Rethinking Joint Custody

A small revolution has begun in child custody law, and as yet its dimensions and ultimate direction are uncertain. Joint custody, the sharing of legal authority by divorced or separated parents over their children, is gaining acceptance as the best arrangement for most children when their parents divorce. The legal system is embracing this arrangement with remarkable enthusiasm, although until recently it was viewed as being of questionable legality and antithetical to the best interest of the child. Today, thirty states have joint custody laws, most of which have been enacted since 1980. A growing number of the more recent statutes present joint custody not only as an acceptable option that cooperative parents may choose, but as the preferred arrangement, which should be encouraged or even required by the law. Although even joint custody advocates once rejected the viability of court-ordered joint custody against the will of either parent, 8 this option is available under most of the new laws. The implications of this trend are disturbing. The principal goal of custody law is to further the best interest of the child. Joint custody legislation purports to realize this goal by encouraging both parents to remain actively involved in their child\u27s life. Two important assumptions are implicit in the recent trend: first, that parents will be able to cooperate in raising their child, regardless of whether or not they freely decided upon joint custody, and second, that the harm to the child caused by any interparental conflict will be outweighed by the benefit of continuing a parent-child relationship with both parents. Both of these assumptions are problematic. The first has no empirical support and is questionable as a general proposition. Substantial doubts about the second are raised by the growing body of social science research on divorce and interparental conflict. The potential for unfortunate results in a scheme in which courts are authorized or directed to compel joint custody also includes its less obvious but significant coercive effect upon the bargaining behavior of divorcing parents. By motivating reluctant parents to agree to joint custody, the law may produce results that are contrary to the primary objective that it is attempting to promote – the well-being of children. This Article examines joint custody and explores its implications for legal policy. Part I traces the social, cultural, and legal variables that have created an environment receptive to joint custody. Part II examines the movement toward a legal presumption favoring joint custody, and explores the impact of a legal preference for joint custody on negotiations by parties and on decisionmaking by courts. Part III explores the fairness of a joint custody presumption as a decision principle and the extent to which it promotes the best interest of children. Our analysis is based on the application of relevant empirical and theoretical social science research. We conclude in part IV that although some form of joint custody may benefit many families, the emerging legal rule is neither fair nor likely to benefit children. We propose an alternative rule that would limit the authority of courts to order joint custody to cases in which the parties voluntarily agree

Rethinking Joint Custody

A small revolution has begun in child custody law, and as yet its dimensions and ultimate direction are uncertain. Joint custody, the sharing of legal authority by divorced or separated parents over their children, is gaining acceptance as the best arrangement for most children when their parents divorce. The legal system is embracing this arrangement with remarkable enthusiasm, although until recently it was viewed as being of questionable legality and antithetical to the best interest of the child. Today, thirty states have joint custody laws, most of which have been enacted since 1980. A growing number of the more recent statutes present joint custody not only as an acceptable option that cooperative parents may choose, but as the preferred arrangement, which should be encouraged or even required by the law. Although even joint custody advocates once rejected the viability of court-ordered joint custody against the will of either parent, 8 this option is available under most of the new laws. The implications of this trend are disturbing. The principal goal of custody law is to further the best interest of the child. Joint custody legislation purports to realize this goal by encouraging both parents to remain actively involved in their child\u27s life. Two important assumptions are implicit in the recent trend: first, that parents will be able to cooperate in raising their child, regardless of whether or not they freely decided upon joint custody, and second, that the harm to the child caused by any interparental conflict will be outweighed by the benefit of continuing a parent-child relationship with both parents. Both of these assumptions are problematic. The first has no empirical support and is questionable as a general proposition. Substantial doubts about the second are raised by the growing body of social science research on divorce and interparental conflict. The potential for unfortunate results in a scheme in which courts are authorized or directed to compel joint custody also includes its less obvious but significant coercive effect upon the bargaining behavior of divorcing parents. By motivating reluctant parents to agree to joint custody, the law may produce results that are contrary to the primary objective that it is attempting to promote – the well-being of children. This Article examines joint custody and explores its implications for legal policy. Part I traces the social, cultural, and legal variables that have created an environment receptive to joint custody. Part II examines the movement toward a legal presumption favoring joint custody, and explores the impact of a legal preference for joint custody on negotiations by parties and on decisionmaking by courts. Part III explores the fairness of a joint custody presumption as a decision principle and the extent to which it promotes the best interest of children. Our analysis is based on the application of relevant empirical and theoretical social science research. We conclude in part IV that although some form of joint custody may benefit many families, the emerging legal rule is neither fair nor likely to benefit children. We propose an alternative rule that would limit the authority of courts to order joint custody to cases in which the parties voluntarily agree

Alternatives to Absolute Termination of Parental Rights After Long-Term Foster Caret

This Article will explore in detail the variety of child placement arrangements, both within and outside the system, which can be tailored to meet the needs of children and their biological or foster parents. This examination will reveal numerous statutory reforms and recent judicial decisions that promise increasingly flexible approaches to the traditional custodial alternatives following long-term foster care. Particular emphasis will be devoted to the termination of parental rights case that first united the authors and confronted them with the fact that none of the traditional legal alternatives available to those children could adequately meet their emotional needs

Adequate Evaluation of Divorce- related Child Sexual Abuse Allegations

The accepted child protective service model for evaluation of sexual abuse is inadequate for divorce-related cases involving young children. Three cases illustrate that lack of contact with the alleged offender and lack of pursuit of alternative explanations for phenomena presented as indicative of sexual abuse predispose to "finding" abuse. It is suggested that such agencies engage experienced child and family clinicians to help with these cases. Divorce-related child custody and visitation questions are frequently referred for evaluation by domestic relations courts to child psychiatrists and other child and family clinicians. When sexual abuse is alleged in a divorce-related situation, however, a very different kind of scrutiny is generally brought to bear. Such an allegation triggers a legally mandated evaluation, which is the responsibility of child protective services, and the evaluation is carried out by personnel of these agencies. The differences in clinical experience and approach between child and family clinicians and Dr. Derdeyn is director, Division of Pediatric Psychiatry

Rethinking Joint Custody

A small revolution has begun in child custody law, and as yet its dimensions and ultimate direction are uncertain. Joint custody, the sharing of legal authority by divorced or separated parents over their children, is gaining acceptance as the best arrangement for most children when their parents divorce. The legal system is embracing this arrangement with remarkable enthusiasm, although until recently it was viewed as being of questionable legality and antithetical to the best interest of the child. Today, thirty states have joint custody laws, most of which have been enacted since 1980. A growing number of the more recent statutes present joint custody not only as an acceptable option that cooperative parents may choose, but as the preferred arrangement, which should be encouraged or even required by the law. Although even joint custody advocates once rejected the viability of court-ordered joint custody against the will of either parent, 8 this option is available under most of the new laws. The implications of this trend are disturbing. The principal goal of custody law is to further the best interest of the child. Joint custody legislation purports to realize this goal by encouraging both parents to remain actively involved in their child\u27s life. Two important assumptions are implicit in the recent trend: first, that parents will be able to cooperate in raising their child, regardless of whether or not they freely decided upon joint custody, and second, that the harm to the child caused by any interparental conflict will be outweighed by the benefit of continuing a parent-child relationship with both parents. Both of these assumptions are problematic. The first has no empirical support and is questionable as a general proposition. Substantial doubts about the second are raised by the growing body of social science research on divorce and interparental conflict. The potential for unfortunate results in a scheme in which courts are authorized or directed to compel joint custody also includes its less obvious but significant coercive effect upon the bargaining behavior of divorcing parents. By motivating reluctant parents to agree to joint custody, the law may produce results that are contrary to the primary objective that it is attempting to promote – the well-being of children. This Article examines joint custody and explores its implications for legal policy. Part I traces the social, cultural, and legal variables that have created an environment receptive to joint custody. Part II examines the movement toward a legal presumption favoring joint custody, and explores the impact of a legal preference for joint custody on negotiations by parties and on decisionmaking by courts. Part III explores the fairness of a joint custody presumption as a decision principle and the extent to which it promotes the best interest of children. Our analysis is based on the application of relevant empirical and theoretical social science research. We conclude in part IV that although some form of joint custody may benefit many families, the emerging legal rule is neither fair nor likely to benefit children. We propose an alternative rule that would limit the authority of courts to order joint custody to cases in which the parties voluntarily agree