Will Joint Custody End the Divorce Tug-of-War? Yes, Hopes One Weekend Dad
10/20/1980 at 01:00 AM EDT
January 1, 1980 was a day of personal triumph for James A. Cook, a 57-year-old building industry lobbyist from Los Angeles. A California law took effect then making joint custody of children the first-choice solution in divorce cases (13 other states have laws which provide for joint custody, but only California gives it preferred status). Cook helped draft the law and became the chief proponent of its adoption. He did so because of his dismay over a ruling in his own 1974 divorce, which gave sole custody of his son Randy, now 14, to his wife. Even before a 1977 joint-custody bill was defeated in the legislature, Cook had joined the cause. "I'm a terribly busy guy with a lot of other things to do," he says, "and I wish it hadn't been necessary. But I felt the system had to be made to work." It turned out that public opinion was on his side. Since passage of the bill, Cook has been keeping close watch on its administration. Ironically, he has not pressed for joint custody of his son under the new law, because he fears that Randy might suffer from the inevitable publicity. Instead, he hopes to resolve his case out of court. He talked with Sue Ellen Jares of PEOPLE.
How do parents share children under joint custody?
Both parents have responsibility and authority for the care and control of the child. The law doesn't specify how a child's time is to be divided, because we want to get away from the rigidity of the old system and allow people to work out personal solutions. I have suggested nine different ways of splitting the time, with the general rule being that the younger the children, the shorter the time they spend with one parent before going to the other. For instance, for children up to age 8, it seems to work well splitting the week in half between the two parents. A high schooler can spend as much as half a year with one parent before moving in with the other. Of course, visits back and forth in between times are permitted.
Isn't constant house switching detrimental to a small child's sense of security?
You'll find a psychiatrist here and there who'll agree with that, arguing that kids need one full-time guardian rather than two part-timers. The most extensive study of joint-custody children has just been completed in the San Francisco area, and it suggests that joint custody works best with parents who can separate marital conflict from child rearing. The cases I've heard of involving children 8 and under suggest that joint custody is a good solution. Don't forget, our entire society is full of uprootings. Even when the family is whole, there are frequent transfers due to business. Kids get shifted around in schools. That's the pattern of their lives.
Does the new law give the children a say in the outcome?
Not necessarily. It's a myth that teenage children are allowed to choose where they want to live if sole custody is inevitable. In fact, I know of many cases in which the child's preference was completely ignored. But putting children of any age in a position of choosing one parent over the other is not a way to promote their mental well-being. It gives them too much responsibility and too much power.
Do the parents have to remain in the same city or area for joint custody to work?
Although it is obviously easier to divide the child's time if parents live near each other, there are cases where custody is shared satisfactorily even though mother and father live far apart.
How are child support and alimony payments being affected?
Joint custody has nothing to do with alimony; that's a separate issue. Child support is still based on the financial resources of each parent. However, joint custody is probably more expensive, because two households that can accommodate children are needed, not just one. In the past the financial burden weighed more heavily than usual on the men who wanted joint custody because the attitude was, "Mothers will agree to it if they can have the same money they got with sole custody."
Do mothers stand to gain anything by giving up sole custody?
I think they can gain a great deal in terms of sharing the burdens and difficulties of child rearing, not being saddled with all the work and responsibility. I think mothers will become more enjoyable and relaxed people.
How is the law changing the role of divorced fathers?
The age of the sugar daddy is ending. Fathers can't just turn up on weekends, bearing gifts and expecting to lap up all the fun and joy.
Can parents with sole custody go back and file for joint custody now?
Yes. It seems that many people are not aware they have this option, however. Many others apparently have accommodated themselves to the status quo and don't feel emotionally up to going to court again.
How many currently divorcing couples are taking advantage of the new law?
It's too early for any reliable statistics, but the percentage appears to be fairly small. However, I expect it to increase dramatically as older, conservative judges retire and the public learns more about it.
What do judges have to do with it?
The judge in a divorce case still makes the decision on custody, and older judges are resisting this alternative. They've given all those sole custody decrees over so many years, and now suddenly the legal basis has been reversed. Generally speaking, a lot of our judges grew up in a culture in which people didn't divorce unless someone did something grievously wrong. The reasons people split nowadays seem to many of them like whims. And the cooperation required to pull off joint custody leads to a lot of wisecracks, such as, "If you can get along with joint custody, you don't need a divorce."
What can a divorcing couple do when faced with such a judge?
At the moment the only option is to appeal the case to a higher court, where the decision might be reversed. Family law appeals are multiplying rapidly, but they are very expensive.
What do lawyers think of the new law?
Possibly some feel joint custody is going to cut into their earnings because there will be less costly litigation. But since more divorces are taking place, lawyers are going to get more business anyway. Many fine attorneys believe in joint custody and want to help implement it—especially younger attorneys. During the debates in the legislature, the California Trial Lawyers Association endorsed the bill and helped get it through.
Can joint custody be imposed without both parents consenting?
At the judge's discretion, yes. The intent of the law is to precondition parents to anticipate joint custody. We hope that will cut down on some of the exploitative practices associated with sole-custody settlements.
What kind of exploitative practices do you mean?
Ever since no-fault divorce took effect in California in 1970, couples have not been able to fight over property—it's split approximately 50-50. But the parent who got sole custody—usually the mother—often would use that as a lever to harass and demoralize the other parent, forcing him to agree to monetary or other concessions just to hold on to token visiting rights.
What are the drawbacks to joint custody?
Many women feel there's a stigma attached to anything less than full-time motherhood and have doubts about giving up control. There is also fear that increased contact between the divorced parents may breed more warfare.
What are the remedies if the parents can't make joint custody work?
Every case can be reassessed by the court at any time. Rigidity is something we want to get rid of completely. If it's not working, sole custody can be imposed.
Is the women's movement backing joint custody?
In the early '70s the National Organization for Women had joint custody as one of its platform goals. I regret to say that in 1977 the women's movement made a decision to deal only with issues involving men's oppression of women. So, of late, the more militant feminists have been silent on custody. Some of them, I hear, think men are out to take custody away from women.
Is there some truth to that?
There has been a recent trend of fathers striving for sole custody, but I don't think that's the mainstream. I have noticed that most of the fathers who have gained sole custody have been professionals—doctors, lawyers and so forth—people who are sharp and quick and have the funds to attack. The wives, in many of those cases, have been portrayed as unstable or promiscuous. I would like to see this kind of settlement nipped in the bud.
Will joint custody reduce child-napping?
It's too early to tell, but I would certainly expect so because one parent will not be denied access to the child.
Will divorces become more amicable?
I do think a lot of resentment and polarization over who's got the better deal will dry up. Joint custody has already become a tremendous relief valve. It demonstrates that a ray of altruism and forgiveness—the best thing in all of us—can penetrate a field associated with condemnation.