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Apr 12, 2024, 03:47:46 AM

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Is There Such A Thing As Joint Custody?

Many states have gone so far as to make Joint Custody the norm unless both parties are unable to agree to it. In many cases, however, Joint Custody is used as a way of paying "lip service" to the non-custodial parent while keeping the old status quo alive and well.

When Joint Custody is implemented, both parents (in theory) are supposed to have an equal say regarding important matters in the child's life, such as what school he or she attends, decisions on medical care of the child, religious upbringing, extra-curricular activities and the like.

The idea of Joint Custody was a response to the growing numbers of divorced men who had lost the very right to love and parent their children. To placate these pesky, outspoken fathers, a new kind of custody arrangement was dreamed up: Joint Custody. In a Joint Custody situation, the non-custodial parent is told that the other parent no longer has "Sole" custody of the child, and that they, the non-custodial parent, have the right to help make decisions regarding the child's life. And it would be a great idea, if that was the way it actually worked. However...

Even in a Joint Custody arrangement, most states require one parent or the other to be designated as the "Custodial" parent (sometimes also called the "Primary Residential Parent"). This parent's address is the one used for record-keeping as the child's residential address. More importantly, for all intents and purposes, this parent is regarded by the courts as the sole custodial parent. The courts presumption is (and always has been) that the child's best interests are dictated by the Primary parent.

In reality though, when one parent is designated as the Primary, the non-primary parent's desires and wishes automatically take on a lower value and importance in nearly all matters. If the parents happen to disagree on a particular issue, the court will almost always side with the parent designated as the Primary.

Is this true "Joint Custody"? Where exactly does the "Joint" part come in, if the Primary parent's wishes are (with the force of law behind them), allowed to override the other parent's? What is really occurring is that the non-primary parent is told (in effect) "you have an equal say in your child's life, unless the other parent disagrees."

Obviously, there can be no "true" Joint Custody if one parent can force all the decisions to go their way.

One of the underlying problems with Joint Custody as it is implemented now, is recognition of the fact that when parents divorce, there is often much anger, suspicion and bitterness involved in the process. After all, if they were getting along and everything was fine, they probably wouldn't be divorcing. Can the court realistically expect divorcing parents to put aside their strongly held personal differences and work together?

The typical divorce court is pre-arranged so as to be an adversarial arena, and because of the financial incentives, many attorneys willingly promote this attitude. (The longer it takes to settle a case, the more they make.) When one parent is awarded sole custody, benefits invariably follow. They receive Child Support and tax breaks, as well as the majority of the time with the child(ren). They may also receive the respect of their peers, increased cooperation from the child's schools, doctors, etc. They have clearly "won".

In contrast, the other parent often becomes financially depleted paying child support and is at the same time instantly reduced to visitor status in their child's life. They have clearly "lost".
They may become depressed and (understandably) quite bitter. They have been told by the court that they are, in effect, no longer important in the lives of their children, except as a source of financial support, which will be enforced by law if necessary. Is this the sort of outcome that promotes understanding and cooperation between divorced parents?

If the parents couldn't get along well enough to keep their marriage intact, what is the likelihood that they'll be able to cooperate (under even more difficult circumstances) in raising children, especially if one parent is given the legal authority to make all the decisions in the child’s life? If both parents knew that the court would not favor one parent over the other, cooperation between the parents would not only be more realistic, but also more likely.

A true Joint Custody arrangement would NOT have one parent listed as the Primary parent. A true Joint Custody arrangement would NOT give legal preference to one parent over the other. A true Joint Custody arrangement would NOT financially cripple one for the benefit of the other. In a true Joint Custody arrangement, each parent would, in fact, have an equal say in the child’s life.

True Joint Custody would mandate that both parents were considered as "primary", that the time the child spends with each parent be equal, or roughly equal (not always practical, but this should be the presumption), that Child Support would be figured in a more realistic manner, and that both parent's ideas, suggestions and desires be given the same weight in the eyes of the law. A true Joint Custody arrangement would foster cooperation and collaboration between the parents where the child's interests are concerned, and not the adversarial process that is so commonplace today.

Until then, Joint Custody will be the same old stuff with catchy new name.

The author, LDM., is a custodial father.

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