How to make joint custody or joint parenting of children work effectively. (Considering principles and making a stand).

Ludwig.F. Lowenstein Ph.D

Southern England Psychological Services

2001

Introduction

I will make no distinction between joint or shared custody and joint parenting. These are but words but they mean virtually the same that both parents are involved whenever possible in the rearing of children that they have created. It is important to remember that we cannot own a child, but we can rear, nourish and guide children.

Four areas will be covered by this paper. These include:

1. What is the value of joint custody?

2. What must be done to make joint custody work effectively?

3. When will joint custody not work?

4. What can and should be the role of the court to establish chances of success in joint custody decisions?

1. The value of joint custody

The value of joint custody has been discussed and debated over many years. There is little doubt that two parents have a better chance of raising children effectively and this is to the benefit of the children concerned whenever this is possible (Kelly, 1991). The statement is frequently made: “Are custody decisions made for the benefit of the children or their parents?” The answer is a simple one. It is made or should be for both, since they coincide in every way. Happy or effective parents make for the chance of happy and successfully reared children. Hence, what is in the best interest of the child is also in the best interest of the parents and vice versa. This also makes certain that from the point of view of society that families should, and do endure. There may be a change in relationship between the adults or parents concerned but a relationship between themselves and the child should be as warm, caring and effective as before the separation or divorce between themselves. This is possible when both parents co-operate and put first and foremost the welfare of their children. Unfortunately, marriages do not break up unless there is much hostility between the parents and even domestic violence (Lowenstein 1999e). This hostility is likely to continue unless such parents are provided with the help of a mediator responsible to the court, with the court having the ‘teeth’ to strengthen the position of the mediator and what he/she is attempting to do.

There is considerable research commencing with Wallerstein & Kelly (1980) which suggests that once divorce or separation has occurred it is important for the parents to stop the hostility between themselves and concentrate on how best to rear their children. Children by nature are attached to both parents but not necessarily equally and ideally would have liked them to remain together. This not being possible, the next most important issue is how the parents can work together to bring up the children, in the most harmonious way. To do this they need to work together and not merely to avoid hostility but a more insidious hostility such as parental alienation syndrome (PAS) (Gardner 1992, 1998, 2001) (Lowenstein 1998, 1999 a,b,c, 2000, 2001)

Frequently one of the parents has his/her eye on the custody of the child. More frequently than not it is the mother who has had the predominant share in rearing the children due to the separation of roles between the parents, one being the “bread-winner” while the other is the “carer of the home” and children. This separation of roles should not in any way dictate that the custodial parent should have sole input or custody of a child. Joint custody is yet the best way of assuming that the child will have the benefit of two parents rather than one providing these parents co-operate and put the welfare of the child first. The child therefore has the best chance of developing normally. or as normally as possible.

It is unfortunate that as there is frequently a great deal of antipathy, if not direct hostility, between the parents, one parent who has a ‘superior’ position vis a vis the child, is the one that has been caring for that child i.e. the custodial parent. Joint custody however, emphasises the importance of both parents playing as vital a role as possible in the lives of their children. The courts frequently make an unjust decision based on the ‘status quo’ or power of a custodial parent to dictate the terms, rather than what is the justice for both the parents. Sometimes it is the mother and sometimes it is the father who dictates that the other should have as little as possible contact with the child, or certainly not a large share of contact.

This is a wrong manner of proceeding. It is however, the view frequently expressed by certain investigators like Goldstein et al (1973) who considered that this is the natural state and that little can be done by the courts to interfere with this state of affairs. The current author does not feel as such and it is vital that both parents are involved, all things being equal. We will discuss later when joint custody will not work and, when such joint custody is not possible. It should be remembered that in the short as well as the long-term, children benefit from having both parents play a role in their lives, and as equally as possible. It is unlikely, however, that such divisions can be made on a strictly 50-50 basis. The father or mother who is employed cannot spend a large amount of time caring for young children and there may be other reasons for selecting a less than 50-50 position.

2. What must be done to make joint custody work effectively?

It is often for mediators, dealing with warring parents to promote through mediating, goals for successful joint parenting which now follow. There are certain criteria which will make for effective joint parenting. These are as follows:

1. That both parents accept the importance of being eager for joint custody to be an effective way of rearing their children and that both parents wish the other, as well as themselves, to play an active role in the lives of their children.

2. The parents have an understanding and are convinced of the importance of joint custody or parenting and why it effects children beneficially. They are therefore willing to discuss any differences remaining between themselves as parents in order to establish a good working relationship with their children.

3. The important thing is for these parents to consider the needs of their children as well as their own needs in making arrangements with their children and how best to work together as parents despite their separation or divorce. This requires some degree of flexibility.

4. The parents who can make joint custody work effectively, are those who despite their anger in the past, or even current anger, can stop this effecting their common sense of caring and wishing for the good future of their children.

5. Joint custody is also likely to be an effective way of bringing up children when there is a good capacity for communication positively between the parents and desire to co-operate for the benefit of the children .

6. Due to the fact that children will be living from time to time in two different homes it is important to establish some tolerance or flexibility between the parents so that they may agree on who should have the children, when there are some uncertainties which have not been planned for in the formal arrangements.

7. It is important for each parent to appreciate and respect the role that the child has in the relationship with the other parent, despite the failure of the marriage or relationship between the parents.

8. Avoiding an intense and continued hostility and conflict between one another and attempting to control or assuage the anger which one spouse might feel against the other for the benefit of the child. The child, especially the older child may have plans to be with friends or wishes to change arrangements. This can cause problems for one parent who wishes to be with that child. There may also be a need for changes to parental needs. Thus parents must accept (Hodges, 1986) that no steadfast absolute rules can ever hold for ever. In other words, in time, changes will need to be made in arrangements as situations change and children develop, as well as parents and their own needs require changes. This could require the help of a mediator to assist in making such changes if the parents cannot agree.

3. When will joint custody not work?

Joint custody is unlikely to be effective if one or both of the parents involved fail to consider their predominant obligation to the child and are more concerned with their animosity towards one another. Sometimes this is one parent who particularly feels aggrieved, but in some cases it is both. This can in due course can be overcome with effective mediation as well as the backing by the courts to be discussed in section 4. There are also other factors which relate to joint custody not being effective. This is when the following exists:

1. There is a history of one or both parents being addicted to drugs or alcohol making them ineffective and even dangerous parents.
2. There has been, and is likely to continue to be, violence between the partners, or when one or both partners commit child neglect, abuse or sexual interference with the child.
3. It is unlikely to have been an effective way of dealing with child care if one or both parents suffer from mental illnesses, or extreme instability.
4. It is also likely to be an ineffective way of dealing with children if one or more of the children oppose one of the parents, or indeed both parents as carers for themselves. This is often as a result of parental alienation and one must be careful to distinguish between parental alienation procedures and an actual parent being a danger to a child.
5. Sometimes joint parenting or joint custody is a difficult alternative when parents live geographically at great distance to one another.

4. What can and should the courts do to establish joint custody of children

Leaving aside the areas where joint custody is unlikely to be effective due to some deficit of an extreme nature in one or both parents, we must now consider what the courts can and should do to make certain that the ‘ideal’ of joint custody is possible, with the important addition of flexibility in the arrangements being made.

It is the role of the court to encourage the parents to co-operate with one another for the benefit of the child or children. It is the view of the author of this paper, that any child that is neglected, or treated in an abusing manner, by either parent or both parents, that that child should be removed from that setting. Therapeutic efforts should be made to help such a parent whenever possible but certainly no child should be placed in the situation of being abused or neglected. In the case where parents are at odds with one another and have extreme animosity towards one another, it is vital to develop a scheme of mediation, which should help these parents come to terms with their primary obligation, the care of their child or children “jointly”. This could do much to prevent one parent returning again and again to court to gain some access to a child and thereby being considered a nuisance (Coe, 2001).

With the help of the mediator the court should act in accordance with which parent is most co-operative in seeking a solution to the problem of animosity between the parents. It is that parent who considers the welfare of the child first and foremost who should have custody of the child, irrespective of who has initial custody, due to pressure or ‘status quo’ situations. Hence, a mother who fails to provide adequate care for a child should not have this responsibility. The same must be said when failing to allow the other parent to play an appropriate role in the rearing of a child. No parent should prevent the child from having two parents who are equally responsible for his/her welfare except when situations exist as mentioned in the previous section. Any parent who fails to include an appropriate other parent in the rearing of a child should not have custody of that child. One might say that parent is depriving that child and hence abusing the child by preventing contact with a potentially caring and responsible parent who wishes such contact (Gardner, 2000).

As already mentioned, parental alienation is practised, by both males and females, who seek to oust the other parent from playing an important role in the process of child care. In that case mediation should be the procedure for altering this situation. If mediation however, is unsuccessful in gaining the co-operation of one or both parents, then those children should not be in the care of such a parent(s). Both parents, all things being equal, have the right and the responsibility in sharing in the caring of their children.

The alternative is to remove such a child from the home-setting where such parental alienation occurs. In the case where both parents are practising such abuse, there is little that can be done except to remove the child through social care agencies, hoping thereby to heal the rift between the parents through mediation so that they yet may play an appropriate caring role towards their children. Failure of either parent, or both parents, to co-operate with the mediation process ordered by the court, means that the child or children should remain in care, until this changes. It must be accepted that research indicates that the only young children who did well in joint custody were those whose parents’ central motive was a deep commitment to the child, and from this also a strong desire to involve the other parent.

This may seem a harsh action but the alternative is equally damaging to the child concerned. It is also injustice to deprive a good parent of the right to parent and is also a loss for the child. Failure of the parents to co-operate with the court, and in so doing, failure to co-operate with what is best for the child, can only do harm to that child. Children are vulnerable and will tend to go with whatever parent has the dominance over the other. This should not be the principal whereby decisions are made by a court. It is for the courts to act to prevent the one parent seeking sole custody through a power struggle, and then to “sideline” the other parent by using that child by a process of alienation.

The preferred term “shared parenting”, is now in use instead of “shared custody”. This concept eliminates the difficulty of each parent wanting a 50% share of the child, often for the wrong reasons. It must be understood, and it is sensible that, on the whole one parent will have a significantly greater share of care for the child. Hence a fair balance can mean an unequal portion of time spent with one parent in caring for the child. This may be due to the fact that one parent may not be available to spend as much time with a child due to the need to work, or for other reasons. This is not dissimilar to non-separated parents spending unequal periods of time with their child/children. It is often for the mediator to develop the best way for children to be cared for by parents and each case is different. The importance of good communication between the parents must always be emphasised as must be the importance of both parents putting the child/children first. Additionally flexibility in the manner in which parenting occurs is a vital aspect of good post-divorce relationship and parenting.

The decision very much depends on, not merely general principles of favouring joint parenting or custody, but also the individual situation involving the parents and the child. Previous to the relationship breakup there may have been situations which favour custody being given to one or both parents. These have already been mentioned such as if there has been abuse of a child, or a child is particularly averse to contact with a particular parent. This should not alter the basic principle that what is best for the child and indeed for parents, is for both parents to continue to have contact either the same or better than when the relationship was intact. What should never take precedence is the acrimony between the parents being allowed to be involved in decisions made in connection with the child, this often leading to the custody of the child by one parent only. This is to be deplored under most circumstances. Providing both parents wish to be involved in the rearing of the child, and the child is happy with this involvement, this should continue in the best possible manner. Unless the child has been alienated by one parent or both parents towards the other, there is no reason why that child should not wish to retain contact with both parents in the manner in which it can be arranged. This could be on a 50-50 basis or on a 25-75 basis or a variety of arrangements where both the parents are joining in the important task of caring for and rearing the child/children.