A judge awards primary custody to one parent based on a two-day trial where each side presented selective evidence and emotional testimony. The children, ages eight and ten, were never asked what they wanted. Another family shares custody equally, with children moving between homes weekly despite one parent's concerns about instability. A parent alleging abuse watches their ex-partner receive unsupervised access because the court found insufficient evidence, while the children express fear about visits. Someone with a history of substance abuse has worked hard at recovery but faces an uphill battle convincing a judge they have changed. Courts make decisions that shape children's daily lives and family relationships for years, yet whether judges can reliably determine what serves children's best interests in a few hours of court time, with incomplete information and competing narratives, remains questionable at best.
The Case for Shared Parenting as Presumption
Advocates argue that children benefit from meaningful relationships with both parents and that systems should presumptively support shared custody unless clear evidence indicates it would harm children. Decades of research show children generally do best with substantial time with both parents, not weekend visits with one. From this view, courts too often default to primary custody arrangements that marginalize one parent, usually fathers, based on outdated assumptions about gender roles or minimal evidence of superior parenting. Shared parenting recognizes that both parents are important, reduces parental conflict by eliminating winner-takes-all battles, and allows children to maintain close relationships with both sides of their family. The best interests standard, while well-intentioned, gives judges enormous discretion that produces inconsistent outcomes based more on judicial bias than children's actual needs. Establishing shared parenting as the starting point, with clear criteria for departure when genuinely necessary, would better serve children while reducing litigation and its costs. Parents who claim the other is unfit should bear the burden of proving it rather than courts deciding based on impressions from brief proceedings.
The Case for Individualized Best Interests Assessment
Others argue that presumptive shared custody ignores that every family is different and that what works for one child may harm another. Some parents cannot cooperate sufficiently for shared arrangements to function. Some have been primary caregivers while the other parent was minimally involved. Some children thrive with stability in one home rather than moving between two. From this perspective, judicial discretion to assess each family's circumstances and determine what actually serves particular children is essential, not a flaw. Mandatory shared parenting can force children into arrangements that expose them to ongoing parental conflict, inconsistent rules and routines, or time with parents who lack capacity or interest in active parenting. Moreover, shared custody presumptions can be weaponized by abusive parents who use custody battles to maintain control over ex-partners, knowing that courts will default to shared arrangements. While best interests standards are imperfect, they allow judges to consider factors that rigid formulas cannot capture: children's ages and developmental needs, special needs requiring consistency, parental mental health or substance abuse, geographic distance, siblings' needs, and children's own expressed preferences when they are mature enough to have them.
The Voice of the Child Question
Older children often have strong preferences about custody arrangements, yet involving them creates impossible tensions. Asking children which parent they prefer forces loyalty conflicts and guilt about rejecting one parent. Children may express preferences based on which parent has fewer rules rather than which arrangement serves their long-term wellbeing. Manipulative parents can coach children or create situations where children feel they must choose sides. From one view, children's voices deserve weight proportionate to their maturity, with teenagers particularly having significant say over their own lives. From another, asking children to choose between parents places burdens on them that adults should bear and risks children making decisions they later regret. Whether judges should interview children privately, rely on assessors' reports about children's wishes, or avoid asking children entirely what they want creates disagreement without clear resolution.
The Abuse Allegation Dilemma
Custody battles frequently involve allegations of abuse, neglect, or parental alienation. Some are genuine and require protection. Others are strategic attempts to gain advantage, made knowing that defending against allegations is difficult and the mere accusation creates suspicion. Courts must balance protecting children from real harm against preventing false accusations from succeeding. Requiring proof before restricting access risks leaving children in dangerous situations while investigations proceed. Acting on allegations before proof risks punishing innocent parents and damaging their relationships with children based on unsubstantiated claims. Whether courts are too quick to believe abuse allegations and restrict access, or too dismissive of warning signs that put children at risk, depends entirely on perspective and which horror stories one has witnessed.
The Question
If children benefit from relationships with both parents, does that justify presumptive shared custody even when parents cannot cooperate or one has been minimally involved, or should courts assess each family individually despite the inconsistency that produces? Can judges reliably determine children's best interests based on brief court proceedings with conflicting evidence and emotional testimony? And when custody disputes involve allegations of abuse or alienation that are sometimes genuine and sometimes strategic, how can courts distinguish truth from manipulation without either failing to protect vulnerable children or enabling false accusations to succeed?