Why not require joint custody?
1. Most parents do not choose joint physical custody.[i]
A law requiring joint custody is a judgment by the state that both parents should have equal child care roles. Most families who make an agreement about custody when they get divorced do not choose a joint physical custody arrangement.
2. Requiring joint physical custody focuses more on parents’ rights to custody than on what parenting plan would work best for a particular child.[ii]
3. Most families cannot afford to maintain two households, and so requiring shared custody means fewer financial resources for the children.[iii]
4. In practice, required joint custody arrangements often revert back to one-parent custody situations with inadequate child support.[iv]
Sometimes parents who receive joint custody under a temporary order reduce their actual parenting time as the case proceeds. In other cases, where a parent sought and received a final judgment ordering a shared parenting plan, one of the parents stops following the plan and the child ends up living with the parent who had provided primary residential responsibility all along. Research shows that when joint custody arrangements revert to one-parent custody arrangements, the child usually ended up spending most of the time being cared for by their mothers.
Since the child support order was based on the joint physical custody arrangement, and child support orders are in line with the amount of time the child spends with each parent, as children drift back to living with their mothers, they get less child support than the law requires for children who live primarily with one parent.
5. The courts cannot enforce a joint physical custody order.[v]
There is no adequate mechanism for the court to make a parent with joint custody responsibilities actually exercise those responsibilities. For example if the joint physical custody order says that the child spends one-half of the week with each parent, and then one of the parents fails to take responsibility for the child care during his or her parenting time, the courts cannot enforce the order by holding him or her in contempt of court; that is, they cannot make the non-responsible parent take responsibility.
6. Requiring joint physical custody works against the child’s happiness and welfare when their parents are in high conflict.[vi]
An estimated 90% of custody cases are settled before trial. The other 10% tend to be cases where the parents are in high conflict with each other. As a result, the parents who will be required by the courts to share custody will be the very parents who have been unable to agree about custody. In general, researchers have been reluctant to advocate for a shared custody requirement because of the devasting effects of high parental conflict on their children.
Researchers have found that children are actually harmed when parental conflict continues after divorce. Imposing joint custody on high conflict parents does not lead to future co-parenting. Among the reasons cited for why California amended its custody law in 1994 to allow shared custody only if the parents agreed to it were poor parental cooperation, instability created for children by shifting them from home to home, distance between the parents’ homes, and acrimony and revenge between the parents.” [vii]
One researcher found that child with experience in high conflict situations show increased aggression, impulsivity, poor social skills, anxiety, and other emotional problems. Children in high conflict post-divorce families show increased depression, decreased effort in school, social withdrawal, and poorer self-awareness.[viii]
Another study found that when children of high conflict parents in joint custody situations make frequent transitions between their parents, the children focus their energy on trying to find comfort and emotional safety in each environment. In four of the shared custody cases in the study, the parents reported never speaking to the other parent and it was the children’s job to convey messages between the parents.[ix]
7. Requiring or presuming joint custody works against children’s safety even if there is a presumption against giving custody to a perpetrator of domestic violence.[x]
If there is a presumption that joint custody is in the child’s best interest, and also a presumption that joint custody is not in the child’s best interest when there is evidence of domestic violence, the court is free to prefer one presumption over the other depending on whether the judge believes children’s safety or parents’ rights is more important and on whether or not they believe the evidence of abuse.
When there is a domestic violence custody presumption, the non-abusive parent still has to prove the nature and extent of the abuse. That can be very hard to do. Victims of domestic violence often do not have police records, medical records, or witnesses who can testify effectively about what happened. Victims may also be burdened by shame or guilt. They may feel compelled to understate the abuse in order to preserve the relationship between the children and their abusive parent. They may be very afraid of more abuse to follow. Also, there are serious forms of emotional, psychological, and financial abuse that do not trigger applying a domestic violence custody presumption.
In Massachusetts, there is a presumption against giving custody to a parent who has perpetrated “a pattern or serious incident of abuse.” That means that if the court finds that most of the evidence shows that one of the parents has committed a pattern or serious incident of abuse, then there is a rebuttable presumption it is not in the best interest of the child for the abusive parent to have custody. Only if most of the evidence proves that giving custody to the abusive parent is in the child’s best interest may the judge do so.
If there is also a presumption in favor of joint custody, the court is free to choose which one to follow. Fortunately, Massachusetts does not have a joint custody presumption or any laws that require joint custody. The only custody presumption law Massachusetts has is the domestic violence custody presumption which focuses on child safet
[i] Karmely at page 329.
[ii] Karmely at page 329.
[iii] Karmely at page 329.
[iv] Karmely at page 348.
[v] Karmely at page 329.
[vi] Karmely at page 330.
[vii] Karmely at pages 358 - 361.
[viii] Karmely at page 361 citing Mindy F. Mitnick, Impact on Children, in MINNESOTA JOINT PHYSICAL CUSTODY CHILD PRESUMPTION STUDY GROUP REPORT 39, 40 (2009), http://www.leg.state.mn.us/docs/mandated/090065.pdf
[ix] Karmely at page 362 citing Jennifer McIntosh & Richard Chisholm, Cautionary Notes on the Shared Care of Children in Conflicted Parental Separation, 14 J. FAM. STUD. 37, 39 (2008).
[x] Karmely at pages 355 – 358.
Prepared for the Custody Awareness Collaborative by Attorney Jeff Wolf of MassLegalHelp and Community Legal Services and Counseling Center. February, 2017.