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May 11, 2012, 12:57:00 PM
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If you intend to seek joint custody and the other parent isn't agreeable to such a proposition, be aware that you will have to overcome numerous arguments designed to make joint custody seem like a bad idea.
More judges are comfortable with the idea joint custody these days, however, most of them are still very hesitant to order joint custody if one parent objects strenuously.
What follows are some of the "classic" arguments designed to prevent joint custody from being considered by the judge. Each one of these "classic" arguments has a counter argument that can be used to nullify it. Study these arguments carefully so you will be prepared to refute them as needed. Also understand that there are endless variations of the basic arguments, although most of the variations will fall under one or more of these basic versions.
If you find you've come across (or up against) a new argument, please let us know the details so we can add it to this list.
The "Children Need Stability" Argument
This argument revolves around the false notion that children need unvarying sameness (stability) above all else, to the exclusion of the other parent's involvement if necessary. The classic refrain is that the child "won't be able to manage" (cope) with two different caretakers, two different homes, etc. This argument makes it seem as though having both parents involved will somehow "upset" to the child or that the child will become "confused" when going back and forth between the parents. In the "Stability" argument, emphasis is placed on geographic location, rather than parenting skills or involvement. There are other variations on this theme, but they all center on the child being unable to deal with two homes.
Yes, children need stability, but even more important is the need for consistency and predictability, or an awareness of what is to come. Children cope quite well with change when they know what to expect; not knowing what's coming next is the cause of most of the stress that children experience. Children don't get confused when both parents take care of them in intact families, confusion for children occurs when one parent suddenly leaves or is forced out of the child's home and life. Giving both parents parenting time with the child contributes to continuity in the child's life, not confusion.
The "Parents Won't Cooperate" Argument
In this argument the unspoken assumption is that because one or both of the parents won't cooperate with the other or one parent won't agree to joint custody, any form of joint custody is impossible. This presumption allows either spouse to decide to "not cooperate" and thereby ensure that no form of shared parenting is ordered by the court. This tactic is often used by mothers, since they are overwhelmingly more likely to gain custody.
Refute this argument by noting that divorce rarely occurs because of non-cooperation related to parenting issues; more often it is due to infidelity, drug and/or alcohol abuse, emotional or mental health issues, financial pressures, and a host of other reasons- but rarely over issues related to non-cooperation in parenting skills or styles. Even though the parents are unable to stay married to each other they may still be able to collaborate on tasks needed to raise their children.
By ordering both parents to work together the court makes it clear that both parents are important. Another factor is that over time, the animosity level between divorced parents often drops. Emotional wounds heal, and the task of raising children can serve as a focal point of cooperation. Conversely, stripping a parent of the ability to help to raise their own children creates tremendous feelings of animosity, bitterness, and hostility in the "discarded" parent- making the chance of real cooperation much less likely.
The "Child Gets Upset When Away From His Mother" Argument
When you hear this argument, look for an insecure mother, or a mother that has managed to create an overly-dependent child through too much attention, or from spoiling the child, or possibly by the use of scare tactics (such as negative statements about the other parent). This 'dependency' is, in actuality, a self-fulfilling prophecy. The more the child is kept with the 'favored' parent, the more dependent he or she will become.
It's not unusual for children to be a little anxious when separated from the parent they spend the most time with (this is especially true of young children), but this is not a valid reason to deny or limit the other parent's time with the child. In fact, this is a good reason to increase it- no child should be so dependent on a parent that it affects them in a negative way. Once the child learns that they can be away from the 'favored' parent without anything 'bad' happening, they will become more self-assured and experience less separation anxiety.
The "Child Gets Upset When They See The Other Parent" Argument
Sometimes this argument also takes the form of "the child is scared of the other parent" or "the child doesn't like the other parent". The first version may simply mean the child is unfamiliar with the other parent, or it may mean that the child has been conditioned to be scared of the other parent (through the use of negative statements by the 'favored' parent). The second and third versions of this argument may indicate something more serious, such as Parental Alienation Syndrome (PAS).
Most children naturally want to love and bond with both parents unless there has been some sort of actual abuse going on. It is important to find out if the child is actually making these kinds of statements or if these are claims made by one parent in an attempt to prevent or reduce contact with the other parent. If the child is in fact making these statements, the possibility of PAS should be investigated.
If the child truly appears to be upset or fearful of contact with the other parent, the most probable cause is simply unfamiliarity with that parent. Children thrive on familiarity and spending time with a 'stranger' may indeed make them nervous or upset. The common-sense cure is to gradually increase the time the child spends with the 'unfamiliar' parent, preferably in an environment that the child is accustomed to and feels comfortable in. Reducing contact with the 'unfamiliar' parent will only increase the child's unease with that parent.
The "Child Can't Adjust To Different Parenting Styles" Argument
Unless the parents have extremely and radically different parenting styles, this argument can be dismissed by pointing out that this issue is almost never a point of contention in intact families. It would be unusual, to say the least, if both parents had identical attitudes and parenting styles; such is rarely the case in 'whole' families where the parents are together. This line of reasoning is probably one of the most baseless and unfounded 'arguments' against joint custody.
This argument can also be refuted by documenting and comparing the parenting styles of both the mother and the father, and then demonstrating that they aren't really all that different. Concentrate on comparing items like disciplinary styles, hygiene practices, educational desires, and religious orientation. When compared side by side, it's likely that you'll find more areas of agreement than disagreement, and the areas and scope of disagreement will probably be relatively inconsequential.
The "Father Wants Joint Custody To Maintain Control" Argument
Essentially, this argument totally discounts the idea that fathers love their children and want to be a part of their lives. It also presumes to label the father as a 'control freak' simply because he desires some say in how the children are raised, as if he had no right to do so. This argument is best countered by showing that the father has played an active role in the children's lives (or has tried to). Keep in mind that many fathers are prevented by the mother from taking an active role in raising the children. If the mother has interfered with the father's involvement, it's likely that you'll see this argument used. You can also help to refute this argument by asking the court to recognize that both parents have a right to provide input concerning significant issues in the children's lives.
The "Father Wants Joint Custody Just To Lower His Child Support" Argument
As in the preceding argument, this argument seeks to discount the idea that fathers might actually love their children and want to be a part of their lives. This same argument is often used when the father seeks sole custody; however, rarely is it said that "the mother wants sole custody just so she can get more child support". This argument is a little harder to counter because most States will lower a child support obligation commensurate with time spent in the care of the other (non-custodial) parent. As in the preceding instance, showing that the father has played an active role in the children's lives (or has tried to) can be an effective answer. Also, since the reduction in support is generally not a huge amount, it may be worth it to run the calculations so you can show the relatively small size of the decrease.
The "Tender Years" Or "Father's Can't Nurture" Argument
Thankfully, this argument has all but fallen by the wayside. To use this argument these days would likely indicate desperation on the mother's part, not having anything more substantial to use as a 'reason' for opposing joint custody. Most judges will no longer 'buy' this argument, and it may in fact work against a mother who tries to use it. This argument is rooted in gender bias, and is unlikely to influence many judges these days. It is unlikely that you will hear this argument put forth in a modern courtroom; any attorney proposing it would most likely be accused of gender bias.
More judges are comfortable with the idea joint custody these days, however, most of them are still very hesitant to order joint custody if one parent objects strenuously.
What follows are some of the "classic" arguments designed to prevent joint custody from being considered by the judge. Each one of these "classic" arguments has a counter argument that can be used to nullify it. Study these arguments carefully so you will be prepared to refute them as needed. Also understand that there are endless variations of the basic arguments, although most of the variations will fall under one or more of these basic versions.
If you find you've come across (or up against) a new argument, please let us know the details so we can add it to this list.
The "Children Need Stability" Argument
This argument revolves around the false notion that children need unvarying sameness (stability) above all else, to the exclusion of the other parent's involvement if necessary. The classic refrain is that the child "won't be able to manage" (cope) with two different caretakers, two different homes, etc. This argument makes it seem as though having both parents involved will somehow "upset" to the child or that the child will become "confused" when going back and forth between the parents. In the "Stability" argument, emphasis is placed on geographic location, rather than parenting skills or involvement. There are other variations on this theme, but they all center on the child being unable to deal with two homes.
Yes, children need stability, but even more important is the need for consistency and predictability, or an awareness of what is to come. Children cope quite well with change when they know what to expect; not knowing what's coming next is the cause of most of the stress that children experience. Children don't get confused when both parents take care of them in intact families, confusion for children occurs when one parent suddenly leaves or is forced out of the child's home and life. Giving both parents parenting time with the child contributes to continuity in the child's life, not confusion.
The "Parents Won't Cooperate" Argument
In this argument the unspoken assumption is that because one or both of the parents won't cooperate with the other or one parent won't agree to joint custody, any form of joint custody is impossible. This presumption allows either spouse to decide to "not cooperate" and thereby ensure that no form of shared parenting is ordered by the court. This tactic is often used by mothers, since they are overwhelmingly more likely to gain custody.
Refute this argument by noting that divorce rarely occurs because of non-cooperation related to parenting issues; more often it is due to infidelity, drug and/or alcohol abuse, emotional or mental health issues, financial pressures, and a host of other reasons- but rarely over issues related to non-cooperation in parenting skills or styles. Even though the parents are unable to stay married to each other they may still be able to collaborate on tasks needed to raise their children.
By ordering both parents to work together the court makes it clear that both parents are important. Another factor is that over time, the animosity level between divorced parents often drops. Emotional wounds heal, and the task of raising children can serve as a focal point of cooperation. Conversely, stripping a parent of the ability to help to raise their own children creates tremendous feelings of animosity, bitterness, and hostility in the "discarded" parent- making the chance of real cooperation much less likely.
The "Child Gets Upset When Away From His Mother" Argument
When you hear this argument, look for an insecure mother, or a mother that has managed to create an overly-dependent child through too much attention, or from spoiling the child, or possibly by the use of scare tactics (such as negative statements about the other parent). This 'dependency' is, in actuality, a self-fulfilling prophecy. The more the child is kept with the 'favored' parent, the more dependent he or she will become.
It's not unusual for children to be a little anxious when separated from the parent they spend the most time with (this is especially true of young children), but this is not a valid reason to deny or limit the other parent's time with the child. In fact, this is a good reason to increase it- no child should be so dependent on a parent that it affects them in a negative way. Once the child learns that they can be away from the 'favored' parent without anything 'bad' happening, they will become more self-assured and experience less separation anxiety.
The "Child Gets Upset When They See The Other Parent" Argument
Sometimes this argument also takes the form of "the child is scared of the other parent" or "the child doesn't like the other parent". The first version may simply mean the child is unfamiliar with the other parent, or it may mean that the child has been conditioned to be scared of the other parent (through the use of negative statements by the 'favored' parent). The second and third versions of this argument may indicate something more serious, such as Parental Alienation Syndrome (PAS).
Most children naturally want to love and bond with both parents unless there has been some sort of actual abuse going on. It is important to find out if the child is actually making these kinds of statements or if these are claims made by one parent in an attempt to prevent or reduce contact with the other parent. If the child is in fact making these statements, the possibility of PAS should be investigated.
If the child truly appears to be upset or fearful of contact with the other parent, the most probable cause is simply unfamiliarity with that parent. Children thrive on familiarity and spending time with a 'stranger' may indeed make them nervous or upset. The common-sense cure is to gradually increase the time the child spends with the 'unfamiliar' parent, preferably in an environment that the child is accustomed to and feels comfortable in. Reducing contact with the 'unfamiliar' parent will only increase the child's unease with that parent.
The "Child Can't Adjust To Different Parenting Styles" Argument
Unless the parents have extremely and radically different parenting styles, this argument can be dismissed by pointing out that this issue is almost never a point of contention in intact families. It would be unusual, to say the least, if both parents had identical attitudes and parenting styles; such is rarely the case in 'whole' families where the parents are together. This line of reasoning is probably one of the most baseless and unfounded 'arguments' against joint custody.
This argument can also be refuted by documenting and comparing the parenting styles of both the mother and the father, and then demonstrating that they aren't really all that different. Concentrate on comparing items like disciplinary styles, hygiene practices, educational desires, and religious orientation. When compared side by side, it's likely that you'll find more areas of agreement than disagreement, and the areas and scope of disagreement will probably be relatively inconsequential.
The "Father Wants Joint Custody To Maintain Control" Argument
Essentially, this argument totally discounts the idea that fathers love their children and want to be a part of their lives. It also presumes to label the father as a 'control freak' simply because he desires some say in how the children are raised, as if he had no right to do so. This argument is best countered by showing that the father has played an active role in the children's lives (or has tried to). Keep in mind that many fathers are prevented by the mother from taking an active role in raising the children. If the mother has interfered with the father's involvement, it's likely that you'll see this argument used. You can also help to refute this argument by asking the court to recognize that both parents have a right to provide input concerning significant issues in the children's lives.
The "Father Wants Joint Custody Just To Lower His Child Support" Argument
As in the preceding argument, this argument seeks to discount the idea that fathers might actually love their children and want to be a part of their lives. This same argument is often used when the father seeks sole custody; however, rarely is it said that "the mother wants sole custody just so she can get more child support". This argument is a little harder to counter because most States will lower a child support obligation commensurate with time spent in the care of the other (non-custodial) parent. As in the preceding instance, showing that the father has played an active role in the children's lives (or has tried to) can be an effective answer. Also, since the reduction in support is generally not a huge amount, it may be worth it to run the calculations so you can show the relatively small size of the decrease.
The "Tender Years" Or "Father's Can't Nurture" Argument
Thankfully, this argument has all but fallen by the wayside. To use this argument these days would likely indicate desperation on the mother's part, not having anything more substantial to use as a 'reason' for opposing joint custody. Most judges will no longer 'buy' this argument, and it may in fact work against a mother who tries to use it. This argument is rooted in gender bias, and is unlikely to influence many judges these days. It is unlikely that you will hear this argument put forth in a modern courtroom; any attorney proposing it would most likely be accused of gender bias.