BY Michael A. Robbins
THE CUSTODY PROBLEM
Today, one out of every two marriages in the United States ends in divorce 1 In other words, there are now more than one million divorces in this country every year, of which 75% involve children. 2 Given that millions of children are now suffering from parental divorce and its attendant consequences, society can no longer be passive to a problem which is growing to epidemic proportions.
There exists a considerable number of scientific studies documenting the undesirable impacts of divorce on children. The overwhelming conclusion of these studies indicate that family instability, that is parental hostility or parental absence, has an unhealthy effect on the children involved and on society as a whole. One such study found a direct relationship between parental divorce and delinquent behavior in children. Researchers found abnormal rates of aggressive, anti-social arid uncontrollable behavior in children of divorce. 3
Another study linked divorce to adverse psychological consequences in children. Researchers claim that divorce causes a child to feel abandoned and rejected. in a survey done among 26 seven year-old children of divorced families, the single most pronounced reaction to the parental divorce was the sense of loss suffered by the child with regard to the departed father. The child frequently perceives a parent’s departure as a departure from him or her personally. This event for children is psychologically comparable to the death of a parent, and frequently evokes similar responses of disbelief, shock and denial. 4
Parental deprivation has also been related to depression and anxiety later in life. 5 A study of children in a Michigan psychiatric facility found that “virtually all” of the children of divorced parents experienced depression. This was not true of the children in the facility from intact homes. “There was a common theme of children being made to feel small, weak and incredibly vulnerable by the whole divorce experience. This disruption caused by the divorce itself as well as its management echoed in the child for some time.” 6
Perhaps the most recent study on children and divorce concluded that divorce has a lasting psychological effect on many children, one that may turn out to be permanent. 7 The study conducted found that five years after the divorce, only >340/s of the children were clearly doing well. Another 370/0 were depressed, could not concentrate in school, had trouble making friends and suffered a wide range of other behavior problems.
This study also found that ten years after divorce, approximately 45% of the children were doing well, about 410/0 were doing poorly and were entering adulthood as worried, under-achieving and self-deprecating, sometimes angry young men and women. 8 The study also concluded that three in five children felt rejected by one of their parents, usually the father. The survey continued to say that children long for their fathers, and the need increased during adolescence. An alarming number of teenagers felt abandoned, physically, mentally and emotionally. 9
The study concluded that society needs to be more aware that many children will suffer the effects of divorce for many years and steps need to be taken to preserve for these children as much as possible of the social, economic and emotional security that existed while their parents’ marriage was intact. 10
The combination of the increasing number of divorces in this country, coupled with the ill effects of family disruption on the children of these divorces, creates a grave problem. In approaching this problem, two possible solutions come to mind: (1) decrease the divorce rate; or (2) minimize the adverse consequences of divorce. This article addresses itself to the latter of these two solutions.
HISTORY OF CHILD CUSTODY
The problem of custody of minor children was of no concern to the chancellors in early English law. The decision as to which parent received custody was tied to property rights. In feudal English history, the father received custody on the basis that he received the lands and the personal property, and the children were considered his personal property. The father had exclusive and absolute control over his children; he could sell his children and even kill them without punishment. 11 In contrast to the father’s supremacy, the mother’s rights were virtually non-existent. in the nineteenth Century, however, the pendulum swung in the other direction and the mother came to be the odds-on favorite as the proper legal custodian of the children, especially those of “tender years” and daughters. 12 Michigan also adopted “the tender years” presumption. MCLA 722.541 (repealed on 04/01 /71) provided that, ‘… the
mother of such children shall be entitled to the care and custody of all such children under the age of twelve years, and the father shall be entitled to the care and custody of all such children over the age of twelve years.” This presumption was based on the archaic principle that children under the age of twelve could help the mother do household chores, whereas children over the age of twelve years could assist the father in his work on the farm.
Most states now have legislation declaring that in custody determinations, the rights of the parents are to be equal. Michigan adopted this approach and abandoned the “tender years” presumption with the passage of the Child Custody Act of 1970.13 In Michigan, custody is to be determined in accordance with the child’s best interests Among the provisions of the Child Custody Act of 1970 is a list of eleven factors to be considered in determining what is in the child’s best interests. 14 However, although most states have declared in custody determinations that the parents are presumed to be equal, in 1977, approximately 90% of all contested custody cases result in awards to the mother. 15 In addition, tine mother assumes custody in 90% of the divorce cases which never reach the courts. 16
CRITICISM OF SOLE CUSTODY AWARDS
The application of the best interests standard has traditionally resulted in sole custody awards. Under a sole custody arrangement, the custodial parent, typically the mother, retains all the rights and obligations shared by the parents during the marriage. That is, the authority and control over the child’s education, religious instruction and medical care, as well as daily care. The non-custodial parent is entitled to visitation privileges as a matter of right unless the court determines that serious harm to the child’s physical, mental, moral or emotional health would result.
In recent years, the system of custody to the mother and visitation to the father has come under attack. Among the most common complaints of the sole custody arrangement is that it weakens the father-child relationship and that the visitation rights of the father are often subject to the benevolence of the mother. It is further argued that even when visitation occurs, it is frequently strained and superficial. The father is seen only as a person who brings gifts or conducts outings. As a result, the child is denied exposure to the father’s lifestyle and his view of the world. There is no opportunity for the father and child to develop a deeply personal relationship. Having lost most of his authority and self-esteem, the father often finds it less painful and less futile to decrease or terminate his visits.
To illustrate the above, a recent study was conducted in an attempt to explore the effect of divorce on the father-child relationship, from the father’s perspective. This study concluded that the degree of child absence produces a significant difference in a father’s perception of his functioning as a parent after divorce. This perception becomes self-enforcing. The more time a parent spends with his child, the more he feels effective as a parent and ultimately the more he is motivated to continue to have an ongoing role in that child’s growth and development. Conversely, the less time a father spends with his child, the less he sees himself as a parent and the less he is motivated to continue to be with his child. This leads ultimately to his further removal from that child, not because he does not care, but because of an inability to handle the pain associated with what he has lost. The finding of this study clearly reflected that sole custody discourages involved parenting by non-custodial parents. 17
With this in mind, it is easy to explain why child snatchings have been on the increase each year, with the father usually acting as the snatcher since he is generally the loser in a custody fight. It is reported that there are annually 25,000 to 100,OCO child snatchings in the United States and that six or seven out of every ten of these children are never seen again by the parent left behind. 18
Equally disturbing are the criticisms directed at the impact of sole custody on the mother-child relationship. essentially, the custodial mother must single-handedly do the work normally done by two parents. This creates enormous burdens for the mother. It becomes difficult for the mother to establish a career~ to earn a living for her family, to sever her financial dependence on her former spouse and to cultivate a social life. As a result, many divorced mothers have come to resent their children because they have limited their own activities. In turn, the children may sense that the are a burden on the mother and are confining the mother to a child’s world. 19
Finally, the last criticism of the sole custody arrangement is linked to the emerging body of research on parental deprivation. It is well established that two parents are usually better than one and that there are many adverse effects associated with parental absence. As already mentioned, several studies have found an association between father absence and anti-social behavior in children of divorced parents, 20 as well as adverse psychological consequences. 21
There is also a growing body of scientific literature attesting to the positive influence of fathers who are present. 22 All this points to the conclusion that the child’s loss is the clearest. He or she needs two caring parents, each of whom compliments the support and nurture available from the other. Logically, this need can be satisfied only when each parent is closely involved with the child’s life on an ongoing basis, a circumstance rendered virtually impossible by the very nature of the sole custody arrangement.
Just as social sciences and the state of American culture gave rise to the “tender years” doctrine, changes in American culture apparently led to its demise. One such change is that fathers today appear to have a greater affect on their children’s development and, therefore, more to lose if deprived of control and custody, as do their children. Also, as more women join the work force, the “mother as homemaker” justification for the “tender years” doctrine became greatly weakened. In addition, social science tells us that most, if not all, of the benefits of “mother love” can be conferred on a child by a parent of either sex. Thus, a general trend toward the weakening of the presumption in favor of the mother can be discerned in most jurisdictions. Parents and courts have thus begun to experiment with various alternatives to maternal custody, one of which is joint custody.
Presently, there are approximately thirty-five states which have joint custody laws, many of which vary in substance and detail. 23 A precise definition of joint custody is elusive, especially since the term has been used to describe a broad variety of situations. Terms such as joint custody, split custody and divided custody are employed loosely and often interchangeably. As a result, there has been no uniform application of the term “joint custody” and no single arrangement which results when a joint award is made. 24
The essence of joint custody is that both parents share responsibility and authority with respect to the children. This involves parental consultation and agreement on all major decisions affecting the children. Such matters include the upbringing, education, religion and financial support of the children. Also included would be medical and psychological help, if necessary, school vacations and trips, summer camp and extracurricular activities and associations. 25
The specifics of these decisions are left to the parents themselves. In the eyes of the law, the parents are on absolute equal footing.
There are two basic versions of joint custody: Joint “legal” custody and joint “physical” custody. The former consists solely of the shared decision-making function. The latter has the additional component of shared residence. While the decision-making function under joint custody is usually equal, the physical time sharing is generally unequal. That is, under joint physical custody the children live with each parent on an equal or split time basis.
Joint custody should be distinguished from “divided” custody and “split” custody. A divided custody situation is where each parent lives with the child for a part of the year with reciprocal visitation privileges. However, the parent with whom the child is living has complete control over the child during that period. Unlike joint custody, with divided custody there is no joint decision-making. Split custody is simply the traditional sole custody arrangement with brothers and/or sisters divided. Each parent is given complete, full-time custody of at least one child.
ARGUMENTS IN FAVOR OF JOINT CUSTODY
Proponents of joint custody stress that the arrangement is flexible; that it can adapt to the changing needs and circumstances of family members. It is argued that there are times when a child needs the constant attention and affection of his mother and other times when he needs his father’s masculine image.
Furthermore, joint custody is meant to have greater flexibility. With joint physical custody, ideally the parents, not the court, determine the living schedule of the children. As changes occur in personal relations, adjustments can be made in a simpler, smoother and more expedient fashion. Custody modifications are also possible with sole custody, but judicial intervention is usually required. Additionally, the child in a sole custody arrangement usually has not developed as comfortable of a relationship with the non-custodial parent, so any transition may be more disruptive than it otherwise would be in a joint custody arrangement. Joint custody also allows the parents greater flexibility in their social lives and may also ease the pressure if one of the divorced parents dies or remarries.
Another argument frequently advanced in favor of joint custody is its psychological benefits. Divorce, with the subsequent custody proceedings, is one of the most traumatic crisis a family can undergo. Divorce severs the marital ties but leaves intact the parental bonds. Joint custody, unlike sole custody, deals with the psychological needs of both the child and the parents.
With sole custody, an award of custody to one parent may severely affect the non-custodian. Non-custodians often react to an adverse custody decree as if they have lost the child, or interpret the adverse award as a rejection by the child. 26 The non-custodial parent loses contact with the child as a parent and instead becomes a holiday parent or a Disneyland Daddy.” Visitation becomes a frantic effort to entertain the child, or to court him in order to retain his affection. 27 This pseudo-relationship is not an adequate substitute for a meaningful, non-holiday parental interaction with the child. The non-custodian subsequently withdraws from the child in order to deal alone with his loss rejection and depression.
A continuing, broad-based relationship with the child, an inherent component of joint custody, would considerably diminish the psychological effects of sole custody on the non-custodian. Mitigating the parental loss also has legal and practical ramification as well. There would be fewer renewals of litigation for changes in custody, a potentially devastating course for both the child and parents. Unlike sole custody, it is less likely that the non-custodial parent would respond by curtailing his involvement with the child or default on his child support payments (which would result in further litigation).
Joint custody would also alleviate some of the pressures on the custodial parent. The added pressures of increased supervisory and financial responsibility may overwhelm the custodial parent, who often becomes socially isolated, channeling his or her life to raising the child. This in turn adversely affects the parent child relationship. 28 With joint custody, the burden of raising the child would be on both parents. Joint custody provides an acceptable compromise for the parent who is unwilling to assume the burdens of sole custody, but does not desire to relinquish, for personal reasons or societal pressures, the privilege of sharing in the decisions of their child’s life.
The child also benefits tremendously from an award of joint custody. Children of divorced parents often are bewildered by the parents’ divorce and blame themselves for the dissolution. In their confusion over the parental conflict, children may feel obligated to choose between parents. 29 This need to choose is either self-imposed or the result of a parent power struggle. Dissatisfied parents may use their children as pawns in their own personal feuds. Joint custody can mitigate this problem. By making sure that both parents still play an integral role in the child’s life, joint custody alleviates the environment that encourages the child to choose between father and mother. Both parents are still involved with the child. They are not separated into ‘first class and second class parents” or “visitor” and “real” parent.
In addition, because joint custody lessens the parents’ fears, the parents no longer need to bolster their own self-esteem by manipulating the child to side with one against the other. Joint custody also provides an opportunity to develop a more individualized relationship with both parents. In the traditional sole custody arrangement the non-custodial parent must visit all his children at the same time. 30 There is no provision for interacting with the child as an individual. Joint custody can provide the flexibility necessary to ensure individual contact with both parents as an individual arid in a normal daily setting.
Authorities in both the legal and mental health professions generally agree that frequent association with both parents is usually beneficial for the child. Several recent studies concluded that “the best conditions for continued development, requires deep involvement of both parents.” 31 Joint custody provides the child with love, attention, training and influence of both parents. The child gets the advantage of having a parent of each sex:
Every child has the need to identify with the members of both sexes. Girls must learn how to become women, but they must also understand how to relate to men. Boys have to develop masculinity, while they learn to understand the ways of women. The first and crucial lessons in this area are learned from the father and mother and for this reason every effort should be made to assure that this access continues. 32
ARGUMENTS AGAINST JOINT CUSTODY
A major obstacle confronting joint custody is the antagonistic psychodynamics between divorced parents. 33 By perpetuating an unsuccessful relationship, joint custody arguably only engenders more animosity between the parents.~ By definition, joint custody entails extensive parental cooperation. 35 Presumably, if the parents could agree, they would still be married and the issue of custody would never arise. If they cannot agree, the argument goes, they cannot achieve the high degree of cooperation demanded by joint custody. However, joint custody should not automatically be dismissed on such an argument. Unquestionably, many divorced parents cannot be expected to cooperate in sharing the responsibility of legal custody. This argument, however, applies equally well to any custody decree which requires the divorced parents to establish a working relationship (i.e., sole custody decree and visitation schedules). Given that some interaction is inevitable, the question really becomes to what extent the courts should impose restrictions on that interaction. Regardless of the actual custody award, the parents ultimately bear the primary responsibility for ensuring its success.
Joint custody has also been criticized as lacking finality and thereby endangering the child’s sense of security. This argument goes on to say that a child’s placement should be final and unconditional. 36 Joint custody, it is argued, precludes this desired finality. Arguably, an award of joint custody is said to merely postpone the inevitable decision of which parent will acquire sole custody. According to this argument, if the parents did not cooperate during the marriage, they certainly will not start doing so after the divorce. The parental bickering will continue until one parent finally petitions the court for sole custody. This argument is misleading, as it presumes two facts that are not necessarily true: (1) joint custody is more susceptible to modification than other decrees; and (2) divorced couples are unable to cooperate with each other after the divorce, thus judicial intervention is ultimately required.
In response to the first presumption, it should be noted that there is inherent impermanence in any custody decree and they are always subject to modification. The threat of court-ordered modification, therefore, is best mitigated by parental satisfaction, which for some parents occurs only with joint custody. 37
The second presumption is also weak. Parents animosity toward each other is a problem which permeates every custody dispute. admittedly, parents who are unable to cooperate during the divorce probably should not be awarded joint custody. On the other hand, parents who do receive an award of joint custody should agree in advance on a method for handling disputes. The courts should only be a last resort.
Joint custody is also criticized because it is said to create instability and confusion for the child. It is argued that joint custody, by definition, requires that the child be continuously shuttled between parents and this constant shifting is detrimental to a child’s psychological growth. 38 It is further argued that the child will become confused as to where authority lies and as to the different ways of living in the respective homes.
Two counter-arguments can be made. The first relates to the assumption that shifting a child between two caring parents is detrime.~tal to the child. This presumption is not supported by psychological evidence. 39 It can also be argued that the benefits of a meaningful relationship with both parents would outweigh any harm from this conflict.
The second counter-argument derives from a recognition that the shuttling of the child between parents is not unique to joint custody. It occurs with comparable frequency in single custody with regards to visitation rights on weekends. 40 In addition, the single custodial parent who must juggle her time between her children, work and social life may often rely on outside help for child care. Such an environment may result in as much, if not more, uncertainty to the child.
WHEN IS JOINT CUSTODY APPROPRIATE?
In my opinion, there are three conditions which must be met before establishing joint custody in any form. First, the parents must be “fit,” that is physically and psychologically capable of fulfilling the role of a parent. Both parents must be sane and capable of making rational child-rearing decisions. Both must be willing and able to provide love and care for their children. A fit parent need not be a perfect parent, nor does a finding of fitness require that the parent have led an exemplary life in all respects; only behavior which bears directly on the parent’s ability to care for the child should be considered. Thus, the fact of an extramarital relationship should not be determinative of whether a parent is a fit custodian, rather the circumstances of the relationship and their effect on the child should control. For example, the court should rightfully consider the number, duration and level of commitment of such relationship as well as the sensitivity shown by the parent toward the child’s needs. 41
Second, there must be some degree of cooperation between the ex-spouses. Joint custody with absolutely no contact between father and mother is undesirable. There must be a moderate amount of mutual respect and trust. Parents unable to engage in honest communication, who disagree purely to be belligerent, are not suitable for joint custody. As Beyond the Best Interests of the Child asserted,’ ‘children have difficulty relating positively to, profiting from, arid maintaining contact with two psychological parents who are not in positive contact with each other.” 42 It is unrealistic to expect all hostilities to be submerged, but all that is necessary is the ability to accept the ex-spouse’s capacity for positively influencing the children. Because of the bitterness and hostility which frequently accompany separation and divorce, courts should closely examine the parents’ ability to cooperate.
The court must examine the degree and scope of the parents’ hostility and determine that cooperation is possible in several key areas. The areas in which cooperate on is necessary range from practical considerations to agreement on such fundamental issues as education, health care, discipline and religious training. Among the practical considerations, the parents must live in the same general geographic area (especially in the same school district) if the child is to alternate physical living arrangements with any degree of frequency.
Third, the parents must share values to some extent. Joint custody cannot succeed, for example, if the parents insist on adhering to irreconcilable theories on child rearing. Careful analysis of the parent’s potential for compromise is necessary to avoid excessive court supervision subsequent to the custody hearing. It is not necessary that the parents get along well or that they agree on all child raising matters; it is only necessary that they be capable of setting aside their personal differences to reach mutual decisions affecting their child. Each parent must be able to acknowledge the value of the other as a parent to the child. Each must be willing to listen to the other’s position when they disagree and, ultimately, there must be a fundamental agreement to agree.
There are other factors which are important in a determination of the appropriateness of joint custody, but the presence or absence of each can be a significant asset or obstacle to a smoothly functioning joint custody arrangement. First, it is important: that both parties want to have joint custody. Clearly, the chances of success are enhanced enormously if the parties are committed to make the system work. For this reason, joint custody is encouraged primarily as a voluntary alternative.
Second, it is helpful if one or both parents have flexible work schedules. At times, parents may have to sacrifice occupational aspirations for their children’s needs.
Third, it is important that the two homes in a joint physical custody arrangement have somewhat similar environments.
Fourth, it is important that the financial means of the parents are adequate. Usually, joint custody requires the maintenance of two homes or apartments, two sets of children’s clothing and sometimes two sets of toys.
Fifth, for joint legal custody, geographical proximity of the parents is not so important because telephone conversations will enable joint decision making to proceed without obstruction. On the other hand, proximity is a crucial factor for joint physical custody. Geographic proximity avoids long commuting for the child and allows him or her to maintain a single set of friends, remain in the same school district and continue in neighborhood activities.
Finally, the last factor in determining the appropriateness of joint custody is the size and number of children involved. For example, the younger the child, the greater is the need for stability. 43 Also, the court should consider the preference of the child, if he or she is deemed old enough.
Once the initial determination is made that each parent is fit to act as a custodian and that the parents are able to cooperate vis-a-vis the child, the court must ensure that the details of the proposed custody arrangement are reasonable, taking into account the peculiar needs of the individuals involved. To ensure that joint custody continues as long as the child remains a child, the plan must be workable on a daily basis.
There should be two components to a pine-dissolution joint custody plan. First, the parents must agree on how to resolve disagreements. The potential disagreements can be further divided into those which naturally occur; for example, differences in child-rearing and scheduling problems and those arising from extraordinary circumstances (for example, remarriage). Quarrels over daily decisions can be minimized by a detailed plan in advance.
Often times the parents agree or the law in that state provides that the parents with physical custody at the time decides all routine matters concerning the child. However, because circumstances may arise which the parents cannot agree upon and resolution of this problem is not detailed in the plan or by law, the parents should establish at the time of dissolution a means for arbitration. Agreement on a neutral arbitrator or a means of choosing one when the need arises, should be made in advance of the disagreement. The parties should try to avoid resorting to the judicial system to resolve heir disagreements.
Second, the parents must also reach an agreement on the mechanics of joint custody. Although joint custody allows for a great deal of flexibility, an initial living schedule should be included in the agreement. Parents should also agree on how the child is to be transferred, where the child will spend holidays and birthdays, as well as guidelines for visitation. In addition, guidelines concerning the child’s health and education should be established at the outset.
Finally, potential financial problems should be resolved as early as possible. This would include the cost of food, clothing, toys and medical expenses.
When presented with a voluntary joint custody plan, the court should only scrutinize the agreement for practicality. The parents, not the court, must work out the mechanics of such an agreement. Failure to develop a workable plan may be persuasive evidence that the parents are unable to cooperate enough for joint custody, to work. The court’s only concern is that the proposed plan is workable and reasonable. It is the parents’ inherent right to raise their child in a manner which they see fit and this must be respected by the courts. Therefore, the focus of the court should not be whether it agrees with the plan, but rather whether it is workable, practical and reasonable.
JOINT CUSTODY IN MICHIGAN
In 1979, a group of concerned citizens including lawyers, parents, mental health professionals and others began meeting in Lansing to consider alternative methods of dispute resolution in child custody cases. These discussions centered on the benefits and disadvantages of joint custody in the State of Michigan. The results of these efforts led to the passage of Michigan’s “joint custody” law which took immediate effect on January 14, 1981.
The Michigan “joint custody” law was created by amending the Child Custody Act of 1970 to include joint legal and joint physical custody, along with guidelines, standards and definitions of the terms.”
MCLA 722.26a was added to the Child Custody Act of 1970 and provides as follows:
Sec. 6a. (1) In custody disputes between parents, the parents shall be advised of joint custody. At the request of either parent, the court shall consider an award of joint custody, and shall state on the record the reasons for granting or denying a request. In other cases joint custody may be considered by the court. The court shall determine whether joint custody is in the best interest of the child by considering the following factors:
(a) The factors enumerated in MCL 722.23(3).
(b) Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.
(2) If the parents agree on joint custody, the court shall award joint custody unless the court determines on the record, based upon clear and convincing evidence, that joint custody is not in the best interests of the child.
(3) If the court awards joint custody, the court may include in its award a statement regarding when the child shall reside with each parent, or may provide that physical custody be shared by the parents in a manner to assure he child continuing contact with both parents.
(4) During the time a child resides with a parent, that parent shall decide all routine matters concerning the child.
(5) If there is a dispute regarding residency, the court shall state the basis for a residency award on the record or in writing.
(6) Joint custody shall not eliminate the responsibility for child support. Each parent shall be responsible for child support based on the needs of the child and the actual resources of each parent. If a parent would otherwise be unable to maintain adequate housing for the child and the other parent has sufficient resources, the court may order modified support payments for a portion of housing expenses even during a period when the child is not residing in the home of the parent receiving support. An order of joint custody, in and of itself, shall not constitute grounds for modifying a support order
(7) As used in this section, “joint custody” means an order of the court in which 1 or both of the following is specified:
(a) That the child shall reside alternately for specific periods with each of the parents. >
(b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.
PA. 1970, No. 91, Section 6a, added by PA. 1980, No. 434, Section 1, md. Eff. Jan 14, 1981.
Now that joint custody is a viable legal alternative in the State of Michigan, it is up to the parties, attorneys, judges, and any other individuals connected with a child custody dispute to consider the arguments in favor of joint custody, the arguments against joint custody, and whether or not joint custody is appropriate on a case by case basis. Since Michigan’s “joint custody” law is relatively new, there are few appellate decisions which lend much guidance to a better understanding of joint custody. Therefore, it is left to the creativeness of all individuals involved to consider and develop a workable form of joint custody, if appropriate, and to assure that the best interests of the minor child are protected in a child custody dispute.
The traditional sole custody arrangements developed when divorce was not very prevalent. However, studies have shown that the major shortcoming of sole custody is that it frequently deprives the children of divorced parents of a close continuing relationship with each parent, and this can be very detrimental to the children involved.
Today, as tie soaring divorce rate continues to climb, it has become necessary to develop new custodial arrangements to deal with the needs of divorced children. To this end, joint custody can go a long way toward easing the trauma of divorce for children by giving them the assurance that they still have both parents. In addition, joint custody is a constant reminder to both parents that their divorce does not negate either parent’s place in the lives of their children. Therefore, in those cases where both parents are able to cooperate and generally agree concerning important decisions affecting the welfare of the child, joint custody is a feasible alternative to the traditional sole custody arrangement.
Ideally, there should be no presumption for or against joint custody and each case should be decided on its own facts. Guidelines are appropriate, but flexibility remains necessary. More important than the issue of one presumption versus another is that the courts act affirmatively to safeguard the best interests of the children. This article does not purport to offer joint custody as the cure to the sociological and psychological problems accompanying divorce. However, joint custody does provide unique and valuable benefits to both the children and parents. Therefore, courts, lawyers and parents should give careful thought to joint custody as a viable and meaningful alternative to the traditional custody decrees.
Michael A. Robbins (P33884)
1. Messinger & Walker, From >Marriage Breakdown to Remarriage, 51 Am J Orthopsychiatry 429, 434-35 (1981).
2. M. Roman and W. Haddad, The Disposable Parent, note 1, at 49 (1978).
3. Waite, Children of Divorce in Minnesota: Between the Millstones, 32 MINN L REV 766 (1948); Derdeyn, A Consideration of the Legal Issues in Child Custody Contests, 33 ARCHIVES GEN PSYCH 165 (1976).
4. Kelley and Wallerstein, The Effects of Parental Divorce: Experiences of the Child in Early Latency, 46(1)
AM J ORTHO PSYCH 20 (1976).
5. Plant, The Psychiatrist Views Children of Divorced Parents, 10 L CONTEMP PROB 807 (1974).
March, 1989 – Page 53
6. McDermott, Divorce and its Psychiatric Sequele in Children, 23 ARCHIVES GEN PSYCH 421 (1970).
7. Wallerstein, Divorce is Forever, Detroit Free Press, Jan 29, 1989, at 4J, column 1.
8. Wallerstein, Divorce is Forever, supra, at 1J, column 5.
9. Wallerstein, Divorce is Forever, supra, at 4J, column 2.
10. Wallerstein, Divorce is Forever, supra, at 4J, column 5.
11. Roth, The Tender Years Presumption in Child Custody Disputes, 15 J FAM L 423 (1977).
12. Roth, >supra, at 423.
13. MCLA 722.21 (Supp 1988).
14. MCLA 722.23 (Supp 1988).
15. Roth, supra, note 7, at 429.
16. Romar and Haddad, supra, note 1, at 100.
17. Grief, Joint Custody: A Sociological Study, TRIAL, 32.
18. Foster and Freed, >Joint Custody: Legislative Reform, TRIAL, June 1980, at 22.
19. Saxe, Some Reflections on the Interface of Law >and Psychiatry in Child Custody Cases, 3 J L PSYCH
20. Derdeyn, supra, note 3, at 165.
21. Plant, supra, note 5, at 807; Kelley and Wallerstein, supra, note 4.
22. Bigmer Fathering Research and Practical Implications, FAM COORDINATOR, October, 1970, at 361.
23. Family Law in Fifty States, Family Law Quarterly, Volume XXI, Number 4, pg. 52, Winter 88.
24. >Dodd v Dodd, 93 Misc 2d 641, 403 NYS 2d 401 (Sup Ct, 1978).
25. Foster and Freed, supra, note 14, at 24.
26. Roman and Haddad, supra, note 1, at 83.
27. Roman and Haddad, supra, note 1, at 5.
28. Roman and Haddad, supra, note 1, at 74.
29. Kelley and Wallerstein, supra, note 4, at 21.
30. Roman and Haddad, supra, note 1, at 5.
31. Standing Committee on Child Care, NY ASSEMBLY REP 21, (October 1978).
32. Watson, Problems >of Custody Following Divorce, 21 SYRACUSE L REV 55 (1969).
33. Braiman v Braiman, 44 NY 2d 584, 407 NYS 2d 499 (1978).
34. Roman and Haddad, >supra, note 1, at 126.
35. Dodd v Dodd, supra, note 19.
36. J. Goldstein, A. Freud and A. Solnit, Beyond the Best Interests of the Child (1973).
March, 1989 – Page 54
37. Roman and Haddad, supra, note 1, Generally.
38. Beyond the Best Interests, supra, note 32, at 31.
39. (1974) 1 FAM L REP [BNA] 2709.
40. (1974) 1 FAM L REP [BNA] 2708.
41. Dodd v Dodd, supra, note 19.
42. Beyond the Best Interests, supra, note 32, at 38.
43. Beyond the Best Interests, supra, note 32, at 31.
44. A Viable Alternative, Doreen Marguerite Koenig, 60 Mich B.J. 170 (1981).