Read the news coverage and op-eds about our Shared Parenting Report Card at the links below:
August 28, 2019 by Ginger Gentile, Deputy Executive Director
The Supreme Court of Mexico has struck down as unconstitutional a provision in the capital’s law that has automatically given to mothers child custody of children under the age of 12 (KVOA, 11/21/19). That is, up to now, every child under the age of 12 in the country’s federal district, risked losing its precious relationship with its father when the adults split up. That was the district’s version of the Tender Years Doctrine that’s been abandoned by most countries in the Western world, Israel being one notable exception.
Mexico City, that makes up most of the federal district, has a population of almost 22 million people, so the change affects a large proportion of the country.
The Supreme Court found Thursday that the rule governing custody of kids under 12 years old is unconstitutional for making a distinction on gender.
The ruling is based on the principle of equality and the higher interest of minors. It says the unconstitutional language violates the latter by taking away judges’ discretion to consider the individual circumstances of each case to determine which parent is best equipped to care for a child’s needs.
Therefore, children’s best interests were deemed by the court to have been compromised by the previous law because, after all, in many instances, Mom’s not the better parent. But up to now, judges had no discretion to give custody to Dad.
December 4, 2019 by Patrick Fraley
The Law of Inertia states that an object at rest tends to stay at rest, whereas an object in motion tends to stay in motion. Few things have more inertia than family courts, standing still for decades despite major changes in the world around them. Like most states, Arkansas has been working toward laws and practices that support joint custody, equal parental rights, and best outcomes for children. Since the 1970’s, laws have been passed to correct outdated theories and practices to bring family courts in line with public opinion and “best interest of the child.” Why is it taking so long? With each push the legislature has made to bring family law into the modern era, there has been an opposing reaction by the family law industry to keep the status quo.
Arkansas, like other states, used to include maternal preference in its custody laws. This was based on misguided theories like the Tender Years doctrine, alleging that young children needed to be raised by their mothers. As society changed, anti-discrimination ideas advanced, and Tender Years was dismissed, maternal preference was replaced with gender-neutral laws and the “best interest of the child” principle. In Arkansas, this occurred in 1979 with the passage of Act 278, stating the award of custody “be made without regard to the sex of the parent” but solely in the “best interest of the children.” However, the family law industry looked the other way and failed to change its practices. Custody continued to be almost universally given to mothers while fathers were turned into visitors paying child support. Joint custody - what we now know to be the best outcome for children - was almost nonexistent.
It wasn’t until over 20 years later that the Arkansas legislature stepped in to direct the courts toward joint custody. Act 92 of 2003 stated “In making an order for custody, the court may consider awarding joint custody of a child to the parents.” The goal was to have judges start treating joint custody as a viable option. How did they respond? The courts negated the new law with their own appellate case law. In 2006, Bailey v Bailey reversed a lower court order for joint custody on the grounds that joint custody was “disfavored” in the state, giving primary custody to the parent who didn’t want joint custody. Once again, the lawyers and judges held their ground despite the new law allowing joint custody and the mounting evidence behind it.