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"When 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.
JOINT CUSTODY
The Road To Hell is Paved With Good Intentions
(More links and research listed below)
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.
In 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.
If 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".
Following 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 do.
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.
There 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:
"Joint 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 sole custody. 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:
"There are 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.
A 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 when stepparents 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.
Psychological 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 parent.
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), notes:
"The children 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."
What 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 pretty good."
The politics of adult rights has no business injecting itself into this issue as a competing consideration to the interests of child.
COMMENTS BY MARTHA FINEMAN:
"What may 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."
"... the 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."
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.
"[Potential 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."
Fineman, 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)
"Perhaps 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."
"In the 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."
"Social workers 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."
"Lost in 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...
"Also unsettling 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.
"We should 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 mediation literature."
"This [primary 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."
Fineman, 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:
"Experts agree that nurturing, supportive parenting that provides firm but fair limits assists children in becoming healthy, well-functioning adults.
However, 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 parents.
"This one 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'...
"Many 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 as adults.
"Wallerstein 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...
"What 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.
"As 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...
"Legal 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 made...
"Many counselors 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.
"Focusing 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...
"A 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 divorce."
WHY A CHILD IS NOT A HOUSE
Angela Phillips
Friday October 17, 2003
The Guardian
"...[C]hildren 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."
"Research 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.
"The Cava research found that problems tended to increase as children got older and wanted to make their own social arrangements...
"[I]t 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."
RESEARCH AND CITATIONS
||||| Joint Custody Studies
||||| What the Experts Say
A 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
DC's 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
by Margaret Dore, Esq.
||||| Judge Gerald W. Hardcastle on joint custody and judicial decisionmaking
Family Law Quarterly, Spring 1998 (32:1)
||||| Attachment 101 for Attorneys
Implications for Infant Placement Decisions by Eleanor Willemsen and Kristen Marcel
||||| Custody and Access: An NAWL Brief
to the Special Joint Committee on Child Custody and Access, March 1998 (Canada)
||||| The Case Against Joint Custody (Ontario Women's Justice Network)
Ontario Women's Justice Network
||||| Myths and Reality
from the FREDA Centre for Research on Violence Against Women and Children
||||| Understanding the Batterer in Visitation and Custody Disputes
by R. Lundy Bancroft.
||||| Spousal Violence in Custody and Access Disputes
Recommendations for Reform, Nicholas M.C. Bala et al.
||||| The Truth About Joint Custody
by Trish Wilson -- Don't call it "Shared Parenting."
||||| Friendly Parent Provisions
by Trish Wilson -- What's Wrong With Them
||||| The Abuse of Custody
an interview with attorney Ruth Lea Taylor
||||| Custody Order or Disordered Custody?
by 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
by Marion Gindes, Ph.D., AAML Journal, Vol. 15 (1998), pp. 119
||||| Testimony Against a Presumption of Joint Custody
Women's Law Project
||||| The Father's Rights movement
by liz
||||| The "Responsible Fatherhood" movement
by liz
||||| "Parental Alienation" - Getting it Wrong in Child Custody Cases
by Professor Carol S. Bruch
A postscript about legal defense theory of parental alienation syndrome and its various and multifarious derivatives:
The following was found at the pro-joint custody website http://www.fact.on.ca/Info/pas/gardnr01.htm:
COURT REVIEW, VOLUME 28, NUMBER 1, SPRING 1991, p. 14-21
American Judges AssociationLEGAL AND PSYCHOTHERAPEUTIC APPROACHES TO THE THREE TYPES OF PARENTAL ALIENATION SYNDROME FAMILIES - When Psychiatry and the Law Join Forces Richard A. Gardner, M.D.
In 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.
Originally, 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 alienation syndrome...
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.]
Child Custody Evaluations
Custody Evaluation Guidelines
Child Custody Evaluators
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