A Proposed Solution For How Child Custody Is Decided

Edward Kruk child custodyBy Robert Ferrer

Archivist and Researcher, University of Illinois

In my previous divorce article, I examined Professor Edward Kruk’s most recent study, which in part called for the overhaul of the system used to determine child custody.

Divorced Fathers: Children’s Needs and Parental Responsibilities” not only proves wrong myths about fathers – such as dads only want more parenting time to reduce financial obligations – but also advocates for active parenting from both parents post-divorce.

However, the system currently in place is “rooted in a framework of child custody determination that removes one parent as a primary caregiver, limits parenting options within a sole custody model and discriminates against children of divorce while perpetuating an adversarial approach to dispute resolution” (page 11).

In support of this assertion, Kruk (pictured) proposes a “four-pillar framework” of child custody determination (pages 96-101).

Pillar Two refers to treatment. Rather than an adversarial approach to the handling of custody disputes, a therapeutic approach is utilized.

Rather than using the courts, family support services that provide guidance in the development of parenting plans, assessment, counseling, and mediation would be the venue.

I’ve always said that divorce involving children is predominately a family crisis issue, not a legal one, and must be handled as such. I find Jay Lebow’s “Integrative Family Therapy” and Jayne Major’s “Model for Family Reorganization” most compelling.

Kruk’s Pillar Three is prevention. He is referring to mandatory pre-marital education programs and psycho-educational programs on the effects of divorce on children for divorcing couples.

I know of studies done at Brigham Young University that demonstrated how such programs can improve the communications among couples. Programs such as “Children First” have been around for some time. Their weakness is that they are not done in a more intensive therapeutic environment requiring both couples to be present at the same time.

Pillar Four – enforcement – is recognized as most difficult. The enforcement of child support and family violence arrangements have been most vigorously pursued, perhaps to the point of extreme – see the “Getting Blood from Turnips” campaign and the “Guilty Until Proven Innocent” documentary.

However, the enforcement of child custody and parenting time orders have not.  This will take recognition by the courts that the psychological wellbeing of children is as important as their physical wellbeing – see my article on visitation interference.

I saved Pillar One – harm reduction – for last because I find it problematic. This has to do with the debate surrounding which model serves children’s best interests – a presumption of equal physical custody or the American Law Institute’s Approximation Rule.

Braver and Fabricius provide a useful discussion about them in the context of public opinion regarding custody and access.

I feel Kruk confounds the issue to the point of contradiction. He first says that when parents cannot agree there should be a presumption of equal physical custody (page 97).

But then on the same page, he says that there should be a policy similar to the Approximation Rule if parents cannot agree to ensure the stability of the children.

Although I believe based on current trends Kruk probably sees the application of the Approximation Rule and the presumption of equal physical custody as resulting in the same outcome, we do need to take into consideration the problems outlined by Dr. Richard Warshak and others, mainly that the childcare arrangement that existed during marriage radically changes after divorce.

Furthermore, we also know that children’s stability is based on their ability to preserve their primary attachments to both their parents and not on having a single primary residence.  Secure attachments are not linearly dependent on the amount of time spent in direct childcare.

I am confused and am looking for Prof. Kruk to clarify an otherwise cogent and must-read book.

Read Related Article: “Fathers and Divorce: The Eroding Of The Father-Child Relationship


shared parenting advocateMy name is Robert Ferrer. I am a researcher and archivist at the University of Illinois Urbana-Champaign. Although it is in Computer Science, I also apply the same heuristic principles in my interests in child development and family law. As such I’ve been working with the Children’s Rights Council of Illinois and Illinois Fathers in providing the background information in law and child development research for various endeavors. I have been collecting, reading and pondering the wealth of information dealing with divorce and children from many perspectives, including child development, family studies and law.

I’ve been attending the sessions of the Illinois Family Law Study Committee where they are currently reviewing current statutes for massive revisions. I’ve been in communications with many of its members and have established a collegial relationship. I have attended conferences on Contemporary Families, PAS and ADR. I have written several proposals in the attempt to mitigate parental loss, more fully integrating current research with proposed policy.

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One comment on “A Proposed Solution For How Child Custody Is Decided

    Another casualty of Illinois’ Archaic Divorce rulings
    How do I get in contact with you? I have been relegated to an uncle of my kids, instead of an equal parent. Are there any changes in the works of Illinois law for “Shared Parenting”?

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