By Peter J. Favaro, Ph.D.

August 1, 2019



By Peter J. Favaro, Ph.D.

“Fifty-Fifty” visitation has become a major bone of contention in custody battles. I have seen plenty of cases go to trial over mere percentages of difference from “mathematically equal” distributions of parenting time. But is 50-50 as fair as proponents argue? What standards exist for any apportionment of time? And if 50-50 isn’t always fair, what are courts to do when asked to assign parenting time? Rely on experts? Guess? Actually, there is a better way, as this article will show.

But first, the reasons why “fair is fair” isn’t always, well, fair.

Often, when in conflict, litigants use reductionistic or regressive strategies to arrive at what they believe is a “fair” outcome, and what they arrive at is “fair is half and half – equal, ‘samesies.'” However, psychologists and evaluators are hard pressed to support 50-50 distributions of parenting time (or any distribution proportion) because there is no outcome research that provides guidance as to how children adjust to various schedules and under what circumstances. In fact, the circumstances of each individual case are so diverse and complex that no research study could possibly take into account enough variables to make the outcome of that research applicable to the fine-tooth divisions of time that often dominate custody disputes – and evaluators do not possess the tools or the data to predict which access proportions best benefit kids. For instance, where do you find a study that takes into account: the child’s age, gender, and emotional adjustment, as well as the personality characteristics of the parents, their parenting style, whether they are still in the same house or in different houses, the distance between them, whether they live with a significant other, the degree of availability because of work schedules, and the presence and influence of extended family members. Give me five minutes more and I’ll come up with a dozen more variables.

Judges might also see 50-50 as “fair outcomes” for children, even infants, on grounds that they should be with each of the most important people in their lives equally. But when judges apportion access time without the help of an expert, they are making educated guesses based on the evidence adduced at trial (or the interim arguments they hear on control dates prior to trial, where problem solving is often as agile as it is futile). When they apportion parenting time with the help of an expert, they are making educated guesses based on the educated guesses of their experts. If I am a consumer of the expert services ordered by the court, which is costing me thousands, tens of thousands, or in some cases hundreds of thousands of dollars, and I was convinced that this was one big guessing game, I would be unsure of whether I am getting my money’s worth.

So what to do? Actually there is a way out of this quandary. Since there is no way to avoid guessing and no good research to improve our guessing, I go back to what happens pre-trial and conclude that while we might not call it “experimenting with parenting access arrangements,” there is absolutely no shame in doing just that, except for the fact that the law is not always so friendly to the notion that visitation schedules can often not be modified so easily (without consent) absent a hearing. But here is where a qualified mental health experts might give some real assistance to the court – not as predictors of what access arrangements work in the post-trial uncertain future that occurs outside the watchful eyes of the court, but as data gatherers who can report on how children adjust to changes in access while a case is ongoing.

The data gathering role that competent methodologists can play, and that might very well assist judges, is that every case becomes an “N of one,” meaning every case is a behavioral experiment in and of itself where the initial protocols for access reflect a “baseline,” and changes in access reflect comparisons to the baseline and a new baseline. Judges can choose a top-down approach and add more time to the less apportioned parent, or they can take a bottom-up approach and start with equal apportionment. Either way, those are starting points and they force litigants to do what they should be doing anyway, which is to be flexible. Measures tied to best interests – school grades, teacher reports, behavioral adjustment, co-parenting attitudes, intensity of conflict – can be tracked over blocks of time and compared to the baseline.

Critics will ask if it is wise to put kids through these types of “experiments,” which might have an adverse influence on their adjustment, and that’s a fair criticism. However, that’s precisely what we do in every case where children’s lives change after a trial or hearing, with no information which informs us if the decision at trial actually mattered to kids.

Modern information-gathering technologies allow behavioral scientists to collect and analyze more information than that which would be collected in face-to-face interviews, psychological testing or “traditional” custody evaluation methodology. Data gathering concerning children’s adjustment, co-parenting disputes, civility, academic performance, etc., can be gathered on a daily basis (through channels like the internet where people can supply information from home) and can be examined. These are valuable data for problem solving (in and out of litigation) and even more valuable as evidence that can be produced at trial.

For example, not all infants are alike. We really don’t know if all fathers can handle all infants for overnight visits or 50-50 visitation. Some fathers can and some can’t. Some infants can bear the separation from mothers and some can’t. The “attachment people” who say infants cannot be separated from their mothers to visit overnight with their fathers have their zealots. The fathers’ rights activists who say that fathers offer unique benefits to children that mothers cannot provide to infants take their zealous positions.

As a theoretical debate it is all interesting, but in the real world, doesn’t anyone want to see how an infant-to-three-year-old actually reacts to overnight visits? Why shouldn’t they? Kids have different temperaments. Parents have different skill levels. Experts sitting in their comfy consultation chairs should not opine without seeing – and seeing once or twice might not be enough.

Today’s technology offers remote real time viewing that operates from the palm of your hand (from your phone). Why don’t we employ this to look at how kids fall asleep at the other parent’s home, or whether they calm down five minutes after throwing a fit at visitation transition. My point is that when data like this are available I don’t care much about what Scale 6 on the MMPI-2 is reading.

Technology and improved remote data-gathering techniques are not beyond criticism and will not answer every question about access percentages. What I do believe is the way data are gathered in “traditional evaluations” is so limited in utility that we need to look at some type of alternative. The tools used for the typical custody evaluation are rusty. If we don’t start exploring the use of new ones, we can’t possibly get it even half right.

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