A colleague of mine recently expressed her belief that custody neutrals conducting Early Neutral Evaluations are almost uniformly recommending joint physical custody.

Early Neutral Evaluation (ENE) is the process in which a team of two neutrals (one man, one woman – to avoid gender inequality) works with a divorcing or separating set of parents to devise a co-parenting arrangement.  Each parent presents his or her view of the facts and circumstances of the children, and what each parent believes is in the child(ren)’s best interests.  Then the neutrals weigh in on what they believe is a suitable custody arrangement, based upon their respective experiences and opinions about the facts and circumstances presented by the parents.

My colleague’s observation suggests that the ENE process leans heavily in the direction of joint physical custody.  My own anecdotal experience suggests otherwise.  I have seen ENE recommendations go in all different directions.

Joint physical custody is most likely to occur when both parents are “fit” parents (for instance, largely free of criminal, chemically dependent and abusive tendencies) and when the parents live in relatively close geographic proximity.  However, if any of the children are under the age of four, some custody professionals hesitate to recommend joint physical custody.

I have been involved as an attorney for moms, dads, and plenty of each who desired to receive a recommendation of sole physical custody in their favor.  The parameters mentioned above regarding joint physical custody certainly do come into play; but every case is unique, so it is difficult to know which factors will be given the most weight.

It is my belief that my colleague’s perception that many ENE’s result in joint physical custody is more likely a sign that many cases in general are resulting in joint physical custody.  Years ago, joint physical custody was unlikely unless couples agreed to that designation, or at minimum, demonstrated an ability to cooperate with each other.  These days, when each parent seeks sole custody, the resolution may be to grant each party joint physical custody, even if the parents do not get along well.  A parenting neutral may be appointed to assist the parties in resolving parenting disputes that arise after the court case is done.

When the statutory factors to be considered in child custody cases were revised by the Minnesota Legislature earlier this year, the substance of the changes did not appear to be significant.  It is interesting to consider, though, how the revised factors have changed the philosophy underlying custody determinations.  I heard a local custody professional discuss how it is not the child’s job to “accommodate” his or her parent’s divorce; it is the parents’ job to accommodate the child’s best interests.

That is to say, in the past, the parents were the focus, since the case regarded what rights each parent had to custody and parenting time.  Nowadays, the focus is on the child, and how to serve the child’s best interests, notwithstanding what will serve the parent’s interests.  This approach contemplates that a parent’s interest will be (or should be) served indirectly by serving the child’s interests.