The impact of the best interests of the child on shared parenting and joint custody

Abstract: In the Western legal tradition, shared parenting and joint custody are generally presented as the optimal outcome in non-partnering parenting scenarios. But what do shared parenting and joint custody mean? In whose best interests is shared parenting awarded? This study examines custody law and its application to determine whether the current implementation of shared parenting arrangements, as governed by family law in Belgium, Italy, England and Wales, effectively serves the best interests of the child. Because of its legal nature, this analysis focuses primarily on a comparison of national legislation, with particular reference to the Children Act 1989 and the Belgian and Italian Civil Codes, as well as, from a law-in-action perspective, on their application in case law. However, in line with the socio-legal approach, social science and psychological literature from a gender perspective are considered. Quantitative and qualitative research are examined to contribute to a socially informed understanding of joint custody as a legal tool. With this comparative and multidisciplinary focus in mind, the research first examines the general principles of non-partnering parenting: the best interests of the child and the shared parenting principle. Second, it analyses the current legal implementation of the shared parenting principle, looking at both legal and physical custody. Third, it examines whether the current implementation of custody law has limitations with regard to the best interests of the child, paying particular attention to inter-parental conflict. Finally, the thesis attempts to provide recommendations for courts and legislators involved in dealing with custody issues to adopt a child-inclusive approach, encompassing the emotional, psychological and social dimensions in the legal analysis. From an interdisciplinary and holistic approach, the thesis concludes by highlighting the limitations of shared parenting as a universal solution to custody disputes, especially when confronted with the best interests of the child and the diverse realities of modern families. Indeed, as far as the best interests of the child are concerned, it's important to stress the undeniable and often covert influence of parental interests on the courts' custody decisions, overshadowing the transparency of the legal process. Moreover, the current approach to shared parenting tends to focus on an idealised 50/50 division of the child's time: the diverse structures, dynamics and demands of contemporary families have highlighted the inadequacies of this one-size-fits-all approach