Joint Custody Can Maintain Parent-Child Relationship

In the past the courts meticulously divided between divorcing parents all the material wealth of the marriage: the car, the couch, the house, was split between divorcing parents 50-50. But the most precious part of that marriage, the children, went to one parent, the one designated as custodian, almost exclusively. The other parent was regularly left with only a very small portion of the child's time and frequently had to fight repeatedly, assuming devastating legal expenses, to even maintain the shred of contact with the child.

But thirty years ago things started to change. At the request of either parent, judges must consider joint custody awards. Such requests can be made not only for pending divorces, but also in the case of divorces already granted.

Since then parents were encouraged to either sit down together and work out joint-custody arrangements or to work them out through their attorneys or counselors. In order to allow the utmost flexibility and, thereby, to insure that various ways of life can be accommodated under the new law, no rigid guidelines have been imposed on litigating couples.

Thus, each joint-custody agreement can be tailor-made. Each set of parents can draw up a plan most practical and suitable to their situation. Legislators believe that this "self-ordering" (designing the court order under which they will be bound) would lead to more compliance with court orders on the part of parents, since most people are inclined to honor an agreement they negotiate themselves.

Custody laws were inspired in part by the growing number of custody change suits brought by fathers who had no recourse under the old law to overcome custodial mothers who obstructed the father's attempts to maintain close contact with the child. Non-custodial mothers were also interested in the joint custody concept, though they are fewer in number and thus have not received as much publicity as have the fathers.

Divorced fathers have become more willing in recent years to express their anguish over the loss of their homes, their wives and their children. More people realize the important role a father plays in the child's life. And more fathers develop and value their parenting skills. Still, the courts were caught in a cultural lag. Laws did not change fast enough or sensitively enough to respond to social changes.

The initial push for new legislation came from professionals in psychiatric, sociological and counseling fields.
A gratifyingly large number of lawyers also endorsed the necessity of joint custody. The lack of a joint-custody option was the single greatest inequity left unrectified when the no-fault divorce act was introduced. The act said that custody could only be awarded to either parent or an outsider under certain circumstances. The terrible side effect of this act was that the parent who demanded it of the court would receive a divorce without showing of cause. The other parent - who may not have been consulted, desirous of divorce or have wittingly given cause for divorce - could be promptly excluded from the child's life except for visitation based or a schedule decreed by the court without consulting the excluded parent.

In fact, the non-custodial parents often are treated as non-persons. They have been barred from access to their children's medical records, although they often are financially responsible for the medical bills. School administrators and teachers have often colluded with the obstructionist parent by refusing to provide the non-custodial parent with any information whatsoever about the child - even though such refusals violate federal
law.

The net effect was that law-abiding fathers, whose conduct as fathers and husbands was theoretically not in question, were nevertheless severed from a normal relationship with their children in decrees as severe as if these men had committed a crime. In the past, excluded parents have sometimes resorted to "child snatching" or to abandoning child support for lack of frequent and extensive contact with their children.

Certainly, a pattern of mounting frustration over not being able to see and share the child often precedes abandonment or child stealing by the non-custodial parent. A better solution would shift the focus to a decision based on protecting the child's equal access to both parents regardless of custodial arrangements and on encouraging parental sharing of responsibility for the child. Custody should be awarded in the following order of preference according to the best interests of the child: To both parents jointly or to either parent. When awarding sole custody, the court is encouraged to choose the parent who will most tolerate the child's frequent and continuing contact with the other parent. Preference of custodian should not be made on the basis of the parent's sex.

All children are entitled to the love and influence of both parents, but when they are pulled between two sparring parents they suffer acutely. Psychologists and psychiatrists have warned of the long-lasting ill effects of such trauma.

After years of study, in fact, professionals have compiled a list of adverse reactions that a child suffers as a result of sole-custody awards. Children immediately feel lost and abandoned regardless of the presence or excellence of the custodial parent. Feelings of anxiety and loyalty conflicts lead to strained relations with the custodial parent, disturbances in the child's social relations and learning problems. There is often confusion in sex-role identification.

But children are not the only ones to undergo trauma. Non-custodial parents feel anxious over the separation and at the loss of their close family members, and familiar roles and habits. Practical problems such as economic instability create added stress. The ability to parent declines as does self-concept (Mothers feel less physically attractive and fathers suffer greater initial changes.) Feelings of rootlessness and extreme loneliness also pain these parents.