A Family Court Judge's Perspective

By Gerald W. Hardcastle

The concept of joint custody raises significant issues. No judge should accept joint custody without examination.

Search for a Definition. "Joint custody" has no fixed legal definition, but is perceived as consisting of two components: (1) legal custody and (2) physical custody. Joint legal custody entails both parents sharing responsibility and authority regarding the major decisions concerning the child's upbringing. Physical custody refers to the child's living arrangements, time-share pattern, and responsibility for the child's day-to-day care.

Understanding the difference between joint legal and joint physical custody, it becomes clear that the difference between joint custody and sole custody is more a continuum, rather than a difference in kind.

A Judge's Duty. The fundamental obligation of the court is to determine the best interests of the minor child. Joint custody legislation may divert courts from that primary obligation.

The creation of presumptions and preferences increases the pressure on judges to accept joint custody without examination, with the result that judges are more likely to grant joint custody in cases where the parties are hostile and conflicted. While the policy that both parents should generally be allowed active participation in a child's life after divorce is not disputed, statutory presumptions, with related burdens of proof, are much different.

Enter the Social Scientists. Research has focused on many issues of the joint custody debate. Initial studies reflected glowing levels of satisfaction for parents with joint custody. Some studies found that joint custody fathers experienced less depression and sense of loss and were more satisfied with the post-divorce relationship than other fathers. However, such reports are troublesome since joint custody is not a fixed position but a continuum. If the majority of joint custody time-share arrangements are similar to sole custody arrangements, reports of satisfaction by fathers may be based on perceptions, not realities.

Another way of measuring parental satisfaction is to consider relitigation rates. Proponents of joint custody assert that joint custody families return to court less often. With respect to parents who have agreed upon joint custody, this is true. For contested cases resulting in court mandated joint custody arrangements, however, the rate of relitigation for sole custody and joint custody arrangements is the same.

Proponents of joint custody assert that children benefit from a continuing relationship with both parents after a divorce, an assertion that is generally supported by research. Further, research discloses that fathers with joint custody do maintain greater contact and involvement with their children. Where there is conflict in the family, however, children in dual residences tend to suffer more.

There are concerns about presuming that joint custody arrangements and joint custody statutes are the only way of providing that a father can maintain contact with his children. Enforcing sole custody visitation provisions may have the same impact. Just as significant contact is not guaranteed by joint custody, sole custody arrangements can provide for significant contact. Moreover, research has not established the amount of contact necessary to maintain a "close relationship" between the parent and child.

The research on child adjustment in custody arrangements is less than conclusive. While some literature supports the conclusion that joint custody arrangements tend to produce better-adjusted children, other research reflects no significant difference. Because the closeness of the child to the child's mother is most predictive of child adjustment, the present state of research regarding child stability and adjustment cannot justify a preference policy for joint custody.

Joint custody proponents assert that joint custody fathers pay their support obligations more regularly. Careful analysis of joint custody and child support, however, discloses some interesting trends. The great majority of joint custody cases are consented arrangements. Consenting joint custodians tend to have higher educational levels and higher incomes than sole custodians do. Further, joint custody is a more expensive proposition than sole custody, with each custodian required to maintain suitable housing for children. This raises the question whether the costs associated with joint custody make such arrangements feasible for low-income families.

As to whether fathers, empowered by joint custody, make a greater financial commitment to the support of their children, most research concludes that type of custody does not most accurately predict payment of child support or the amount received as child support. While joint custody fathers are more likely to pay support regularly, the economic status of the joint custody father is a more compelling reason for this regularity than custody type. Further, research discloses that joint custody fathers do not pay more child support than do sole custody fathers. Fathers in joint custody arrangements pay approximately 14 percent of their net income in contrast to sole custody fathers who are required to pay 26 percent.

For the family court judge facing contested child custody cases, there is nervousness about awarding joint custody to parents who seem unable to agree on anything. Cooperation and lack of parental conflict are the most important criteria for joint custody decisions. Proponents of joint custody assert that it can be imposed in contested cases, the assumption being that the entering of a joint custody order will lead to cooperation between parents. To date, this assumption has neither been tested nor answered in social science literature.

There is a consensus that highly conflicted parents are inappropriate for joint custody arrangements. Children of highly conflicted parents score lower on the Piers-Harris test and were rated by their parents as having more psychosomatic and behavior problems than children in low conflict families. Additionally, children with highly conflicted parents suffer more stress, loyalty dilemmas, and disruption in socialization. Further, regardless of custody type, parents with high levels of disagreement also had more disagreements with their children.

A Word About Process. Relative to joint custody statutes, there are several judicial process issues raised. One issue is whether the courts are adequate to address cases that will be presented when the parents fail to agree on major decisions regarding the child's life. Arguably, the parties could be referred to mediation or some other program designed to remove decisions from the court. But there are times when no agreement can be reached and abdication of the court's responsibility is not the answer.

A second issue concerns the long-term effectiveness of court mandated joint custody arrangements. In a study regarding court-imposed joint custody orders, few were successful after the first year.

However, the greatest impact of joint custody legislation on the judicial process concerns pretrial negotiations between the parties. Joint custody legislation places pressure on litigants to negotiate a joint custody arrangement. The likelihood is that parents will enter into more agreements for joint custody, regardless of whether it is best for their children, simply because the parents are unable to agree on anything else.

The "persuasive" impact of joint custody statutes is compounded by friendly parent statutes which provide that in considering an award of sole custody, the court may consider which parent is most apt to allow the other to maintain frequent association and relationship with the child. In essence, if a parent feels that joint custody is not in the best interest of the children, the parent may litigate but risks being branded an unfriendly parent who, standing in the face of the legislatively sanctioned policy of joint custody, may not be awarded sole custody either.

Gerald W. Hardcastle is a family division judge in the Eighth Judicial District Court, Clark County, Nevada.

This article is an abridged and edited version of one that originally appeared on page 201 in Family Law Quarterly, Spring 1998 (32:1).

Contact information:
ABA General Practice, Solo and Small Firm Division
321 North Clark Street
Chicago, IL, 60610


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