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Since we have No-Fault Divorce, how about No-Fault Custody?

A recent Op-ed article in the New York times, entitled No Fault of Their Own, suggests that we should change the way custody decisions are made to minimize litigation and fighting over children. The author notes that custody battles, that leave the issue of what is in "the best interest of the child" to the Judge to decide, often result in trials over who is the "better" parent.

This is a valid point. The damage that these types of battles can cause to children warrants a different approach to family law than to the practice of other types of law. While zealous advocacy for a corporate client whose vendor screwed them on a contract might necessitate a trial or dictate destructive cross-examination, in family law this type of litigious approach hurts children.

I often explain to my clients that it is not constructive when they form their view or their goals in a divorce case with a negative comment about their ex-spouse. I want my clients to tell me what their life looks like in five years, so together we can figure out how to get them to that goal, not what they "deserve" to receive from their ex-spouse. I believe this is the point of no-fault divorce.

Similarly, I like the concept of No-Fault custody. I want my clients to tell me what is best for their children, by telling me about their children's schedules, and activities and friends. Telling me what a bad parent the other person is, doesn't describe what is best for the child. In fact it's simply a waste of time unless that parent is so bad that they are unfit.

The author of the op-ed article concludes that mandatory mediation or amendments to the way child support is calculated could help move the system towards No-Fault custody. I believe that regardless of whether couples mediate, or what the child support is, common-sense is the key to resolving custody battles. 99% of custody disputes can be solved by parents, and attorneys, who are willing to set aside the fight, participating in an open an honest four-way conference (with or without a mediator) about what is actually best for the child with reference to the child's needs and activities and schedule.

I don't know if No-Fault Custody is something the state can legislate due to the need for the law to protect against the truly un-fit parents. But I do know that less children would be harmed by divorce if more attorneys and more parents would practice No-Fault Custody.

For more information about proposed resolutions of co-parenting issues, please read our Custody page and the Association of Family and Conciliation Courts brochure: Planning for Shared Parenting: A Guide for Parents Living Apart.


  1. Robert, the website you recommended is really helpful. I ordered a planner at which I might get in the mail next week! I am excited to use it. Thanks! All the best!


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