Shapero No Title

• Jurisdiction: United States,Federal,Vermont
• Citation: Vol. 2001 No. 12
• Publication year: 2001

Vermont Bar Journal 2001.

December 2001. Shapero No Title

THE CASE AGAINST A JOINT CUSTODY PRESUMPTION

Lila Shapero, Esq.

Nicholas has lived in joint custody for the past eight years, and you would think he would be used to it by now. He is not . . . Though he would never want to choose between his parents, neither would he choose joint custody. And neither would I choose it for him if I had a chance to make the decision again.(fn1 )

When relationships fail, hard decisions must be made when there are children. Decisions must be made directing where the children will live and which parent will make decisions about their upbringing. If the parents can agree how parental rights and responsibilities will be exercised, they can obtain a divorce or parentage order incorporating their agreement.(fn2) When the parents cannot agree, a decision must be made by a judge granting primary or sole parental rights and responsibilities to one parent based upon the "best interests of the child."(fn3) Although the "best interests of the child" standard is broad, it focuses on the particular character of the children and the parents in determining how best to provide continuity of care for the children.(fn4)

Some states have attempted to short-circuit an individualized approach through the use of presumptions - some by legislating that it is in the best interests of the child for the parents to have joint custody,(fn5) others by specifying that in cases involving domestic violence, the perpetrator should not be awarded either sole or joint custody.(fn6)

The Vermont Legislature is once again considering a joint custody presumption. Legislators, however, should look to the example of California which pioneered the joint custody presumption in 1979, only to amend the law in 1994 to allow joint custody only when the parents are in agreement.(fn7) In fact, over two-thirds of California judges found that imposition of joint custody under the operation of the presumption led to mixed or worse results for the children due to lack of parental cooperation, continuing conflict between the parents, children experiencing instability when shuttled between homes, and logistical difficulties for parents.(fn8)

The evidence does not bear out the claims of proponents that joint custody will lead to co-parenting by the parties. A study of eleven hundred families in two California counties, found that, within one year of the order, most children were actually living with one parent. Further, parents did not become more cooperative over time.(fn9) In another study in which par-ents voluntarily agreed to joint custody, one-third had changed arrangements to sole custody, citing problems such as children feeling conflicting loyalties between parents and logistical difficulties.(fn10) These studies looked at parents who voluntarily sought joint custody (not court-imposed joint custody), yet many of these parents found that they were unable to sustain joint custody.

The best interest standard looks at continuity of care; whereas, the joint custody presumption ignores the need for continuity in a child's life by overlooking past...