The Case for Joint Custody

By Ron K. Henry

Adapted from Balance Magazine-"The Case for Joint Custody: a transcript of oral testimony and subsequent discussion during the appearance of Ronald K. Henry at a hearing in Washington, D.C., in the matter of the proposed Joint Custody Act of 1995, applicable to the District of Columbia."

Children are born with two parents. Children want, love and need two parents. During the marriage, the child has pure and unrestricted joint custody with unlimited access to both parents. The question is, what should the law do when that marriage breaks apart? Who should bear the burden of proof? The one who wants to continue the involvement of both parents or the one who wants to claim sole ownership of the child?

A custody order is a very simple legal concept. A custody order is just an injunction. We take people who previously had unrestricted freedom, unrestricted access to their children, and now we enjoin them from exercising part of that prior right. Well, the rule for dealing with injunctions in every other area of the law is; you impose the minimum restriction on the parties' prior freedom. You put only the smallest imposition, the smallest restriction on them necessary to resolve the dispute at hand. You don't go to a disruptive extreme. If, as we all know, those children were in joint custody during the marriage, we ought to work very hard to preserve for the children, for their best interest, as much of that pre-existing joint custody, as much of that access to both parents as we can.

When a divorce comes, the child's need for both parents is actually greater because of the insecurity created by the divorce itself. If we care about children's best interests, we need to send a message through our law that encourages the continued involvement of both parents, that encourages continued shared parenting, and that imposes only the minimum necessary restrictions just as we would do with any other kind of injunction.

Let's stop and think about what a custody battle is. Two parents go into court and stand before a judge, each of them begging to spend more time with the child. Are we suffering from an excess of parenting or an excess of fathering? Are children spending too much time with either of their parents? Of course not. Just the opposite is true. We know that children are suffering from the absence of their parents, from insufficient parenting. What is the message that we should be sending through our courts? If we care about the best interests of children, we should want to encourage the maximum continued involvement of both parents. Continue for them the joint custody that existed during the marriage, take away from those children as little as you absolutely must, presume a continuation of two parents.

I've been discussing married parents. In the non-marital situation, in my view, there is no difference in terms of the outcome or the proper legal status. Bear in mind that each child is born with two legal parents. We have child support proceedings regardless of marital status. There is no distinction made between the legal obligations imposed upon a marital father and a non-marital father.

In fact, if you look at the cases, Clars vs.. Jeter, for example, about seven years ago, the Supreme Court established in a unanimous ruling that it was unconstitutional to treat a non-marital child in a way that was inferior to a marital child. What the court said there dealt with a statute that had a shorter statute of limitations for commencing a child support action for non-marital children than the statute of limitations for marital children. The Supreme Court said, "Time out. You can't do that. You can't discriminate against non-marital children. They have got every bit as much right to the involvement, the resources, the wherewithal of the father. They have got every bit as much right to those two parents that they were born with as a marital child."

So, as a constitutional matter, we would be very hard pressed to discriminate against the non-marital child. I would go further and put it into pragmatic terms. Most of the children who are born into a non-marital situation are not the result of casual one-night stands. These are parents who have known one another a long time. They have go a relationship. They are frequently and, perhaps in the majority of the cases, actually living together. They are involved, both of them, with respect to the child. Why in the world would we have a law that presumes that one of the parents is uninvolved? I think that just the opposite should be presumed.

We should, as a matter of the law serving as a moral force, as a matter of the law encouraging the best in all of our citizens, start with the presumption that we do want, we do expect, that we do believe both parents are going to be involved. Surely, that won't be the case in all situations but isn't that where we want to start? Don't we want to believe, don't we want to encourage that dual parent involvement, and don't we again get back to the problem of there being no excess of parenting in this land? We should encourage more parenting.

We have a saying in our community, "It takes a whole village to raise a child." By what theory of the child's best interests should a court come in and issue an order restricting one parent to mere visitor status? When you have fit and loving parents, when you have two parents coming in front of the court and saying, "please give me more time with my child," shouldn't we throw up our hands and say, "Hallelujah!, here is a child who is loved, here is a child who has two parents who want to be involved, let us see what we can do to maximize the contributions of both?"

Instead, we have a very perverse system, under which the judge says, No, no, I'm sorry, my job is to pick a winner and a loser here." Well, when you pick a winner and a loser in a custody fight, all you've done is guarantee that the child is the loser, because that child walked into court with two parents and walks out with only one. The winner-loser mentality is antiethical to the best interest of the child. It doesn't matter what social pathology you look at; teenage pregnancies, drug abuse, suicide, low self-esteem, school dropout...you can go through the litany of pathology that the government has to try to cure. Every single one of them is linked to family breakdown and parental absence. We don't have an excess, but a shortage of parenting.

Let's put into place laws which encourage the maximum involvement of both parents, to preserve for each child the joint custody in which that child was born and which continues by nature and by law until a foolish judge intervenes and takes it away. We don't need to take it away. We need a law that says you both are still Mom and Dad.

Now, let's look at what happens when parents get into custody litigation. I've talked with people on both sides of these cases. You know what they tell me? They both tell me they're scared. They're scared that they might lose custody, that they might be reduced to visitor status. Rather than run that risk, they each go in and fight like crazy. Both of them would probably be willing to accept joint custody, but they are too fearful that if they acknowledge that willingness in court, they will be deemed to have already given away half the loaf while they still run the risk of losing everything, of being reduced to a mere visitor to their own child. So, they fight to be the one who emerges as the winner--out of a desperate fear that otherwise they'll end up being the loser.

We need to get past winners and losers. We need to say to both litigants, "Relax, at the end of this you're both still going to be Mom and Dad. You're both going to have substantial relationships with your children."

Now, I need to talk about some of the distortions and stereotypes and outright falsifications that occur in the statements of the opponents of joint custody.

Let's start with the claims that are made about cases where conflict exists between the parents. We keep hearing, "Oh, well, if the parents are in conflict, oh, tsk, tsk, we can't possibly have joint custody." Of course conflict is bad for children. Conflict during a marriage is bad for children, conflict in sole custody is bad for children, conflict anywhere is bad for children. But none of the people who argue about conflict ever directly compare the logic of the choices that are actually in front of us. We're not comparing joint custody against Ozzie and Harriet, we're comparing joint custody against sole custody.

Think for a moment which is more likely to engender hostility, which is more likely to create conflict; a situation in which both parents are told, "Relax, you're not going to lose your role as a parent," or a situation in which that court says, "I'm going to pick a winner and pick a loser. Choose your weapons and come out fighting, the last one left standing is the winner." Sole custody determinations are the source of the conflict. Ask the opponents of joint custody which is more likely to create conflict--a winner/loser dichotomy or sharing. That's an easy choice.

A related claim is that joint custody forces unwilling parents to interact with each other. Again, they are comparing joint custody against Ozzie and Harriet, not against sole custody. The parents also have to interact with each other in a sole custody situation. In sole custody, however, they interact from a basis of hostility, of power and powerlessness. They interact from a basis in which one parent has been declared the loser and that parent is ever fearful of losing still more, of losing every last shred of contact, and is ever struggling to try to get back into the child's life and restore what was taken away by a piece of paper, a judicial decree. Shared parenting gets away from all those conflicts. Shared parenting says, "You're both still Mom and Dad. Neither of you has lost your child. Neither of you is the owner of the child with power to exclude the other." There is no doubt that the shared parenting approach is healthier for children.

The joint custody opponents make much of the experience of the State of California. Yet California goes beyond encouraging frequent and continuing contact of the child with both parents. They say, "We like shared parenting, but we know sometimes we may not be able to have equal time with both parents; perhaps distance doesn't allow it. In those cases where we have to give the majority of the residential time to one parent, we are going to give a preference to that parent who shows the greater willingness and ability to cooperate in keeping the other parent involved." It is on this point that the real fraud of some of the opponents becomes apparent. They don't like cooperative parent provisions. Can you imagine that? How dare they demand that we ought not to encourage demilitarization of divorce. We've all heard of the horrors of divorce for children. Of course we should encourage cooperation. Of course we should teach both parents to get along with one another and to work for the child's best interest. Our current sole custody situation doesn't do that. It says that only one parent is going to be left standing at the end of the day. We need to get to the other side, to recognize what these kids are born with, want, love and need: two parents.

Another set of issues joint custody opponents raise is about control. They say that parents asking for shared parenting are just trying to control the other parent. Think about the fraud, the illogic of that for a moment. If you are asking about who's trying to control whom and one parent comes to you and says, "Mr. Judge, I would like to have shared parenting, so my child can have two parents," and the other parent says, "I want sole custody, I want to own this child," who's trying to exercise power? Who's trying to exercise control? Who is it that wants to be dominant and who is the one that has the interest of the child at heart?

The issue of abuse is also quite contrary to the stereotypes and myths set forth by the opponents of shared parenting. Anywhere from two-thirds to three-quarters of all child abuse is committed by mothers, not by fathers. Are the opponents of shared parenting [who generally support sole custody going to mothers] saying that as many mothers should be disqualified from custody, or do they want to be selective again and say that it is only fathers who should be disqualified? Let's be honest, let's be logical, let's look at this consistently.

Child custody law should apply one of the very simple propositions in mathematics; two is more than one. Two parents can do more than one. A single parent may do all that he or she can, but there's no doubt that the active involvement of a second parent adds a lot and makes it better for the child.

We also hear noise about child support and how terribly that will be impacted if we have shared parenting. A study by Professor Sanford Braver is, to my knowledge, the only empirical study which has put side-by-side sole custody settings and joint custody settings where the joint custody was imposed over the objection of one of the parties. Joint custody opponents often admit that joint custody works where is is agreed to, but argue that it can't work where it is imposed. This is the only study that has put side by side forced sole custody versus forced joint custody. Professor Braver "found that the groups differed significantly in terms of how much financial support was paid. When sole custody was the arrangement, despite the father's wishes, only 80 percent was paid; when joint custody was awarded, despite opposition by one of the parents, child support zoomed to almost perfect compliance, 97 percent compliance." Professor Sanford Braver has been working in this area for a good many years. He has found that there are three principal predictors of child support compliance: the fairness of the original order; the obligor's frequent access to the child; and the obligor's work stability. A lot of this gets lost in our stereotypes, in the name-calling that goes back and forth. The research does exist to show us and give us some guidance on these policy issues.

I'm going to close with the issue of gender bias, because it has been said that this debate has gotten somewhat fragmented along gender lines. Well, that's not quite right. What you find is that the people in favour of shared parenting include both men and women, mothers, fathers, children, advocates, a broad range of people. Where you find a very limited opposition, a very limited perspective is in the people who are opposed to shared parenting. They come at it from a single perspective, from the winner-take-all mentality that says that one parent should own that child, that one parent should have power over that child.

Karen DeCrow, the former president of the National Organization for Women, says: "If there is a divorce in the family, I urge a presumption of joint custody of the children. Shared parenting is not only fair to men and children, it is the best option for women. After observing women's rights and responsibilities for more than a quarter of a century of feminist activism, I conclude that shared parenting is great for women, giving time and opportunity for female parents to pursue education, training, jobs, careers, profession and leisure. There is nothing scientific, logical or rational in excluding men or forever holding women and children as if in swaddling clothes in an eternally loving bondage. Most of us have acknowledged that women can do everything that men can do. It is time now for us to acknowledge that men can do everything women can do."

Men can be parents. This is not a gender issue, but there is a special interest group, there is a limited opposition, there are people who want to have control over children. Let's reject their arguments for control and give children two parents; let them keep the two parents that they had during the marriage. Don't allow sole custody to take that away from them.

Ron Henry practices law in Washington, where he is an activist for parental equality and other kinds of equality between the sexes. He is co-founder of the national Men's Health Network in the United States.