Have states been successful in requiring joint custody?

States have not had good experiences requiring joint custody. After passing laws requiring joint custody, some states have done away with them. After state court began encouraging or requiring joint custody, some states have changed direction and ceased doing so.

CALIFORNIA

In 1979 California became one of the first states to enact a legal presumption that joint custody was in the best interests of the child. Several studies were conducted in California after the joint custody presumption became law. They found that there were negative consequences of requiring or forcing joint custody on parents who did not agree to it. Over two-thirds of California judges found that requiring joint custody using the joint custody presumption led to mixed or worse results for the children.[1] This was especially true when the parents were in conflict. As a result of social science research, the California statute was first amended in 1989 to clarify that the law established “neither a preference or a presumption for or against joint legal custody, joint physical custody or sole custody…”[2]  California then amended the statute in 1994, replacing it with one that provided for joint custody only when the parents agree to it.[3]

NEW JERSEY

In New Jersey, joint custody was permitted by court decision for the first time in 1981. Judges began to impose joint custody on parents and were “spared the wrenching pain of deciding” who should be awarded custody. Within a few years, the judges recognized that joint custody was not for most parents, “reconsider[ed] the wisdom of joint custody awards, and [made] such awards less frequently.”[4]

 

[1] Karmely at page 328 citing Lila Shapero, The Case Against a Joint Custody Presumption, 27 VT. B.J. 37, 37 (2001) (citing Thomas J. Reidy at al., Child Custody Decisions: A Survey of Judges, 23 FAM. L.Q. 75, 80 (1989); Gerald W. Hardcastle, Joint Custody: A Family Court Judge’s Perspective, 32 FAM. L.Q. 201 (1998)).

[2] Karmely at page 328 citing June Carbone, The Missing Piece of the Custody Puzzle: Creating a New Model of Parental Relationship, 39 SANTA CLARA L. REV. 1091, 1139 (1999) (quoting Mary Ann Mason, FROM FATHER’S PROPERTY TO CHILDREN’S RIGHTS: THE HISTORY OF CHILD CUSTODYN IN THE UNITED STATES, pages 92-93 (1994)).

[3] Karmely at page 328 citing Carbone supra note 2, at pages 1139-40.

[4] Karmely at page 328 citing Alan M. Grossman, Recent Developments in Custody Law, N.J. LAW., Mar.-Apr. 1989, page 27, (quoting In re Baby M., 537 A. 2d 1227, 1260 (1988)).

Prepared for the Custody Awareness Collaborative by Attorney Jeff Wolf of MassLegalHelp and Community Legal Services and Counseling Center.  February, 2017.