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Few issues within the domestic courts are as fraught with emotion and lead to prolonged litigation like those of disagreements over custody and parenting time. Good parents are often blinded by the emotions of the moment and fail to recognize the need to jointly parent their children. 
This leaves the courts to protect the parents’ equal rights to the children, but without a proper statutory framework, too many parents find parental equality an illusion when they step into a family law courtroom. This is in spite of the fact that recent studies and reports such as The Association of Family and Conciliation Courts (AFCC), the “Warshak Consensus” paper,1 and others have concluded that children are best served when parenting plans facilitate shared parenting and time between parents.
While every state law relating to custody and parenting time is different, those laws play an enormous role in determining the relationship that divorced parents will have with their children post-divorce. Educating yourself as to what your state law says about joint custody and joint time with your children is an important first step in better understating the divorce process.
We at Ball Morse Lowe are providing an evaluation of the current law in the states where we practice based on the recent National Parenting Organization 2019 Shared Parenting Report Card. The entire report card will provide information for your respective state and we encourage everyone to review its findings.
What we want to see in a state’s parenting statute.
The United States Supreme Court has held that a parent’s relationship with their children is a fundamental right.2 However, the care and custody of the children can be governed by state law.3 The Supreme Court in Troxel gave state court judges the power to balance the rights of each parent when deciding issues relating to those parents. As a result, parenting laws for the 50 states are a patchwork of different considerations and preferences that result in one of the most unappreciated civil rights issues of our time, parental equality.
When looking at a state’s law to determine whether it encourages parental equality, we’re looking for a few specific provisions. Does the statute establish a rebuttable presumption of shared parenting even when parents do not agree? If so, is there a clear exception for cases of domestic abuse, which in the view of most experts, is important? And are judges required to justify deviations from the rebuttable presumption? If there is a presumption in favor of shared parenting which is defeated by findings of domestic abuse, are there family court-based provisions to deter maliciously motivated false allegations of abuse?4 In other words, is a parent penalized for lodging a false allegation of abuse against the other parent? Conversely, does the statute presume a sole custody model, for example by speaking consistently or inappropriately about “the custodial parent,” which inhibits shared parenting?
How do our practice area states compare to the goal custody law?
Oklahoma
Oklahoma includes a friendly parent consideration that doesn’t quite rise to the level of a shared parenting policy statement but does encourage “parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage provided the parents agree to cooperate and that domestic violence, stalking, or harassing behaviors…are not present in the parental relationship.” 43 O.S. § 110.1. The same statute permits, but does not require or prefer, shared physical custody in final orders.
Oklahoma law has also attempted to discourage false allegations of abuse by treating them as factors in custody decisions or provide for sanctions. 43 O.S. § 107.3D.
Oklahoma received a D+ grade due to the fact that Oklahoma has no statutory preference for, or presumption of, shared parenting (joint legal custody and shared physical custody) for temporary or final orders. In fact, Oklahoma has explicit language denying any such presumption: “There shall be neither a legal preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody.” 43 O.S. § 112.
Texas
Texas received a C- grade in the study by the National Parent Organization. Although the Texas statute is more encouraging of joint legal custody as a result of its provision presuming that joint legal custody is in the best interest of minor children, Texas does not provide a statutory preference for shared physical custody.
Texas policy encourages “parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage” TEX. FAM. Code Ann. §153.001. Texas statute provides that a court can issue a joint custody order in the absence of agreement between the parties on joint custody. TEX. FAM. Code Ann. §153.134. And if a parent makes false allegations of abuse, the court can factor that into the custody decision as well as sanction the party for the allegation. TEX. FAM. Code Ann. §153.013.
Texas has no statutory presumption, or preference, for shared physical custody, therefore the court is left to their own discretion in crafting a visitation schedule for parents and children, in fact, Texas law specifically states that equal custody does not mean that equal or nearly equal parenting or possession is necessary. TEX. FAM. Code Ann. §153.135 “an award of equal or nearly periods of possession of and access to the child.” TEX. FAM. Code Ann. §153.135. There’s also no guidance for shared parenting during temporary orders, which are often the precursor to a final physical custody order.
Colorado
Colorado’s law is little better than Texas in that it has no statutory preference or presumption for joint parenting and decision making. Although Colorado law includes a legislative declaration that in most circumstances joint parenting and responsibly is preferred, it stops short of creating a statutory presumption and simply urges parents to share rights and responsibilities and leaves the decision of custody and parenting time to the court based on the best interest of the children. COLO. REV. STAT. § 14-10-124.
What does a good equal parenting law look like?
Kentucky has one of the strongest statutory constructs to protect parents’ parental relationship with their children, even though the state recently had on of the worst custody laws. Kentucky law now contains a rebuttable presumption “that joint custody and equally shared parenting time is in the best interest of the child” barring evidence of domestic violence and abuse. This presumption applies at both the temporary order and permanent order levels. KY. REV. STAT. ANN. §§ 403.270, 403.280, 403.315.
For the court to issue an order against the presumption of equal shared parenting, Kentucky law requires the judge to issue a finding based on a “preponderance of the evidence” as opposed to a mere allegation or filing. KY. REV. STAT. ANN. § 403.270(2). And if the presumption of equal shared parenting time is defeated, the court must still attempt to maximize the time each parent has with the children, consistent with the child’s welfare. KY. REV. STAT. ANN. § 403.270.
Kentucky has received an “A” ranking from the National Parent Organization while Oklahoma has received a D+, Texas a C-, and Colorado a C. Anything less than an A rating should draw attention to the state’s parenting statutes and why the state is not doing more to facilitate equality among parents. Without a more facilitating statutory framework for joint parenting, many parents will continue to find the domestic courts full of frustration and less than inviting for all parents.
Laws will have to change for parental equality to become reality.
Legislative changes are necessary to protect equal rights for good parents. Informing yourself as to your state’s law will provide you with the information necessary to encourage your local legislator to vote for bills that strengthen parental equality.
Ask your legislators to pass laws that encourage parental equality including:
- Creating a rebuttable presumption of shared parenting even when parents do not agree;
- Requiring judges to justify deviations from the rebuttable presumption of joint custody;
- Ensure provisions are in place to deter maliciously motivated false allegations of abuse?
- Eliminate a presumed sole custody model from the statutory framework by not speaking consistently or inappropriately about “the custodial parent,” which inhibits shared parenting?
Ball Morse Lowe, PLLC is a multi-state law firm with offices in Oklahoma, Texas, and Colorado. Our family law attorneys are prepared to represent good parents and tirelessly advocate to protect their right to parent their children. If we can assist you regarding your child custody matter, please contact us at (877) 508-4265 to schedule a consultation.
[1] https://psycnet.apa.org/record/2014-03984-002
[2] Meyer v. Nebraska, 262 U.S. 390 (1923), Santosky v. Kramer, 455 U.S. 745 (1982)
[3] Troxel v. Granville 530 U.S. 57 (2000)
[4] 2019 NPO Shared Parenting Report Card
