Splitting the Baby: Why Cookie-Cutter Custody is Not the Answer

by Kristen Pierce, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

In March, two members of the Ohio General Assembly introduced a bill that would change child custody determinations from the current best interests of the child standard to an automatic 50/50 presumption that splits custody evenly between both parents.¹ House Bill 14 (“H.B. 14”) would also raise the standard of review in contested custody cases from a preponderance of the evidence to the higher standard of clear and convincing evidence.² The bill’s proponents argue that H.B. 14 will increase family bonds and decrease court involvement in child custody determinations by encouraging parents to work out their own custody schedules.³ Critics of the bill argue that it is too parent-focused and does not recognize the unique circumstances that many families face.⁴ H.B. 14 is currently in committee in the state House of Representatives.⁵

This article examines the current child custody system in Ohio and the consequences of the proposed changes in H.B. 14. Part II provides background on the current child custody system in Ohio and examines how the proposed legislation would change that system. Part III examines the possible effects of the legislation and Part IV argues for a careful evaluation of the proposed law’s effects.

II. Background

A. Child Custody in Ohio

There are two types of child custody: legal custody and physical custody.⁶ Legal custody confers the power to make decisions about the child, such as educational, religious, and medical decisions.⁷ Physical custody concerns the right to spend time with the child.⁸

Ohio courts use a best interest standard to settle child custody disputes.⁹ Judges look at the facts of each case and examine each family’s dynamics to determine what kind of custody distribution is best for the child.¹⁰ A non-exhaustive list of best interest factors is set forth in Ohio Revised Code (“O.R.C.”) 3109.04(F)(1).¹¹ In applying the best interests standard, Ohio courts consider: (1) the parent’s wishes; (2) the child’s wishes (if they have been interviewed by the court); (3) the child’s relationships with their parents, siblings, or others relevant parties; (4) the child’s relationship to home, school, and community; (5) the mental and physical health of those involved; (6) the likelihood that each parent will honor and facilitate the court’s custody allocations; (7) if there are any outstanding child support payments; (8) whether any party has been convicted of domestic violence or child abuse; and (9) whether any of the parties have plans to move their residence out of state.¹²

Critics argue that the best interest standard gives judges too much discretion and can be misinterpreted.¹³ The list of factors in the statute governing child custody is non-exhaustive and does not place emphasis on which factors should be given more weight; thus, a judge has broad power over how to apply the factors.¹⁴ In addition, best interest determinations are very fact-intensive, can take a long time, and can cause more emotional trauma during a turbulent time because of the tensions and personal details that are raised during a custody hearing.¹⁵

A preponderance of evidence standard is required to rebut another party’s claim in a custody dispute in Ohio.¹⁶ The preponderance of evidence standard is the lowest legal standard and requires an opposing party only to prove that something is more likely true than not.¹⁷ Most parents form a parenting plan that is designed to meet their family’s needs and is approved by the judge without dispute.¹⁸ In about 10% of cases, both in Ohio and nationwide, parents are not able to reach a resolution which requires the court to resolve custody disputes.¹⁹ Typically, these are more intense cases where the parents cannot work out a shared parenting plan among themselves.²⁰

B. 50/50 Custody Presumption

Prior to the 1970s, child custody determinations were based on presumptions.²¹ Prior to 1850, fathers were often awarded custody under old English common law because courts recognized the presumption that the fathers would be more capable of providing for the children financially.²² Courts then shifted their approach and began awarding the custody of younger children to mothers because of society’s belief that the mother would be a more nurturing caregiver.²³ This was known as the tender years doctrine and the practice continued until the 1970s.²⁴ The gender equality movement of the 1970s led courts to take a gender-neutral approach to child custody determinations.²⁵ The gender-neutral approach inspired the creation of the best interests standard for resolving child custody disputes.²⁶ The best interest standard was used to some degree in most states and was thought to be the best solution to child custody disputes until the recent shift towards a 50/50 presumption.²⁷ Most states also instituted the presumption that some joint custody is beneficial for the child.²⁸

The notion that children generally benefit from contact with both of their parents has led some states to create an automatic rebuttable presumption of 50/50 custody in child custody cases.²⁹ Thus, every child custody dispute between parents would result in equal joint custody unless the disputing parent provides evidence to rebut the 50/50 presumption by proving that a 50/50 split would not be beneficial to the child.³⁰ Kentucky was the first state to officially institute a 50/50 presumption in 2018, followed by Arkansas and West Virginia.³¹ In West Virginia and Kentucky, only a preponderance of evidence is required to challenge a 50/50 custody presumption.³² In Arkansas, courts require the heightened standard of clear and convincing evidence to rebut the presumption.³³ The Arkansas law is most similar to H.B. 14.³⁴ H.B. 14 proposes an automatic presumption of 50/50 custody that could only be rebutted by clear and convincing evidence that equal custody would be against the child’s best interest and provided by the parent opposing equal custody.³⁵

III. Discussion

The Ohio State Bar Association and Ohio Judicial Conference have both spoken out against H.B. 14.³⁶ One major criticism of H.B. 14 is that the 50/50 presumption puts the focus on the parents instead of on the vulnerable parties, the children.³⁷ H.B. 14 would decrease judicial supervision over children during an unpredictable, tense, emotional, and turbulent time. It also disadvantages parents because they must work harder to rebut the presumption if they believe that a 50/50 split is not in their child’s best interests.³⁸

H.B. 14’s authors argue that a 50/50 presumption will decrease child custody litigation and unclog the courts by encouraging settlement rather than litigation.³⁹ After Kentucky instituted a 50/50 presumption, the state’s family courts saw a decrease of about 2,500 domestic-related cases in the first year.⁴⁰ However, the institution of a 50/50 presumption in Kentucky and the other two states has been too recent to allow for a full understanding of long-term trends and effects of the presumption on children, families, and the court system.⁴¹ Most parents are naturally deterred from going to court and engaging in a protracted custody battle because of the financial expense and the emotional trauma to themselves and their children.⁴² A contested custody battle can cost each parent thousands of dollars in legal fees.⁴³ Further, the bill’s goal of reducing litigation is misguided because only about 10% of families require a court’s ruling on custody, and these are typically more complicated cases that might warrant more judicial oversight.⁴⁴

Domestic violence advocates argue that the bill will disadvantage families that experience domestic violence.⁴⁵ Low income survivors of domestic violence are disadvantaged by the proposed bill because of the high legal standard required to rebut the equal custody presumption.⁴⁶ Past domestic violence is a factor to be considered by the court in child custody hearings, but proving domestic violence can be incredibly difficult with the heightened standard proposed in H.B. 14.⁴⁷ Survivors of domestic violence already have to battle stereotypes that they are only reporting to gain an advantage in child custody disputes.⁴⁸ Judges in states where a 50/50 presumption exists can tend to view reports of domestic violence as interfering with the shared parenting goal.⁴⁹ Shared custody can also be used as a tool by abusers to continue to hold power over their victims through their children.⁵⁰

Psychologists are split on whether a presumption of 50/50 custody benefits children.⁵¹ Studies have shown that shared parenting is typically beneficial for children because they have access to more emotional support and experience a decreased sense of loss after the end of their parents’ relationship.⁵² However, joint custody is not the same thing as equal custody. Recent studies have shown that this higher sense of life satisfaction can be attributed to not only joint custody, but the nature and quality of the family’s ability to share custody.⁵³ Parents who work together to create a shared parenting plan would likely experience less interpersonal conflict surrounding their parenting time.⁵⁴ An even 50/50 split can also overburden children for the sake of the parents in some situations, causing children to feel more internal conflict.⁵⁵

IV. Conclusion

Children are a vulnerable group in society and issues concerning their care should be carefully considered. An automatic presumption of 50/50 custody reduces child custody determinations to a formulaic determination that does not evaluate the unique concerns of each child.⁵⁶ H.B. 14 misguidedly confuses equal custody with joint custody in a move that could actually make shared custody more difficult for families to balance. H.B. 14’s higher standard also disadvantages parents by heightening the burden of proof in child custody cases.⁵⁷ Children’s futures are important and warrant careful consideration of the facts for those child custody disputes that require judicial intervention.

Cover Photo by Benji Aird on Unsplash

Kristen Pierce

Kristen Pierce is originally from Louisville, KY, and graduated from the University of Alabama with a degree in American Studies. She enjoys writing about a wide variety of legal topics. In her free time, she enjoys staying active, doing puzzles, and watching movies.

References

1
Susan Tebben, Ohio Bill for Automatic 50-50 Child Custody Introduced, with Same Opposition as Before, Ohio Cap. J. (Mar. 8, 2023), https://ohiocapitaljournal.com/2023/03/08/ohio-equal-parenting-bill-for-automatic-50-50-custody-introduced-with-same-opposition-as-before/.
2
Id.
3
Id.
4
Id.
5
H.B. 14, 135^th Gen. Assemb., Reg. Sess. (Ohio 2023), https://www.legislature.ohio.gov/legislation/135/hb14 (last visited Oct. 13, 2023).
6
Stephanie R. Weber, Child Custody is No Place for a Magic Formula: Why a Presumption of 50/50 Physical Custody in West Virginia is Not in its Children’s Interest, 125 W. Va. L. Rev. 781, 783 (2022).
7
Id. at 783-84.
8
Id. at 783.
9
Tebben, supra note 1.
10
Weber, supra note 6 at 785.
11
Ohio Rev. Code §3109.04 (2011).
12
Id.
13
Tebben, supra note 1.
14
§ 3109.04.
15
Weber, supra note 6, at 786.
16
Tebben, supra note 1.
17
Id.
18
Weber, supra note 6, at 783.
19
Tebben, supra note 1; Weber, supra note 6, at 802.
20
Weber, supra note 6, at 802.
21
Id. at 784.
22
Id.
23
Id.
24
Id.
25
Id.
26
Id.; Bari Weinberger, Child Custody: Why Cookie-Cutter 50/50 Won’t Pass Muster in 2023,N.J. L. J. (June 5, 2023), https://www.law.com/njlawjournal/2023/06/05/child-custody-why-cookie-cutter-5050-wont-pass-muster-in-2023/?slreturn=20231026184206.
27
Weinberger, supra note 26.
28
Weber, supra note 6, at 788.
29
Weinberger, supra note 26.
30
Id.
31
Id.
32
Id.
33
Id.
34
H.B. 14, 135th Gen. Assemb., Reg. Sess. (Ohio 2023).
35
Id.
36
Tebben,supra note 1.
37
Susan Tebben, Ohio Prosecutors, Judges Oppose 50/50 Child Custody, Ohio Cap. J.(Mar. 22, 2023), https://ohiocapitaljournal.com/2023/03/22/ohio-prosecutors-judges-oppose-proposed-50-50-child-custody/; Weber, supra note 6, at 789-790.
38
Weber, supra note 6, at 789.
39
Tebben, supra note 1.
40
Sushma Subramanian, Who Gets the Child? States are Increasingly Considering Equal Shared Parenting in Custody Cases. This Young Kentucky Couple Serve as a Test Case, Wash. Post (Jan. 18, 2022), https://www.washingtonpost.com/magazine/2022/01/18/states-are-increasingly-considering-equal-shared-parenting-custody-cases-this-young-kentucky-couple-serve-test-case/.
41
Weber, supra note 6, at 809-10.
42
Id. at 802-03.
43
Todd Carver, How Much Does a Family Lawyer Cost?, The Parent Circle (Jan. 24, 2023), https://www.theparentcircle.org/how-much-does-a-family-lawyer-cost/.
44
Weber, supra note 6, at 802-03.
45
Tebben, supra note 37.
46
Id.; Tebben, supra note 1.
47
§ 3109.04; see generally Deborah Epstein et al., Discounting Women: Doubting Domestic Violence Survivors’ Credibility and Dismissing Their Experiences, 167 U. Pa. L. Rev. 399 (Jan. 2017).
48
Id. at 425.
49
Subramanian, supra note 40.
50
Weinberger, supra note 26; Tebben, supra note 37.
51
Subramanian, supra note 40.
52
Id.
53
Id.
54
Id.
55
Id.
56
Weber, supra note 6, at 800.
57
Tebben, supra note 1.