Testimony on SB 571 -- Rebuttable Presumption for Joint Legal Custody
Family Law and Fathers' Rights Antics in Maryland
Trish's note: The two links to the Children's Best Interests Group Website (C-big), which appear towards the end of this article, no longer work. I'm leaving this article intact, including the original URLs to the C-big site. The original site had been taken down following the failure of SB 571. I saved the two documents in question. Links to both are at the bottom of this page.
The following is a portion of the written testimony I had submitted to the Maryland legislature for its hearing on Maryland Senate Bill 571, a proposal for a rebuttable presumption for joint legal custody. I must give profuse thanks to my friend and colleague, Liz, for the extensive material she gave to me regarding how joint custody is not in the best interests of women and children. The Children's Rights Council lobbied extensively in support of this bill, which failed Friday the 13th of March, 1998 -- a very prophetic date, at that.
Joint custody, whether joint legal or joint physical, is not in the best interests of women and children. A rebuttable presumption for any form of joint custody will create additional work for an already clogged backlog of family law cases. Judges don't want these cases. They're time-consuming, expensive, and unnecessary. Most parents do not want joint custody. Each custody case should be reviewed individually. People should not be forced to fit into a preconceived mold, which is exactly what the rebuttable presumption for joint legal custody will do. With an award of joint legal custody, an award of joint physical custody usually follows. Recent studies have shown that both forms of joint custody have had detrimental effects on children.
Joint custody has been promoted by fathers' rights groups so that noncustodial parents -- predominately fathers -- may lower or eliminate their child support orders. The use of joint custody guidelines to reduce or eliminate child support was very common all over the country. Some fathers' rights sites on the Internet specifically refer to joint custody as a means of lowering or eliminating child support. According to "Achieving Equal Justice For Men And Women In The Courts - The Draft Report of the Judicial Council Advisory Committee on Gender Bias In The Courts" [The California Gender Bias Report - 1990], Dr. Mary Duryea, director of Family Court services in the Alameda Superior Court stated the following:
- And you get things -- like you overhear people in the hallway
saying , now, how many days do I need to get before my child support
obligation is reduced, and you get a mixture of motivation in people
coming in and asking for more time with their children, when what
they're really asking for is less money.
Per the same report, a San Diego certified family law specialist stated:
- But one that happens quite frequently in this county and in other
counties, perhaps, is a father, for instance, suggesting that joint
custody, joint physical custody is very important to him. That he wants
not only quality time, but quantity time with his children, and I think
that that's a wonderful wonderful motivation as long as it's in good
faith.
Now, one thing that I'm finding quite often is that dad says that, and dad gets that, and dad also gets something else when he gets that, generally, he gets a smaller child support award. And then, lo and behold, dad doesn't exercise that joint custody that he fought so vehemently for.
All of a sudden he's on a more traditional, once every other weekend, once a month, maybe on Christmas, all of a sudden the children aren't hearing from dad at all, and what mom has is the children on a full-time basis, which she probably likes, but she has half as much money as she would have had had it meant a traditional child custody and child support situation.
Her remedy, then, of course, is to go back to court, and more times than not there's a financial disparity. It's going to cost mom to go back, if she even has any money to obtain the services of an attorney, she probably is going to get a token award of attorney's fees at the end.
Past rulings related to joint legal custody in Maryland do not support a rebuttable presumption for joint legal custody. In fact, they emphatically oppose it. In Taylor v. Taylor [306 Md.290 (1986)] the court ruled as follows:
- Question of whether to award joint custody is not considered in a
vacuum but as part of overall consideration of custody dispute.
Blind hope that joint custody agreement will succeeded, or that forcing the responsibility of joint decision making upon warring parents will bring peace, is not acceptable, when determining whether to grant joint custody.
Generally, parents should be willing to undertake joint custody or it should not be ordered.
Contrary to claims made by those who support it, primarily fathers' rights groups, children do not benefit psychologically from any form of joint custody. In the Summer 1995 Family Law Quarterly, Joan Zorza summarizes the consensus of enlightened thinking about joint custody generally, although her article otherwise discusses the battered spouse situation ("Recognizing and Protecting the Privacy and Confidentiality Needs of Battered Women"):
- "Joint custody awards do not improve the lot of children. In fact,
most children in court-imposed joint custody (not just those with
abusive fathers) do poorly...
[ft.nt.60 Gina Kolata, "The Children of Divorce: Joint Custody is Found to Offer Little Benefit, N.Y. Times, Mar. 31, l988 at B13; Nancy D. Polikoff, "Joint Custody: Only by Agreement of the Parties," 8 Woman's Advoc. 1,3 (1987)]
- and are more depressed and disturbed than children in sole custody,...
[ft.nt.61 Sheila J. Kuehl, "Against Joint Custody: A Dissent to the General Bullmoose Theory," 27 Fam. & Conciliation Courts Rev. 37 (1987)]
- even when the parents genuinely choose joint custody...
[ft.nt.62 Id.].
- Furthermore, joint custody results in lower child support awards,
which fathers are no more likely to pay than awards made when the
mother has sole custody.
[ft.nt.63 Polikoff, supra, note 60.]
- Joint custody does not even result in the father spending any more time with his children.
[ft.nt.64 Frank F. Furstenberg & Andrew J. Cherlin, "Divided Families: What Happens to Children When Parents Fail 33-38 (1991).]"
- And, Zorza says "when the father is an abuser, joint custody awards
frequently endanger both the abused parent and her children.
[ft.nt.65 Polikoff, supra note 60.]
Professor Mary Ann Mason had this to say about joint custody in "Equality Trap" Simon and Shuster l988:
- "There are many things wrong with this unthinking rush to joint
custody, but the primary objection is that it changes the focus of
custody away from the 'best interests of the child' to the best
interests of the parents--or, more precisely, to the best interests of
the father."
Joint custody increases, not decreases, covert resentment and conflict, because it permits the parent who is not spending the day-to-day time raising the children and operating the household to exercise veto power over decisions made by the custodial parent, and if so inclined, to meddle and interfere, creating stalemate, and power plays to attempt to break it between the two parents. Some of these "power plays" are: good parent/bad parent game, visitation conflicts, and withholding of support.
(And, for a summary of the relationship found by one researcher between visitation denial claims and child support, and also debunking the popular myth that women increasingly use false sex abuse allegations as a weapon against fathers in divorce cases, see an article by J. Pearson, Ph.D., published Summer l993 FAMILY LAW QUARTERLY, Vol. 27 No.2 American Bar Association, "Ten Myths About Family Law," a synopsis of research conducted by The Center for Policy Research.)
When fathers' rights groups talk of joint legal custody, they proclaim "fathers are parents too," "fathers are more than weekend visitors," and "dads are more than a paycheck." They talk of wanting more access to their children. Access is not covered under joint legal custody. Joint legal deals with major decisions and responsibilities inherent in childrearing, such as schooling and medical procedures. Joint physical custody covers time and access to the children. Joint physical custody also drastically lowers or eliminates child support obligation, which is one reason fathers' rights groups support it so much. Joint custody also allows a manipulative parent the opportunity to continue to control the ex-partner. In most circumstances primary decisions had been made by the mother from the time the children were born. Parents were not on equal standing in child-rearing while married or involved. Inflicting an order of joint custody upon them after they break up won't change that fact.
The following research is cited by fathers' rights groups as proof that joint custody is in the best interest of children. This material is taken completely out of context. In the majority of these studies, samples sizes were tiny (often no more than 20 people!). The people studied had amicable divorces, were self-selected, and chose joint custody voluntarily. The study related to preadolescent boys doing well in joint custody [E. G. Pojman] also came from parents of amicable divorces who chose joint custody. Couples tended to be considerably wealthier than the average person. As stated earlier, finances are important when it comes to pulling of joint custody due to its expense. None of these studies support the proposition that joint custody benefits children.
- D.A. Luepnitz. Maternal, paternal and joint custody: A study of
families after divorce. Doctoral thesis 1980. State University of New
York at Buffalo. UMI No. 80-27618.
J.S. Wallerstein and R. McKinnon. Joint Custody and the Preschool Child. Behavioral Sciences and the Law, v.4, p.169-183, 1986.
S.A. Nunan. Joint custody versus single custody effects on child development. Doctoral thesis 1980. California School of Professional Psychology, Berkeley, UMI No. 81-10142
D.B. Cowan. Mother Custody versus Joint Custody: Children's parental Relationship and Adjustment. Doctoral Thesis 1982. University of Washington. UMI No. 82-18213.
E.G. Pojman. Emotional Adjustment of Boys in Sole and Joint Custody compared with Adjustment of Boys in Happy and Unhappy Marriages. Doctoral thesis 1982. California Graduate Institute. UMI No. ?
E.B. Karp. Children's adjustment in joint and single custody: An Empirical Study. Doctoral thesis 1982. California school of professional psychology, Berkeley. UMI No. 83-6977.
V. Shiller. Joint and Maternal Custody: The outcome for boys aged 6-11 and their parents. Doctoral thesis 1984. University of Delaware. UMI No. 85-11219.
E.E. Maccoby, R.H. Mnookin and C.E. Depner. Post-divorce families: Custodial arrangements compared. American Association of Science, Philadelphia. May 1986.
The latest study currently being misrepresented by fathers' rights groups is "Father by Law: Effects of Joint Legal Custody on Nonresident Fathers' Involvement with Children" Judith A. Seltzer, NSFH Working Paper No. 75. A National Survey of Families and Households. According to Seltzer, the single-most important predictor of whether fathers obtain joint LEGAL custody is the father's income. Wealthier fathers are more likely to obtain joint legal custody. Seltzer's write-up of her findings downplayed this clear correlation, instead characterizing this finding in the negative, as a "debunk" of the criticisms of earlier studies which posited that amicable pre-divorce situations were more likely to result in the joint custody families studied, such as the ones listed a few paragraphs above. The finding that fathers with higher income also are more likely to obtain joint legal custody accords with prior studies indicating that this is the case, also prior studies indicating that joint legal custody is more likely when one or both of the parents has an attorney. Joint legal custody resulted in no statistically significant difference in compliance with actual child support orders; the same percentage of defaults occurred, notwithstanding that these fathers were in fact in more comfortable economic situations in the first place.
Overnight visitation was the way "father involvement" was quantified by the study. The study found that fathers with joint legal custody had an average of fourteen day's more overnight visits with the children per year than fathers in the group where mothers had sole custody. However, after eliminating those situations in both groups in which there were no overnight visits at all, (those families in which, e.g. there would have been domestic violence, child abuse, etc.), the study found no statistically significant difference between the number of overnight visits with fathers in either joint or sole custody arrangements. This is curiously downplayed in the study writeups, and may be considered a major flaw. Also overlooked is any mention of the correlation between father's income (resulting in the joint legal custody) and the resulting overall additional fourteen days of overnights.
Aside from the joint-sole finding above, the single most important predictor in the post-divorce father-child relationship, based on number of overnight visits, was the quality of the father-child relationship before the divorce. This is written up in the study as an erroneous debunk, again, of the criticisms of the joint physical custody studies which noted that these families were more amicable and self-selected to begin with.
Rick Kuhn, of the Children's Rights Council, has introduced to the Maryland legislature bills supporting a rebuttable presumption for joint custody for many years. He, and those who support him, have never succeeded in getting one of those bills to pass. As per Taylor v. Taylor, formula or computer solutions in child custody matters are impossible because of the unique character of each case, and the subjective nature of the evaluations and decisions that must be made. At best we can discuss the major factors that should be considered in determining whether joint custody is appropriate, but in doing so we recognize that none has talismanic qualities, and that no single list of criteria will satisfy the demands of every case.
Judith Wallerstein, who is often cited by the fathers' rights camp in support of joint custody, has implicitly rejected its imposition by the courts. In her more recent research on the subject, she is coming out against joint custody as being detrimental to children's welfare.
From Judith Wallerstein/Sandra Blakeslee. "Second Chances -- Men, Women, and Children A Decade After Divorce. Who Wins, Who Loses, and Why":
- '...One major difference between the 1970s and 1980s has been the
rise in joint custody, which 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. I am in favor of joint custody in many cases, where parents and children can handle it, but it is no panacea. We still have a great deal to learn...
When people ask whether they should stay married for the sake of the children, I have to say, 'Of course not.' All our evidence shows that children turn out less well adjusted when exposed to open conflict, where parents terrorize or strike one another, than do children from divorced families. And while we lack systematic studies comparing unhappily married families and divorced families, I do know that it is not useful to provide children with a model of adult behavior that avoids problem solving and that stresses martyrdom, violence, or apathy. A divorce undertaken thoughtfully and realistically can teach children how to confront serious life problems with compassion, wisdom, and appropriate action.
Our findings do not support those who would turn back the clock. As family issues are flung to the center of our political arena, nostalgic voices from the right argue for a return to a time when divorce was difficult to obtain. But they do not offer solutions to the serious problems that have contributed to the rising divorce rate in the first place. From the left we hear counterarguments that relationships have become more honest and more equal between men and women and that the changes we face simply represent 'the new family form.' But to say that all family forms are equivalent is to semantically camouflage the truth: All families are not alike in the protection they extend to children. Moreover, the voices of our children are not represented in the political arena. Although men and women talk about children, it is hard for me to believe that they are necessarily talking for children... Child support payment is set in accord with the present and not the changing future needs of the children. Even visiting schedules for the children are established on the basis of current need and age. All of these services assume that if only we can help people settle property, custody, and visitation, all else will follow. This is clearly not the case...'
Members of the Children's Rights Council, including Mr. Kuhn and John Guidubaldi, testified at hearings for "Parenting Our Children: In the Best Interest of the Nation." [A Report to the President and Congress. Submitted by the U. S. Commission on Child and Family Welfare, September, 1996] They proposed the rebuttable presumption for both legal and physical custody. Their recommendations, as well as recommendations made by other fathers' rights supporters, were rejected by the Commission. The Majority Report heard testimony that rightly invalidated joint custody, including "...Gerald Nissenbaum, President of the American Academy of Matrimonial Lawyers, who 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 Brush, 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."
Fathers' rights groups and their advocates have been touting joint legal and physical custody for years in many, many locations with little success. They state that most states have some form of joint custody preference or presumption without noting that the law is in support of parents who agree on their own to joint custody.
In closing, commentary made by a fathers' rights group that testified at last years' failed rebuttable presumption for joint legal custody hearing should be made available to the Maryland legislature so that everyone may see that these people are not the least bit concerned with children's best interests. These documents are available on the Internet.
In the papers entitled "Do You Recognize Child Abuse?" and "Maryland's Deadbeat Delegates," The Children's Best Interests Group, which is a Maryland fathers' rights organization, incorrectly stated that "...Maryland has no real statutory framework to guide custody decisions and relies instead on a haphazard collection of confusing and often conflicting case law. In the preference for sole custody awards demonstrated by some family courts, children are routinely moved from the joint custody to which they were born, into sole custody."
Maryland does not have a family court.
Maryland does not have a preference for sole maternal custody, which is to what the papers refer. Maryland follows the "best interests of the child" standard, which often results in the mother getting sole custody of the children. This is not due to gender bias against men, but due to the fact that she had been doing the bulk of the work even when fully employed. She bore most of the responsibility from the day the children were born. She should continue in that capacity upon divorce, unless she and her spouse agree otherwise. No marriage is a 50/50 proposition, especially when it comes to child-rearing, so children are not born into any form of joint custody arrangement.
The papers continue by referring to a refusal to adopt joint custody as "the systematic abuse of our children." In other words, any Maryland legislator who voted against this bill had been referred to as a child abuser and a "deadbeat delegate." The final statements posed to readers of this document were "Let your elected representatives know that you will be watching them. Let them know that they have neglected our children. Would you knowingly elect someone guilty of child neglect?"
I don't think anyone in the Maryland legislature would appreciate being called a child abuser or a deadbeat.
