What’s so bad about split custody?

Posted Thursday, January 24th, 2013 by Gregory Forman
Filed under Child Custody, Jurisprudence, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

While our family court jurisdictional statute, S.C. Code § 63-3-530(42), allows judges “to order joint or divided custody where the court finds it is in the best interests of the child,” South Carolina case law looks unfavorable on splitting custody of children. See e.g., Patel v. Patel, 359 S.C. 515, 599 S.E.2d 114, 121 (2004) (“joint or divided custody should only be awarded where there are exceptional circumstances.”)

I have never understood this reluctance.  Perhaps it is the fact that my best friend from elementary school was raised in a split custody household–with him and his younger sister primarily living with his mother while his older brother bounced between parents.  Perhaps it is because my own children have a significant gap in ages and temperament–with my older daughter being an artsy introvert and her nine-year-younger sister being a sporty extrovert.  However, I encounter many situations in which split custody is something parents and the court should consider.

Part of the barrier to split custody may be the terminology.  Not all “split custody” situations need to involve one or more children living primarily with one parent and one or more children living primarily with the other.  Often split custody means visitation schedules that have the children spending time apart from each other so that each parent gets individual time with each child.  An example might be a weekend visitation schedule in which out of every four weekends the children spend one weekend together at one parent’s house, another weekend together at the other parent’s house, and two weekends apart with each parent having each child one of those two weekends.

Such a visitation schedule can enable a parent and child to engage in bonding experiences that might not interest that child’s siblings.  Rather than forcing all the siblings to engage in activities that they do not all enjoy or preventing a child from ever getting to do activities he or she enjoys because the siblings don’t enjoy them (or because they are not age-appropriate for all the siblings), such a visitation schedule allows both parents to spend some time focusing on an individual child’s interests.  Given my own daughters’ disparate ages and temperaments, my wife and I have often employed such a “divide and conquer” strategy.   Merely because parents do not live together doesn’t make such a parenting strategy improper or ineffective.  However, since the courts have an aversion to the concept of “split custody” such visitation schedules are rarely considered.

A second example of when split custody may be advisable is when one child is more closely bonded to the non-primary caretaker or non-custodial parent than his or her siblings.  Often this occurs when a child enters his or her teens and is primarily living with a parent of the opposite gender.  Teenagers often want to spend more time with their same-gendered parent as there is a tendency for teenagers to look to their parents to model gender roles and masculine or feminine behavior.  As a result teenage boys often wish the spend more time with their fathers and teenage girls who are being primarily raised by their fathers often wish to spend more time with their mothers.  Rather than modifying custody of all the parties’ children due to one teenager’s preference, parents and the court would be better off considering split custody, with the teenager having a different custody and visitation schedule than his or her siblings.

A final example of when split custody may be worthwhile stems from stepparent adoptions.  Often a child will be adopted by a stepparent when the child is old enough to remember life without the stepparent and that child may remain more closely bonded to the biological parent.  Requiring the custody and visitation schedule for such a child to match the custody and visitation schedule of younger siblings who are the biological offspring of both parents may impose a cruelty on these children. Placing a child in the custody of a non-biological parent when that child is more closely bonded to the biological parent may be distressing to that child.  Yet placing all the parties’ children with that child’s biological parent solely because of that child’s closer connection to that parent may harm the younger siblings, who may be more closely bonded to the other parent.

If we truly were looking out for the best interests of the child we would not be so resistant to split custody. While there are rarely circumstances in which siblings should be kept apart completely, there are frequently circumstances in which the needs of siblings differ.  In those circumstances fashioning visitation schedules that do not keep the siblings together 100% of the time may be in everybody’s best interests.  It is simply a matter of the parties and the courts thinking more creatively and acting less reflexively about each child’s individual needs.