In 2018, Kentucky became the first state to pass a law making equally shared custody the default arrangement in divorces and separations. Four other states—Arkansas, West Virginia, Florida and Missouri—have since passed their own versions of Kentucky’s custody bill. Around 20 more are considering or close to passing similar laws, according to an analysis by the National Parents Organization.
The law has become a model for other states, not least because Kentucky’s divorce rate has plummeted. Between 2016 and 2023 it fell 25%, compared with a nationwide decline of 18%, according to an analysis by the National Center for Family & Marriage Research at Bowling Green State University.
Hale calls the drop in the divorce rate an unintended bonus of the custody law. He suggested that parents are increasingly likely to stay together because they realize they’ll be in regular touch regardless, so “they might as well work it out.” He added that he’s heard stories of couples who decided not to break up because of the presumption of shared custody, and years later are glad they stayed together.
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Mica Wood Pence, a family court judge in Kentucky whose office is full of stuffed animals for children to take home, spends hours on the phone discussing the law with judges in other states. She reassures them that a 50-50 custody standard won’t limit their ability to rule as they see fit in individual cases. The law is meant to be a helpful starting point, Pence tells them, not an order to be followed blindly.
To reinforce her point, she reads out snippets of Kentucky’s amended law: “The court will start with the assumption that both parents should have equal rights and responsibilities regarding their child’s upbringing.” This, she explains, is exactly the kind of fairness she had hoped for during her years representing fathers as a family lawyer before becoming a judge in 2018.
“There are always going to be concerns,” said Pence. “The way to counter concerns is not to make bad laws for everyone else. You can’t set up laws for all families that are based upon the worst circumstances.”
But Douglas NeJaime, a family law professor at Yale Law School, is not convinced that the law adequately accounts for what could go wrong. “We know many people experiencing domestic violence, for good reasons, don’t necessarily get an order of protection,” said NeJaime, explaining that many women are too afraid of retribution or of not being believed to pursue a formal order. “Now there’s a presumption of equality that they need to overcome.”
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But some legal scholars worry that financial incentives muddy what’s in the best interest of children. “A big concern with this law is that a lot of dads are going to say they want 50-50 custody when what they really want is to reduce their child support,” said Ralph Richard Banks, a family law professor at Stanford.
Holdsworth says that of the men he’s met through the fathers’ rights movement, for “maybe a third it was obvious to me that all they cared about was money.” But, he added, “most dads want their kids for the right reason.”
