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JOINT CUSTODY : A SIMPLISTIC SOLUTION BY : Robert D. Felner & Lisa Terre The crux of the joint custody debate highlights the conflict between lawyers and mental health professionals and demonstrates what can happen when each pursues a narrow course of action with little consideration of the larger picture. For Lawyers, given the shift toward equal parenting rights and the courts' predisposition to grant custody to the parent who demonstrates the most cooperative stance, joint custody can be a potent settlement weapon. From the therapist's point of view, joint custody is at best a double-edged sword. Although it enhances the concept of equal parenting, it is not the King Solomon-type custody standard it has been touted to be. A look at its origins shows why. The shift to joint custody occurred in the context of several social movements which sought to : - establish equal parental rights; - recognize the importance of fathers in the parenting process; - ensure postdivorce paternal involvement with children; - increase the probability that parents would meet support obligations; - remove the burden of single parenting from mothers so that they could more fully pursue their own postdivorce lives; and - guarantee continued active involvement of two loving parents with their children. Initially, the research seemed to indicate that on all these levels, joint custody was a smashing success: - fathers were found to be highly involved with their offspring; - both parents were reported to be generally satisfied with the arrangement; - relitigation rates were lower than in traditional sole custody awards; and - children of joint custody households seemed to thrive better than the "typical" postdivorce child. Here at last was a good solution to divorce- or was it ? What is beginning to emerge is a picture of disaster, especially for children and vulnerable women. In reviewing the cases, one of the first things that becomes apparent is the different legal circumstances under which the initial joint custody arrangements were negotiated. In the early days, there was little joint custody pressure from the courts and, barring highly unusual circumstances, there was little maternal fear that failure to go along with joint custody would jeopardize a mother's chances to win sole custody or cause the court to impose joint custody against her will. In many early "successful" cases, parents reported that the courts resisted joint custody even when it was vigorously sought by both parties. Thus, initial joint custody families were highly motivated to make the arrangement work, had made the decision to seek joint custody on their own, and demonstrated a history of cooperation even in the face of divorce. Many even voluntarily pledged to live in the same town until the children finished secondary school. Clearly, all of the data on which the enthusiastic response to joint custody was based - with the exception of the relitigation issue - have been traced to these friendly, highly motivated, and generally a typical divorcing couples. The fact of the matter is that divorce is often fraught with conflict and hostility. Many couples are unable to put aside anger and hurt and work cooperatively in the interests of the children. Thus the adversarial nature of the legal system allows them to channel this hostility and anger into legal combat and other settlement issues. Rather than encouraging a parental truce, joint custody allows them to fuel the adversarial fires with a new and potent weapon - the threat of a custody battle. MISTAKEN DATA Current available data indicate that the early conclusions were wrong at least for the typical case. Relitigation rates are not lower but higher among families who enter into joint custody agreements when there is some clear threat that the courts may impose it anyway. The literature also fails to support the contention that joint custody will reduce the incidence of intraparental postdivorce conflict. Indeed, it appears to do just the opposite. Because a large number of divorcing couples continue to battle sporadically or continuously after the divorce, regular and continuing contact perpetuates the fighting. Most negative of a are the direct reports from children in joint-physical custody situations which reveal that the constant upheaval is far more unsettling and stressful than early reports indicated, especially when there are significant distances involved, wide discrepancies between quality of life in the two households or when there is continuing parental hostility and conflict. Likewise, for mothers in hostile joint custody situations, the demands of single parenting do not seem to have been reduced. The parent who assumes the roe of primary caretaker for the children now has to contend with less overall control and more frequent intrusions. Still, joint custody advocates may argue, despite these drawbacks, at least fathers' rights have been asserted, and children benefit from continued parental involvement. Aside from what we might like to believe, however, research shows that the overwhelming majority of fathers who sought custody did so for revenge or as leverage to obtain better financial settlement (i.e., pay less child support) rather than because they had a keen interest in parenting. Lawyers who allow their clients to turn the divorce process into a gladiatorial arena for revenge, exacerbate the problem. Likewise, using the courts' predisposition to give custody to the most cooperative parent as a tactic that puts an abusive parent in an advantageous custody position is unconscionable. Many therapists have encountered cases in which these new custody guidelines have been used to give sole or joint custody to a parent who has been either psychologically or physically abusive to the child, spouse, or both. If the parent has not been formally arrested and charged with abuse, the court may interpret the other parent's unwillingness to cooperate with joint custody as an unreasonable response. The nonabusive parent may be forced to accept an out-of-court settlement to avoid the possibility of losing custody and subjecting the chid to further abuse. The Presence of a joint custody option or presumption may also have a profound effect on other settlement issues. For example, the presumption of parental equality on the issue of custody increases the risks associated with custody litigation. Therefore, the threat of litigation may be used to persuade the mother to settle for less support if she wants to retain custody, and the child may actually end up with a lower standard of living. Indeed, recent reports indicate to some extent joint custody has resulted in an increasing number of children living below the poverty level. Therapists report hearing fathers say, "If you don't take these conditions we'll go to court, and if we do I'll also fight for custody." In an idealized world, joint custody looks like the perfect solution to a difficult problem. But the reality of the situation is that there is no perfect blueprint for divorce. Solutions must be tailored to the parties and their problems, and professionals who assist divorcing couples must keep the welfare of the children in mind and not be limited by the client's pettiness or narrow vision.