What is the best custody arrangement for children after divorce?

What is the best custody arrangement for children after divorce?

What ‘New’ Studies Say Is Best For Children Of Fractured Homes

Trading weekends is out. Children need open access to both parents.


This is a great article I came across this morning on The Federalist by   about new research that indicates children of divorce are more tolerable of divorce when they have unrestricted, unlimited access to both parents. 

“What is the best custody arrangement for children after divorce? Most of us outside of family lawyers and courts don’t think about that question until we are faced with it. And then adults tend to choose administrative stability, figuring the kids are as exhausted and spent as themselves. Children of divorce face such an upheaval that it makes sense to adults that the children need time to rest and recover, and so we prioritize routine.

Certainly our custody assumptions support this kind of stability. Typically, one parent gets primary custody, while the other gets Wednesday evenings, every other weekend, half the summer, and alternating holidays. This is so normalized that I was recently encouraged to host a women’s event on Wednesday night because that’s when the kids of divorce are with their dads. It is widespread and predictable.
But those custody norms are informed by old research. We have new research now. In fact, we have enough research that we have long-term studies of children of divorce and meta studies—studies of those studies, a few of which I covered here last summer.

Grant Children Their Rights, Too

What children want and what children need—what they see as stability—is open access to both parents. From a 2000 paper by William V. Fabricus and Jeffery Hall on young adult perspectives on living arrangements after a divorce, reporting on their follow-up in the late ’90s with children of divorce they had studied in the ’70s:

“Earlier research on younger children’s perspectives on living arrangements has demonstrated that children desire free and frequent access to noncustodial parents. For example, Rosen (1979) found that 60% of children wanted unrestricted contact, regardless of whether the noncustodial parent was mother or father. Children repeatedly insisted that being able to see the noncustodial parents whenever they wished and being able to see that parent often made their parents’ divorces tolerable for them.

Kelly and Wallerstein (1977) reported that young children viewed the typical every-other-weekend visitation arrangement as severely inadequate. ‘The only younger children reasonably content with the visiting situation were those 7- and 8-year-olds visiting 2 or 3 times a week, most often by pedaling to their father’s apartment on a bicycle’ (p. 52).

…The perspectives of young children, although compelling, have not had much influence in public policy debates about custody and visitation. Young children’s feelings may be suspected of being relatively temporary, malleable, and ultimately not strongly connected to measurable outcomes. The public policy debate about custody and visitation has generally been framed in terms of parents’ (and, most recently, grandparents’) rights rather than children’s wishes (Mason, 1999). Thus, it is important that Wallerstein and Lewis (1998) have recently reported on the longitudinal follow-up of the perspectives of these children now that they are adults. Their report is based on a subsample of 25 respondents who were the youngest (now ages 27 to 32) in the longitudinal study.”

Wallerstein and Lewis (1998) found that many of their respondents reported that their visitation schedules with their fathers had been too disruptive and too inflexible and that when this was true they got little enjoyment or benefit from visitation in the way of enhanced relationships with their fathers. As adults, they feel strongly now, as they did then, that their wishes should have been taken into account, and they remain angry and resentful that they were not.

But the children’s desires have had a hard time breaking through the conventional wisdom. Myths about single-adult attachment and simple routines persist. Considering the relative advantages for children of intact families, that children need both parents should not surprise us. Yet it does.

Historical and Practical Ruts
Divorce wasn’t commonplace until the 1970’s. Before then, social scientists studied orphaned children and mother and young child attachment. Mothers were the primary caregivers of children, so studying them first made sense. Then, when the divorce rate spiked, courts didn’t have other information to advise them about the best custody arrangements for children. They granted primary mother care based on the only available research and the prevailing cultural practice. Then social science started to study the effects of a fractured family or father absence.

After about four decades of such studies, we have another answer to “What is best for the children?” (Or really we find another example of being led astray by data that our common sense should have warned us to be wary of back in the ’70s.) Absent extenuating circumstances such as abuse, children children need open access to both parents.

Advocacy groups for children of fractured homes are opening all over the world trying to break though the old myths with the new studies. They typically seek a presumption of shared parenting rather than the current unstated presumption of primary maternal custody, which covers for an epidemic of familial alienation when the sole-custody parent restricts visitation by other family members.

Simply, courts should grant shared custody, roughly 60 to 40 percent splits of time, to divorcing parents unless presented with clear and convincing evidence that this arrangement is not in the best interest of the child. Abuse, addiction, instability—evidence of each could prompt the court to grant custody to one parent. The court would simply start from the idea that the child should have time with each parent.

The Opposition: Lawyers and Feminists
As simple and logical as that presumption sounds, the two main groups actively resistant to shared parenting make for powerful opposition: lawyers and, paradoxically, feminists. That lawyers oppose shared parenting makes sense. Shared parenting arrangements tend to reduce parental conflict and therefore the continued need for lawyers and their fees. (See generally, the myths link above, page 3 and studies cited in footnotes 16-21.) But feminists, a group often heard demanding more domestic participation from fathers and who we might expect to vehemently object to the old legal assumptions that expect the mother to provide primary care for children, their opposition to shared parenting makes no sense.

In other contexts, feminists complain about the cultural assumptions of childrearing putting an unfair burden on women, but when the law tries to redress that burden and demand that parents share in childrearing, then feminists object. Why? Since courts have overwhelmingly awarded primary custody to mothers in the past, feminists see shared parenting as part of the men’s rights movement. They object to shared parenting as men trying to usurp women’s power by trying to assume the parental responsibility women normally assume, as an attempt to lower child support payments, and as society failing to protect women from abusive men. A particularly tight contortion in reasoning from a recommendation of the National Association of Women and the Law in Canada, where a shared parenting law was defeated back in May.

In fact, as long as women remain the primary caregivers of children, women’s equality is in the best interests of children, and law reform can and must simultaneously take into account and promote both the best interests of children and the equality interests of women.

So while the assumptions about mother care hold, then the assumptions should be followed? I thought feminism was, partially, about breaking assumptions about women’s roles. (Pause here for a moment to ponder that although non-feminists keep getting lectured about how feminism isn’t anti-men, their actions suggest otherwise. They turn their own goals inside-out for simple spite.)

Playing to type, in the North Dakota political battle over the “new and improved” Measure 6, the only active vote for a presumption for shared parenting in this U.S. election cycle, the group running the opposition campaign is all lawyers plus a male pastor and a female domestic violence advocate—and they seem to be using State Bar resources to oppose the legislation. The group that sponsored the measure, however, isn’t the stereotypical men’s rights groups. That group is all women.

Shared parenting is about family.
There are many fathers’ rights groups who support shared parenting, of course, but that is only because fathers are usually the alienated parent. I’m a member of Leading Women for Shared Parenting and the stories we receive in that organization are overwhelmingly from women. Some are mothers who hardly see their children. Others are grandmothers and aunts who cannot see their grandchildren, nieces, or nephews, because their son or brother is denied access to his children. The heartache strains other family relationships, like the distraught father who avoids talking to his mother so he can keep his angst from overflowing or the mortified sister who inadvertently posted a FB link that upset the alienating parent and ended the little contact her brother had with his children.

Shared parenting isn’t about fathers’ rights. It isn’t even just about children’s rights, although their hurts are certainly the deepest because they last a lifetime. Shared parenting is about family. Divorce is hard enough, severing the family’s spirit. Physically splitting the family as a matter of course means those spiritual wounds cannot heal for anyone, especially the children.

It is time to stop playing money and politics over children from fractured homes. They have enough to deal with. We should do what is best for them. And the four decades of studies really just tell us what we intuitively know: Children need their parents—both of them.”

Should you have any questions or concerns in your own child custody case and would like to seek legal counsel, please fill out the form below and my office will be in touch with you to set up a consultation.

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What are the Military Divorce Laws?

What are the Military Divorce Laws?

Military Divorce laws don’t actually exist, but the military does have standard regulations commonly applied to divorces.


By Kristin R.H. Kirkner, B.C.S.

The state courts have the sole and exclusive jurisdiction over divorces, so the term “military divorce laws” is somewhat misleading. However, the military does have some regulations or rules that are commonly applied to divorces:
1. Service member’s Civil Relief Act (SCRA): If the member’s military service prevents the member from participating in the divorce proceeding, the member can ask the court for a “stay” or to essentially delay the proceedings until the member is available.

2. Family Support: This will be addressed more in depth in a subsequent post, but each branch has family support regulations in the absence of a court order. It is possible that the member’s chain of command would be called upon by the non-member spouse or the spouse’s attorney to enforce these regulations either before, or in lieu of, temporary relief.

3. Conduct Unbecoming: Extramarital relations, fraternization and failure to support the family during a separation or dissolution can be reported to the chain of command and may have consequences including loss of rank, loss of pay or forced retirement. While it may seem tempting to report every misdeed, remember that if there is no source of income, it is difficult to get child support and alimony payments on time. Talk to an attorney who regularly deals with cases involving military members before taking this course of action.

4. Military Protection Order: In some situations, particularly when there are allegations of abuse, the military may impose a military protection order. A military protection order is the military equivalent of a no contact order or a restraining order, but it can be enforced through UCMJ. The requirements for a military protection order (MPO) are different than the requirements for an injunction in civil court so if you believe that you are in danger or need protection, it is important to explore your options with an attorney who is familiar with all of your options, both through the court and through the military.

5. Direct payment of Retirement from DFAS: DFAS will make direct payment to the former spouse when 10 years of service overlaps 10 years of the marriage. The State Court will divide the retirement regardless of the length of the marriage, it is only the direct payment that requires a 10 year overlap.

6. Jurisdiction: Military regulations allow a member’s home state to be different from the state of driver’s license issue, which is likely different from their duty station. These military regulations result in members having exposure to jurisdiction in multiple states, based on “home of record, state of driver’s license issue, physical location and proximate residency. The Jurisdictional issues in divorce cases involving military members and their spouses are complex and require someone who is well versed in navigating the logistics of jurisdiction to make sure that you are proceeding in the best state for you and your family.

If you would like a consultation, please fill out the form below and my office will contact you shortly to schedule an appointment. Military divorce “laws” can be complex; work with someone who is extremely knowledgeable in both military and divorce matters.

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Infographic: The Divorce Process

Infographic: The Divorce Process

The divorce process typically follows one of the paths depicted below.

Divorce is a complex matter. We’ve created this infographic to give you an idea of the the different paths the divorce process can take.

divorce process in tampa florida

For any questions about your divorce, or to schedule your consultation, please fill out our contact form and we will be in touch with you shortly.


Top 7 Mistakes Women Make In Divorce

In our experience, this article is spot on.

The Top 7 Mistakes Women Make In Divorce, According To A Lawyer Who’s Seen It All

Written by Adriana Velez on CafeMom’s blog, The Stir.

“Divorce is the psychological equivalent of a triple coronary bypass,” said author Mary Kay Blakely. She’s right. Not only is divorce painful, it can also be incredibly complicated.

And what that means is that it’s a breeding ground for mistakes. So many terrible, long-lasting, devastating, regrettable mistakes are made because we’re on an emotional roller coaster, or because the legal process is messy, or both.

“It’s what I call the ‘divorce paradox,'” says divorce lawyer Rebecca Zung, author of Breaking Free: A Step-By-Step Divorce Guide to Emotional, Physical and Spiritual Freedom. “In the worst emotional trauma, you have to make the most critical decisions of your life.”

Wondering about all the ways women can go wrong when their marriages end? We’ve got the scoop on the biggest divorce secrets and fails by someone who’s seen it all.

1. A limited understanding of the family’s finances. Sometimes a husband will create a mountain of debt without telling his wife. Or, he’ll amass more assets than she’s aware of. Either way, the divorce will take longer if the wife isn’t in the loop. “If you think your’e going to file for divorce,” Zung advises, “first take a couple of months to be a sleuth. Open up those letters from the bank and find out what’s really going on.”

2. Not having enough money to get started. If you’ve been financially dependent on your husband, you can request what’s called “temporary maintenance” to cover your expenses until your divorce is finalized. But you’ll still need some cash for the initial legal fees and for your own day-to-day expenses before the court awards that maintenance. You need money to put a lawyer on retainer. Zung says that amount can vary widely, anywhere from $5,000 to $20,000 depending on your circumstances.

3. Neglecting to use a lawyer. “A husband who wants to control the whole process might tell his wife, ‘Let’s just meet at Starbucks and work this out between the two of us.’ Or, ‘Who do you trust more?'” Zung cautions. “Then he’ll try to get her to settle for far less than she’s entitled to. And when I later tell her that no, you’re entitled to more than that, he gets angry and that makes it harder to negotiate down the road, even in mediation.”

It’s fine to settle issues like pickup times for the kids between the two of you. But if your husband wants to discuss details in your divorce case, Zung urges women to firmly say, “Please speak with my lawyer about that.”

4. Reacting emotionally. “This is the biggest one,” Zung says. “Some women give in because they’re emotionally exhausted, or they don’t want people judging them. But they’ll usually regret giving in too soon.” On the other hand, some women cause a divorce to drag on because of their thirst for revenge. Zung says those clients tell her, “‘I don’t care how long it takes or how much it costs, I just want to make him suffer.’ But then the wives suffer, too.'”

It’s not just the women, though. Zung saw one husband get so angry he punched a hole into a wall during a meeting. She’s also seen people storm out of proceedings. “Sometimes emotions are running so high, we can’t even start off in the same room.” This is counterproductive. “The best way to get a good resolution is for everyone to remain calm.”

5. Confusing divorce justice with divorce law. “These are not the same thing,” Zung says. Some women will tell her that they want half of their husband’s salary plus the house, for example. “It’s what they want,” she says. “But the law may not support that. She’s confusing what she thinks is just with reality.” For example, you might think there would be a financial penalty for adultery. But no — in most states cheating has little impact on the distribution of assets.

6. Taking her husband’s reaction to the divorce personally. “Once a man accepts the fact that the divorce happens,” Zung explains, “it often becomes a like business deal to him.” This means he’ll come in with a certain cold, calculating emotional distance. Women can get caught up in feeling hurt over this, wondering things like, how does he not see everything I’ve done for him? “This gives the husband the edge in negotiation,” Zung says. “If you’re feeling hurt, you’re dealing from a weaker position.”

7. Settling too soon, and for too little money. Zung says she sometimes has a client sign a letter saying that she’s “explained to her how much she’s entitled to, and that she acknowledges that she is giving this up anyway. Most of the women who sign it come to regret settling.”

Why take less than you’re entitled to? Some women feel guilty taking what they have every right to under the law. Others just want to get it all over with as quickly as possible.

Zung has seen some women give up millions. One client’s husband’s estate was estimated to be worth $25 million. But she walked away with just $5 million, child support, and a condo worth about $500,000. “He was harassing her. I got so many crying phone calls from her, and she just couldn’t take it anymore,” Zung says. So she decided $5 million was plenty so she could end the drama.

You may have noticed a common theme running through these mistakes: Your emotional state can affect your finances and your divorce. It’s clear that women need a certain amount of resilience, self-awareness, and a firm grip on reality to navigate splitting from their husbands. Get the help you need, whether that’s through therapy or a support group.

Have you made mistakes in your divorce that you regret?

Have any questions on your divorce, or looking for a competent, family law expert in Tampa? Fill out the form below and we will contact you to schedule your free consultation.

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Kristin R.H. Kirkner is #5 on Top 10 Family Law Attorneys Under 40 in Florida

When it comes to your family, having one of the best family lawyers in the state is a must.

Kristin R.H. Kirkner has just been named one of Florida’s Top 10 Family Law attorneys under the age of 40. The National Academy of Family Law Attorneys has created a thorough selection process to save consumers the leg work of researching qualified, experienced, ethical and well respected family law attorneys. There are thousands of family law attorneys in Florida, and we are thrilled to have one of the Top 10 as a partner at DeCort & Kirkner P.L. here in Tampa.

If you’re curious about the selection process, here is an excerpt from the National Academy of Family Law Attorney’s website, annotating the four major components to finding the best family law attorneys in Florida:

If you are undergoing a divorce, military divorce, child support, alimony or any other family law matter–don’t you want one of the best in the state, and a board certified family law expert? Contact the office of Kristin R.H. Kirkner by filling out the form below, and we will be in touch to schedule your consultation.

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