Joint Custody and Shared Parenting (Are Courts listening?!)

Ludwig.F. Lowenstein Ph.D

Southern England Psychological Services

Justice of the Peace, Vol. 165 No. 49, 2001, p 963-966

I Introduction

At present some of the greatest problems in society arise as a result of marital disharmony, divorce and allowing only one of the parents to be responsible in the bringing up of the children, while the other is sidelined or totally cut-off from playing the role as a parent. At the present, the divorce rate in the United States alone stands at 50%.

The question of whether there should be sole custody or split custody (one child with one and another with the other parent) after separation or divorce has in recent years given way to a preference for “joint custody” and “shared parenting”. This eliminates the need for visitation rights, and unsupervised or supervised contact for the non custodial parent.

It is my view that we are heading into a new era where the contribution of both parents in the task of child rearing must predominate when a marriage, or a partnership, is at an end. There are obviously exceptions when some kind of unsupervised or even supervised contact is preferable, especially when a parent has had a number of problems in relation to abuse of a child. It would seem that while the child or children must be the main concern, this is linked closely to the family, i.e. both of the parents and the child or children. This favours the concept of joint custody arrangements whenever possible. [This is not an issue when all involved have an attitude, behaviour or history of such healthy care before the separation of the parents.] But, joint custody, whatever its natural advantages, also poses difficulties from time to time. Let us look at first:

1. The problems and advantages associated with joint custody; followed by
2. What should be done if joint parenting or custody does not work?
3. What happens to the children when there is alienation and hostility between the parents?
4. The role of Judges and the Courts.

1. The Problems and Advantages with Joint Custody

Needless to say marital or non marital relationships do not break up without good reasons. Usually relationships end as a result of incidents, arguments, incompatibilities etc. This often leads to hostility or even aggression in the form of domestic violence (Lowenstein, 1999d).

Sole custody occurs where one parent has been excluded. This should only happen when the individual who is excluded, poses a physical, emotional or sexual danger to the children. It should never occur as a result of alienation by one parent against the other, sometimes termed parental alienation syndrome (PAS) (Gardner 1987; 1989; 1992; 1998; 2001. Lowenstein 1998; 1999 a,b,c; 2000; 2001)

In the case of split custody, this can work most effectively when both parents agree about the arrangement and where it can be combined with joint custody. In a case of divided custody, where each of the parents has the child for a proportion of the year, this also works most effectively when the parents can agree on how it should be done. In many cases this is not what occurs and the parents need help in making decisions that are fair.

Marital separation, being more than likely due to marital disharmony, leads to problems. These problems continue after the separation and in fact they often increase. At least one, possibly both, former parties feel aggrieved by the hostility that results following the break-up of the relationship. This has affected, and continues to affect, the children directly or indirectly. Conflicts between parents affect children, even causing traumas immediately or in the long-term. This will be discussed in another section. Children, especially the very young, cannot understand how and why their parents are in such conflict. They feel not merely upset, but also insecure and helpless that the powerful bastions of their existence should be quarrelling and sometimes threatening as well as showing verbal and physical aggression towards one another.

Their reactions could be one or both of the following: to seek to hide or withdraw from the conflict between the most important people in their lives; or to attach themselves to one or other of the parties. This would be to seek some semblance of security or normality. Gardner, (1982) points out that joint custody is not for everyone, even if it is an ideal when it can be achieved as a result of the maturity and goodwill of the parents. If it is imposed on parents who are in conflict, it is unlikely to prove beneficial. If it is to work, parents must be able to put aside their personal animosities towards each other and to concentrate on what is likely to be in the best interest of the children and what each individually can do to foster security for the children. This should be their aim. Thereby both parents have a combination of equal rights and responsibilities as to the welfare of their children. This is despite the fact they no longer live together.

As already stated, not all parents are amenable to this “ideal” arrangement. Many parents prefer to distance themselves from their former partner. They often wish to form new relationships and their former partner could be viewed an an impediment to this. Such a view leads to the feeling that the children might be better off without the other natural parent participating in the parenting process. Such a desire to extinguish or eliminate one party from participating in being a parent is often a natural consequence of marital disharmony leading to separation and/or divorce. The adversarial system often exacerbates differences between the former partners, as each solicitor in the case seeks advantages for his particular client over the other.

Sometimes it is possible through mediation to make both parents “see sense” in establishing a post-divorce relationship leading to joint custody or at least “split custody” or in some cases “divided custody”. In order to achieve any of these goals, there must be “goodwill” in both parents who put their children and their welfare first and foremost rather than their damaged ego or pride. Not only does much depend on their motivation towards this end, but the role of a highly skilled mediator may be necessary. The process of mediation must be backed up by the Court. The Court must be willing to encourage such mediation and to punish one party or the other if they fail to co-operate with the mediator. The Court must go so far, if necessary, as to award sole custody to the party who is amenable to the mediation process and is willing to co-operate with mediation.

The injustice where one of the parents is prevented from access or a fair share of parenting opportunities must be counteracted. Programming or alienation which one of the parents could practise against the other parent must be prevented. The child should not continue to suffer from the relentless conflict between parents or to achieve the manipulation of both parents. The great advantage of joint custody, therefore. is that it permits as normal a state of parenting as was previously the case when the marriage or relationship was intact. It also provides maximum access by both parents to the child or children. It is therefore least disruptive for normal family life. It prevents the need for one parent to feel dominant, as far as the rearing of the children is concerned, or for the other to feel in a subordinate position despite, possibly, being the main bread winner. It often leads to parents using the children against their former partner.

The main drawback with joint custody is where the continuing conflict between the parents affects the children and leads to possible insecurity as they move from one home to another. This is especially difficult, where parents do not have the same approach to discipline and guidance of children. It might well be necessary for the divided couple to live not too distant from one another geographically. The most important factor stems from the parents love of their children and their willingness and capacity to co-operate with one another because of this. This would need to be in all areas of child rearing, guidance and the disciplining of children.

2. What if the shared parenting o joint custody does not work?

It must be accepted that when joint custody is found to be ineffective other forms of custody must be found. First, it is necessary for parents to communicate, co-operate and consider the welfare of children first and foremost and not seek to hold on and maintain the conflict.

Much depends on Judges making the right decisions and deciding on the basis of which parent is likely to make the greatest effort in involving the other parent in the process of caring for the child. When in doubt, it should be the parent that is less likely to alienate the child against the other (Gardner, 2000) who should have custody of the child. Equally so, a parent who seeks to exclude the other parent from caring for and rearing a child, without valid reasons such as sexual, physical and other abuses, should never be given sole custody. This is likely to be the first step in avoiding the pernicious tendency of one or both parents to attempt to alienate a child against the other. In this process, of course, the custodial parent has the greater advantage and is likely to be more successful in alienating the child towards the non custodial parent. Attention will be drawn again to this point when we discuss the role of the Judge and the Court in this matter.

Both parents, following a particularly rancorous divorce or separation, could well practise parental alienation or PAS (Gardner 1987, 1989, 1992, 1998, 2001; Lowenstein, 1998,1999 a, b, c, 2000, 2001). In that case, it could well be best for a third party to take over the care and responsibility of the children until the situation is remedied i.e. until both parties can be convinced that it is best to co-operate with one another for the benefit of the children first and foremost. This in turn has a spin-off in benefits for the children as well as the parents. While mediation by a qualified psychologist is essential, so is a Court of Law which backs such mediation and the decisions made via mediation. By ‘backing’ it is meant that the Court penalises one or both parents who are not co-operating with the efforts of the mediator. This includes when one is alienating the children against the other parent.

3. What happens to children when alienation and hostility between the parents continues?

This is a question one is asked in Courts frequently, by Judges as well as the alienated parent. One is rarely asked the question by the parent who has custody of the child and who may be carrying out the alienation process against the other parent! Such a parent cannot or does not wish to see that keeping the other parent away from the parenting process can cause serious emotional and behavioural problems now and in the future. This is especially the case where there is a considerable amount of conflict during the marriage and after the parents separate. While parents are in the throes of such conflicts they often behave irrationally and cannot see what it is they are doing to their children. It becomes a tug-of-war wherein the child or children and their true feelings are ignored.

Children are forced against their will to take sides and often to be against the other parent. It is difficult for the children to remain neutral in this warfare, since they cannot please both parents simultaneously especially in front of one another. They wil, therefore, on the whole side with that parent who appears to promise them the most security, support and often extrinsic rewards also. Thereby the non custodial parent is sidelined and even eventually totally rejected by the children due to the influence of the custodial parent.

This leaves the rejected parent with several choices:

1. Due to the uphill battle involved he/she is likely to opt out of their parental responsibilities altogether. This will be used in turn as ammunition by the alienating parent: “You see he/she doesn’t care and is leaving it all to me to look after you”.

2. He/she will battle on for a long period of time often for years due to their dedication to the child in order to have access to them so they can play a parenting role. This will equally be used by the custodial and alienating parent: “You see he/she is making trouble for me as he/she has always done, dragging me through the Courts and trying to have me punished.”

Here we have an obvious ‘no win’ situation for that parent who has been sidelined and alienated. In the UK, Judges, tend to take what they consider to be a pragmatic position. They tend to favour the parent who has custody of the child. This is usually the mother. Associated with this choice is the traditional view that mothers should have a prominent role in caring for their children, irrespective of what the father might be able to do for the child.

In the USA, in order to prevent or deal with this kind of parent, Judges or Courts will mandate a parent to attend mediation classes, usually held by a clinical/forensic psychologist with expertise in mediation and family problems. That psychologist is then responsible for reporting back to the Court. The report must contain information as to how much or how little a parent is co-operating in allowing both parents to participate in their parenting role. Destroying the parenting role and authority of one parent can easily produce a child who has strong anti-authority, or ant-social feelings. This can be a handicap for a lifetime.

It begins with children gaining unhealthy power over adults as they successfully play one off against the other. Such children will often have difficulties in school or elsewhere for trying to ‘buck the system’. Since there are repercussions from this, the child will often develop behaviour problems and emotional difficulties including hostility, depression, sleeping and eating disorders and other problems. It often begins with the child failing to get up in the morning, to go to school, to do homework and study, and eventually truanting. The reaction of the child to continued conflict has been well documented by Gardner (1987, 1989, 1992, 1998, 2001; and Clawar & Rivlin, 1991; and Lowenstein 1998, 1999 a, b,c,d, 2000, 2001)

It is therefore imperative that such conflicts be prevented and remedied as soon as possible. Prevention of in the case of hand-over difficulties can be achieved by locating a neutral site such as a police station, Court of Law or a Social Service Centre. Sometimes using an intermediary who is not a party to the parental conflict is necessary. That person can hand over the child or children from one parent to the other as an interim arrangement, thus reducing the likelihood of arguments or violence between parents when they meet. When the likelihood of hostility has been reduced via mediation, this will no longer be necessary.

When there is a high level of conflict between parents, this will effect the children and therefore special mediation practices are necessary, especially when dealing with Christmas Holidays and holidays in general. It is often necessary to spend much time as a mediator with individual parents before allowing them to meet for the purpose of developing parental co-operation. Such meetings between the parents should only happen when the mediator feels that both parents, when they meet, will have a larger number of areas of agreement rather then disagreement.

It must be remembered that the more hostile parent who has custody of the child may be clinging to that child for emotional support as well as for revenge. Such parents are unlikely to wish to relinquish any control of a child for that reason alone. The child, having identified with the views of the custodial parent in turn is likely to react to this by reciprocating in his/her need for the emotional support of the custodial parent, therefore shutting out the other parent even more. This frequently leads to the child expressing the view (obviously supported by the hostile parent) that he/she wants little or no further contact with the other parent. This is often taken at ‘face value’ by a Court Welfare Officer, a Guardian ad Litem and a Judge. This is then followed by the claim that the child has the right to choose and to avoid contact, or only having minimal contact with one of the parents. This is taking the easy way out and it is also the wrong way.

While the views of children must be respected, it must be important to assess and understand where these thoughts and attitudes originate! These are unhealthy thoughts and attitudes since they are based on what the alienating parent wants the child to do or to behave like. These attitudes are inculcated in the child by the alienating parent. This, however, is not in the children’s short or long-term interest. Judges and others must be made aware of the insidious process of programming and alienation. It is therefore important to avoid making decisions that are strictly based on what can only be viewed as effective or successful alienation by a custodial parent. This lead us to the final section on Judges and the Courts in relation to custodial decisions.

4. The role of Judges and the Courts

Judges and courts have most important roles to play when couples separate or are divorced, and when they are in constant conflict over who should have responsibility for the care of children. Judges are often too worried about their popularity with society when they seek to put right injustices. When one parent seeks to eliminate another parent from sharing parenting, unfortunately, the Courts tend to help that custodial parent to succeed in this. Judges worry when custodial parents fail to accept that they must share the actual care of the children with another. This is likely to occur when the parent who has control of the children seeks to sideline or totally reject the other parent’s rights and responsibilities to play a parental role.

The parent who has custody is often viewed as the best parent to have control over children. This Judges find difficult to reverse. Therefore, they give the non custodial parent no or little opportunity to play a parenting role. Those who seek, often for years, to gain access and contact with their children whom they love and to whom they are dedicated, are often not viewed as caring, loving or responsible parents eager to involve themselves in the future of their children. As pointed out by Coe (2001), they are seen as “....obsessive, insensitive trouble makers for coming back to Court because they are not seeing their children”. This is unfortunately the view of many UK Judges. This is despite the overwhelming research which has shown that children do better in life if both caring parents are actively involved in parenting.

To the question whether Courts should order children with parental alienation syndrome to visit and/or reside with the alienated parent the research by Gardner (2001) gives a clear response. Gardner describes 99 cases in which the author was directly involved. Here Judges transferred residential custody to the alienated parent. The outcome when such orders were implemented in 22 cases were compared with 77 cases when this did not happen. In the 22 cases, PAS symptomatology was significantly reduced or even eliminated. Where the Court did not reassign custody to the alienated parent, parental alienation symptomotology increased in 70 children (90.9%). In only 7 cases (9.1%) of the non transferred children was there “spontaneous improvement”. Custodial change and a reduction in alienators access to children was found to be associated with reduction in parental alienation symptoms.

Despite the emphasis in “equality” of the sexes, Judges still give preference to the mother when it comes to sole or primary custody. Such gender bias is out of place in this day and age. Again it must be said it is that parent who is more rational and fairer in involving the other parent in playing a parenting role who should be given custody, irrespective of the gender. The child should never be forced to choose sides. This is not the way for the child ultimately to feel secure. The child will feel secure only when both parents are involved in the parenting process and treat one another with respect and with consideration and not with hostility. Judges adjudicating as to custody must consider this important point in making decisions as to who should have custody of the child.

Bibliography

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