JOINT CUSTODY IS NOT IN THE BEST INTEREST OF CHILDREN
Research Contradicts Claims of Fathers' Rights Groups
By Trish Wilson, © 1998
All rights reserved by author
"Shared Parenting - The Best Parent Is Both Parents" Children's Rights Council
"Shared Parenting - The Best Parent Is Both Parents"
was presented at the 11th Annual Conference of the Children's Rights
Council in October 1997, by Rich Kuhn and John Guidubaldi. It is
available at the Children's Rights Council website. CRC is a fathers'
rights group. This paper was mentioned in The Washington Post as
evidence that joint custody may be useful as a means of preventing
divorce. When studied, it becomes evident that the authors have
intended the promotion of joint custody as a possible method of scaring
women out of filing for divorce.
The paper compares divorce rate trends in states that encourage joint
physical custody with those in states that favor sole custody (a total
of 19 states). The conclusion reached is that joint physical custody in
and of itself may help to prevent divorce. To quote the paper, "when
divorce becomes a less attractive alternative to marriage, we should
expect less divorce." No other factors such as income bracket,
standards of living, first or subsequent marriage for divorcing
parties, poverty levels, levels of unemployment, whether or not both
parents work, the number of children, and class have been taken into
consideration. The only factors mentioned by the authors, yet not
addressed, are indirect ones such as ethnic, religious, and racial
compositions. There is no substance to the report at all. The link made
between joint physical custody and lower levels of divorce reminds me
of the free-floating "fatherless homes" statistics used to blame single
mothers for every social ill in society.
The real focus comes towards the end of the paper. It's not "shared
parenting" or "the best parent is both parents." Catchy slogans, but
they have no substance. When I had queried whether joint physical
custody was being proposed by fathers' rights groups because they
believed it would make it much more difficult for women to leave their
marriages, it turns out I was right. This paper is not geared towards
keeping marriages together, but on preventing the wife from leaving.
The rebuttable presumption for joint physical custody is being
presented as a means to achieve that end. Incidentally, I don't think
it will work. No particular form of custody will ever prevent a woman
from leaving a bad marriage.
Fathers rights advocates who wish to shackle their wives should never have married in the first place.
From "Shared Parenting - The Best Parent Is Both Parents" Children's Rights Council:
About 80% of U.S. divorces today result from the unilateral decision
of one spouse, rather than the joint decision of both (Gallagher,
1996), with the spouse who files for divorce first often having an
advantage.
If one investigates the simple question, "who initiates divorce," we
find from the Monthly Vital Statistics Report May 21, 1991 (NCHS,
1991), that from 1975 to 1988, in families with children present, wives
file for divorce in approximately 2/3 of the cases each year. In 1975,
71.4% of the cases were filed by women, and in 1988, 65% were filed by
women. While these statistics alone do not compel a conclusion that
women anticipate advantages to being single, rather than remaining in
the marriage, they do raise that reasonable hypothesis. If women can
anticipate a clear gender bias in the courts regarding custody, they
can expect to be the primary residential parent for the children. If
they can anticipate enforcement of financial child support by the
courts, they can expect a high probability of support monies without
the need to account for their expenditures. Clearly they can also
anticipate maintaining the marital residence, receiving half of all
marital property, and gaining total freedom to establish new social
relationships. Weighing these gains against the alternative of
remaining in an unhappy marriage may result in a seductive enticement
to obtain a divorce, rather than to resolve problems and remain married.
The Washington Post reporter printed the contents of what was probably
a Children's Rights Council press release. Rich Kuhn has been trying to
get a rebuttable presumption for joint custody in Maryland for years
and so far hasn't been able to get it to pass. What I found telling
from Washington Post brief is the change of focus regarding joint
custody. Originally, FRsters have been saying that joint custody is
best for the children of divorce because it supposedly allows both
parents to parent equally. [It doesn't but that's another issue.]
Allegedly, it's "in the best interests of the children." Now, according
to this piece, another benefit of joint custody is that it prevents
couples from divorcing. Now, is it "couples" or is it really women who
want to leave the marriage? Who really benefits from this? The majority
of divorces are filed by women. It's obvious here that joint custody is
being used as a means of preventing women from leaving bad marriages.
Interesting new tactic.
Concerning Guidubaldi and joint custody in general...
The U.S. Commission on Child and Family Welfare published a report titled "Parenting
Our Children: In the Best Interest of the Nation; Report of the U. S.
Commission on Child and Family Welfare; September 1996". September
1996. Fathers' rightsters have included minority reports written by
Bill Harrington and John Guidubaldi on some of their sites.
The opinions (minority reports), which were written by Bill Harrington
(The American Fathers' Alliance and former National Director for the
AFC) and John Guidubaldi (Professor of School Psychology and Education
at John Carroll University, Professor Emeritus at Kent State, amongst
other things), are there primarily because the bulk of recommendations
made by the FR contingency were roundly rejected by the Commission,
particularly the FR push for mandatory joint custody.
There were plenty of FR groups who participated in the public hearings,
including members of F.R.E.E., American Fathers Coalition, Children's
Rights Council, Dad's Against Discrimination, National Fatherhood
Initiative, Fathers for Equal Rights, National Congress for Men and
Children, "Fathers' Rights News Line," Texas Fathers Alliance, the
Wash. State Families for Non-Custodial Rights (that person is now
working with the American Coalition for Fathers and Children), and
Fathers Are Parents Too.
Portions of the minority reports from this Commission report have been
posted on the Internet without indicating that the reason they are
"minority reports" to begin with is that the Committee rightfully
rejected the father's rights arguments. The Majority Report is never
quoted by the fathers' rights groups because they don't want anyone to
find out about passages such as these:
"With respect to legal standards for custody and visitation, the
Commission heard conflicting testimony about whether changes should be
made. For example, Richard A. Warshak, Clinical Professor at the
University of Texas Southwestern Medical Center, and Sanford L. Braver,
Professor of Psychology and Co-Director of the Program for Prevention
Research at Arizona State University, urged that State custody
standards be changed to establish a presumption of joint legal custody.
They argued that joint custody results in more satisfied parents,
greater compliance with child support orders, and better outcomes for
children. [Trish's note: no mention of how it makes it more difficult
for people, in particular women, to file for divorce. Or is that
"strengthening marriages?"] June Carbone, Associate Professor of Law,
Santa Clara University School of Law, opposed a presumption of joint
custody and advocated the establishment of a preference of sole custody
in the primary caretaker. Others opposed a presumption of joint custody
or, indeed, any presumption or preference. Gerald Nissenbaum, President
of the American Academy of Matrimonial Lawyers, recommended that there
be no presumption of any form of custody. Judith Wallerstein, Founder
and Senior Consultant at the Center for the Family in Transition, told
the Commission that she has seen no evidence that any particular form
of custody was uniformly helpful to the post-divorce adjustment of
children. Sally Bruch, Director of the Beech Acres' Aring Institute,
cautioned the Commission to avoid making general assumptions about the
appropriateness of particular custody and visitation arrangements in
favor of arrangements that are responsive to the circumstances of
individual cases. Katherine Bartlett, Professor of Law at Duke
University, agreed that decisions about how children are to be raised
following a divorce should be tailored to individual situations."
Non-Custodial Parents' Participation in Their Children's Lives:
Evidence from the Survey of Income and Program Participation
Volume II
Synthesis of Literature
Christine Winquist Nord and Nicholas Zill
Westat, Inc.
Subcontractor to the Lewin Group, Inc.
Prepared for the Office of the Assistant
Secretary for Planning and Evaluation
U.S. Department of Health and Human Services
August 14, 1996
INTRODUCTION
[The portions of "Non-Custodial Parents Participation In Their Children's Lives"
that pertain specifically to joint custody are presented here. All
italics are mine; an emphasis of important points in the report.]
If the assumptions about the positive influence of joint custody,
for example, or links between payment of child support and visitation
are wrong, then the outcomes for families and children may not be to
their benefit after all.
Divorce and non-marital childbearing have become commonplace and have
dramatically altered children's lives. It can no longer be assumed that
most children will spend their entire childhoods living with both
parents. To the contrary, approximately half will live in single parent
homes at some point before they turn age 18. Unfortunately, a common
pattern is for the non-residential parent to become increasingly
detached over time, paying minimal or no child support and visiting
infrequently if at all. The costs to the children involved and to
society at large of this disengagement are far from trivial. Many
non-custodial parents do not pay all the child support they owe. Many
others have no obligation to pay support. Nonpayment of support forces
some families below the poverty level and onto government welfare
programs. For others, it means a reduced standard of living and an
uncertain future. The costs to children are seen in an increased
likelihood of dropping out of school and increased, social, emotional,
psychological, and behavioral problems. Not all children are affected
and some that are overcome their difficulties in a few years, but
others experience long-term setbacks.
The connections between custody arrangements, payment of child support,
parental involvement, and child well-being are still not
well-understood. Many of the studies on which policy is being made are
based on small, unrepresentative samples or on the experiences of
divorcing couples in particular states. These studies may not reflect
the experience of most custodial parents and their children. If the
assumptions about the positive influence of joint custody, for example,
or links between payment of child support and visitation are wrong,
then the outcomes for families and children may not be to their benefit
after all. Although not based on experimental designs, national survey
data can be used to cast more light on the issues surrounding
visitation, custody, child support, and child well-being and provide
policymakers with a more solid base from which to proceed.
Custody Arrangements, Child Support, and Parental Involvement
The most common custody arrangement is for the mother to obtain sole
legal and physical custody. However, the proportion of joint custody
arrangements in which both mother and father retain legal control over
their children is growing. In 1991, nearly 17 percent of custodial
parents reported that they had a joint custody arrangement with the
non-residential parent (U.S. Bureau of the Census, 1995). There are two
types of joint custody arrangements: joint legal custody in which both
parents have legal control over decisions that affect the child, but
the child resides with one parent, generally the mother and joint
physical arrangements in which both parents have legal control over the
child and the child actually spends time (typically similar amounts of
time) in both households (Arditti, 1992). Given that these types of
arrangements are still not widespread, little research has examined the
consequences for children of joint-legal, joint-physical, and sole
custody arrangements (Furstenberg and Cherlin, 1991).
Part of the impetus behind the movement to encourage joint custody
arrangements was the presumption that such arrangements would keep
fathers more involved in their children's lives and would increase
their financial contributions to the child's upbringing (Furstenberg
and Cherlin, 1991). These presumptions were based on research studies
that had observed a higher level of contact and more regular payment of
child support among fathers who had joint custody arrangements
(Peterson and Nord, 1990; Furstenberg and Cherlin, 1991). Results from
more recent studies are mixed. Some researchers have found that joint
custody arrangements are associated with greater payment of child
support, greater paternal involvement, and with greater paternal
satisfaction with the custody arrangements (Arditti and Keith, 1993;
Pearson and Thoennes, 1988). Others, however, after controlling for
family background, find the type of custody arrangement does not
influnce levels of payment, father involvement, or the relationship
between children and parents (Veum, 1993; Donnelly and Fineklhor, 1992;
Seltzer, 1990).
Using the same data from divorced parents as in a previous study
(Pearson and Thoennes, 1988), the authors further examine patterns
associated with various types of sole and joint custody arrangements
following divorce. This study focuses on the characteristics of
divorced parents with various types of custody arrangements, some of
parents' experiences with the various custody types (e.g., level of
parental conflict, satisfaction with the arrangement), and certain
behavioral and attitudinal outcomes (e.g., child adjustment). The
results showed that families with joint custody-joint residential
arrangements had parents with the highest education and household
income levels at the time of separation compared to families with other
custody types. Mothers themselves with joint custody-joint residential
arrangements also earned more than mothers with other arrangements.
The authors suggest that these findings reflect the higher financial
cost of maintaining two residences for children and the more flexible
work schedules of high-earning parents. Most parents with joint
custody-joint residential arrangements (70 percent) also had only one
child, compared to about one-third to one-half of parents with other
custody arrangements. As far as the effect of custody type on parental
cooperation after divorce, the authors found that most parents opting
for joint custody, and particularly joint residential arrangements,
were relatively friendly and cooperative before and after divorce and
thus concluded that postdivorce relationships were a reflection of
predivorce characteristics, not the type of custody arrangement.
The analysis yielded mixed results regarding the effect of custody type
on parent satisfaction and conflict. There were no differences by
custody type with respect to satisfaction with actual custody and
visitation practices; however joint custody parents had reported the
lowest satisfaction with the legal agreement one year after the child
custody order. There was also no clear relationship between custody
type and conflict; parents with each custody type reported some amount
of disagreement regarding various aspects of each custody type.
Regarding the parent-child relationship, the study found that
nonresidential parents with joint custody were more involved with their
children than were noncustodial parents in sole custody cases. The
parents in sole custody arrangements also more often reported feeling
overwhelmed with parenting responsibilities than did those with joint
custody arrangements; parents with joint custody more often shared
child-rearing tasks.
The final issue examined was the effect of custody type on child
adjustment to divorce; the authors found no effect of custody type on
measures of children's depression, aggression, delinquency, social
withdrawal, and somatic complaints. However, regular visitation did
emerge as positively related to children's adjustment. Similar to their
1988 study, the authors conclude that while the joint custody
arrangement worked well for the families in this study, they note that
the sample contained relatively wealthy and educated families who have
had cooperative relationships.
The authors conclude that because their sample of joint custody
arrangements included relatively wealthy families with fewer children
and cooperative relationships at the time of divorce, the findings
cannot support increased imposition of joint custody arrangements.
Among families with child support orders, the type of custody
arrangement was found to be related to voluntary child support payment
patterns, with mothers in joint custody arrangements reporting to have
received more. Specifically, mothers with sole custody reported
receiving 63 percent of what they were owed, compared to 81 percent of
payments received by those with joint legal-maternal residency and 95
percent by those joint custody-joint residence arrangements.
Some variables were found to be stronger predictors of child support
payment than custody type; these included the absence of employment
problems, the number of weekend visits, and the level of cooperation
between parents, each of which were positively related to payment of
support. The authors also found that visitation and paternal
involvement played a relatively large role in determining whether
fathers made contributions outside of regular support payments.
The authors conclude that because their sample of joint custody
arrangements included relatively wealthy families with fewer children
and cooperative relationships at the time of divorce, the findings
cannot support increased imposition of joint custody arrangements.
However, they do suggest that the option of joint custody be presented
to divorcing couples more often, since child support was more regular
and complete with this arrangement.
Highlights of Descriptive Findings
Twenty-one percent or 1.3 million custodial parents with formal
written child support agreements report that they have a joint custody
arrangement. Of these, over 1 million (80%) have a joint legal only
arrangement. The remaining 262 thousand report that they have a joint
legal and physical custody arrangement.
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