Center for Gender & Sexuality Law
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's 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.
Elizabeth S. Scott & Andre Derdeyn,
Rethinking Joint Custody,
Ohio St. L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/296