grateful and happy for his recovery.

And this is important to understand as to why it is impossible – impossible – to render a judgement regarding the “best interests of the child” except for child abuse and child protection concerns. What if he had died?

We are all grateful and happy that this father survived and is with us still.  What is important to realize is, had the father died, the construct of the child’s “best interests” that was considered just months before, would have been grossly in error and extremely NOT in the child’s best interests.

If a son or daughter only has a short time left with a parent, their mother or father, it is always in the child’s best interest to spend abundant amounts of time with this parent, before the parent leaves us and this opportunity is lost to the child and is no longer available.

And this is the important point, determining the “best interests” of the child would require that we know what the future holds.  We can’t know of the father’s loss ahead of time.  We can’t predict the future.  We will never know what the future holds, so we cannot answer that question. 

That question is fundamentally unanswerable. 

If there is child abuse, we diagnose child abuse and protect the child.  If there is no child abuse, then we fix conflict and restore relationships of bonded love and affection in the family, because we can’t predict the future, our time may be short, who knows, and bonds of love and affection are too important to be lost.

If there is family conflict, we fix it. That’s a treatment issue, not a custody issue.

Mothers are not expendable in the lives of their sons, in the lives of their daughters.   Fathers are not expendable in the lives of their sons, in the lives of their daughters.  Is that a faulty presumption?  No, that is an established fact. 

Proof:  We have all had childhoods, we have all had mothers and fathers, we can all reference our own childhoods and direct personal experience for proof.  Was your mother important to you? Was your father important to you?

For my proof, I cite you and your own personal experience.  Mothers are not expendable in the lives of their sons and daughters, father’s are not expendable in the lives of their daughters and sons.  Children flourish when they receive abundant love from the mother and abundant love from their father.

Equal Shared Parenting is the correct approach for legal decision-making following divorce.

There are four types of parent-child bond, each is unique: mother-son, father-son, mother-daughter, father-daughter.

Each is unique, each is immensely valuable, none are interchangeable or replaceable, and none are expendable.  Reference your own personal experience for proof of that.

The only rational definition of a child’s best interests is that the son or daughter always benefits from receiving abundant love from his or her father and mother, in the wonderfully unique and special way that develops between them.

There is no “better parent” – there is mother, there is father.  Each unique, each special, each wonderful.

If there are child protection concerns, diagnose child abuse and protect the child. There are four DSM-5 diagnoses in the Child Maltreatment Section of the DSM-5; Child Physical Abuse (V995.54), Child Sexual Abuse (V995.53), Child Neglect (V995.52), Child Psychological Abuse (V995.51).  If there are child protection concerns, diagnose child abuse and protect the child.

If, however, there are no child abuse concerns accompanied by a DSM-5 diagnosis of child abuse, then parents have the right to parent according to their cultural values, their personal values, and their religious values.  There is no rational or supported reason to give primacy to any of the unique parent-child bonds, each is unique to itself, they are all of equal value and importance.

Equal Shared Parenting is the correct approach following divorce.

A presumption that each parent should have as much time and involvement with the child as possible is always in the child’s best interests.  How that is practically met becomes the only consideration.  Equal Shared Parenting is defined as broadly a 60% to 40% time share, with latitude provided to reasonable factors.

While according to Stahl and Simon, forensic psychology does not have a clear definition for the best interests of the child, clinical psychology does.  It’s that picture.

It is always in the child’s best interests for the family to make a successful transition following divorce to a healthy separated family structure of shared bonds of affection between the child and both parents, mother and father, son and daughter, a tapestry of unique relationships.

Clinical psychology focuses on treatment, and the recommendation to the family courts from clinical psychology is to similarly focus on treatment rather than custody.

A focus on custody, especially litigation that encourages parents to prove the other parent to be a “bad parent,” is destructive to our ability to achieve a healthy separated family structure.  A presumption of equal value to the father and mother in the lives of a son and daughter will support the family’s successful transition to a healthy separated family structure following divorce.

The child belongs to two families, unites two families into the very fabric of who the child is, two family cultures, two family lineages, two family bonds to mother and to father. This is the fabric of the child.  If there is parent-child conflict, we fix it. We do not expel a mother of father from the life of their son or daughter.

If there are child abuse concerns, then we diagnose them and we protect the child. 

If there are no diagnosed child abuse concerns, then we fix things.  For a child to reject a parent is for the child to reject half of themselves, half of their very being.  We don’t divide children as a “custody prize” to be won by the “better parent” – we respect the unique and immense value to the child of a mother, of a father, that unique bond in the life of that young boy, that young girl. 

Mother’s are not expendable in the life of their child.  Father’s are not expendable in the life of the child, they are of equal value.

Equal Shared Parenting legislation will reduce the family conflict surrounding the child, with a clear message of the court’s support for the child’s bond to mother and to father, love and bonding are good things for the child.  Equal Shared Parenting following divorce supports the child’s healthy attachment bonding and psychological development.

Equal shared parenting following divorce is a good thing.  It will help remove the child from conflict.

If there are no child abuse concerns, diagnosed, then each parent should have as much time and involvement with the child as possible.  Equal shared parenting legislation supports this healthy family solution.

2. “Presumption”

The construct of presumption” has legal implications and I am a clinical psychologist.  I defer comment on the legal definitions and application of terminology.  I will, however, offer my perspective from clinical psychology and child development regarding the definition for that construct, to assist in a more complete understanding for that term relative to the child and family.

The legal professionals who offered this argument noted that in the 1800s it was a presumption toward the father, and then the “tender years” doctrine provided a presumption toward the mother, and that both were in error and there should be no presumption.

That is not an accurate characterization.  The presumptions cited were for one role, either mother or father, as being more valuable to the child than the other is, and were, as they indicated, in error. The solution is not to litigate which is the “better parent.”  The solution is to value both.

An equal valuing of both the mother and the father is the Equal Shared Parenting legislation, it provides no presumption of one parent’s value over the other in the life of the child.

Equal Shared Parenting offers no presumption of one parent’s value over the other.  But wait, said in an alternative way it becomes, the presumption is for equal shared parenting (somewhere balanced between 60% and 40% based on factors).

Or… said in an alternative way, there is no presumption of either parent being of greater value to the child than the other parent, mothers and fathers are equally important.

Notice something important.  The construct of “presumption” depends on the context in which it is used. Sentence structure, not inherent meaning. Context of the word’s use.

A presumption that favors the father is not appropriate.  A presumption that favors the mother, is not appropriate.  That doesn’t mean that we should open up decision-making to a free-for-all blood sport of litigation designed to prove the inadequacy of the other parent in order to gain greater custody time.

The presumption that mothers and fathers are equally valuable to the child is the Equal Shared Parenting legislation being considered by the Pennsylvania legislature. That is a true and accurate presumption, mothers and fathers ARE equally important to the healthy development of the child.

There is no presumption that either parent is “better” – or that it is a good thing for parents to be engaged in litigation to prove that they are “better” and that they “deserve” more time because they are “better” than the other parent.  That is not a good thing.

3. Bias is Unavoidable

Our social offices are held by people, and people have inherent unconscious bias, called heuristics, that influence perception and decision making outside of awareness.  Unconscious.

Sapolsky (24:30 – 29:30): Judges are more lenient after eating than before eating because of the blood sugar rise from lunch.  It is important to the discussion of bias that everyone watch Sapolsky from 24:30 to 29:30.  All of it is wonderful, that five minutes is essential for a discussion of bias.

We cannot eliminate bias, because bias is inherent to the humanity of the person in the role.  We can only strive to control and limit the effects of bias on decision-making by the court.  Within the legal system, this is accomplished through the specificity of language in legislation, and by prior additional guidance and clarification through precedent interpretations and decisions.

In matters of family conflict, where unconscious personal history, personal values, and personal cultural factors are all likely unconscious influences on the human occupying the role, it is unwise to allow too great a latitude to interpretation of vaguely defined constructs.

Stahl and Simon, who are acknowledged professional representatives from the Family Law Section of the American Bar Association, identify how vague and poorly defined the construct of “best interests of the child” is, even when guiding factors are identified.

From Stahl & Simon: “Even recognized experts in this concept differ with regard to what it means, how it should be determined, and what factors should be considered in determining what is in the best interest of a child.  Thus, this ubiquitous term escapes consensus and remains fundamentally vague… It is defined differently from state to state; and even in Arizona, where there are nine statutory factors associated with the best interest of the child, the meaning behind many of the factors is obscure” (Stahl & Simon, 2013, p. 10-11)

The apparent recommendations from the legal professionals testifying in Pennsylvania is that the solution to having neither a presumption in favor of the mother nor one favoring the father is to turn custody decision-making into a blood-sport of litigation to prove to the judge that the other parent does not “deserve” to be a parent based on a set of factors, the goal, the factors in proving that the other parent doesn’t deserve to be a parent.

That is not a correct approach.  The solution is to give neither parent a presumption and to recognize the equal value of both parents, mother and father, in the life of the child.  The solution is to provide a presumption of equal shared parenting, of equal value to the child of a mother’s love and a father’s love.

Children are not a battleground, and we should not encourage parents to weaponize the child into a custody battle to prove to the court the supposed “inadequacy” of the other parent.  The Equal Shared Parenting legislation being considered in Pennsylvania will remove children from the spousal conflict and will help restore a normal-range childhood to them, a childhood of loving and bonded relationships with both parents, mother and father.

Mothers are important and essential in the lives of their sons and daughters.  Mothers are not expendable from the lives of their children. Fathers are important and essential in the lives of their sons and daughters.  Fathers are not expendable from the lives of their children.

Equal Shared Parenting legislation supports that, and will achieve that.

As a clinical psychologist with a professional specialty in child and family therapy, I am the professional who is tasked with fixing family conflict and restoring the child’s healthy development.  I am in full and complete support of the Equal Shared Parenting legislation in Pennsylvania.

So much so, that I flew back to Harrisburg just to be in the room.  This legislation is the right thing to do.

Craig Childress, Psy.D.
Clinical Psycholgoist, PSY 18857