The social and economic structure of contemporary American society has changed rapidly over the past decade. Legal practices in the field of divorce law and in the actual behavior of divorcing couples demonstrate that the patterns that were unsatisfactory in the past are presently amenable to constructive and beneficial change. Joint custody, a shared flexible division of parental responsibility without rigid formulas in time, space, and responsibility, is far more emotionally sound and logical for many families as the optimal outcome under conditions of divorce.
It would be far preferable, in spite of the progress achieved to date, if the courts would begin with a clear presumption in favor of joint custody in all cases. The assumptions that underlie the policy of generally granting custody to he mother are outmoded, unrealistic, and damaging…. Women have far different aspirations now than they had even as recently as ten years ago. Maternal custody as a presumed preference is the shadow of a world that no longer exists except in the minds of those who unrealistically still cherish the imperfect past.
The lawyers and the courts which were far from attentive to the little available research on joint custody now have more in the way of positive results to guide them in their judgement for the optimal response in custody decisions. … Even a cursory historical review of the logical underpinnings for custody decisions inexorably leads us to the conclusion that the time for a new operational method, to wit, joint custody, is in order. All is change and the social practices must change together to keep the social fabric intact.
The concept of maternal instinct on which the judicial opinions of the early 20th century relied is an invention that was required by the economic structure and division of functions that were dominant at the time. The urbanization and industrialization of American society separated the social life of the family from its economic sources.
It appears that the divorce having the least detrimental effect on the normal development of children are those in which the parents are able to cooperate in their continuing parental roles.
Parental cooperation cannot be easily ordered or legislated, but it can be professionally, judicially, and statutorily encouraged and endorsed.
"Winner take all" sole custody resolutions tend to exacerbate parental differences and cause predictable post-divorce disputes . . . .
…a majority of divorcing parents…are capable of joint custody.
We too often forget that one of the most noble functions of law is to serve as a model of expected behavior. Past custody policy and professional skepticism have helped create a model of one-parent families and parental hostility following divorce. Joint custody provides a model of cooperation and continuing parenting. Shared parenting is a positive and reasonable standard of expected parental behavior.
We have learned that the ability to cooperate around parenting issues can be encouraged and enhanced with limited and relatively inexpensive education, counseling, or skillful mediation.
(Fourth) I am concerned about the position that argues that joint custody should not be awarded when parents do not agree.
In these cases it is almost always the woman who is opposed to joint custody. Women do not need to ask for, not agree to, joint custody. They are presumed by society, lawyers, the courts, and themselves to have a right to keep the children in their care and protection.
It is the father who must ask for joint custody and it is often in the mother's power to agree or disagree.
The mother's position is particularly enhanced if she knows that a refusal to share parenting with her spouse will preclude a joint custody order regardless of her reasons for denying joint custody.
In this context, it would be important to study women who refuse a request for joint custody.
By presuming joint custody as early as possible in the court process, parties are impelled to attend to the child's needs, thereby encouraging mature behavior and discouraging divisive, childish conflict.
Shared parenting with mutual responsibility -- joint custody -- is in the best interest of the child, parents, society, and the court system. Those courts can assist the parents in settling their own disagreements by providing a context for negotiation and helping to mold specific child-centered joint custody agreements.
The quality of the relationship between the mother and the father, especially at the time of separation, does not predict whether a joint custody arrangement can work.
If there is a legal and social expectation that parents must negotiate with each other, there is a higher likelihood that it will occur than if the expectation is that they are too embittered to even talk to one another.
Many fathers in conflictual situations stated that joint custody could be successful if the legal agreement specifically enumerated the responsibilities of each parent and did not depend on their good will towards each other as a means of resolving differences.
In general, it seems that the advantages of joint custody, for the children in this study, outweighed the disadvantages . . . inherent in such an arrangement.
…the presumption that the mother is the better parent…and thus better fit to be the custodial parent, has dominated most divorce hearings and court decisions for the past 50 years.
The societal attitude that fathers should be working regardless of the presence of dependent children…Single custodial mothers, on the other hand, have the option of either working or staying home, either of which is condoned by society."
(Relationships among family members) do not end when divorce occurs (they are) merely altered….
Current patterns of custody, visitation, and child support show low deviations from the traditional mother custody, bimonthly visitation with a father who pays child support.
This fact challenges any supposition that arrangements are tailored to meet the specific needs of the particular family. It is more logical to conclude that these decisions are made according to fairly rigid, conventionalized standards that poorly accommodate the variety of circumstances among individual families in minimizing stressful situations. (several sources are quoted).
(The) duration of contact with the father was directly related to the quality of the father-child relationship and, indirectly, to the child's adjustment.
(The) key factors (are:) insure that the father (has) easy access to his children and input into his children's lives, both of which are frequently denied fathers in actual practice.
(Results) show better results for joint custody than sole custody.
(The) relitigation rate for joint custody was half that for sole custody (16% vs. 32%).
…guidelines…advocated to protect the child's 'best interests'.
Recommends training for judges who will hear divorce cases.
In reviewing the courts' traditional "judgment" in custody matters, she states, "Even after the 'best interests' became the guideline, rarely was the choice given scrutiny. The mother was given custody because it was assumed she was the person who could take care of the child. Only occasionally was her fitness investigated. Even though the law has often been changed . . . many judges' decisions do not demonstrate equal consideration.
Findings indicate a statistically significant association between time lost in the presence of the father and current adjustment. The more time lost, the higher the maladjustment score.
(Of those families in the sample) in which custody had been decided by the court, there was one family in which there was joint custody. In all other cases, whether custody had or had not been determined by the court, children lived with their mothers.
(Story) of a 6 year old boy who, when asked what the most difficult aspect of his family situation was, responded tearfully, 'I miss my daddy.' He had not seen his father for 2 months.
. . . an 8 year old boy complained about the interference of the extended family in allowing him to telephone his father. He had learned to put through emergency calls to his father quickly when others were not around.
…the direct impact on the child's psyche of reduced contact with the father is an important factor to be considered in further research.
That such law, as practiced in this country and elsewhere is a reflection of another time, another age that no longer exists.
…both divorced parents should continue to be deeply involved with their children and be given permission by the court and lawyers to do so.
Families are forever. A divorce ends a marriage but does not end the family. It rearranges the relationships among its members in a variety of ways….
Judicial decisions . . . usually fail to meet the wishes and needs of the parties and the children.
(Findings that) in both countries (USA & Israel) the child's internality was positively related with paternal involvement in childcare.
…that children reared in nontraditional families will manifest more internality than their peers in traditional homes.
…both social learning theory and reciprocal role theory suggest that youngsters in families where fathers are primary caregivers will adopt non-sextyped perceptions of mothers and fathers.
(The) children reared in homes where fathers have a major role in their upbringing, tend to be more internal, more empathetic, and hold less stereotyped views of paternal role.
…considerable father presence is associated with an internal locus of control of children.
(Joint custody) fewer emotional and behavioral problems….
(Joint custody) classroom adjustment…superior….
(The) importance of a continued relationship with both parents.
Children whose relationship with their fathers was disrupted were more vulnerable to a wide range of problems.
(The joint custody) children had a better self concept….
…lack of dire consequences for the children as predicted by judges and some psychologists.
Judges are more readily acknowledging that their area of legal expertise does not equip them to make such decisions based solely upon points of law.
(Joint custody) does not mean that physical custody is necessarily divided equally …
(Joint custody means) both parents have equal input in major decisions affecting their children….
(The) adjustment of children is related to the quality of their relationship with both parents. (emphasis is the author's)
(The) children (were) dissatisfaction with the paucity of visits under the 'reasonable visitation' standard (often translated into visiting on alternative weekends)."
…frequent visits (had a) positive effect on adjustment….
… fathers tended to move less after divorce than did mothers … mothers more often have custody of the children (and) this means that the children (suffer) not only loss the relative loss of the father from the home … but the loss of the home itself, (as well as) neighborhood friends, and other familiar surroundings.
"My parents cheated and lied, but I decided never to do that."
"I will live with a guy for a long time. I won't rush in."
They should both have been more considerate. My mother is selfish and my father should never have married."
The trouble with my parents is that they each gave too little and asked too much."