Joint Physical Custody: Smart Solution or Problematic Plan?

By Roz Zinner, LCSW-C
Divorce and Family Mediation Services
Suite 301
1406-b Crain Highway S
Glen Burnie, MD 21061
410-760-5588
www.mediate-divorce.com

Background

In recent years, shared or joint physical custody has gained tremendous popularity as a means of caring for children after a divorce. While the court has the final word on custody decisions, the judge or master upholds most negotiated settlements.

Physical custody refers to the parent's right to have the children actually reside in that parent's home. Shared physical custody can take many forms, from summers at father's and the school year with mother, to switching homes every other day. Children have two primary residences, even if time in each is not equal. Joint legal custody, outside the scope of this article, refers to the shared responsibility, regardless of where the children are living, for making major decisions about a child's welfare including education, health care, and religious upbringing. Frequently divorcing couples share legal custody without sharing physical custody. When divorce mediators work with couples they help in developing a parenting agreement, and avoid the inflammatory term "custody" when possible. In this article, however, the term "custody" will be used for purposes of clarity.

Why has joint physical custody gained in popularity?

One positive reason is that women and men are realizing more the importance of fathers to children, and more men want to have a primary role in their lives. Many fathers are no longer content to be the biweekly visitor while Mom retains sole custody. As traditional marital roles shift, our concepts of the best way to parent children after divorce change also.

Another reason for the increase in popularity relates to the increase in mothers who must work full-time. Solo parenting becomes quite difficult for a mother with a demanding full-time job, especially one with overtime or a commute. Many couples, whose pre-separation lives were already stretched thin, find they must cooperate and juggle time to manage the childcare needs of their children.

In some cases, the choice of shared physical custody is a means for avoiding a prolonged, bitter custody battle unlikely to yield any real winners. Because of the very nature of the adversarial process, conflict is often exacerbated and communication breaks down. Judges attempt to rule in favor of what is in the best interests of the child, and when there are two competent parents, this is an obvious solution.

What are the advantages of joint custody?

1. Living in both households allows children to maintain a strong relationship with both parents. Research shows that half of all children in joint custody arrangements see both parents weekly, but only about 1 in 10 children of primary custody agreements see their non-custodial parent that often. ⁽¹⁾

When both parents are available, children enjoy the unique gifts of guidance, discipline, and love of each parent. Additional advantages are the role models that fathers can nurture and mothers take charge.

2. Children benefit when parental relations are cooperative and there is no extended legal wrangling. When parents are reasonably satisfied with their custody plan, they are more likely to cooperate on a range of issues. Children are less likely to manipulate, and learn that conflicts can be resolved in a civil way.

Research shows that couples who use divorce mediation, rather than litigation, decide on joint custody twice as often. In Mom's House, Dad's House, Isolina Ricci, Ph.D., wrote, "When children are free to love both their parents without conflict of loyalty, to have access to them both without fear of losing either, they can get on with the totally absorbing business of growing up, on schedule. ⁽²⁾

Barbara Hauser, a social worker with 20 years experience assessing litigating parents wrote: "Parents have no idea how much they are hurting their children when they prime their child to criticize the other parent." ⁽³⁾

3. Children in shared custody have "normal time" with both parents. When mothers have primary custody, "Sunday Dads" often shower kids with costly activities and gifts aimed at making up for lost time. This is turn generates resentment from mothers who feel they are left with the less glamorous jobs of setting limits and disciplining. Moreover, mothers on tight budgets feel cheated when they cannot afford to be as generous.

4. Joint custody mitigates the traumatic sense of loss and rejection children often feel when a parent moves out. Judith Wallerstein, who did the most comprehensive longitudinal study of the impact of divorce on children, found that 10 years after the divorce, children who were allowed continuous access to both parents appeared less likely to suffer from feelings of loss, rejection, and low self-esteem.

Anecdotally, clinical social workers working with children with access to only one parent, found they expressed their anger in both subtle and direct ways. They were more depressed, withdrawn, and uncommunicative, and had more somatic symptoms.

5. Children in joint custody may benefit materially, as child support is paid fully 75% of the time, compared to 46% in solo custody arrangements. ⁽⁴⁾

What are the disadvantages of shared custody?

1. Children's lives may resemble that of a travelling salesman, never settled in any one place. This is particularly true when there are no consistent schedules known ahead of time, and children move back and forth at the whim of parental needs. It is compounded when each child's developmental, educational, and social needs are not considered.

Children with learning disabilities, for example, will have more trouble organizing their schoolwork when they shuttle between 2 homes. When two parents keep track of school assignments in different places, gaps easily occur. "I thought you were keeping up with his math" is a familiar refrain.

2. The psychological impact may be a sense of lack of control and chaos in a child's life. Predictability and stability help children develop confidence and the ability to take reasonable risks.

Judith Wallerstein studied families who were contesting custody and whose shared custody arrangements were, to some extent, involuntary. She reported on her concern that the frequent transitions under joint custody can exacerbate the divorced child's fear of abandonment. "It's because the child feels safe nowhere. Conflict is bad for children, and if you put them more in the middle, it's bad. ⁽⁵⁾

3. Expenses are greater in maintaining two full residences. There is duplication in need for clothing, furniture, and other necessities. In Wallerstein's study, 85 % of the kids from intact families headed to college, compared to 50% of children in divorced families. This at least partially relates to the long-term financial strain. ⁽⁶⁾

4. Fathers are sometimes unprepared for the actual responsibilities of shared custody. Despite the influence of the feminist movement, the reality is that most women are still the primary caretakers of children, even when they work full-time. Some fathers grow easily into an expanded role, others have more difficulty.

5. When parents have unresolved marital issues, joint custody can exacerbate family conflict. Today, most of the 34 states with joint-custody laws give judges the power to order joint custody (or sole custody) even when there is objection by one or both parents. ⁽⁷⁾

This fact is troubling because joint custody requires much more frequent discussion between partners, and this contact can compound the conflict and animosity already present. When a parent remarries and there are "step" children, new loyalty issues need to be sorted out. The new spouse may resent the constant presence of the ex-spouse in the fabric of every day life. In contrast, some people whose sole custody arrangement requires minimal ex-spouse contact, report that this allows them greater freedom to move forward in their lives.

What can parents do to make joint custody successful?

First, parents should consider the trust level around parenting issues they had during their marriage. Other key considerations are the strength of parents' motivation to make it work, the children's needs and personalities, and the practical and financial situation of the family.

Research points to the conclusion that the parents' emotional adjustment before the divorce may be the best predictor of how each will behave afterwards, regardless of the type of custody. Ironically, it appears that children whose parents are in less conflict will fare best in either arrangement. ⁽⁸⁾

Shared custody works best when:

· Parents can maintain a civil, business-like relationship.

· Arrangements are planned around the children's needs and developmental requirements.

· Schedules are predictable and stable but flexible enough to change when circumstances dictate it.

· Parents live in physical proximity.

· Parents are careful to support and not undermine each other, regardless of their own feelings.

· Financial resources are available to maintain two full residences.

How can a divorcing couple develop a quality joint custody agreement?

Divorce mediation offers the best structure for discussing and negotiating both large and small details of the parenting agreement. Mediators are specially trained to help couples learn to communicate in the business-like way they will need to make joint custody work.

Partners talk face to face and remain in control of these important decisions, rather than turning them over to the unknown outcome of 2 lawyers' negotiations or the judge's finding.

Our adversarial system sets up the two parties to do battle with each other. This can be expensive both financially and emotionally. Once a downward cycle of demands and accusations gets started, it becomes increasingly difficult for partners to come to a mutually agreeable parenting plan.

It is not a coincidence that mediated divorces result in joint custody much more frequently than adversarial ones. A trained mediator can help parents discuss what is best for their children, and help them decide whether joint custody is a smart solution or a problematic plan for their family.

Footnotes

1.

ⁱ Gustafson-Peterson, Ross D., "The Effects of Divorce Mediation," Parkside Human Services Corporation, Park Ridge, Illinois, 1985.

2.

ⁱⁱ Ricci PH.D.Isolina, Mom's House, Dad's house, New York: Simon and Shuster, 1980.

3.

ⁱⁱⁱ Zinmeister, Karl, "Divorce's Toll on Children," American Enterprise, May-June 1996.

4.

^iv Glaser, Sarah, "JOINT CUSTODY: IS IT GOOD FOR THE CHILDREN?" Congressional Quarterly Inc., 1989.

5.

^v Judith S. Wallerstein, "Children after Divorce: Wounds that Don't Heal," New York Times Magazine, Jan. 22, 1989, pp. 19, 42. The complete study is contained in Wallerstein's SECOND CHANCES: MEN, WOMEN, & CHILDREN A DECADE AFTER DIVORCE (1989).

6.

^vi Wallerstein, Judith, SECOND CHANCES: MEN, WOMEN, & CHILDREN A DECADE AFTER DIVORCE (1989).

7.

^vii Glaser, Sarah, ibid.

8.

^viii William S. Coysh, Janet R. Johnston, Jeanne M. Tschann, Judith S. Wallerstein and Marsha Kline, PARENTAL POSTDIVORCE ADJUSTMENT IN JOINT AND SOLE PHYSICAL CUSTODY FAMILIES, Center for the Family in Transition, 1988, p. 30.

Copyright 2000 by Roz Zinner, LCSW-C

This Website is by Stephen R. Marsh
Contact Information at:
http://adrr.com/smarsh/