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Bar News - November 16, 2016


Family Law: Debating the Standard for Setting Parenting Time

By:

Editor’s Note: Two attorneys, Lanea Witkus and Diane Griffith, debate the standard courts should use in determining parenting time post-divorce. A proposal to amend state law so that courts would use the approximation standard, which has the support of the American Law Institute, while others contend it could create more problems than it solves.

Approximation Standard Has Benefits

By Lanea Witkus

What standard should the courts use in determining parenting time following a divorce? The standard that uses the amount and nature of the parenting time that occurred while the family was intact – also known as the approximation standard – would be more beneficial than the current standard, known as “the best interest of the child.”

There are three benefits of the approximation standard: predictability; stability; and limiting the court’s role in changing the family dynamic. Predictability is easy to understand. If mom works three 12-hour days, and dad works 7 a.m. to 3 p.m. on weekdays, then it makes sense to have the children with dad on the three days she works and alternate weekends. If one party is a stay-at-home parent, it might be economically necessary for that person to enter the workforce after the separation, but the stay-at-home parent would receive the bulk of the parenting time under the approximation standard.

People who get along will be able to work out a schedule. It is the people who don’t agree who force the courts to make the decisions. It has long been known that parties misinterpret the phrase “best interest of the children” to mean who is a better person, but the court should not be in the position of determining the answer to that question. I believe it is not the role of the court or the legislature to change post-separation parenting time from the pattern already established, given the diversity of models of parenting in the real lives of New Hampshire couples.

Under the approximation standard, parties are empowered to choose what works for them based on their personal strengths, work schedules, economic factors and moral values. The diversity of parenting orders should reflect the diversity of parenting arrangements lived by intact families in the real world. Studies show mothers do more parenting. But the studies also show fathers do a great deal more around the house and with their children than they did when I started practicing law in the 1970’s. Today, stay-at-home dads are common.

The key word in parenting is stability. Let the diversity of values which result in a diversity of parenting arrangements be used post-separation. That is what the children are used to and what will provide the most stability. If the parties are parenting jointly while the family was intact, then a joint parenting order will be made.

I can hear the screaming now from fathers who will say the approximation standard favors women. If a father believes he will “lose his children,” then he is stating he has not been spending a significant amount of time parenting. In the old days, and oftentimes even today, the parenting obligation is assigned to the woman (I am not going to deal with same sex couples for the purpose of ease of reading.) But as parenting roles are ever-changing, it is impossible to come up with one standard that fits or satisfies everyone.

Young couples today often assume there will be roughly equal parenting during the relationship and after. Others do not. Many families make the decision that it is in their financial best interest for the woman to put her time and energy into work, which means the father will have more of the parenting duties. The family makes decisions while they are an intact family. If the approximation standard is used, the courts and the legislature will not have to hear how the court’s decision is unjust based on gender, because the court is respecting the values the parties had while together.

Those who practiced in the old days recall that the court’s orders were merely confirming the roles society and the family had assigned to the parties. I and my sister were raised by my father alone after my mother’s death from cancer. I was not abused or neglected. My husband and I parented jointly. I greatly value the role of the father and I do not see it limited by the traditional model.

No standard should or can be followed blindly. The standard should define “best interest of the child” as “approximately the same parenting time as when the family was intact, unless there is a good and sufficient reason why not.” The good reasons have to be significant, such as abuse of the children, substance abuse issues, mental health issues, and new partners who are harmful to the children. Parental alienation by either parent is already a specific factor and needs to remain emphasized. And the reality of work schedules and living in separate homes will also need to be taken into account.

When parties can agree, they control parenting orders. When they don’t agree, it will be a deterrent to litigation if the outcome is a clear, fact-based outcome. The judge will listen to how the parties spent their time during the relationship and make the adjustments to the schedule necessitated by the parties’ physical separation. The values and decisions the couple made together will be respected and confirmed by the court.


Lanea Witkus

Admitted to the bar in 1977, Lanea Witkus was the 99th woman to practice law in New Hampshire. She has worked in Sullivan County with partners and now as a solo, with a general practice, including family law.

‘Best Interest’ Standard Is Best

By Diane Griffith

There is a proposal that New Hampshire consider amending RSA 461:A:6 (Determination of Parental Rights and Responsibilities: Best Interest) to a statute that uses the approximation rule, which has the support of the American Law Institute (ALA).

The ALA views New Hampshire’s current “best interests standard” as too broad and subject to the personal bias of the jurist, postulating that both factors contribute to protracted litigation over how the parents will share the children post separation. I share the view propounded by Richard Warshak, clinical professor of psychology at the University of Texas Southwestern Medical Center and expert on divorce and parenting after divorce, that the approximation standard is not the answer to these two concerns and may create others.

The approximation standard would not reduce litigation; it would only change the focus from what will happen to what has happened. It is naïve to say that what has occurred is known, so there should be less conflict. Most litigators are all too aware that in parenting disputes, what each party believes has occurred can be quite different.

When a guardian ad litem hears both sides of the issue, it is not unusual to react by asking, “Are these two parents parties to the same case?” What has happened is seen from different perspectives and concrete evidence may not change the reality for a parent. Although court rules strongly discourage having a child at a hearing or even at the courthouse (Family Court Rule 2.8), the approximation rule may encourage children to be looked at as witnesses, especially by non-represented parties.

This standard locks a family into what they did in the years before the divorce and, in some cases, may reflect the family’s values. There is a small portion of people for whom gender roles are clearly defined and inflexible. The parents choose their roles early and both expect that they will continue these roles throughout their children’s upbringing. However, many more parents begin their parenting roles for much more practical reasons and never mean to lock into a role. A mother needs to take over more of the parenting time when she is nursing a child, and some fathers feel less comfortable with a newborn. And although the Family and Medical Leave Act is gender-neutral, in many professions, including our own, leave can be looked upon negatively, especially when taken by a man.

Even in 2016, while women are well thought of as being “nurturing,” cuddling, cooing and babbling to their babies, men may still see such behavior as feminine and are not as comfortable doing it. When parents are younger, one parent might be concentrating on a career, spending long hours at work so the family can achieve certain goals and then move on to new ones. In some families, this can mean concentrating on one career at a time. And as a parent progresses in his or her career, he or she may be able to shift from evenings of work to evenings of soccer practice and school plays. The parent who was career-focused at the time of a family split often takes a step back and reassesses the role he or she wants to play in their child’s life.

And even when actual child care hours are clearly defined, do we measure quantity or quality? Is reading stories more valuable than watching ballet class? Is coaching the soccer team better than being team mom and providing drinks and snacks? Does helping with calculus count more than helping with spelling? More factors, more disputes.

Our state law delineates how the court determines what is in the best interest of the child. Of the 12 factors, three speak to each parent’s respect for the other. Prior to the implementation of Parental Rights and Responsibilities, as guardian ad litem, I tried to emphasize to each parent, but especially to the parent with primary custody, that one of the biggest responsibilities of parenting was insuring the child would have the best possible relationship with the other parent.

Were there enough space here, I would list a litany of research demonstrating the importance of a child having strong relationships with both parents. Both the Child Impact Seminar and the First Appearance emphasize the need to co-parent. And perhaps if the statute determined best interest with heavy weight to the willingness to support the child’s relationship with the other parent, litigation may decrease. In the words of a 6-year-old, “parents need to share.”


Diane Griffith

Diane Griffith is a Nashua-based attorney whose practice focuses primarily on family law. She previously worked as a social worker and guardian ad litem.

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