In April 2018 Kentucky became the first state to require courts to use a rebuttable presumption of shared parenting in cases of separation or divorce. Translated into language still often used in Virginia, by default the court would order joint legal custody (shared decision-making) and well-shared physical custody (child living with each parent about 50% of the time). The underlying view is that when both parents are fit parents, neither should be lightly relegated to a secondary role in the child’s life. A parent should be a parent, not a person the child visits for two weekends a month.
Under Kentucky’s new law, a court can make an exception to the presumption of shared parenting if there is a history of domestic violence. Judges may also consider other factors when they make decisions about parents sharing their children’s time. For example, they can consider how near to each other and to the child’s school the two parents’ homes are.
In a law that takes effect July 1, 2018, the Commonwealth of Virginia has made a different choice. Now the court must routinely consider shared parenting as well as sole custody in almost every case. Neither arrangement may be presumed to be better than the other. Laws in Virginia already permitted almost equally shared parenting, but courts awarded sole or primary custody about 85% of the time. That may change.
There were judges who rarely acted as if it was possible for divorced parents to be almost equally involved in raising their children. They may need to reconsider that opinion. There were other judges who believed both fit parents should get almost equal amounts of time with their children. To persuade them to order a child to live primarily with one parent was difficult. Now the law requires all judges to consider the possibility that living solely or primarily with one parent may be as good as shared parenting in any individual case.
In short, judges in Virginia are now required to do what parents in mediation have already been doing — consider what is the best way for each individual child’s time with parents to be spent, given the specifics of the family’s situation. Cookie cutter court orders (e.g., every other weekend and dinner on Wednesdays) may no longer be acceptable.
