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Fathers' Fight by Sarah Werthan Buttenwieser

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The problem with presumptive joint custody

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.

In an 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 her father.

the invention of parental alienation syndrome

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