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,
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
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
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
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
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
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
even when the parents genuinely choose joint custody...
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
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
(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
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
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
'...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
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.