Solomon's Solution

By Trish Wilson, AlterNet. Posted April 21, 2005.

Angela is a divorced single mother whose ex-husband was abusive, often in front of the children. Her ex-husband had told her if she tried to divorce him, "I will say or do anything to prove you are an unfit mother. And if I can't, I will take the kids and you will never see them again."

Angela trusted that the court system would see his abusive behavior and protect her and her children, so she filed for divorce. Unfortunately, her husband's predictions came true. "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.' Incidents of child abuse and physical domestic violence were minimized and called a 'difference in parenting styles."

When Angela finally agreed to joint custody, the results were a disaster. "The toll on our eldest child of unsupervised and increasing visitation was enormous," Angela said. "She would kick, struggle, scream and cry as he carried her bodily from my home for visitation. She chewed her hair and pulled it out. She picked at her skin so often it bled. She had stomach aches prior to visits with her father, crying jags, and although tested as a gifted child, she almost failed fourth grade. One of her teachers reported she would sit at her desk crying after being dropped off by her father."

Joint custody is all the rage in courts across the United States, but it doesn't always look as good in practice as it does on paper. Fathers' rights groups lobby for presumptive joint physical custody, which would make joint physical custody the starting point in all divorces, regardless of whether or not joint custody would be appropriate for the families. The Indiana chapter of the Children's Rights Council (a fathers' rights group) has urged the filing of class action suits nationwide calling for a presumption for joint physical custody. While presumptive joint custody looks fair on paper, it should not be applied to families in a cookie-cutter fashion. Custody decisions should be taken into consideration based on an individual families needs on a case-by-case basis.

In theory, it's a good idea. Children are thought to thrive best when there is "frequent and continuing contact" with both parents. Judges often proscribe joint custody in the hope that parents will work together for the sake of their children. Eleanor Maccoby and Robert Mnookin, authors of Dividing The Child, argue that "We are deeply concerned about the use of joint physical custody in cases where there is substantial parental conflict. Such conflict can create grave risks for children." They described a California study in which joint custody was sometimes awarded to resolve familial conflicts. The more legal conflict that occurred between the couples, the more likely the court was to order joint custody. They wrote that "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."

Judith Wallerstein, in her book Second Chances writes that "[s]adly, when joint custody is imposed by the court on families fighting over custody of children the major consequences of the fighting are shifted onto the least able members of the family--the hapless and helpless children. The children can suffer serious psychological injury when this happens."

When both parents freely choose joint custody, it can be a great idea. Early studies of joint custody show the following characteristics commonly held by parents who chose it: they had cooperative relationships, there was less conflict at the time of divorce, they were financially well-off, the mothers had not remarried, they chose to live near each other, and they usually had only one child.

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