If presented without supporting information about the complexities
that can factor into divorce, joint or shared custody sounds like
the reasonable, fair way to go. It's appealing even to those who
comprehend the vagaries of warfare between divorcing couples. Trish
Wilson, in her article, "Solomon's
Solution" (AlterNet, 21 April 05) references New York Judge
Felicia K. Shea's explanation about why judges might lean toward
this arrangement. Shea writes that "'Joint custody is an appealing
concept. It permits the court to escape an agonizing choice, to
keep from wounding the self-esteem of either parent and to avoid
the appearance of discrimination between the sexes.'" Shared
custody arrangements imply that two parents are contributing equally
toward their children's stability. For such a measure to work there
must be a tacit implication of underlying good will. In many of
the cases that moved fathers' rights advocates to lobby for shared
custody, any traces of good will had long since disintegrated.
According to experts, parents that choose to share custody make
it work well. Wilson points out that early studies of joint custody
revealed situations ideal to making it work well included cooperative
relationships between the parents, financial stability, the mothers
not having remarried, mutual agreement to live in close proximity
to one another and the fact that these couples usually had one child.
However, studies also showed that when parental conflict endured,
joint custody often elongated the period of dissention and conflict.
Judith Wallerstein (author of many longitudinal studies on divorce
including the book, Second Chances) declares that strife
between adults can be turned toward the children when a contentious
divorce is in the works, and that in these cases shared custody
can be damaging. She says, "Conflict is bad for children, and
if you put them more in the middle, it's bad." There is, in
fact, a lot of evidence for the idea that different custody models
are suitable for different families. No single formula determines
the best match for all families. Wallerstein's long range study
indicates that children in joint custody situations did no better
than those in sole custody. Her study also showed that the well-being
of the parents had more to do with how well the children fared than
how custody was resolved, which would indicate that flexibility,
designing custody on a case by case basis, helped more children
to thrive after their parents' divorces.
Eleanor Maccoby and Robert Mnookin, co-authors of Dividing
the Child, describe a phenomenon that they believe backfired.
A study of California courts looked at the outcomes of joint custody
being awarded in an attempt by the judges for families to resolve
familial conflicts. "Three and one-half years after separation,
these couples were experiencing considerably more conflict and less
co-operative parenting than were couples for whom joint custody
was the first choice of each parent." In their study, only
six percent of those seeking divorce opted for joint custody.
The courts themselves do not keep statistics about how many divorces
with children are contested. Jeff Wolf points out that the number
of cases filed as contested wouldn't offer complete clarification.
"Determining whether a given case is 'contested' on custody
would be something of a challenge anyway, because someone (a researcher,
presumably) would have to assess each case to determine the nature
and extent of the 'contest.'" In its testimony to the California
Judicial Committee, the legal services Family Law Task Force argued
that the poor results reflected in Maccoby and Mnookin's study revealed
how that law had not served its intended purpose. That state repealed
its law forcing presumption of shared custody for couples in opposition
to trying it.
editorial for the "Voice Male" newsletter, Rob Okun
co-director of the Men's Resource Center of Western Massachusetts,
Becky Lockwood director for Rape Crisis Services and Violence Protection
at the Everywoman's Center at the University of Massachusetts and
Marian Kent, director of Safe Passage, weigh in on the 2004 Massachusetts
referendum. They write: "On their surface, the questions are
simple, feel-good initiatives, but they're not. In reality, they
may be seen as a planned effort to undermine current custody laws.
With far-reaching implications, the proposed laws could have painful
and even dangerous consequences for children caught in the middle
of high-conflict divorce cases and, in particular, in cases where
domestic violence is a factor." The authors point out that
"The only rights the initiative creates or enhances are those
of non-custodial parents. In what we can only hope was a glaring
oversight, the language of the initiative makes no explicit provision
for dealing with cases where sexual abuse or domestic violence is
a factor." In Massachusetts, an estimated 43,00 children live
in homes where domestic violence exists.
Jay Silverman, assistant
professor of Society, Human Development, and Health and director
of Violence Prevention Programs at the Harvard School of Public
Health, has been studying how women in battering situations fail
to be protected by the Massachusetts courts in custody disputes.
He and his collaborators placed these domestic decisions into an
international framework, citing the U.N. Declaration on the Elimination
of Violence Against Women's call for the "right to due diligence,"
as well as the "best interests of the child," as defined
by the Convention on the Rights of the Child. According to the researchers,
"'The right to freedom from violence is one of the most fundamental
human rights. Without that right, all other rights are meaningless.'"
Family court cases are
closed and records that would offer hard numeric evidence are not
kept, even state by state. As a result, most evidence is anecdotal.
Statistics about violence within families are sobering: 40 to 70
percent of children of battered women are directly abused by their
mother's batterer; half of child homicides are committed by males
within the family circle; male partners commit half of all murders
against women. Separation doesn't necessarily stop violence: according
to some studies; up to 75 percent of both emergency room visits
and calls to law enforcement for assistance were made by battered
women after separating from their batterers. According to Silverman
and Lundy Bancroft, co-authors of The Batterer as Parent,
male abusers are more likely to seek custody than non-abusers. What's
more, studies confirm that they are likely to prevail. Forty-eight
states, including Massachusetts, have laws requiring judges to assign
custody to the non-abusive parent although judges can override them.
In an article for the Harvard Public Health Review, Silverman is
quoted: "'U.S. courts remain incredibly reluctant to punish
men for crimes against their families. In this country, family violence
is still seen as a private matter.'" Silverman points out that
to rape one's wife wasn't officially deemed illegal in some states
until the 1990s, further bolstering his argument that the value
of protecting familial privacy has overridden the value of protecting
women from violence.
In "Solomon's Solution,"
Trish Wilson offers an example of this. Angela was divorced from
an abusive ex-husband, who told her if she tried to divorce him
he'd do anything to prove her an unfit mother or to take the children
from her. Placing her trust in the court system's ability to protect
her and her children from an abusive man, she proceeded to file
for divorce. She was rudely surprised. "'I was pressured to
accept an unstable and unsafe 50/50 custody schedule, even for my
nursing infant,' she said. 'I was blamed for the violence in the
house; for mine and my children's reasonable fears about their father's
abuse. [The court] implied that if I didn't agree to shared physical
custody, I would be punished by having sole custody awarded to the
children's father. His verbal abuse of me and the children were
deemed 'communication problems.' Incidence of child abuse and physical
domestic violence were minimized and called 'a difference in parenting
styles.'" The fallout for her eldest child was dramatic. The
girl began to hurt herself physically, suddenly had trouble in school,
experienced stomachaches and mounted physical resistance to seeing