Can Abolishing Sole Custody Curb Divorce?

By Dianna Thompson and Glenn Sacks
New York Sun (10/2/02)

"I walk a tightrope every day, just so I can stay a part of my young daughter's life," says Jerry, a 38 year-old engineer from San Diego, California. "If I have an argument with my wife, she spreads the divorce papers out on the living room table and begins to fill them out. There's no compromising with her--I either accept her decisions or she threatens to divorce me. If she does, she'll get custody of my little girl and I doubt she'll even let me see her, much less play an active role in raising her."

Research shows that Jerry's problem is a common one. According to a study of 46,000 divorces conducted by economists Margaret Brinig and Douglas Allen, most divorces are initiated by women, and their primary motive in terminating a struggling marriage is to gain sole custody of their children.

Both Jerry and his wife know the grim fate that often awaits a divorcing dad. Courts rarely grant sole custody or even joint physical custody to fathers, and standard visitation is just a few days a month.

Visitation interference is a major problem for divorced dads. According to research conducted by Joan Berlin Kelly, author of Surviving the Break-up, 50 percent of mothers "see no value in the father's continued contact with his children after a divorce." This was echoed by the American Journal of Orthopsychiatry report "Frequency of Visitation by Divorced Fathers," which noted that "40 percent of mothers reported that they had interfered with the noncustodial father's visitation on at least one occasion, to punish their ex-spouse."  

Jerry knows that mothers also frequently move their children hundreds or thousands of miles away from their fathers, and that many divorced dads find themselves trapped in a vicious cycle--when their exes interfere with their visitation or move away, a divorced dad's only recourse is to go back to court. Yet many struggle under the weight of crushing child support obligations and are unable to afford legal representation.

A solution to the problem lies in the two shared parenting bills now being considered by the New York legislatures.  Assembly Bill A3673, sponsored by David Sidikman (D-Nassau County), and Senate Bill S2818, sponsored by Owen Johnson (R-Suffolk County) create equality between divorcing couples by replacing the option of sole physical custody, which occurs in the vast majority of custody cases, with the presumption of joint custody. Divorcing parents would be expected to create and follow a shared parenting plan, and sole custody would be awarded to a parent only if he or she can prove that joint custody would be detrimental to the child.

Under these bills children would gain from the ongoing emotional, physical, and financial support of both parents that shared parenting allows. And once couples understand that they will be unable to drive the other parent out of their children's lives, cooperation between divorced parents rises markedly. In fact, as the Brinig/Allen research from American Law and Economics Review indicates, the presumption of joint physical custody may even serve to keep some marriages together.

"The problem is that my wife knows that the family court system puts her in complete control," Jerry says. "She feels she has nothing to lose in a divorce, so she has no incentive to work our problems out. But I'll lose the most important thing in the world to me--my little girl."

The reality is that, in most divorces, everybody loses--particularly children. Given the tremendous social cost of divorce and fatherlessness--the huge increases in juvenile crime, youth suicide, school dropouts and a wide assortment of social ills--keeping marriages together should be a national priority. Changing the way custody is determined is the first step.