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JOINT CUSTODY : A SIMPLISTIC SOLUTION

BY :  Robert D. Felner & Lisa Terre

The crux of the joint custody debate highlights the conflict
between lawyers and mental health professionals and demonstrates
what can happen when each pursues a narrow course of action with
little consideration of the larger picture. For Lawyers, given
the shift toward equal parenting rights and the courts'
predisposition to grant custody to the parent who demonstrates
the most cooperative stance, joint custody can be a potent
settlement weapon. From the therapist's point of view, joint
custody is at best a double-edged sword. Although it enhances the
concept of equal parenting, it is not the King Solomon-type
custody standard it has been touted to be. A look at its origins
shows why. 

	The shift to joint custody occurred in the context of
several social movements which sought to :

	- establish equal parental rights;

	- recognize the importance of fathers in the parenting
process;

	- ensure postdivorce paternal involvement with children;

	- increase the probability that parents would meet support
obligations;

	- remove the burden of single parenting from mothers so that
they could more fully pursue their own postdivorce lives; and

	- guarantee continued active involvement of two loving
parents with their children.

	Initially, the research seemed to indicate that on all these
levels, joint custody was a smashing success:

	- fathers were found to be highly involved with their
offspring;

	- both parents were reported to be generally satisfied with
the arrangement;

	- relitigation rates were lower than in traditional sole
custody awards; and

	- children of joint custody households seemed to thrive
better than the "typical" postdivorce child.

	Here at last was a good solution to divorce- or was it ?

	What is beginning to emerge is a picture of disaster,
especially for children and vulnerable women.

	In reviewing the cases, one of the first things that becomes
apparent is the different legal circumstances under which the
initial joint custody arrangements were negotiated. In the early
days, there was little joint custody pressure from the courts
and, barring highly unusual circumstances, there was little
maternal fear that failure to go along with joint custody would
jeopardize a mother's chances to win sole custody or cause the
court to impose joint custody against her will.

	In many early "successful" cases, parents reported that the
courts resisted joint custody even when it was vigorously sought
by both parties. Thus, initial joint custody families were highly
motivated to make the arrangement work, had made the decision to
seek joint custody on their own, and demonstrated a history of
cooperation even in the face of divorce. Many even voluntarily
pledged to live in the same town until the children finished
secondary school. 

	Clearly, all of the data on which the enthusiastic response
to joint custody was based - with the exception of the
relitigation issue - have been traced to these friendly, highly
motivated, and generally a typical divorcing couples. The fact of
the matter is that divorce is often fraught with conflict and
hostility. Many couples are unable to put aside anger and hurt
and work cooperatively in the interests of the children. Thus the
adversarial nature of the legal system allows them to channel
this hostility and anger into legal combat and other settlement
issues. Rather than encouraging a parental truce, joint custody
allows them to fuel the adversarial fires with a new and potent
weapon - the threat of a custody battle.

MISTAKEN DATA

	Current available data indicate that the early conclusions
were wrong at least for the typical case. Relitigation rates are
not lower but higher among families who enter into joint custody
agreements when there is some clear threat that the courts may
impose it anyway. The literature also fails to support the
contention that joint custody will reduce the incidence of
intraparental postdivorce conflict. Indeed, it appears to do just
the opposite. Because a large number of divorcing couples
continue to battle sporadically or continuously after the
divorce, regular and continuing contact perpetuates the fighting.

	Most negative of a are the direct reports from children in
joint-physical custody situations which reveal that the constant
upheaval is far more unsettling and stressful than early reports
indicated, especially when there are significant distances
involved, wide discrepancies between quality of life in the two
households or when there is continuing parental hostility and
conflict.

	Likewise, for mothers in hostile joint custody situations,
the demands of single parenting do not seem to have been reduced.
The parent who assumes the roe of primary caretaker for the
children now has to contend with less overall control and more
frequent intrusions.

	Still, joint custody advocates may argue, despite these
drawbacks, at least fathers' rights have been asserted, and
children benefit from continued parental involvement. Aside from
what we might like to believe, however, research shows that the
overwhelming majority of fathers who sought custody did so for
revenge or as  leverage to obtain  better  financial  settlement
(i.e., pay less child support) rather than because they had a
keen interest in parenting.

	Lawyers who allow their clients to turn the divorce process
into a gladiatorial arena for revenge, exacerbate the problem.
Likewise, using the courts' predisposition to give custody to the
most cooperative parent as a tactic that puts an abusive parent
in an advantageous custody position is unconscionable. Many
therapists have encountered cases in which these new custody
guidelines have been used to give sole or joint custody to a
parent who has been either psychologically or physically abusive
to the child, spouse, or both. If the parent has not been
formally arrested and charged with abuse, the court may interpret
the other parent's unwillingness to cooperate with joint custody
as an unreasonable response.  The nonabusive parent may be forced
to accept an out-of-court settlement to avoid the possibility of
losing custody and subjecting the chid to further abuse.

	The Presence of a joint custody option or presumption may
also have a profound effect on other settlement issues. For
example, the presumption of parental equality on the issue of
custody increases the risks associated with custody litigation.
Therefore, the threat of litigation may be used to persuade the
mother to settle for less support if she wants to retain custody,
and the child may actually end up with a lower standard of
living. Indeed, recent reports indicate to some extent joint
custody has resulted in an increasing number of children living
below the poverty level. Therapists report hearing fathers say,
"If you don't take these conditions we'll go to court, and if we
do I'll also fight for custody."

	In an idealized world, joint custody looks like the perfect
solution to a difficult problem. But the reality of the situation
is that there is no perfect blueprint for divorce. Solutions must
be tailored to the parties and their problems, and professionals
who assist divorcing couples must keep the welfare of the
children in mind and not be limited by the client's pettiness or
narrow vision.

********* Read on......


 MEN INTERNATIONAL'S ANSWER TO PROPAGANDA ON JOINT CUSTODY


	Some fanatics in our movement see us as "enemies" of joint
custody. A subject that does not merit a reply. The above article
begins on a reasonable premise. There are serious flaws in joint
custody laws based on the error riddled "California Model".

	Indeed joint custody has often been misapplied, but NOT in
the manner suggested by this  "Family Advocate" from the ABA
Family Law section. The article rapidly degenerates into
worthless drivel of political propaganda. The article is riddled
with statements such as ; "The Literature also fails" , "Some
Therapists report that", and other anecdotal references. What
literature ?  Which therapists ?

	Most revealing of this article is the obvious intellectual
bias against equal custody rights for fathers and enforceable
access rights. The articles offer many conclusory statements not
one of which is supported by direct reference. 

	It is hard to miss the veiled references to the two latest
screeching feminist diatribes "The Divorce Revolution" by Lenorre
Weitzman and "Mothers on Trial" by Phyllis Chesler. Her sources
are obvious as they are fatally flawed. That is one of the
problems when you quote the "Literature" as opposed to the facts.

	The article offers no solutions. It suggests however that we
should return to the "maternal presumption" to determine custody
cases. It decidedly opposes equal footing for fathers. It also
opposes access by fathers that is enforceable . The article uses
highly prejudicial conclusions about fathers motives for seeking
custody. This in the face of a body of work by major universities
such as Harvard which clearly refutes their convenient
conclusions . 

	The early studies on joint custody were clearly flawed, and
this criticism has basis. The conclusions that are spiralled off
of that are highly erroneous. 

	Joint custody is no panacea as the fanatic supporters claim
it to be. But it is hardly the horror the authors of this article
paint it to be either when you compare it to the alternative they
suggest ( sole mother custody in ALL cases without practical
exception). There is an over abundance of evidence on how
dismally sole mother custody has failed. 

	This article is a perfect example of throwing the baby out
with the bath water. Because the mechanical process for
implementing joint custody ( keeping both parents in a child's
life) that does NOT mean that the concept should be abandoned. In
this case there are solutions that further remove this process
from the adversarial system into a therapeutic one.

	The article is conceptually flawed in many regards. While
the "California model" joint custody law is a half-baked
simplistic solution to a hoary problem, what the authors propose
is that we return to the neanderthal era.  Joint custody has
failed to live up to the promises made for it, but that hardly
means that it is the horrendous failure painted in the article. 

	Fathers advocates must be wiling to look at these failings
and make improvements in the environment in which joint custody
will be implemented. Threats or tactics that misuse joint custody
to gain financial advantage are inappropriate to the spirit of
the concept. However, need I point out that under "traditional"
custody arrangements ( exclusive sole custody to women) that
there is a much more precisely documented history of horrendous
abuses including granting custody to mothers who were provable
homicidal maniacs. The number of children who have been maimed,
lost their precious little lives, or who have been sent off to
mental wards across America is far worse per capita than the
problems we have seen with joint custody.

	Sure, joint custody is a bad solution, but who has a better
one ? It will have to suffice until legislatures are willing to
tackle the tough job and junk the adversarial process for divorce
entirely and those who for profit or political agendas strive to
turn the clock backward are blown away.

	This article in the summer 1986 issue of "Family Advocate"
is sheer propaganda from radical feminism and it offers
absolutely no enlightenment on this important subject. It is
filled with emotional argumentation and it offers no tangible
evidence or support for ANY of its conclusions.

	While the authors decry the POTENTIAL abuses by fathers
under joint custody laws, they ignore how mothers have an
unrefutable track record of using children as bludgeons to get
MORE money and of paying "hide-and-seek" with visitation under
sole mother custody laws. The article leaves much to be desired
in accuracy on this subject.