Legal and Research Support for A Presumption of Joint Physical Custody Compiled chronologically by Steve Mathis - January, 2003
The Fourteenth Amendment's due process clause has a substantitive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests, “Washington v. Glucksberg, 521 U.S. 702, 720, including parents' fundamental right to make decisions concerning the care, custody, and control of their children, see e.g., Stanley v Illinois, 405 U.S. 645, 651, Pp. 5-8. Troxel v Granville. U.S. Supreme Court, June 5, 2000.
There is a presumption that fit parents act in their children's best interests, Parham v. J.R., 442 U.S. 584, 602; there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents' ability to make the best decisions regarding their children, see e.g., Reno v. Flores, 507 U.S. 292, 304. Troxel v Granville. U.S. Supreme Court, June 5, 2000.
The routine and cavalier deprivation of parental rights takes place in the context of divorce where, during the pendency of litigation, one parent is routinely deprived of significant parental rights without any demonstration that a state interest exists-much less that there is a compelling state interest that cannot be achieved in any less restrictive way. In marked contrast to our current practice, treating parental rights as fundamental rights requires a presumption of joint legal and physical custody upon divorce and during the pendency of divorce litigation. The presumption may be overcome, but only by clear and convincing evidence that such an arrangement is harmful to the children. Doe v. Irwin, 441 F. Supp. 1247 1249 (D. Mich. 1977). From: Hubin, D.C., 1999, Parental Rights and Due Process. The Journal of Law and Family Studies, V 1, N 2, pp. 123-150.
"Although the dispute is symbolized by a 'versus' which signifies two adverse parties at opposite poles of a line, there is in fact a third party whose interests and rights make of the line a triangle. That person, the child who is not an official party to the lawsuit but whose well-being is in the eye of the controversy, has a right to shared parenting when both are equally suited to provide it. Inherent in the express public policy is a recognition of the child's right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents' wisdom, judgment and experience. The child does not forfeit these rights when the parents divorce.” Presiding Judge Dorothy T. Beasley, of the Georgia Court of Appeals, “In the Interest of A.R.B, a Child, July 2, 1993.
“a (once) married father who is separated or divorced from a mother and is no longer living with his child” could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 98 S.Ct.549; 434 U.S. 246, 255-56, (1978)
The U.S. Supreme Court regards parental rights as fundamental and protected by the First, Fifth, Ninth and Fourteenth Amendments. Doe v. Irwin, 441 F. Supp. 1247 1251 (D. Mich. 1977).
A parent's right to “the companionship, care, custody and management of his or her children” is an interest “far more precious” than any property right. May v Anderson, 345 U.S. 528, 533; 73 S.Ct. 840, 843, (1953).
Issue: the constitutionality of Ohio domestic relations court to deprive a biological parent, in a divorce situation, of equal custodial parent status without a finding by clear and convincing evidence that the parent so deprived is an unfit parent.Merz, Michael R., United States Magistrate Judge (Sept, 2002) U.S. District Court for the Southern District of Ohio Western Division at Dayton. Order Joining the State of Ohio as a Party Defendant.
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18.5 % of children in South Dakota live without their father. Chris Brown, Presentation Oct, 2002 - Dakota Fatherhood Summit II, Pierre, SD
Over the last four decades, there has been a dramatic increase in the number of children growing up in homes without fathers. In 1960, fewer than 10 million children did not live with their fathers. Today, the number is nearly 25 million. More than one-third of these children will not see their fathers at all during the course of a year. Studies show that children who grow up without responsible fathers are significantly more likely to experience poverty, perform poorly in school, engage in criminal activity, and abuse drugs and alcohol. HHS supports programs and policies that reflect the critical role that both fathers and mothers play in building strong and successful families and in the well-being of children. President Bush and HHS Secretary Tommy G. Thompson have made promoting involved, committed, responsible fatherhood a national priority. On initiative includes encouraging more responsible fathering by non-custodial parents. U.S. Department of Health and Human Services fact sheet: Promoting responsible Fatherhood (2002).
These findings indicate that children do not actually need to be in a joint physical custody to show better adjustment but just need to spend substantial time with both parents, especially their fathers. Also, joint custody couples reported less conflict; possibly because both parents could participate in their children's lives equally and not spend the time arguing over childcare decisions. Unfortunately a perception exists that joint custody is more harmful because it exposes children to ongoing parental conflict. In fact, the studies in this review found that sole-custody parents reported higher levels of conflict. Review by the American Psychological Association of Bauserman, R. (2002). Child Adjustment in Joint-Custody versus Sole-Custody Arangments: A Meta-Analytic Review. Journal of Family Psychology, V 16, n 1.
Excerpts from Horn, W.F. and Sylvester, T. (2002). Father Facts: Fourth Edition. National Fatherhood Initiative: Gaithersburg, M.D.
One out of every three children will go to bed in a home in which his or her father does not live. The fact is children need their fathers.
Fathers who live with their children are more likely to have a close, enduring relationship with their children than those who do not.
Children with involved, loving fathers are significantly more likely to do well in school, have healthy self-esteem, exhibit empathy and pro-social behavior, and avoid high-risk behaviors such as drug use, truancy, and criminal activity compared to children who have uninvolved fathers.
Over the past four decades, Fatherlessness has emerged as one of our greatest social problems. Fatherlessness is not the only cause of these things, but our nation must recognize it is an important factor. (President George W. Bush - June, 2001)
A 25-year follow-up of adults who had experienced parental divorce when they were 2.4 through 6 years of age found that no child who saw his or her father under a rigidly enforced court order or unmodified parental agreement had a good relationship with him after reaching adulthood.
The research is absolutely clear… the one human being most capable of curbing the antisocial aggression of a boy is his biological father.
Excerpts from Farrell, Warren Ph.D. (2001). Father and Child Reunion: How to Bring the Dads We Need to the Children We Love. Penguin Putnam Inc., NY.
The “right” for which fathers' -rights groups are fighting is the right to more responsibility for children.
When divorce occurs, men's biggest fear is emotional insecurity; women's is economic security -- men's biggest fear is typically, losing their children - women's is poverty.
A mother who has a true motherhood instinct will be fighting for the father to be involved as if her children's lives depended on it.
The amount of time a father spends with a child is one of the strongest predictors of empathy in adulthood.
The most important factor by far in preventing drug use is a close relationship with dad.
Few people know that children do better with dads.
When children live with only their moms, the parents are nine times as likely to have conflict as when children live with their dads.
Children who live with their dads are likely to have more contact with their moms and feel better about their moms than vice-versa. Put another way, children who live with their dads are more likely to have, in effect, two parents.
These forms of play (roughhousing inherent in father-child interactions) seem to improve child development in three major areas: the management of emotions, the development of intelligence and academic achievement.
The decision to keep the child with the mother is theoretically made in the best interests of the child; however, when children were surveyed later in life, fewer than half felt their mother's motives had anything to do with their best interests.
The message to men is clear. “You are your children's visitor” and then we wonder why men don't participate equally in childcare.
A child's best interests are served only when everyone's interests are considered.
If we expect men to be psychologically involved, we need to give men equal psychological time. If we expect men to be legally responsible, then close-to-equal time needs to be a legal right.
Equal parenting begins with equal parenting. Equal parenting will not begin, though , if men know that the investment of their heart will be treated with contempt by the law.
Sometimes a dad's sense of powerlessness makes him withdraw. We call him a deadbeat. It's usually more accurate to call him deadened.
In states that adopt shared parenting time, divorce rates drop within a few years.
How can we ask men to be more involved with children when we put them in prison, deprive them of equal access and require them to pay more?
But when the woman's right to move away means that the father and children will become strangers, then the woman's right is no more a unilateral right than is the children's or the father's right to each other's love.
Thus, a quarter century's worth of studies showing domestic violence against men to be more than equal to domestic violence against women receive so little publicity as to barely make a dent on the public's consciousness.
"The risk of suicide has recently risen only for men -- from four times higher than women's risk to almost five times higher. And divorce increases his risk of suicide even more, to ten times greater than a divorced woman's." -- “If he is fighting to be with his and your children, and he loses, I predict we will eventually discover that American men in that position are about fifteen times more likely to commit suicide than their wives; if he feels he has been falsely accused of abusing you, about twenty times greater; if he feels he has been falsely accused of child molestation, about thirty times greater.”
Shared parent time introduces the child to a century of options and the plurality of life; and to the understanding the while divorce produces change and instability, it also produced the ability to make changes and develop inner resources in times of instability, that the twenty-first century is marked by flexibility, not decisions made as a child that are written in stone for life; that parents can divorce and parents can be good and loving…
Children take a long time to get over divorce. Its most harmful and profound effects tend to show up as the children reach maturity and struggle to form their own adult relationships. The slightest conflict sends them running. They look for love in strange places. Wallerstein, J. The Unexpected Legacy of Divorce, 2000, Hyperion.
The benefits of maintaining contact with both parents exceed any special need for relationships with male or female parents. The empirical literature also shows that infants and toddlers need regular interaction with both of their parents to foster and maintain their attachments...In addition, it is necessary for the interactions with both parents to occur in a variety of contexts (feeding, playing, diapering, soothing, putting to bed, etc.) to ensure that the relationships are consolidated and strengthened. In general, relationships with parents play a crucial role in shaping children's social, emotional, personal, and cognitive development, and there is a substantial literature documenting the adverse effects of disrupted parent-child relationships on children's development and adjustment. There is substantial evidence that children are more likely to attain their psychological potential when they are able to develop and maintain meaningful relationships with both of their parents, whether the two parents live together or not. Very large research literatures now document the adverse effects of severed father-child relationships as well as the positive contributions that fathers make to their children's research. To be responsive to the infant's psychological needs, the parenting schedules adopted for children younger than 2 or 3 must involve more transitions, rather than fewer, to ensure the continuity of both relationships and the child's security and comfort during a time of great change. The ideal situation is one in which infants and toddlers have opportunities to interact with both parents every day or every other day in a variety of functional contexts (feeding, play, discipline, basic care, limit setting, putting to bed, etc.). Unfortunately, the concept of location-engendered stability (one home, one bed) has been incorrectly overemphasized for infants and toddlers, without due consideration for the greater significance to the child of the emotional, social, and cognitive contributions of both parent-child relationship. Living in one location (geographic stability) ensures only one type of stability. Stability is also created for infants (and older children) by the predictable comings and goings of both parents, regular feeding and sleeping schedules, consistent and appropriate care, and affection and acceptance. There is absolutely no evidence that children's psychological adjustment or the relationship between children and their parents are harmed when children spend overnight periods with their other parents. Indeed, there is substantial evidence regarding the benefits of these regular experiences. Kelly, J.B. & Lamb, M.E., 2000. Using child development research to make appropriate custody and access decisions for young children. Family and Conciliation Courts Review. Vol 38 Issue: 3 : 297-311, Sage Publications.
"Divorce also has significant impacts on children, according to the research. Many of these impacts tend to be negative. Children are more likely to be poor after divorce, and more likely to experience instability. However, moderating factors include children's coping skills, and the presence of joint custody. "Amato, P. R. (2000). The consequences of divorce for adults and children. Journal of Marriage and the Family, 62(4), 1269-1287.
On May 1, 2000, Wisconsin's new custody, placement and paternity reform legislation went into effect. In signing this legislation, Governor Tommy G. Thompson (now HHS Secretary) stated, “we need to do more to make sure both parents are fully involved in the raising of their children, particularly fathers… I am confident the provisions I am signing help strike a better balance.”
“More than a quarter of American children - nearly 17 million - do not live with their father. Girls without a father in their life are two and a half times as likely to get pregnant and 53 percent are more likely to commit suicide. Boys without a father in their life are 63 percent more likely to run away and 37 percent more likely to abuse drugs. Both girls and boys are twice as likely to drop out of high school, twice as likely to end up in jail and nearly four times as likely to need help for emotional or behavioral problems”. U.S. Department of Health and Human Services Press Release, March 26, 1999.
Children who live without contact with their biological father are 5 times more likely to live in poverty, more likely to bring weapons and drugs into the classroom, twice as likely to commit crime, twice as likely to drop out of school, twice as likely to be abused, more likely to commit suicide, more than twice as likely to abuse alcohol or drugs, and more likely to become pregnant as teenagers. The best predictor of crime in a community is the percentage of absent father households. Seventy percent of U.S. citizens believe that the most significant family or social problem facing the U.S. is the physical absence of the father from the home, resulting in a lack of involvement of fathers in the rearing and development of children. There is a social need to reconnect children and fathers. For the future of the United States and the future of our children, Congress, States and local communities should assist parents to become more actively involved in their children's lives. Domininci & Bayh, 1999. Introduction to the Responsible Fatherhood Bill (S. 1364)
Found the same correlation between joint physical custody awards and reduced divorce. They conjectured that fathers are more likely to form strong bonds with children if they know that their relationship would be protected through joint physical custody in the event of a divorce. Margaret F. Brinig and F.H. Buckley, "Joint Custody: Bonding and Monitoring Theories," 73 Indiana Law Journal 393 (1998).
There is a significant correlation between joint physical custody awards and reduced divorce rates. Kuhn, R. & Guidubaldi, J., 1997. Child Custody Policies and Divorce Rates in the U.S. 11th Annual Conference of the Children's Rights Council. October, 1997, Washington, D.C.
A study of 517 families with children ranging in age from 10.5 years to 18 years, across a four and a half year period. Measures were: assessed depression, deviance, school effort, and school grades. Children in shared parenting arrangements were found to have better adjustment on these measures than those in sole custody. Adolescents After Divorce, Buchanan, C., Maccoby, and Dornbusch, Harvard University Press,1996 This study re-confirmed the negative effects of divorce and high conflict between parents (in divorce or marriage), particularly in risk of drug use, lower academic achievement and behavior problems. However, some factors reduced problems: 1) children whose fathers remain involved with their school activities have better outcomes, 2) divorce and custody mediation results in lower conflict between parents, 3) joint custody leads to better outcomes for children. Joan B. Kelly, one of the most respected experts in the field of children and divorce, summarized the Buchanan, Maccoby and Dornbusch study as follows: "The adjustment of 517 adolescents (aged 10 years, 6 months to 18 years) in three residential arrangements was compared 4.5 years after separation by Buchanan, Maccoby, and Dornbusch (1996). Looking at both family process and status variables, these researchers assessed adolescent adjustment in terms of depression, deviance, school effort, and school grades. Statistically, more boys were in dual-residence and father-residence arrangements, whereas more girls were in mother-residence arrangements. Overall, dual-residence adolescents were better adjusted than were mother-residence adolescents." Kelly, J. B.. Children's adjustment in conflicted marriage and divorce: A decade review of research. Journal of the American Academy of Child and Adolescent Psychiatry, 39, 963-973 (2000).
Studies have shown that the amount of contact non-residential fathers have with their children diminishes over time due to social rules of father disengagement, lack of skills, societal ambivalence toward fatherhood, geographic mobility, remarriage, lack of access, psychological pain at not being able to see their children, inadequate financial resources, feeling the pain of the artificial nature of visitation, diminished parenting role, unequal custody power and litigation. Nord, C.W. and Zill, N. (1996). Non-Custodial Parents' Participation in Their Children's Lives: Evidence from the Survey of Income and Program Participation. Vol II: Synthesis of Literature. Prepared for the Office of the Assistant Secretary for Planning and Evaluation, U.S. Department of Health and Human Services.
This report "summarizes and evaluates the major research concerning joint custody and its impact on children's welfare." The report concludes that "The research reviewed supports the conclusion that joint custody is associated with certain favorable outcomes for children including father involvement, best interest of the child for adjustment outcomes, child support, reduced relitigation costs, and sometimes reduced parental conflict." The APA also noted that "The need for improved policy to reduce the present adversarial approach that has resulted in primarily sole maternal custody, limited father involvement and maladjustment of both children and parents is critical. Increased mediation, joint custody, and parent education are supported for this policy." Division 16, School Psychology, American Psychological Association, Report to the U.S. Commission on Child and Family Welfare, June 14, 1995.
"Joint custody is also the preferred option in high conflict situations because it helps reduce the conflict over time - and that is in the best interests of the children." Bender reviews current and historical research on the 'myths' of joint custody, i.e. - that joint custody should not be awarded when the mother objects or in high conflict matters. The article describes the benefits of joint custody including that children adjust better post-divorce in joint custody as compared to sole custody awards, children's attachment to both parents post-divorce is essential for healthy child development, joint custody leads to higher levels of financial compliance, relitigation is lower as compared to sole custody, and joint custody leads to the best outcome for children even in high conflict situations because it forces resolution and best leads to reduction of child stress in the long term. Bender, W.N. 1994. Joint custody: The option of choice. Journal of Divorce & Remarriage 21 (3/4): 115-131.
Children who were able to maintain post-divorce relationships with both parents were better able to adjust to the divorce. The continuing involvement of divorced fathers in families where mothers maintain physical custody has become recognized as an important mediating factor in the adjustment and well-being of children of divorce. Frequent contact with the father is associated with positive adjustment of the children. Ahrons & Miller, American Journal of Orthopsychiatry, 1993.
"Children have expressed higher levels of satisfaction with joint physical custody than with sole custody arrangements; citing the benefit of remaining close to both parents. Joint custody does not create confusion for the majority of youngsters about their living arrangements or about the finality of the divorce, nor does increase loyalty conflicts (Leupnitz, 1982; Shiller, 1986a, 1986b; Steinman, 1981)." Kelly, J., Current research on children's postdivorce adjustment. Family and Conciliation Courts Review, 31.29-49, 1993
When both parents share the social and economic responsibilities of childcare, children appear to adapt better to their changed living arrangements than when the mothers bear these responsibilities alone. Seltzer, Journal of Marriage and the Family, 1991.
Conflict between divorcing parents did not appear to worsen as a result of the increased demand for interparental cooperation and communication in joint legal or joint residential custody arrangements. Pearson, J. & Thoennes, N., 1990. Custody after Divorce: Demographic and attitudinal patterns, American Journal of Orthopsychiatry, Vol 60.
It is ironic, and of some interest, that we have subjected joint custody to a level and intensity of scrutiny that was never directed toward the traditional post-divorce arrangement (sole legal and physical custody to the mother and two weekends each month of visiting to the father.) Developmental and relationship theory should have alerted the mental health field to the potential immediate and long range consequences for the child of only seeing a parent four days each month. And yet until recently, there was no particular challenge to this traditional post-divorce parenting arrangement, despite growing evidence that such post-divorce relationships were not sufficiently nurturing or stabilizing for many children and parents. There is some evidence that in our well-meaning efforts to save children in the immediate post-separation period from anxiety, confusion, and the normative divorce-engendered conflict, we have set the stage in the longer run for the more ominous symptoms of anger, depression, and a deep sense of loss by depriving the child of the opportunity to maintain a full relationship with each parent. Kelly, J. 1991. Examining Resistance to Joint Custody. Joint Custody and Shared Parenting, second edition, Guilford Press.