discussing joint custody, some recent commentators have elevated biology
to the analytical equivalent of destiny -- a tie that provides an absolute
right with regard to children. The supremacy of the biological relationship
has also led to attempts to reformulate the best interest test in gender-free
terminology. Such attempts have devalued traditional 'maternal' characteristics
such as 'nurturing,' in an effort not to give mothers (who are presumed
to have such characteristics) an advantage in custody decisions..."
-- Fineman, Martha and Anne Opie, "The Uses of Social Science Data
in Legal Policymaking: Custody Determinations at Divorce," Wisconsin
Law Review, Vol. 1987, Number 1.
The URL for this webpage is http://www.thelizlibrary.org/liz/005.htm
COMMENTS BY LIZ
Those "good divorces" we sometimes
hear about -- the ones in which divorced parents actually get along and
work together (i.e. "coparenting" as it's trendy to say these
days), tend to have certain things in common. One thing they have
in common is that the parents are not in competition with each other to
establish themselves as heads of separate nucleii in the oxymoronic (or
just "moronic") notion of the "binuclear family".
They are not egoistically focusing on themselves,
and whether they are the centerpoint around which their child revolves.
They aren't pulling the child back and forth into separate spheres of incommunicative
fantasy worlds, and they aren't keeping titty-tatty pads of scheduling
on internet calendar programs. They are still both functional parents,
but they understand that the child actually has a home with one or the
other of them, and it is they, regardless of where they live, who are the
satellites supporting that child's life and home. Neither of them are focusing
on what is "fair" to themselves, or their "parental rights,"
and they have stopped playing tug-of-war with the child. They are still
on the same team, pulling together in the child's interests. It
just so happens that one of the parents is resident in the child's home,
while the other is still provisioning and supporting that home, but otherwise
living adult life elsewhere.
the best of these cases, the nonresidential parent remains welcome in and
supportive of, the child's primary home, has remained "family",
and the child feels free to spend time with that parent in the same way
the child would remain free to visit with a relative across the street.
But the child is not living in two disparate places at once, in two separate
households (or families) at the same time. That notion is delusional, and
it's a primary reason the past decade has seen such a phenomenal growth
in custody litigation as well as the industry of bottom feeders purveying
"therapeutic jurisprudence". Throughout time and place in history,
long before divorce even was readily available, many married parents spent
substantial amounts of time separated. Most of the time, the absent parent
was the father, off to war, at sea, or on business. During these times,
the children lived with one or the other of the parents. Not both.
If parents actually could achieve what
they really and truly need to make joint custody work -- putting the children
first above their love lives and another spouse, first above any personal
opportunity that might come along, first with such commitment that they
can make the sacrifices necessary to maintain a kind of fictional existence
in which they still "co-parent", they might as well just remain
married. What would be the reason to divorce? Being willing to stay in
the same neighborhood for years, to confer daily on the phone or in person,
is just not compatible with getting divorced. People get divorced precisely
because they cannot do these things. One or both cannot make these kinds
of commitments. Even those who have amicably divorced have done so because
one of them has essentially flown the coop to pursue another career, another
relationship, or another place. Most divorces are not amicable, however,
but come about in connection with serious issues of breach of trust or
abuse, and other problems substantial enough to break up a marriage.
you look at the overwhelming number of divorced parents who have remained
friends, you invariably will see that one of the parents has sole custody
(or what amounts to sole custody), but the other isn't concerned about
this in the least. In part that's because his or her opinions are still
sought out on occasion and respected by the other parent, and in part it's
because his or her participation in family events, holidays, and child
activities is still welcome. But more importantly, it's not a matter of
concern because he or she already is confident in the decisions and parenting
abilities of the other parent, whether or not he or she has input. Oxymoronically,
it's the insecure parents, who dislike and distrust each other, who insist
on getting their "due", keeping to schedules, demanding a say,
and requiring legally enforceable "timeshare".
methods used by people who hate and mistrust each other is not a prescription
for cooperation. Joint custody is not a way to get temporarily battling
individuals to regain trust or a renewed relationship of friendship, or
learn to cooperate. Joint custody itself doesn't
last over the long haul -- it ends either badly or well -- but if there
is to be any chance of good things developing they won't start until those
titty-tatty pads are put away and the parents get realistic and honest
about the situation. The child does not live in two places. The parents
The best chance for the ideal "we're
still family and friends" relationship to develop is set up when all
possible points of conflict have been removed post-divorce, when wounds
have been permitted to heal in peace, and when the child's primary caregiver
is confident of being able to give the child a stable, intact, supportive
and supported home.
It's not just the potential conflict which
makes joint custody a bad choice for kids, although "conflict"
makes a handy scapegoat to explain away why the theory doesn't pan out
in reality. It's that joint custody is a schizophrenic arrangement.
It lacks stability and consistency; it's a situation unlikely to
endure over the child's remaining childhood (requiring a second traumatic
family upheaval, or "family transition"); and it fosters increased
manipulation by (and insecurities in) the children.
are negatives inherent in the joint custody situation which even the best
parents cannot overcome. Joint physical custody is logistically impractical
and psychologically detrimental. And joint legal custody, or shared
custody, with one parent remaining as the primary physical custodian does
little to alter the amount of time a child spends with the noncustodial
parent, and does a lot to create control conflicts between parents who
continue to harbor resentment stemming from the failure of the marriage.
Joan Zorza (Summer 1995 Family Law Quarterly,
"Recognizing and Protecting the Privacy and Confidentiality Needs
of Battered Women") summarized, in an article not otherwise directly
on this subject, but a fine summary nevertheless:
custody awards do not improve the lot of children. In fact, most children
in court-imposed joint custody (not just those with abusive fathers) do
poorly and are more depressed and disturbed than children in sole custody,
even when the parents genuinely choose joint custody.
Furthermore, joint custody results in lower child support awards, which
fathers are no more likely to pay than awards made when the mother has
Joint custody does not even result in the father spending
any more time with his children."
Professor Mary Ann Mason writes in Equality
Trap, Simon and Shuster, l988:
many things wrong with this unthinking rush to joint custody, but the primary
objection is that it changes the focus of custody away from the 'best
interests of the child' to the best interests of the parents -- or, more
precisely, to the best interests of the father."
Joint custody *increases*, not decreases,
covert resentment and conflict, because it permits the parent who is
not spending the day-to-day time raising the children and operating
the household to exercise veto power over decisions made by the other ,
and if so inclined, to meddle
and interfere, creating stalemate between the two parents, followed
by power plays attempting to break it. Some of these "power plays"
are the good parent/bad parent game, visitation conflicts, and withholding
of support. And even when this is not consciously done, the problems nevertheless
occur simply because of the nature of the beast.
key factor in successful parenting in homes where the parents are married
to each other is the ability to parent "in unison", to "speak
with one voice" and provide a united front. (See, e.g.
Penelope Leach, and other child development experts.) Persons who are married
have difficulty enough doing this and doing a good job of it, but at least
where they disagree, they share common goals, and have a relationship between
themselves to preserve, which is incentive for compromise and respectful
discourse. That's absent in a divorce situation, and strained even more
enter the picture with their own interests and agendas. Moreover, regardless
of commonality of values and interests and parenting style, persons who
are not sharing the same household and a life are just not going to be
consistent in the details. The cumulative effect of all the little
things ultimately adds up and piles on top of the bigger things, such as
that in joint custody, rather than having two homes, what the child actually
has is no home.
researchers who have expressed negative opinions about joint custody include,
among others, Anna Freud and Judith Wallerstein. A major problem according
to Wallerstein, is that the child lives life in a "no man's land."
Having children routinely shift as a temporary resident between two
households that have other permanent members who "really" live
there full time presents a destructive outlook for a child, damaging of
identity and self-esteem. It is ironic that the fathers' rightsters
who complain about not wanting to be a "visitor" in their child's
life, and therefore demand 50-50 joint custody, do not seem to recognize
that their solution not only renders their child a continuous visitor shifting
between two households, but also that the child then does not even have
a home to which to return.
Young children form a sense of identity
from their family base, and, notwithstanding the
fiction, joint custody does not give the child a whole family, nor does
it approximate a two-parent intact family. Instead, it breaks up the home.
The child becomes central to and permanently resident in no home at all,
which only adds to the disruption of the parental divorce. It would
be far better for the child to have one stable one-parent "intact"
home and for the other parent to visit in a complementary way, than to
create the conflict of competing "homes."
Professor David Chambers has written articles
from the legal standpoint, recommending primary caretaker presumptions
and the forbidding of physical joint custody over the objection of one
For another article exploring these issues
and concluding that a primary caretaker, rather than joint custody presumption
is preferable, see Phyllis T. Bookspan, "From a Tender Years Presumption
to a Primary Parent Presumption: Has Anything Really Changed? ....Should
It?" 8 B.Y.U.J. Pub.L. 75 (1994).
Children need to know where home is, and
what they get there or do not get there, they carry with them for the remainder
of their lives.
Most recently, Judith Wallerstein, in Unexpected
Legacy (A Twenty-Five Year Landmark Study, Hyperion 2000, p 181-2),
in this study whose lives were governed by court orders or mediated parental
arrangements all told me that they felt like second-class citizens who
had lost the freedoms their peers took for granted. They say that as they
grew older and craved independence, they had even less say, less control
over their schedules and less power to determine when and where they could
spend their time -- especially precious vacation time."
from Judy Wallerstein.
is it going to take until people start to realize that kids are not here
to give adult children what they didn't get? Childhood does not
wait. When we're talking about children, there just is no time to experiment
in the absence of stability and permanency, trying this and that and different
combinations of counseling and therapies. This only prolongs the litigation,
the upheaval, and the conflict. It's no life for a child, who should be
focused instead on growing up and learning to become more and more independent
of his parents -- not juggling schedules and packing paraphernalia to constantly
schlep around. For every rare couple (usually unremarried) who professes
satisfaction with a shared custodial arrangement, many more honestly will
admit that "Yeah, we tried that for X number of years while we still
lived in the same town, and it was a nightmare... now we get along
The politics of adult rights has no business
injecting itself into this issue as a competing consideration to the interests
COMMENTS BY MARTHA FINEMAN:
have started out as a system which, focusing on the child's need for care,
gave women a preference solely because they had usually been the child's
primary caretaker, is evolving into a system which, by devaluing the
content or necessity of such care, gives men more than an equal chance
to gain the custody of their children after divorce if they choose
to have it, because biologically equal parents are considered as equal
in expressive regards. Non-nurturing factors assume importance which often
favor men. For example, men are normally in a financially better position
to provide for children without the necessity of child support transfers
or the costs of starting a new job that burden many women."
unwillingness to accept the fact of mothers' role in childrearing within
the context of custody policy conforms to the popular gender neutral focus
at the expense of reality... even if the ultimate goal is gender neutrality,
the imposition of rules embodying such a view within the context of family
law issues is disingenuous since the effect is to the detriment of those
who have constructed their lives around 'genderized' roles."
Martha and Anne Opie, "The Uses of Social Science Data in Legal Policymaking:
Custody Determinations at Divorce," Wisconsin Law Review, Vol. 1987,
child advocates] could perform a public function by lobbying for the replacement
of the best interest of the child test with a more determinative substantive
rule... as the substituted rule, I suggest the primary caretaker rule,
which rewards past care and concern for children and minimizes the role
and power of the helping professionals in custody decision making. The
primary caretaker rule has been criticized as being merely the old maternal
preference in gender neutral terms... it seems to me that the fact that
this is offered as a criticism shows how far we have strayed in the United
States from real concern for children to a desire to adhere to simplistic
notions of equality between spouses at divorce. The primary caretaker
rule IS gender neutral on its face, and men can change their behavior if
they want to have an opportunity to get custody. The rule values nurturing
and caretaking and rewards it. This is appropriate."
Martha, "The Politics of Custody and the Transformation of American
Custody Decision Making" for the UC Davis Law Review (Spring
1989, Vol. 22, No. 3)
the most significant factor that helps us to understand why custodial mothers
lack a discourse with which to voice their concerns... is that they must
fight against a dominant discourse that controls all the terms of the modern
custody debate. The professional language of social workers and mediators
has progressed to become the public, then the political, then the dominant
rhetoric. It now defines the terms of contemporary discussions about custody
and effectively excludes or minimizes contrary ideologies and concepts."
rhetoric of ... social workers, divorce is a crisis within the 'family
system' -- a type of situational crisis to be 'managed'... Divorce
requires parents to 'decouple from their former marital and nuclear roles
and begin to recouple at a level of shared parenting responsibilities'...
Rather than focusing on the best parent, the social worker concentrates
on how to 'restructure' the family. Restructuring means allowing both parents
to continue their parental relationship with the children. When forced
to choose between parents, helping professionals prefer the parent who
would most freely allow the child access to the other parent. The notion
of the 'most generous parent' becomes synonymous with the determination
of who is the better parent."
view divorce as occasioning the birth of an ongoing, albeit different,
relationship, with mediators and social workers as its midwives and monitors.
'Let's talk about it' seems to be the ideal, and the talk is envisioned
as continuing for decades. The continued involvement is not only with each
other but with the legal system as well. This ideal is obviously very
different from the traditional legal system, which seeks an end or termination
of a significant interaction at divorce: a division, distribution, or allocation
of the things acquired during marriage -- an emancipatory model -- and
with its 'ending,' the permission for a 'new life' for the participants
and the withdrawal of active legal interference in their relationship."
the rhetoric of the social worker are real concerns -- There is little
or no appreciation of the many real problems that joint custody and the
ideal of sharing and caring can create...
is the extent to which allegations of mistreatment, abuse, or neglect
on the part of husbands toward either their wives or children are trivialized,
masked, or lost amid the psychological rhetoric that reduces mothers' desires
to have custody and control of their children to pathology.
be deeply skeptical of these views of women and mothers. They are not accurate
and the visions they present are deeply misogynistic... Notably, there
are no parallel scenarios involving vindictive or greedy husbands in the
caretaker] test implicitly recognizes that no one can confidently predict
the future, and that the past may in fact be the best indication we have
of future care and concern. I think it is essential that only the past
performance of the parents be considered. Helping professionals should
not speculate about which parent would be able to produce the best future
environment for the child. The only relevant inquiry should be which parent
has already adapted his or her life and interests to accommodate the demands
of the child."
Martha, "Dominant Discourse, Professional Language, and Legal Change
in Child Custody Decisionmaking," Harvard Law Review, Vol. 101, No,
4, February 1988.
ABOUT THE "BEST
INTERESTS OF THE CHILD"
-- from article in The Family
Law Commentator, Vol.XX, No 3, l994, by H. Schleifler, M. A., LMHC:
agree that nurturing, supportive parenting that provides firm but fair
limits assists children in becoming healthy, well-functioning adults.
a seven-year study by Dallas's Timberlawn Psychiatric Institute
found the one factor that was the most important in helping children become
healthy, happy adults, was the quality of the relationship between their
factor was more important than giving kids hugs, providing good discipline,
building their self esteem, or any other aspect of what is traditionally
considered `good parenting'...
of us used to assume, and some still do, that children will `get over'
their parents' divorce after an initial period of adjustment. The Timberlawn
study, as well as landmark studies by Judith Wallerstein and others, found
that divorce not only hurts both parents and children, but that children
suffer long term consequences including emotional difficulties, poor school
or job performance, and difficulty in achieving intimacy in their own relationships
reports that one third of the children experienced moderate to severe depression
five years after the divorce. Fifteen years after the divorce, many of
those children were still experiencing the consequences of their parents'
break-up as they began love relationships and marriages of their own. Every
child in her study feared repeating a failure in adulthood, all feared
betrayal and rejection, and all remained very vulnerable...
these and other studies have also found is, that while divorce
hurts children, living with parents who continually wage embittered battles
is even worse. Research shows that the children who suffer most are those
whose parents divorce, and then carry on the battle for years
through legal challenges, arguments, or refusal
to cooperate with orders regarding visitation, custody, and child support.
Wallerstein points out, the courts have often believed
that awarding joint custody would force parents to put aside their anger
and cooperate for the sake of the children. However, often, the opposite
occurs. The children become either the weapons or the trophies in
their parents' power struggle, or the unintended victims of their rage.
Moreover, the chaos and emotional (and sometimes financial) strain that
the divorce process puts on parents often makes it difficult for them to
provide the security and availability for their children, further leaving
the child's emotional and physical needs unmet...
professionals often refer or order parents to marriage counseling, but
many times, little seems to change. The same dynamics of conflict and discord
continue throughout the legal process and long after agreements and orders
are taught to use negotiation skills and contracts to help resolve conflicts.
While these methods sometimes help, their benefit is often short-term.
Using contracts and negotiation tends to civilize the power struggle for
a period of time--until those very contracts become another expression
of the power struggle.
on `tit for tat', or on the content of the issues (money, children, sex,
etc.) is at best a band-aid, and at worst, in contractual form, fuel for
the fire. Therapy in which each partner tells their story to the therapist
with the therapist acting as a kind of mediator also tends to have short
term benefits. Long after the couple leaves a courtroom or a therapist's
office, they continue to interact with each other and their children. Court
order, contracts, or agreements, in or outside of therapy, set parameters
for the power struggle...
legal document does not mean that a couple is divorced on an emotional
level, particularly when one or both parties is ambivalent about the divorce.
Wallerstein's study found that after ten and even fifteen years after divorce,
close to half of the men and women had not given up the hopes and disappointments
attached to their previous marriage. Half of the women and one third of
the men felt intensely angry with their former spouse ten years after the
WHY A CHILD IS NOT A HOUSE
Friday October 17, 2003
are people not houses. New research from a longitudinal study by Carol
Smart of the Care, Values and the Future of Welfare (Cava) research programme
at the University of Leeds asked children what it actually feels like to
be shared. Smart observes: "Even where children had good relationships
with both their parents, and where they felt that shared residence was
'a good thing', there were costs for them. They looked forward to a time
when they could stop living like nomads."
by Liz Trinder at the University of East Anglia confirms this view. She
found that, even in the most harmonious post-divorce families, the children
tended to refer to one place as "home" and speak of visiting
the other parent. Both researchers found
that children are happiest where it is clear that their needs, rather than
the needs of their parents, take priority.
"If they realised that each parent
wanted 50% of them because they could not tolerate the idea that the other
parent had more, they did not feel loved so much as like a possession to
be fought over," explains Smart.
Cava research found that problems tended to increase as children got older
and wanted to make their own social arrangements...
is the relationship between the parents which is a key to the children's
happiness, and this is the problem with the current demands. According
to Trinder's research, using the law to settle custody disputes usually
makes matters worse for all concerned. Smart feels that the law can have
a useful role in clarifying matters in family disputes, but she is clear
that 'cutting children in half' is not the answer."
Joint Custody Studies
What the Experts Say
Review of the Scholarly Research on Post-Divorce Parenting and Child Well-being.
The Agenda Behind the Rhetoric of Joint Custody
This article was posted to the familylaw-l list in January, 1997, and appeared
in the April 1997 Issue of the ABA Journal as a letter to the editor.
Joint Custody Just Does Not Work.
Research from the California Judicial Council, 2000. Look at the findings;
ignore the "spin." This study was done ostensibly to look at
the results of mediated "parenting plans." Look what happend
to joint custody. As a lifetsyle, it just does not work. Its only arguable
accomplishment probably is to ultimately send more children into the sole
custody of their fathers than otherwise would occur. (A primary reason
fathers' rights groups push for it.) It's unlikely that any group, children,
mothers, or fathers, benefits from this phenomenon -- other than, of course,
custody mediators, evaluators, and parenting coordinators, who make more
money the more problematic and unworkable a "parenting plan"
is. See above, "The
Agenda Behind the Rhetoric.")
Myths and Facts about Fatherhood:
What the Research REALLY Says
Myths and Facts about Motherhood:
What the Research REALLY Says
Myths and Facts about Stepmothers and Mother Absence:
What the Research REALLY Says
Child Abuse Links and Information
Misplaced Blame and Simplistic Solutions
Joint Custody Presumption, by Margaret Martin Barry
Protecting Battered Parents and Their Children in the Family Court System
by Clare Dalton,
37 Fam. & Conciliation Courts Rev. 273 (1999)
"Friendly Parent" provisions
Margaret Dore, Esq.
Judge Gerald W. Hardcastle on joint custody and judicial decisionmaking
Law Quarterly, Spring 1998 (32:1)
Attachment 101 for Attorneys
for Infant Placement Decisions by Eleanor Willemsen and Kristen Marcel
Custody and Access: An NAWL Brief
the Special Joint Committee on Child Custody and Access, March 1998 (Canada)
The Case Against Joint Custody (Ontario Women's Justice Network)
Women's Justice Network
Myths and Reality
the FREDA Centre for Research on Violence Against Women and Children
Understanding the Batterer in Visitation and Custody Disputes
R. Lundy Bancroft.
Spousal Violence in Custody and Access Disputes
for Reform, Nicholas M.C. Bala et al.
The Truth About Joint Custody
Wilson -- Don't call it "Shared Parenting."
Friendly Parent Provisions
Trish Wilson -- What's Wrong With Them
Custody Order or Disordered Custody?
Joan Braun -- Law student article with research cites published in BC Institute
Against Family Violence Newsletter
The Psychological Effects of Relocation for Children of Divorce
Marion Gindes, Ph.D., AAML Journal, Vol. 15 (1998), pp. 119
Testimony Against a Presumption of Joint Custody
The Father's Rights movement
"Responsible Fatherhood" movement
"Parental Alienation" - Getting it Wrong in Child Custody Cases
Professor Carol S. Bruch
A postscript about legal defense
theory of parental alienation syndrome and its various and multifarious
The following was found at the pro-joint
custody website http://www.fact.on.ca/Info/pas/gardnr01.htm:
REVIEW, VOLUME 28, NUMBER 1, SPRING 1991, p. 14-21
American Judges Association
AND PSYCHOTHERAPEUTIC APPROACHES TO THE THREE TYPES OF PARENTAL ALIENATION
SYNDROME FAMILIES - When Psychiatry and the Law Join Forces Richard A.
the mid to late 1970s, in association with the replacement of the tender-years
presumption with the best-interests-of-the-child presumption (and the gender
egalitarianism incorporated therein), we witnessed a burgeoning of child
custody litigation. Fathers who previously had little if any chance of
gaining custody now found court support for their quest. Since the
late 1970s, in association with the increasing popularity of the joint
custodial concept, there was an even further burgeoning of custody litigation.
Whereas previously the courts tended to award one parent sole custody and
assigned the other parent visitation status, now litigating parents could
each hope for a large share of time with the children. In association
with what can justifiably be called a custody litigation explosion (which
is still going on), I began to see a disorder, which I rarely saw before,
that developed almost exclusively in children who were exposed to and embroiled
in custody disputes. The primary characteristic of this disorder is
obsessive alienation from a parent.
I thought I was observing manifestations of simple "brainwashing."
However, I soon came to appreciate that things were nor so simple and that
many other factors were operative. Accordingly, I introduced the term parental
Don't you think
it's a little odd that the same advocates of the legal defense theory of
parental alienation syndrome also are joint custody advocates? If
Gardner's above observations are credible even in part: why haven't
we heard the same folks advocating to just get rid of the misguided and
harmful notion of joint custody, and the denigration of mothers' primary
parenting? [Read more about "parental
alienation syndrome" here.]