Victory In California

California - Presumptive Joint Custody Fails

Compiled by Trish Wilson, © 2005
All rights reserved by author

My Testimony Against California's Presumptive Joint Custody Bill

Fathers' rights activists supported and testified for a presumptive joint custody bill in California in April, 2005. Women's groups, domestic violence groups, legal organizations, and individual women's activists testified against this bill, which would have made joint custody the first approach in divorce and custody cases.

The best interests of the children prevailed. This bill had failed.

Below is my testimony against California's presumptive joint custody bill.


Dear Assembly Members,

Hello. My name is Trish Wilson, and I'm a member of the National Network on Family Law Policy. I am writing to you to urge you to vote against AB 1307, the bill calling for a presumption for joint custody. Custody should be determined on a case-by-case basis, and it should not be applied in a cookie-cutter fashion that a presumption would do. Joint custody is already an option for parents who choose to try it on their own. There does not need to be a presumption for it. 90% of parents settle without the need for court intervention in deciding what form of custody is best for them and for their children. Most parents do not choose joint custody because they recognize how hard it would be on them and especially on their children. They also recognize that in most cases the mother had been the primary caregiver of the children, and they believe she should continue in that capacity. That is why mothers most often get sole custody. It is not due to bias against dads in court. When dads make an issue of custody, they get some form of it more than half the time.

Joint custody has been shown to be detrimental to children who are exposed to conflict between their parents. Joint custody also asks a lot of children. Many of them cannot handle the shunting back and forth between homes very well. They also must keep track of which home they are to be in on a given day, which is stressful for them. They lose track of their friends, and their extracurricular activities suffer when parents pay too much attention to when the children are to be with them.

Researchers have long come out against a presumption for joint custody. The following researchers have expressed their reservations about exposing children to conflict in joint custody and about a presumption for joint custody. You may read my entire page criticizing joint custody at this link:

What The Experts Say: Scholarly Research on Post-Divorce Parenting and Child Well-Being
Chapter Four
Report to the Washington State Gender and Justice Commission and Domestic Relations Commission
Diane N. Lye, Ph.D.
June, 1999
Section Five
What The Experts Say About Joint Physical Custody
Quotes from Leading Divorce Researchers
In Particular Researchers Who Have Strongly Supported Joint Custody and Father's Rights
Such As...
Maccoby and Mnookin
Sanford Braver
Judith Wallerstein
Joan Kelly
Andrew Cherlin

Complete text, including researcher's bios, is available on the "What The Experts Say" web page.


Eleanor Maccoby and Robert Mnookin

"In the large majority of divorcing families, both parents have been involved with the children on a daily basis. Simple continuity with the past, in terms of the roles of the two parents in the lives of the children, is hardly possible. The relationship between parents and children must change markedly."
(Page 1 in Dividing the Child)

" The coparental relationship between divorced parents is something that needs to be constructed, not something that can simply be carried over from pre-separation patterns. It takes times and effort on the part of both parents to arrange their lives in such a way that the children can spend time in both parental households "
(Page 276 in Dividing the Child)

"Only a minority of our families--about 30 percent were able to establish cooperative coparenting relationships. Spousal disengagement, which essentially involved parallel parenting with little communication had become the most common pattern about a quarter of our families remained conflicted at the end of three and a half years."
(Page 277 in Dividing the Child)

"While our study did not attempt to measure the impact of coparenting relations on the well-being of children, the results of the follow-up study of the adolescents in our sample families, as well as the research of others, makes us confident that there are important effects. Children derive real benefits--psychological, social, and economic--when divorced parents can have cooperative coparenting relationships. With conflicted coparental relationships, on the other hand, children are more likely to be caught in the middle, with real adverse effects on the child."
(Page 277 in Dividing the Child)

"A more radical alternative to the present best interests custody standard is a presumption in favor of joint physical custody. We oppose such a presumption. We are deeply concerned about the use of joint physical custody in cases where there is substantial parental conflict such conflict can create grave risks for children. We do not think it good for children to feel caught in the middle of parental conflict, and in those cases where the parents are involved in a bitter dispute we believe a presumption for joint custody would do harm . . . We wish to note, however, that joint custody can work very well when parents are able to cooperate. Thus we are by no means recommending that joint custody be denied to parents who want to try it." (Pages 284-285 in Dividing the Child)

Sanford L. Braver

"There is simply not enough evidence available at present to substantiate routinely imposing joint residential custody the limited analyses other researchers have performed don't strongly recommend it be imposed either." (Page 223 in Divorced Dads)

"If each parent is empowered by joint legal custody and is allowed involvement in the full variety of child rearing activities, few parents or children will feel deprived. A parent overly concerned that he see his child exactly the same amount of time as his ex-spouse becomes more of an accountant than a parent. Furthermore, this strict accounting of time can also set the stage for many future arguments, when arrangements must be changed because of extenuating circumstances, which routinely come up. Finally, such arrangements are often transitional. As children get older, they frequently don't want to switch households so often. In short, insisting upon strict equality of time spent with the child may be in the weaker parent's interest but it is rarely in the child's."
(Page 224 in Divorced Dads)

Judith Wallerstein

"Joint custody can be helpful in families where it has been chosen voluntarily by both parents and is suitable for the child. But there is no evidence to support the notion that "one size fits all" or even most. There is, in fact, a lot of evidence for the idea that different custody models are suitable for different families. The policy job ahead is to find the best match for each family. Sadly, when joint custody is imposed by the court on families fighting over custody of children the major consequences of the fighting are shifted onto the least able members of the family--the hapless and helpless children. The children can suffer serious psychological injury when this happens."
(Page 304 in Second Chances)

Frank Furstenberg and Andrew Cherlin

"Custody arrangements may matter far less for the well-being of children than had been thought . The rationale for joint custody is so plausible and attractive that one is tempted to disregard the disappointing evidence and support it anyway. But based on what is known now, we think custody and visitation matter less for children than how much conflict there is between the parents and how effectively the parent the child lives with functions. It is likely that a child who alternates between the homes of a distraught mother and an angry father will be more troubled than a child who lives with a mother who is coping well and who once a fortnight sees a father who has disengaged from his family. Even the frequency of visits with a father seem to matter less than the climate in which they take place. Joint physical custody should be encouraged only in cases where both parents voluntarily agree to it imposing joint physical custody would invite continuing conflict without any clear benefits In weighing alternative public policies concerning divorce, the thin empirical evidence of the benefits of joint custody and frequent visits with fathers must be acknowledged."
(Pages 75-76 in Divided Families)

Sara McLanahan and Gary Sandefur

"Joint custody arrangements, while not common, are found in many communities, particularly in more privileged socioeconomic groups. Whether or not high levels of contact with both biological parents can reduce or eliminate the negative consequences associated with divorce is an open question. To date, researchers have found very little evidence that it does."
(Pages 6-7 in Growing Up With a Single Parent)

"We have demonstrated that children raised apart from one of their parents are less successful in adulthood than children raised by both their parents. For children living with a single parent and no stepparent, income is the single most important factor in accounting for their lower well-being as compared with children living with both parents. It accounts for as much as half their disadvantage."
(Page 134 in Growing up With a Single Parent)

Joan Kelly

"Recent studies suggest that the relationship between child adjustment and conflict is neither universal, simple, nor particularly straightforward It appears that, rather than discord per se, it is the manner in which parental conflict is expressed that may affect the children's adjustment. High interparental discord has been found to be related to the child's feeling caught in the middle, and this experience of feeling caught was related to adjustment. Adolescents in dual (shared) residence arrangements did not feel more caught than did adolescents in mother or father custody type arrangements. Nor was amount of visiting related to feeling caught. There was a significant effect, however, of the interaction between type of residence and the parental relationship. Dual residence arrangements appeared to be more harmful when parents were in high discord than were sole residence arrangements. In contrast, adolescents in dual residence arrangements where there was cooperative communication between parents benefited more than did adolescents in sole residence arrangements."
(Pages 34-35 in "Current Research on Children's Post-divorce Adjustment")

Debra Friedman

"On the face of it, joint custody seems to be an equitable solution to the problem of dividing the child . [Proponents of joint custody] suggest that parents whose conflicts or incompatibility are so great as to necessitate divorce are somehow able to manage to concur on a joint path when raising their children . Without coordination, and without a structure in which each parent has the means to compel the other to engage in appropriate behaviors and make investments in their children, joint custody is hardly akin to an intact family. Joint custody is at least as likely as alternative custody arrangements are to result in diffusion of responsibility for the child. When both take responsibility it is tantamount to neither doing so."
(Page 129 in Towards a Structure of Indifference)


I recently published an article critical of presumptive joint custody for Alternet. Below is the article, including a link.

Solomon's Solution
by Trish Wilson
AlterNet. Posted April 21, 2005

Presumptive joint custody has become the norm in many states, as judges attempt to force cooperation in contentious divorces. But instead of bringing families closer together, mandated joint custody can tear them further apart.

Angela is a divorced single mother whose ex-husband was abusive, often in front of the children. Her ex-husband had told her if she tried to divorce him, "I will say or do anything to prove you are an unfit mother. And if I can't, I will take the kids and you will never see them again."

Angela trusted that the court system would see his abusive behavior and protect her and her children, so she filed for divorce. Unfortunately, her husband's predictions came true. "I was pressured to accept an unstable and unsafe 50/50 custody schedule, even for my nursing infant," she said. "I was blamed for the violence in the house; for mine and my children's reasonable fears about their father's abuse. [The court] implied that if I didn't agree to shared physical custody, I would be punished by having sole custody awarded to the children's father. His verbal abuse of me and the children were deemed 'communication problems.' Incidents of child abuse and physical domestic violence were minimized and called a 'difference in parenting styles."

When Angela finally agreed to joint custody, the results were a disaster. "The toll on our eldest child of unsupervised and increasing visitation was enormous," Angela said. "She would kick, struggle, scream and cry as he carried her bodily from my home for visitation. She chewed her hair and pulled it out. She picked at her skin so often it bled. She had stomach aches prior to visits with her father, crying jags, and although tested as a gifted child, she almost failed fourth grade. One of her teachers reported she would sit at her desk crying after being dropped off by her father."

Joint custody is all the rage in courts across the United States, but it doesn't always look as good in practice as it does on paper. Fathers' rights groups lobby for presumptive joint physical custody, which would make joint physical custody the starting point in all divorces, regardless of whether or not joint custody would be appropriate for the families. The Indiana chapter of the Children's Rights Council (a fathers' rights group) has urged the filing of class action suits nationwide calling for a presumption for joint physical custody. While presumptive joint custody looks fair on paper, it should not be applied to families in a cookie-cutter fashion. Custody decisions should be taken into consideration based on an individual families needs on a case-by-case basis.

In theory, it's a good idea. Children are thought to thrive best when there is "frequent and continuing contact" with both parents. Judges often proscribe joint custody in the hope that parents will work together for the sake of their children. Eleanor Maccoby and Robert Mnookin, authors of Dividing The Child, argue that "We are deeply concerned about the use of joint physical custody in cases where there is substantial parental conflict. Such conflict can create grave risks for children." They described a California study in which joint custody was sometimes awarded to resolve familial conflicts. The more legal conflict that occurred between the couples, the more likely the court was to order joint custody. They wrote that "three and one-half years after separation, these couples were experiencing considerably more conflict and less co-operative parenting than were couples for whom joint custody was the first choice of each parent."

Judith Wallerstein, in her book Second Chances writes that "[s]adly, when joint custody is imposed by the court on families fighting over custody of children the major consequences of the fighting are shifted onto the least able members of the family--the hapless and helpless children. The children can suffer serious psychological injury when this happens."

When both parents freely choose joint custody, it can be a great idea. Early studies of joint custody show the following characteristics commonly held by parents who chose it: they had cooperative relationships, there was less conflict at the time of divorce, they were financially well-off, the mothers had not remarried, they chose to live near each other, and they usually had only one child.

When these qualities are lacking, families are thrown into turmoil. Forcing joint custody leaves the child's primary parent without an ability to function properly. Beverly, a woman whose divorce was very divisive, still sees the negative effects of joint custody on her son. "My ex does give my son his asthma medications," she says. "Then, he tells the judge that my son is always sick when with me." The experience has changed her feelings about joint custody. When couples gets a divorce no matter how civil it is," she says, "The first thing that goes out of the window is trust, communication and cooperation. These are the main ingredients in order for joint custody to work. Otherwise it becomes an arsenal to continue to control."

Joint custody became the most politically attractive concept of the 90's. Mary Ann Mason, in her book The Custody Wars, wrote that "joint or shared custody ... has been propelled by the rhetoric of fairness to parents, mainly fathers, who believe they have been discriminated against by the courts and excluded from their children's lives. And the idea has grown popular among judges. As New York Judge Felicia K. Shea observed, "Joint custody is an appealing concept. It permits the court to escape an agonizing choice, to keep from wounding the self-esteem of either parent and to avoid the appearance of discrimination between the sexes." No wonder Iowa Gov. Tom Vilsack signed a presumptive joint custody law in May 2004.

Mason described her first experience with joint custody, which was in 1978. Carole and George had divorced, and Carole insisted upon Mason representing both her and George. Mason balked because she was not convinced that one lawyer could fairly represent both party's interests. Carole and George were certain they both wanted "a cooperative rather than adversarial property arrangement, and they also wanted to extend this cooperation to custody arrangements for their two sons, Jacob, six, and Josh, eight."

To achieve this end, "they sold the family house, and each rented an apartment near the school that both boys attended. [Mason] helped them draft an elaborate custody plan. The children were to stay at Carole's apartment Wednesday night through Saturday night, and at George's Sunday night through Tuesday night. George picked up an extra Saturday every month to even out the schedule. Holidays were similarly divided." They had two rules -- keep the boys together and try to attend all their functions. At this time judges were skeptical of joint custody. To avoid seeing it rejected, Mason presented "a standard custody plan to the court that listed Carole as the custodial parent." This meant that if something went wrong with the joint custody arrangement, a court would not enforce it.

After this, Mason did not hear from Carole until two years later, when she called Mason and asked her to stop by her apartment for a drink. When Mason arrived, Carole was smiling. She reported the good news that the custody arrangement was going well. There were some minor problems, but overall she seemed pleased with the arrangement. While joint custody seemed to work well for Carole, Jacob described a slightly different scenario. Each boy had a watch and was responsible for following "the schedule" without any reminders from their parents. Each boy had to keep track of his belongings as they moved from one house to the other. Neither boy could complain about things at the other house, nor could they discuss other people, such as, as Jacob put it, "like if Dad's got a girlfriend or something." That was a lot of time-keeping and list-making for two young children to do.

Over the next several years Mason saw Carole occasionally, and Carole remained positive about the joint custody arrangement. In the end, it lasted seven years. The boys at that point lived with her permanently and saw their father about once a week because George's long-time girlfriend moved in with him. The arrangement did not end badly. Everyone remained on good terms and the boys still loved their father.

Whether or not joint custody will work depends on the children and the parents. Judith Wallerstein says, "Joint physical custody depends a great deal of the child's capacity to move back and forth. If the child is a school age child, the child must be able to make friends and maintain them in two neighborhoods. Kids complain all the time that they miss birthday parties and sleep-overs, and that their playmates forget when they are coming. They must be able to maintain their activities like team sports, music, etc. They must feel wanted in both homes by step-parents or lovers and not playing second fiddle to child who is always there and says, "This is my house." She points out that "joint custody also depends on the flexibility of parents; their willingness to believe the other parent who says Jimmy is ill, or Jimmy does not want to come and their willingness to modify their schedules for the changing needs and wishes of the growing child. And it depends on the jobs that parents have, their other commitments, whether they travel alot, and their partners too."

Barbara Hauser, director of the Family Services Clinic, Middlesex Probate Court, in Cambridge, Mass., says that a small percentage of people getting divorced actually have joint custody in their legal documents. She sees an advantage in joint custody in that "children feel they have all the advantages of both households. Having a more shared relationship mutes the feeling of distance from one parent, usually the father." However, an atmosphere of conflict or tension takes away from the joint relationship.

The Family Services Clinic seeks to help couples that are having difficulty managing joint custody. It was "set up specifically to help people having disputes." The Center offers parenting classes and help for parents regarding how to discipline children. Workers meet with parents and children to help them come to agreement about how their children are coping with separation and to help their children cope with disagreements. Sometimes there are disagreements over a parent having a new partner, or a parent who takes the children to relative's homes. The child wants to visit more with the parents. The child needs to be with the parents. It is sometimes too hard for children to integrate new people into their lives.

Joint physical custody is not easy to maintain. The schedule is daunting. The parents must put aside their own issues and work together in caring for their children, and many parents are unable to do that. Joint custody does not inspire parents to cooperate with each other. It exacerbates conflict.

Children's needs are often lost in custody cases because the parents are too concerned with their own desires, whether that desire is to keep up the facade of a harmonious relationship or the desire to keep a child completely to onself. Parents should not risk turning themselves into stopwatches, overly concerned with the amount of time the child spends in each parental household. When joint custody works well, a child has a sense of balance and unity. When its forced on couples, joint custody has the opposite effect, tearing children apart.


Thank you for reading my letter. I urge you to vote against presumptive joint custody (AB 1307). Please allow custody decisions to be determined on a case-by-case basis. Parents already decide what is the best form of custody for their children. Please do not allow a minority of angry fathers' rights activists change the way parents prefer to handle their custody decisions.


Trish Wilson Collaborative Lawyers Southeast Florida


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