Should all the kids stay with one parent after a divorce? Why or why not?

I am a divorce and family lawyer. I have been for 23 years. It is impossible to come up with a blanket policy for all children of all parents in all families.

For example, if a divorce were precipitated by one spouse being violent toward the other spouse and his/her children, then clearly the violent parent is not fit to exercise joint custody, and it would be irresponsible of a court to award joint custody for the purpose of “preserving unrestricted parental rights” of someone who is not fit to exercise unrestricted parental rights.

Even when both parents are loving and responsible parents, if they live too far apart to make joint physical custody feasible, that’s another reason why a court would not award them joint physical custody of their children.

But for the overwhelming majority of parents (parents who do not asked to Divorce or want to divorce their children), when fit and loving parents live within a reasonable distance of each other so as to exercise of joint physical custody in a way that not only does the children no harm but does them greater benefit than a sole custody arrangement, there is simply no good reason not to award joint physical custody. It’s not only in the best interest of the children, it’s in the best interest of the family, both individually and collectively. It’s what children of two fit and loving parents want— to have as much contact and influence of both of their parents as possible.

With rare exception, anyone who advocates for the children spending the majority of their time in the custody of one parent over another is usually the parent wanting the children spending the majority of their time in the custody of one parent over another. That alone is reason to be highly skeptical of those who advocate for sole or primary custody arrangements.

Why do so many parents insist on making child custody a zero-sum game when there are two good and loving fit parents who want both parents to exercise as much custody of their children as possible? And why do the majority of courts continue to disfavor and thwart joint custody co-parenting arrangements? I’ll tell you why: administrative expediency. They think it’s easier on them if one parent has primary custody because they think it will reduce the amount of conflict between parents that will come back before the courts for resolution. What’s so perverse is that the opposite is true.

Utah Family Law, LC | | 801-466-9277

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