Judge Robert Doyel: Alimony reform and 50-50 child time-sharing – a horrible idea

What does alimony have to do with “The Baby Mama Syndrome”? Next to nothing. Only married people getting a divorce can get alimony. On the other hand, Florida legislators keep trying to pass alimony “reform,” a code word for changing the law to the disadvantage of people who need protection or help.

The proponents of “alimony reform” combine it with a provision that would require a judge to “presume” that parents, whether they’re married to each other or not, are entitled to 50-50 time-sharing of their children. In other words, the judge would be told by the law to assume that each parent is entitled to have the child half the time.

That’s a horrible idea.

You cannot know what I know after years of resolving custody disputes and still think a presumption of 50-50 child time-sharing is a good idea. The legal meaning of “presumption” is critical to understanding the problem. If the judge is required by the law to “presume” something, in this case that 50-50 time-sharing should be ordered, someone has to prove that the presumption is wrong or it controls the decision. If no one proves that 50-50 child time-sharing is wrong in a particular case, under the proposed law the judge should set up a custody arrangement that has the child spend time equally with both parents.

At present, a judge has to decide what’s best for the children, not base a time-sharing decision on the presumed rights of one or both parents.

Consider some common situations in which the presumption would be bad. First, a woman flees an abusive baby daddy with their child and he takes her to court demanding 50-50 custody and time-sharing. Neither of them has an attorney, which is more often than not the case. They get to court and he glares at her or flashes signs or does something else to show her she’s about to get another beating. She clams up, says nothing about why he shouldn’t have the child half the time.

In the absence of proof that the custody/time-sharing presumption is a bad idea, especially if the judge doesn’t pick up on the intimidation, the judge will most likely order 50-50 custody and time-sharing without ever knowing the man is abusive. By the way, studies routinely show that half of fathers who abuse their intimate partners also abuse their children. Often this is described as “co-occurrence.”

Here’s another typical situation. When unmarried (or married) parents have a custody dispute, the man is often making enough money to hire a lawyer but the woman, who has been a stay-at-home mom, is working at minimum wage at Wendy’s for 30 hours a week, has no benefits, and is having trouble paying for child care and rent. The lawyer knows how to navigate the legal system and confronts the mother in court with a demand for 50-50 custody. She probably doesn’t bring witnesses and the lawyer has a bunch of them. She doesn’t know how to cross examine them. She may have gotten written statements from friends or relatives, but they can’t be introduced into evidence because they’re hearsay.

So the lawyer presents uncontested testimony that the man should have the child half the time, and the judge orders it because that’s what the judge is supposed to do under the proposed law. To be clear, the father may in fact be the best parent or the two parents may be equally good or equally inadequate. The point is that a parent without a lawyer is at a disadvantage, and when the judge is required to assume something unless that parent proves otherwise, the unrepresented parent (male or female) may have no chance of a fair result.

Does anyone really think every parent is entitled to a 50-50 presumption of custody and time-sharing?

How about the fathers who seldom see their kids and have never supported them but ask for custody because the Department of Revenue sues for child support to repay the government benefits the mother has received for their child? Or what about the woman who daily exposes her child to violence against the present wife or girlfriend of the baby daddy? Completely apart from the inadequacies of the parent, the lack of a consistent home may itself be bad for the child.

These domestic violence and financial situations will exist whether the law is changed or not. But under the present law, the judge has to make a finding that the custody and time-sharing arrangement is in the best interest of the child, and is not required to assume they are both entitled to the child half the time unless one or the other parent proves that 50-50 custody/time-sharing is a bad idea in their case.

These proposed laws about alimony and custody/time-sharing are not designed for the children, just for one of the parents. When a judge makes a life-altering decision affecting children, the judge should be guided by what’s best for the kids, not what’s best for the parents.

Judge Robert “Bob” Doyel retired in 2010 after nearly 16 years as a Florida judge, primarily in family court in the 10th Judicial Circuit of Florida. He has served on the Florida Supreme Court Steering Committee on Families and Children and as chair of domestic violence subcommittees. Column courtesy of Context Florida.