Wednesday, May 4, 2016

Statutory joint custody - Is it a good idea?

In many states, the default custody arrangement is 50/50 physical and legal custody. Both parents have equal time and input with the children, and the children thrive with two active, fully involved, loving parents. The children used to live with both parents in one house all the time before the divorce, and now after the divorce they continue to live with both parents half and half. It minimizes the trauma of the divorce on the children, and makes the divorce easier and less stressful.

Unfortunately, New York state is still locked on some old middle-age belief, that the default custody should be with the mother. This is based on the belief that the mother stays home all day and is always available to care for the children, and the father works out of the home from morning till night and is unavailable to care for the children. In modern age, the same percentage of men and women work out of home, and the same percentage work from home or don't work. Fathers and mothers are both available at home, or both use babysitters the same way.

The current belief and practice in New York State causes the situation that one parent receives full custody and the other parent is thrown out of the children's life, and is only allowed some visits as a stranger. This causes tremendous emotional damage to the children. Their life is shattered, they lost a parent; and whether he/she is allowed visits or not, it will never be the same again.

This situation in New York State also adds so much stress to the divorce process, because every parent has to fight for his life. People spend millions for attorneys, use false allegations, go to appellate court, and engage in constant litigation. The court is obligated to provide 18B attorneys, forensic experts, and the judges must spend thousands of hours on each case, and all this costs the state billions of dollars, on the tax-payer's expense.

With one simple modification of the law, everything will fall into place. Like many states already ruled, the default law should be: 50/50 physical and legal custody to both parents. This will make the children's life happy and calm. This will also save billions of dollars for the state. If a parent wishes to take away the other parent's rights, he/she will be obligated to pay for the forensic expert and for the other parent's lawyer. This will minimize the stress and will eliminate false allegations.  

My view is that such an arrangement is ideal - but that there are many families where it is not a good idea. I found an article on Huffington Post which articulates my feelings on the matter. In addition it is conceivable that such a law would increase false allegations in many cases against a spouse to counter the reality of joint custody. I would prefer a preference for joint custody as the starting point - but leave it up to the court to decide whether it is appropriate in each case.

Equal Child Custody Revisited

Several months ago I submitted a blog entitled “Why Equal Child Custody Should Not Be Presumed.” It is accessible on the Huffington Post Divorce Website in permanent archives. In that blog I stated that one size does not fit all and that I believed the statutory policy requiring 50/50 equal custody should not be the law.

I have received some comments where people have been very upset over my position.

In the state of Michigan where I practice there have been proposals in the legislature to have the statutory presumption for joint, equal, physical custody. The law has not been passed as of this date.

The general view of the attorneys who specialize in family law is that one size does not fit all. The view is that custody and parenting time should be decided on a case by case basis without a mandate or rebuttable presumption.

There clearly is a trend in Michigan and elsewhere towards a sharing of custodial arrangements.

There is also a trend to get away from some of the arguments over semantics. In Michigan there is a presumption favoring joint legal custody, which means that in almost every case the parents are to share in any major decision making consistent with the best interests of their children. This covers medical issues, school related issues, religious issues, and extracurricular activities by way of example.

I also feel that we are too hung up on semantics. A lot of battles are over physical custody. In many of my cases I don’t even use the terms physical custody, whether it is sole physical, primary physical, or joint physical. We will simply say that there is to be joint legal custody with a shared decision making arrangement and then set forth a parenting time schedule which is what visitation is called for the simple reason that both parents are parenting when they are with the children and not visiting. [...]

The angry responses that I have received to the blog were that attorneys just want to litigate and that the clients are being hurt. The truth of the matter is that where two people can agree then a shared custodial arrangement is clearly going to work and is clearly in the best interests of the minor children.

Let’s look at the scenario where we have a high conflict divorce where each parent cannot agree on anything. One will say it is raining, the other will say it is not. One parent will say it is midnight; the other will say it is morning. I have had many cases like this and even if there were a presumption by statute favoring joint physical custody, these are the cases where the litigation would continue. These are the cases where there would not necessarily be joint physical custody. Do I believe that joint physical custody makes sense? Do I believe that there should be a sharing of the children as much as possible? Absolutely [...]

On the other hand, I believe that there are cases where it just will not work. I have found over the years, that in most cases where parents get along and there is not high conflict, there can be a very easy relationship where the children, especially teenage children, can go back and forth between each home. This works, and makes sense.

On the other hand, in most cases where there is a high conflict, whether because of anger, bitterness, domestic violence, abuse, or perhaps mental illness, these are the situations where every detail has to be spelled out. Every day has to be spelled out; the hours of pick up and drop off have to be spelled out. These are the cases where joint physical custody too often will not work. Where the parents cannot communicate at all, everything has to be detailed so there is no room for argument. [...]

Although I may be antagonizing some people I stick to the views of my prior blog. While I believe joint physical custody makes sense in the majority of cases, it does not make sense in every case. I do not believe that it should be statutorily mandated. Every case is different. The key again is not what is best for the parent; it is what is in the best interests of the children. Most states have best interests of the child or children in their custody statutes and this is what is to be followed.


  1. Garnel IronheartMay 4, 2016 at 2:16 AM

    There should be no default. Every case is unique. Every family has its own circumstances.

  2. The problem is that in New York State a judge may not award joint custody in a contested divorce. Most of the time, we can all agree, it would be in the best interest of the children to have joint custody, but the judge may not do it. The petition is simply asking that the law should require joint custody as a starting point, and the judge can then decide which way to go forward if necessary. I think this is something that we can all agree on. This will help the divorce epidemic and infighting in our community immensely.

  3. Thanks for sharing. I agree with the writer that each case must be decided on the best interests of the children but people should know that the ideal to work for is joint custody. Where there is lots of conflict we are just creating another war zone which feels that the couple never divorced. I know a case where the father is interested in just making life tough and miserable for the mother. They live near the father's parents, so the mother has absolutely no support. She has not gained much from the divorce - both situations are terrible

  4. Obviously every case is unique, and the beis din/court will make the individual decision in each case.

    The question is only about what should be the default arrangement = general starting point, and what usually remains in most of the cases.

    Instead of the default being full custody for mother, and the father becoming a stranger as the current NY law; the default should be equal custody for both parents.

    The concern expressed that this law modification will increase false allegations, seems very strange to me. The fact is that with the current law in NY that the court must give full custody to one parent, the tension is so high and there are tremendous amounts of false domestic violence allegations (see, because both parties want to defend themselves and be that one lucky parent.
    When bot parents will know that both will anyway have custody (except some extreme cases), the urge to make false allegations will only lower down and become less.

  5. Excellent comment.

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