Joint Custody Of Children

The concept of joint physical custody is not a relatively new idea, but it has yet to gain wide acceptance within our legal system. We are too use to dealing with children in a divorce as we deal with property. The car, house, furniture, and children are awarded to one primary parent to the near exclusion of the other.

The spouse who is awarded the car can elect to fix it, smash it, sell it, or junk it at his/her sole discretion. Similarly, the property, the child, will live, go to school, take part in religion, sports, camp or other activities, etc. The car's owner makes all the decisions as to the future of the car without checking with the former co-owner. The custodial parent makes all decisions concerning the child's future without having to discuss them with the child's former co-parent.

Such a situation is fine for a car which has no emotional needs of its own, and which can easily be replaced. However, winner-take-all system is not fine for a child who needs the warmth, understanding, and guidance of two caring parents. Nor does it allow for the emotional attachment a caring parent has for his child.

The 1979 movie "Kramer vs. Kramer" focuses on the dilemma caused by a system where joint custody is not the norm. We sit watching the struggle between two very real people and find ourselves wondering which one "deserves" the child. However, what most of us miss is that such a judgment is absurd. The child dearly loves and needs to be loved by both parents. (Can anyone forget the scene where he sees his mother for the first time in eighteen months and rushes to her arms?)

Like most caring parents, these are two good people who both have something positive to give to their son. Each of them has a driving emotional need to nurture the individual they helped bring into the world. Because of this basic human need they will stop at nothing to keep the other one from turning them into a non-custodial parent.

In the movie, the custodial parent realizes that the child needs the non-custodial parent, and one gets the feeling that in the end they will agree to share custody. Unfortunately, this is where the movie departs from reality.

It takes a very unusual person to set aside the maneuvering of an ex-spouse during the ugly battles, or to overcome the fear expressed by most attorneys that an act of sharing now may be used by the other parent to win a modification of custody in the future. It is our experience that the winner-takes-all philosophy is the main reason why otherwise caring parents do not work together for the best interest of their children

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For many years, the assumptions made about the effects of the separation of parents on children and the roles of parents in the child's life after that separation have been an amalgam of legal prescription, psychological theory, and popular myth. The first psychological theory applied to the issue of the impact on children of separated parents was the psychoanalytic theory of Freud.

Much of this work had two serious problems: it was based on a theory which rigidly defines stereotypical sex roles; and it derives its conclusions from a small clinical sample, i.e., from the most distressed members of the population. Therefore, the guidance to be derived from much of this research is somewhat questionable.

One of the most extreme views of the adverse affects of the separation on a child is a book by Goldstein, Freud, and Solnit entitled Beyond the Best Interests of the Child (1973). These authors introduce the concept of "the psychological parent" and emphasize continuity of care. They explicitly state that the custody decree should be final and not subject to modification. The authors also insist that the custodial parent, not the court, should make decisions on visitation rights. Although the book has serious methodological flaws, it has had an unfortunately great impact on members of the legal as well as the mental health professions.

Two studies, however, do provide useful information and insight into the problem of separated and divorced parents for children. The Children of Divorce Project, conducted in Marin County, California, by Kelly and Wallerstein, was designed to study the impact of divorce on "normal" families. Their results indicate that all children aged five to nine suffering the most of all. At the end of one year, 20 to 40% of the children seemed worse than at the beginning of the study. The data indicated that those who fared best were those who felt free to develop, full, continuing relationships with both parents after the divorce. Only those children who saw their fathers frequently and for extended periods of time reported being satisfied with their new living arrangements. The best prognosis was for children whose parents experienced the least conflict with each other after the divorce.

The second study, conducted by Hetherington, Cox and Cox (1976), compared 48 families in which parents divorced, with 48 intact families. Their results indicate that disruption was greatest at the end of the first year following divorce, and that readjustment tended to occur by the end of the second year. Once again, indications are that when cooperation and agreement occurred between the divorced couple, and both parents remained actively involved with the children, the disruptions in family functioning were less extreme and the children adjusted to the divorce more quickly.

It is clear from the research to date that the turmoil involved in parental conflict and/or the lack of meaningful contact with both parents is detrimental to a child's adjustment to divorce and that a happy, fulfilling relationship with both parents is beneficial. The emotional support available to the child will greatly influence the way he copes with the crisis. We believe that an appropriately structured joint custody will help to minimize parental conflict and maximize the opportunity for meaningful contact between child and parent.

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Since the close of the 1970's, the concept of Joint Custody has become the fastest moving (in brevity of time), most widespread (in numbers of states adopting the concept) of any major family law improvement in the Twentieth Century.

The efforts of most of today's father's groups grew out of the legislative success in 1979 in California to implant a preference for joint custody in the law. The various divorce reform groups, fathers' organizations, and parents' associations, most of whom had never before met each other, gathered in Houston, Texas, to see if the techniques used in the California Joint Custody campaign could be applied, not only to other states, but also to at least two dozen other issues about which these individuals were also concerned.

From Option & Agreement To Preference & Presumption
At least five other states already had joint custody on their statute books. In that regard, California was not the first. But, the other states merely had joint custody available as an option of the court, or permissible only when both parents agreed. The necessity of agreement was looked upon as placing the entire leverage within the hands of the most recalcitrant and least cooperative parent.

Favoring The Cooperative Parent
The search was under way to make joint custody not only a preference (as compared with the only other alternative available elsewhere which was to decree sole custody for one parent) but to make joint custody a rebuttable presumption in evaluating and decreeing custody options. The intent was to inhibit the necessity of excessive litigation, particularly by a parent who was usually the parent not initiating the divorce and who was willing to forgive and tolerate the opposite parent in the joint parenting of the child of divorce.

A Different Technique For Joint Custody
Although virtually every state now has joint custody available for divorcing parents and their children, a parent desirous of achieving joint custody must tailor their approach to the techniques that achieve joint custody rather than to follow the pattern most often found in sole custody litigation wherein a character assassination of the opposite parent, in court, is likely to occur.

The comments that follow do not consist of legal advice for a specific case. Our intent is not to supplant your attorney, but to supplement that information you have available so that you may pursue the most logical route to achieving joint custody.

ACHIEVEMENT OF JOINT CUSTODY:
An Entirely Different Task Than That Of Litigating For Sole Custody
If you are to induce a judge or encourage a mediator or counselor into advising and decreeing joint custody, you are cautioned not to unduly attack the character and competence of the opposite divorcing parent. Such an attack is likely to have the opposite impact insofar as demonstrating to jurists and counselors that you can not, in effect, tolerate or cooperate with the opposite parent. You are cautioned about the attack-effect since, it is still likely that you may encounter jurists or counselors who assume that joint custody is impossible if there is evidence of a lack of cooperation by parents.

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Erroneously, you are likely to encounter groups, organizations and individuals trumpeting the cause of "equality". Equality has been a popular civil rights concept in the United States since the mid-1950's. Hence you may, erroneously, assume that custody is to be, or should be, decided on the basis of equality.

In 1973 the California Legislature converted from the so-called "tender years doctrine" (wherein children of 'tender years' were most often awarded in custody to the parent who had provided most of the nurturing experience during the child's previous years).

California, at the same time, also supplanted the so-called "fitness" standard (of each parent) as a criterion for the award of custody. "Fitness" inspired each parent to engage in a character assassination of the opposite parent to demonstrate that the opposite parent was unworthy of custody. Furthermore, the majority of parents were regarded as sufficiently fit, or "fit enough" to warrant custody. Hence, both "tender years" and "fitness" were dropped as criteria warranting custody and were replaced with the determination of the "best interest" of a child as the deciding factor.

Since then, the concept of "best interests" has also swept the country as the guiding principle in determination of custody.

Base Your Case On Best Interests
It is for that reason that we urge each divorcing parent to study carefully, and exhaustively, all the different concepts that have developed to justify 'best interests" of the child. Furthermore, we urge that each parent prepare to submit to the court their understanding of what amounts to the best interest of a child and to demonstrate their personal capacity to satisfy those "best interests requirements for the child.

Generally, there are approximately 13 different factors that are commonly considered as being in the "best interest of a child". They march down through such criteria as protection of health, nourishing and sufficient food, protection from harm, safety and adequacy of dwelling place, safety of the neighborhood, academic standing of the applicable school system, access to siblings and relatives, assurance of rest, etc.

If the divorcing parent does not adequately convey their personal concept of and allegiance to "the best interests" to the deciding jurist the divorcing parent thereby risks the jurist applying the jurist's own criteria of 'best interests" wherein one, or both of the divorcing parents may lose the evaluation warranting joint or sole custody.

Subdividing Joint Custody
Ideally, we prefer that the term "joint custody" be a single, unified concept. However, in some states, you will find "joint custody" subdivided into "joint legal custody" and "joint physical custody." This subdivision was the outgrowth of one attorney proposing during legislative hearings that there be a category of joint custody only for those parents interested in specific legal details.

In this case he was interested, solely, in determining the religious training of the child. Hence, "joint legal custody" usually concerns the decision-making, either jointly or by allocation or decree, of such issues as religion, medical care, financial matters, driver's license application, school attendance, etc.

The other subdivision is that of 'joint physical custody" which specifies the details of physical residence at the homes of both of the parents. Many, if not most, divorcing parents are particularly interested in having joint physical custody specifically decreed so that they are not deprived of valuable residence time with the child.

You are especially cautioned, many newcomers not familiar with the divorce process, often assert that they want "legal joint custody." What they are implying is that they want joint custody legally decreed so as to establish their residence time. However, none of the laws state legal joint custody, but instead use the subdivision of "joint legal custody" and "joint physical custody.' Consider carefully that which you are interested in obtaining and make your request without ambiguity.

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Regardless of whether you are applying for joint custody, or for sole custody, it is prudent for you to understand and evaluate the many questions of procedure by the parent in administering joint or sole custody. You may, in fact, find it prudent to convey to the deciding jurist and evaluating mediator your preferences and method of conducting responsibilities for such issues as medical care, education, religion, residence, travel, support, relationships, communication, financial responsibility, discipline, conveying information, maintains records, and resolution of disputes.

From A Plan Into Agreement Or Decree
If you fail to deliver this information to the deciding jurist, or if you fail to reveal this information through friendly cross-examination on the stand, once again you risk the probability that a jurist, or counselor, may assume that you are not aware of the potential problems of joint custody and how you would conduct your responsibilities.

The Information Above Leads, Logically, To The Procedure Below.
That procedure is the development and submitting of a so-called Joint Custody agreement, or joint custody plan for examination by the court and in seeking the judge's decree of a plan most nearly in agreement with your proposal. If you fail to submit a "plan" you, once again, run the risk that the court will have in mind their own version of a plan and which could result in a decree, by the court, of a plan in which one, or both of the parents are in disagreement.

It is for this reason that we advise the submission of at least one plan, and possibly two or more plans to demonstrate your flexibility and willingness to cooperate. Ideally, it is usually best for both parents to agree, in advance of court appearance, upon a single plan for presentation. Only rarely will a court rule against a proposal in which both parents agree because of the court's reluctance to intervene in a cooperating family.

However, if the opposite parent does not agree upon such a plan, it behooves you to submit one, or two plans which carefully detail the specifics of what you would prefer to see in the court's decree of joint custody.. To achieve as nearly satisfactory a submission, there are several compilations of clauses, phrases, paragraphs and procedures for you to select from. From such a shopping list of options you will want to select the most applicable paragraphs and provisions to be typed-up separately and submitted to the court for the judge's approval.

In the initial decree by the court, most judges prefer to intrude within the family affairs as little as possible. Such initial decrees contain very few detailed specifics. If there are repeated instances of litigation before the court, judges generally then author much more specific and limiting decrees. Hence, in the early stages you may wish to grant the opposite party as much flexibility as possible (which may also result in more flexibility for you). However, if differences of opinion are anticipated, you may find it prudent to forestall future litigation by submitting specific clauses and phrases for a parenting plan as needed.

Such agreements,. or decrees, often resolve such issues as intent of the agreement/decree, residence specifics, time allocation formulas, designation of holidays and custody arrangements, travel details, moving of residence, education, medical responsibility, child support, implementation of the plan, provisions for review as the child grows older, and conflict resolution.

Decision Making Or Allocation
Although mutual decision-making may be preferable, mutual decision-making is not always possible due to lingering antagonism between the parents. In such situations, it is not unusual to trade-off the decision-making obligation between the parents. In such situations, for instance, one parent makes the medical decisions, the opposite parent may make the education decisions, or one parent makes the religious decisions while the opposite parent may make the extra curricular activities decisions, etc. There are numerous ways in which to trade-off, or have the court decree individually, the responsibility for numerous activities.

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During the first few years following legislative adoption of a major family law change or improvement there are likely to be several appellate or supreme court decisions that amplify on the original intent of the legislation. This is a natural, and expected, process in the development of a legal concept. Eventually, there are fewer and fewer of such appellate cases as the subject becomes more widely recognized.

For your education it is prudent for you to review such cases regarding joint custody (as well as other custody issues) so that you can tailor your request toward principles that have been decided by the courts.

Sparingly, on pivotal issues, you may wish to cite both legislative history and higher court decisions which will demonstrate your conscientiousness and awareness of joint custody responsibilities and obligations. Remember, judges can and do resent being overreached too as if to instruct them in the law. However, judges may be more accepting of your references to the law if such remarks demonstrate an awareness by you of your responsibilities and intentions.

Also, sparingly, using only the most supportive findings of key cases, you may find it useful to demonstrate awareness of pivotal case precedents... and particularly if they clarify issues upon which you and the opposing parent appear to differ. However, judges can be, and frequently are, resentful of attempts to restrict their powers of decision through excessive quoting of precedents.

Acknowledge No-Fault
Seek to establish that, in this no-fault divorce era, you are also avoiding any accusations or implications of blame of the opposite party and that your focus is upon the future well-being of the child involved. Your self-imposed reluctance to question the past actions of the opposite party may appear as not sufficiently vigorous a quest by you, of custody, but that is because you realize joint custody must be an attempt to work cooperatively for the future rather than a reexamination of the past. If it is true, you may find it is prudent for you to indicate that you did not initiate divorce, but regardless of your personal disappointment it is your responsibility to overcome such feelings in the best interest of the child involved.

No Dickering
Usually, a trial is not an opportunity to negotiate with a judge. Many judges will speak only seldom during trial, ask few questions, allow the opposing attorneys to bring forth the issues, author a decree in the privacy of their chambers, and issue the decision after-the-fact.

Hence, you are unlikely to have an opportunity to, first, fight for sole custody, and thereupon back-off and propose joint custody as a compromise. Such a procedure may indicate an uncertainty on your part and too little of a commitment to joint custody.

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It is important that you submit all the relevant details during the trial court presentation. An appeals court will rule only on facts, materials and adequacy of presentation submitted during the original trial. You are not free to submit new issues during an appellate review. Therefore, it is important to be as comprehensive as necessary during the trial court presentation.

However, it is also important to prepare for, and discern what is needed to qualify for joint custody if you are denied joint custody at the trial court level. Therefore, it is helpful if you work with your attorney in requesting that the judge indicate conclusions of law and findings of fact if joint custody is denied. The reason is to discern what specific detail, which you can improve or alter in the further, to qualify for a decree of joint custody. Otherwise, without that information on the decree, you may have to retry all the issues of divorce/custody to determine what specific detail is inhibiting the decree of joint custody.

Studies And Professional Opinions
Personally, you may wish to research and be aware of the various studies, opinions, polls, and commentaries about joint and sole custody. They may provide an awareness of that to which the court may have been exposed.

But, you are cautioned that so-called studies or opinions are not likely to be crucially deciding in your case. Such materials are of most use in the public policy debates and legislative deliberation. They are less useful in the individual case.

Why?
The reason is exemplified by a judge who announced to the courtroom after hearing several hours of testimony about research and effects upon the public of certain policies: 'Listen, I am not here to decide what is best for the broad public or for society in general. My task is to determine what is best for this single, specific child before the court.

Psychiatric Testimony
Evaluate carefully whether psychiatric testimony is necessary, or wise. When psychiatric testimony is used, many judges anticipate that the alternate parent will also present psychiatric testimony, with one presentation having the tendency to cancel-out the other, resulting in a "draw" rather than conclusive evidence.

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If you are anxious to elaborate on the advantages of joint custody, several research studies and opinions can help in elaborating on the following. However, we caution, again, that the following is of more importance in the public and legislative debate than in specific trial court presentation.

Joint Custody:

• Enhances nationwide availability reduces jurisdiction skipping.


• Reduces recourse to child-snatching in desperation. Increases the likelihood of child support payment. Promotes betterment of child's emotional health. Reassures child of security with both parents. Demonstrates to the child the ability of the sexes, as adults, to resolve differences


• Reduces the necessity of court returns.


• Makes fewer contempt citations likely.


• Encourages voluntary contributions to child's welfare. Makes remunerative working income possible for mothers.


• Reduces frustrations of isolation that lead to abuse. Elicits parenting plans rather than unilateral controls. Guides parents in decision-making.


• Preserves the remnants of family connection rather than sever entirely.


• Bestows the status of equality for all parties.


• Assists adaptation to the future.

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