Perils of Joint Custody

By Nancy Goldhill

 [Editor’s note: Although mandatory joint custody has been proposed three times in New Jersey since this article was orig­inally published, proponents of such a state law change have not succeeded. Reprinted with permission from the LSNJ Report (July–Aug. 2000).]

Across the country, some advocates— primarily fathers—are advocating that cus­tody laws should include a presumption that joint custody is in the children’s best interests. This approach is premised, at least in part, on the mistaken notion that mothers win custody in most cases. Although proponents of mandatory joint custody claim that many, if not most, states have adopted such presumptions, in fact most states with any kind of joint cus­tody presumption apply the presumption only where the parties agree to it.

Current New Jersey law promotes the public policy that children need “frequent and continuing” contact with both parents; the law recognizes a range of custody options, including joint custody, depend­ing on the interests and needs of the child in a particular case. Recently a legislative proposal was introduced to mandate joint custody with only limited exceptions. Fortunately that proposal has not moved forward thus far. In this article I look at the dangers of mandating joint custody and the status of other states’ laws.

In general, custody laws are gender-neutral. Women often end up with cus­tody of their children because men leave and do not seek custody of the children. When fathers contest custody, however, studies consistently document that they win at least half of the time. A Los Angeles study showed that when fathers contest­ed custody, they won 63 percent of the time; a Massachusetts study found this to be so in 70 percent of cases. And a 1997 article reviewing custody laws from the 1920s to the 1990s concluded that “when fathers fight for custody they have always had about a 50 percent chance of win­ning, no matter what arguments or what experts they employ.”/1/

Research and Literature on Joint Custody

Most experts agree that legal presump­tions creating a “one size fits all” custody solution are inappropriate and are harm­ful to children in many cases. Research studies show that no one custody arrange­ment, including joint custody, is beneficial for children. Custodial arrangements must be tailored to the specific needs and cir­cumstances of parents and children in individual cases. Joint custody may be a positive outcome where both “parents are committed to making joint custody work out of love for their children, are willing and able to negotiate differences, and are able to separate husband and wife roles from parental roles.”/2/ On the other hand, research indicates that joint custody poses grave risks for children in high-conflict families or whose parents cannot coop­erate or communicate effectively.

When courts impose joint custody on families in conflict, they are likely to exac­erbate the stress that children of divorce experience. Dr. Judith Wallerstein, one of the first American researchers to study the long-term impact of divorce on children, states: “[O]ngoing conflict between divorced parents has especially detri­mental effects on the children and … chil­dren are particularly at risk when they have frequent and continuing access to both parents who are hostile and unco­operative with each other.”/3/

According to Dr. Wallerstein, Dr. Janet Johnston’s research also reveals “psychological deterioration among both boys and girls when frequent contact is ordered over the objection of one or both parents in . . . intensely conflicted families. The unintended effect is that the child feels emotionally safe nowhere.”/4/

The National Council of Juvenile and Family Court Judges, echoing these con­cerns, states that children in this situation are “more emotionally troubled and behaviorally disturbed than those in sole custody.”/5/ Children also suffer profound­ly because they become “caught in the middle….”/6/

Substantial literature clearly indicates that, while joint custody may be a viable option for some families, it may be dis­astrous for others. Judges and social sci­ence experts reflect that presumptions and preferences for joint custody divert courts from their fundamental obligation to assess the child’s best interests and “place much greater pressure on the judge to impose joint custody on families for which it is clearly inappropriate.”/7/

Other States’ Custody Laws

Most states, including New Jersey, recog­nize joint custody, along with sole cus­tody, as one of the potential outcomes in a custody proceeding. Relatively few states, however, have adopted presump­tions favoring joint custody. . . .

NEW JERSEY, WE HOPE, WILL NOT ADOPT SUCH a drastic measure as joint custody for all. To the contrary, there should be a pre­sumption that joint or sole custody to a perpetrator of domestic violence is against the child’s best interests. In its 1994 Model Code on Domestic and Family Violence, the National Council of Juvenile and Family Court Judges recommended that in any custody proceeding involving fam­ily violence there should be “a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence.” This code was developed and reviewed by experienced and well-respected judges, public policy experts, advocates, attorneys, and others. The American Bar Association has adopted the identical position./8/

1 Mary Ann Mason & Ann Quirk, Are Mothers Losing Custody? Read My Lips: Trends in Judicial Decision-Making in Custody Disputes—1920, 1960, 1990, and 1995, 31 FAM. L.Q. 215, 217 (Summer 1997); see also Joan Zorza, Protecting the Children in Custody: Disputes When One Parent Abuses the Other, 29 CLEARINGHOUSE REV. 1113, 1117 (Apr. 1996).

2 D. Saunders, Child Custody Decisions in Families Experiencing Woman Abuse, 39 SOC. WORK 51, 56 (Jan. 1994).

3 Judith Wallerstein & Janet Johnston, Children of Divorce: Recent Findings Regarding Long-Term Effects and Recent Studies of Joint and Sole Custody, 11 PEDIATRICS IN REV. 197, 203 (Jan. 1990).

4 Judith Wallerstein & T. Tanke, To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce, 30 FAM. L.Q. 305, 314 (Summer 1996).

5 Family Violence Project of the Nat’l Council of Juvenile & Family Court Judges, Family Violence in Child Custody Statutes: An Analysis of State Codes and Legal Practice, 29 FAM. L.Q. 197, 200 (Summer 1995).

6 E. Maccoby & R.H. Mnookin, DIVIDING THE CHILD: SOCIAL AND LEGAL DILEMMAS OF CUSTODY (1994). See also D. Lye, What the Experts Say: Scholarly Research on Post-Divorce Parenting and Child Well-Being, REPORT TO THE WASHINGTON STATE GENDER AND JUSTICE COMMISSION AND DOMESTIC RELATIONS COMMISSION (1999), available at http://www.courts. wa.gov/parent/chap4.htm

7 G. Hardcastle, Joint Custody: A Family Court Judge’s Perspective, 32 FAM. L.Q. 201, 206 (Spring 1998).

8 AM. BAR ASS’N, THE IMPACT OF DOMESTIC VIOLENCE ON CHILDREN: A REPORT TO THE PRESIDENT OF THE AMERICAN BAR ASSOCIATION (1994).