New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Publications
Newsroom
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch
NHMCLE

The most experienced neutrals as selected by local litigation firms across the United States.

NH Bar's Litigation Guidelines
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency

Member Login
username and password

Bar Journal - December 1, 1999

Joint Physical Custody - What We Know

By:
 

One of the most contentious and difficult issues faced by judges, attorneys and mental health professionals is the placement of children in cases of divorce. The process of decision making in these cases is governed by the best interest of the children involved, but arriving at an arrangement that meets this standard, or even knowing what "best interest" means in a particular context, is complicated. In the recent past, the choices involved in determining child custody and visitation arrangements were chiefly limited to sole versus joint legal custody (JLC) and the amount and type of visitation. However, in recent years joint physical custody (JPC) of minor children by their parents has emerged as another option that must be considered. In examining the pros and cons of JPC, it is useful to be familiar with some of the models for determining child custody arrangements put forth by mental health professionals over the years, as well as the social science research on the subject of JPC.

THE "BEST INTEREST" STANDARD

Until well into the 19th century, children were considered to be the chattel property of their fathers, and mothers had few if any rights. However, by the late 19th century courts began to consider the interests of children, and at this time the "tender years" doctrine emerged. This doctrine, which recognized that young children were best served by staying with their mothers, has persisted until recent years, and on the rare occasions when mothers lost custody of their children in divorce it was usually on the basis of unfitness or incapacity.

Although mothers were the presumptive custodians of the family’s children under the tender years doctrine, by using the child’s best interest as a standard for custody decisions, this doctrine opened the door for courts to consider a number of issues above and beyond the sex of the parent in determining child custody arrangements. Because courts have broad latitude in weighing various factors in order to determine best interest, this model has resulted in variations in the decision making process from case to case. It has been difficult to articulate a set of standards to serve as a template for determining the best interest of children in divorcing families, but attempts have been made to develop general guidelines. One prominent example is the Uniform Marriage and Divorce Act (UMDA).  which requires the court to determine custody in accordance with the best interest of the child, and to consider all relevant factors, including these factors:

  1. the wishes of the child’s parent or parents as to his custody;
  2. the wishes of the child as to his custodian;
  3. the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;
  4. the child’s adjustment to his home, school, and community; and
  5. the mental and physical health of all individuals involved.1

While these standards make sense and have a great deal of face validity, they do little to simplify the task of the fact finder, guardian ad litem or mental health custody evaluator who must make a custody determination. The UMDA does not offer any guidance regarding the weight these five factors should be given, nor does it specify which aspects of the parent’s mental health or the child’s adjustment to the community should be considered. For example, if a child is doing well in school and appears to have adapted well to the demands of education, does this suggest that the child should stay in that school, or does it suggest that the child’s adaptability will allow an easier adjustment if other factors indicate that a move to another parent’s residence in another school system might be in the child’s best interest?

TRADITIONAL CHILD CUSTODY MODELS

Mental health professionals have attempted to develop models that provide more guidance in determining what is in a particular child’s best interest. One of these is the least detrimental alternative model originally outlined by Goldstein, Freud and Solnit in their1973 article, "Beyond the Best Interest of the Child."2  In this article, the authors argue that the interest of the child is best served by granting full physical and legal custody to the parent who is best able to meet the child’s needs. The authors’ rationale in advocating this model is their belief that children need a strong attachment to a parent whom they see as powerful and omnipotent. Once the court determines who is the better parent, the authors suggest that all decisions about education, health and other matters be left entirely to the custodial parent. This includes the amount of visitation, if any, to be allowed the other parent. In cases where the court finds the parents to be equally qualified to rear the child, they suggest the decision be made by drawing straws. The authors refer to this model as the least detrimental alternative due to their belief that any intrusion by the courts into child custody and child rearing is likely to have negative effects. While it has not been widely adopted by the courts, the model has been very influential because it introduced the concept "primary psychological parent," which has been used by mental health professionals and court personnel in making custody determinations.

Unfortunately, the least detrimental alternative model rests on premises with dubious scientific support. The model is grounded in psychoanalytic theory, and its conceptual underpinnings are difficult to test empirically since psychoanalytic theory rests almost entirely on clinical observation, which is notoriously unreliable. In the Daubert3  decision, The United States Supreme Court specifically cites Karl Popper’s critique of psychoanalysis, which states that psychoanalysis is an example of a system of thought which is not scientific, in part because its formulations are not falsifiable. In addition, recent research on child development indicates that most children have attachments to multiple adults, and that the loss of any of these is likely to create distress.

A second model that has been influential is the primary caretaker standard. This standard rests on the assumption that the parent who has had the most responsibility for the child’s day to day care is likely to be the best choice for primary physical custodian. This model is attractive because it simplifies the process of deciding custody. It also frees the court from the difficult task of making decisions about a host of complicated psychological issues concerning the relationship between parent and child, and minimizes the input of mental health professionals. However, this model has conceptual weaknesses, in that it presumes that a child’s relationship with the parent who has performed more daily child care is more important than the relationship with the other parent. In fact, this is not necessarily the case.

THE JPC ALTERNATIVE

It is against the backdrop of these conceptual models for determining child custody arrangements that the issue of JPC must be considered. While JLC is the rule in New Hampshire, JPC remains relatively rare both in New Hampshire and in the United States as a whole. There are several reasons for this, one being that neither the least detrimental alternative nor the primary caretaker standard appears to support JPC, although on different grounds. Another reason is that it is virtually a truism among mental health professionals that JPC is viable only when both parents agree that it would be a good idea and have a record of cooperation in rearing the family’s children, particularly during the period between the initial separation and the finalized divorce. In addition, practical considerations such as parents’ work schedules can make JPC unworkable. Perhaps most importantly, research indicates that judges and other legal professionals are skeptical about JPC and generally favor more traditional arrangements. A study by Stamps,4 which surveyed 59 state judges in Louisiana regarding their beliefs about custody decisions, indicated a strong preference for primary placement of children with their mothers and opposition to the concept of JPC.

Considering the prevalence of divorce in this country, there is surprisingly little empirical research on the issue of JPC. This is partly because JPC is still relatively rare, and also because the majority of families involved in JPC have made their arrangements by mutual consent. Another seemingly obvious but often overlooked factor is that the negative effects of divorce on children are much more pronounced than the effects of custody arrangements following the divorce. Put differently, the research on the mental health and adaptation of children of divorce indicates that the particular type of custody and visitation schedule chosen does not, by itself, predict post-divorce adjustment. Despite this, there is some evidence that JPC may have positive effects on the adjustment of children and families in different contexts.

Some researchers have reported that children in JPC families generally experience greater levels of satisfaction than children involved in sole custody or JLC arrangements, and usually feel that they can preserve their emotional ties with both parents.5, 6  There is scant research on the differential effects of JPC on younger versus older children. This is unfortunate, as judges and guardians ad litem are often reluctant to consider JPC for infants and younger children because of concerns that prolonged separation from the mother is likely to have deleterious effects. However, research indicates that better outcomes for young children were associated with more frequent father-child contact.7  These findings were particularly prominent when fathers had overnight contact with their infants and toddlers, and indicated that loss of ongoing contact between father and child was more likely to occur when overnight visits did not occur. Maccoby and Mnookin suggest that fathers must spend enough time with the child to allow some degree of direct responsibility for child care, and that visitation which is too brief to allow this is not sufficient to allow for the development of a psychologically significant relationship.8  In addition, there are strong indications in the literature that infants and toddlers whose divorced parents communicate frequently and exhibit low levels of conflict are able to adjust to the situation even when they spend overnights in the parents’ separate households. Consequently, while the conventional wisdom and clinical lore associated with divorce and custody generally suggest that very young children should not be separated from their primary parental figure for more than brief periods of time, the research on the subject indicates that very young children can do well and adjust adequately, even when they spend significant time away from their mothers while in the custody of their fathers.

There has been some research on the adjustment of adolescents to JPC which indicated that the differences between adolescents in sole custody and JPC arrangements are minimal over time. However, small differences were detected between the two groups. Compared to adolescents in sole custody arrangements, those in JPC situations reported less depression and better grades, felt a greater sense of closeness to both parents, and felt in better control of their lives. There were no findings which suggested a poorer outcome for adolescents involved in JPC arrangements.

Another dimension of JPC which has been examined in the literature relates to the extent to which different custody arrangements facilitate or discourage contact and positive relations between fathers and their children. Not surprisingly, children in JPC arrangements had more frequent contact with their fathers than children in sole custody arrangements. In addition, more contact between father and child was associated with an increased sense on the part of fathers that they were having an impact on the emotional lives of their children. This factor may, in part, account for some of the positive findings associated with JPC and father-child relationships, as this arrangement minimizes the father’s sense of becoming marginal in the lives of his children. These findings, which are significant even when socioeconomic status is taken into account, are important because the literature on children’s adjustment to divorce has found a strong association between positive child adjustment and contact with the father, the quality of the relationship being an important moderating variable.

Clearly, fathers appear to find JPC arrangements more satisfactory than other arrangements. There are also indications that mothers may benefit from JPC. A study by Arditti9  found that mothers with JPC reported lower levels of parenting stress and better relations with their ex-spouses; however, sole custody mothers had higher levels of satisfaction than joint custody mothers. Other studies have found mothers with JPC arrangements to be more satisfied with their situations than mothers who had primary physical custody. Of particular interest is the fact that parents who were not initially pleased with the idea of JPC often revised their opinion and saw the arrangement in a more positive light six months to one year later.

As mentioned previously, mental health professionals involved in child custody cases tend to assume, almost automatically, that only parents who are extremely cooperative and who welcome the idea of JPC are good candidates for this type of joint parenting. Richard Gardner, who has written extensively on issues related to child custody, identified the following criteria as necessary for JPC to be successful.10 

  1. Both parents [must be] reasonably capable of assuming the responsibilities of child rearing--their involvement with the children and affection for them [must be] approximately equal. When there is a significant difference between the parents in these areas, another custodial arrangement should be considered.
  2. The parents must have demonstrated the capacity to cooperate reasonably and meaningfully in matters pertaining to raising their children. They must show the ability to communicate well and be willing to compromise when necessary to ensure the viability of the arrangement. The key words here are cooperation and communication.
  3. The children’s moving from home to home should not disrupt the school situation. Accordingly, the arrangement generally is possible only if both parents are living in the same public school district or reasonably close to the child’s private school.

Gardner also feels that parents who have difficulty with communication or are actively litigating for sole custody should be considered poor candidates for joint custody.

It has been my experience that these criteria, which are based entirely on clinical experience and judgment, are rarely questioned. However, a small body of research suggests that these assumptions should not be accepted uncritically. There are indications that parents can promote positive adjustment in their children if they are alert to their children’s emotional needs, even when there is some degree of interpersonal conflict and hostility between the parents. In the same way, there are indications that JPC can be successful even in situations involving mild to moderate conflict between the divorced parents. Parental conflict and its negative effects on children appear to operate independently of the custody arrangement, and the effects of parental conflict have the same impact on children regardless of custody arrangement. The negative effects of conflict can be minimized if the parents reduce their children’s exposure to their hostility. However, poorer outcomes are seen when the subject of the parents’ conflict is child rearing, and both the research literature and common sense make it clear that JPC is inappropriate in situations involving high conflict or a history of domestic violence. Since joint custody involves greater contact between divorced parents, it can increase hostility in high conflict families and lead to negative outcomes for the children involved.

CONCLUSIONS

The recent research on child custody and divorce has a number of implications for the consideration of JPC arrangements, as it indicates that some of the conventional wisdom on the subject may be incorrect. Recent findings challenge the assumptions of both the least detrimental alternative model and the primary caretaker model. It has become clear that children can adjust well to multiple caretakers, and that even very young children can adjust to the absence from and moves between parents associated with JPC as well as they can adjust to more conventional arrangements. The research does not support the assumption that the parent who has been the primary provider of care to the family’s children is best suited to continue in the role, and that this arrangement is most likely to promote positive adjustment. A careful review of the research on children’s post-divorce adjustment indicates that, except in the cases of high conflict, JPC can be a viable arrangement even if parents have difficulty with communication and low to moderate levels of conflict.

These findings are important because custody evaluators and guardians ad litem often respond to any resistance to JPC by automatically ruling it out. As a result, parents can often dictate the more common JLC/primary physical custody arrangement simply by expressing their opposition to JPC. This is unfortunate, since JPC is at least as likely as any other arrangement to produce a positive outcome. JPC arrangements appear to increase the likelihood that a significant relationship will continue with both parents, thereby avoiding the harm that results when one parent is marginalized, or becomes a visitor in the lives of his or her children. Research indicates that this continuing relationship with both parents is almost always in the best interest of the children concerned.

There is almost no research that relates to determining specific schedules of JPC for particular families. However, most clinicians believe that very young children do better with shorter and more frequent visits, and that as they become more independent and self-sufficient weekly or monthly switches become more viable and appropriate. It is also possible to develop a JPC schedule for parents who cannot live in the same school district but are in reasonably close physical proximity. The Ackerman plan,11  a shared placement plan which allows parents to have relatively equal time with their children in these circumstances, allows one parent to be the primary physical custodian during school time and the other to be the primary physical custodian during nonschool time. During school time, defined by Dr. Ackerman as September 1st to June 1, the primary parent has custody of the children nine days out of fourteen. However, during nonschool time, defined as summer and school vacations, the primary custodial parent has custody of the children ten out of fourteen days. This schedule allows twenty more days of custody during nonschool time than during school time. Dr. Ackerman notes that some parents object to the fact that the nonschool time parent always has custody of the children during holiday times, but notes that the school parent is still allowed four days during the vacation blocks in which to spend time with the children. In addition, by mutual agreement the parents can allow two or three weeks of additional uninterrupted time for vacations.

Given the emerging data on JPC, it appears that this arrangement has been underutilized up to the present time, and that it has the potential for fostering the best interests of the children of divorce. While it should not be imposed on families without careful consideration of individual and situational variables, in many cases it may provide a healthier and more equitable solution for divorced parents and their children.

ENDNOTES

1.

Uniform Marriage and Divorce Act § 402, 9A U.L.A. 561 (1987).

2.

Goldstein, J., Freud, A., & Solnit, A. (1975). Beyond the best interests of the child. New York: Macmillan.

3.

Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993).

4.

Stamps, L. E., Kunen, S., & Rock-Faucheux, A. Judges’ beliefs dealing with child custody decisions. Journal of Divorce & Remarriage, 28 (1-2), 3-16.

5.

Bender, W. N. Joint custody: The option of choice. Journal of Divorce & Remarriage, 21 (3-4), 115-131.

6.

Crosbie-Burnett, M. Impact of joint versus sole custody and quality of co-parental relationship on adjustment of adolescents in remarried families. Behavioral Sciences & the Law, 9 (4), 439-449.

7.

Whiteside, M. F. (1995, April). An integrative review of the literature pertinent to custody of children five years of age and younger. Executive Summary to the Statewide Office of Family Court Services, San Francisco, CA. Ann Arbor, MI: Center for the Family.

8.

Maccoby, E. E., & Mnookin, R. H. (1992). Dividing the child: Social and legal dilemmas of custody. Cambridge, MA: Harvard University Press.

9.

Arditti, J. A. Examined differences between 25 divorced fathers with joint custody of children and 145 noncustodial fathers. American Journal of Orthopsychiatry, 62 (2), 186-195.

10.

Gardner, R. (1991). Joint Custody is Not for Everyone. In J. Folberg (Ed.), Joint Custody and Shared Parenting (p. 90). New York: The Guilford Press.

11.

Ackerman, M. J. & Ackerman, M. C. Custody evaluation practices: A survey of experienced professionals (revisited). Professional Psychology: Research & Practice, 28 (2), 137-145.

The Author

Eric G. Mart, Ph.D. is a Licensed Psychologist in Manchester, New Hampshire.

 

 

Click for directions to Bar events.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer