The Children of Divorce: The Trend Toward Joint Custody

• Author: by Captain David S. Gordon
• Pages: 08

1. INTRODUCTION

   "Joint custody" may mean any one of a number of iegal relationships between divorced or separated parents and their children. "Alternating custody" means that each parent may live with the child for a set periodoftime.afterwhich theotherparenthasaturn.' Joint custody may also refer to "joint legal custody," which is B

   situation in which oneparentisgrantedphysicalcusrodyofthechild, i.e., the child lives in the residence of that parent, whiie the other parent retains the right to participate in making decisions affecting the upbringing of the child.*

   Joint custody, while certainly not a new legal phenomenon, has in the past been viewed with distrust by many courts. The overwhelm-~ n g tendency has been to grant Sole custody ta one Parent and visits. tion rights to the other ~ a r e n t . ~

   Courts have in the past half century tended to grant custody to the mother in the majority of eases. This favoritism toward the mother was based upon the conventional wis-dom that a child of tender yearsneeds 11s mother more than its father and thatthe mother,whowasnormailytheonewhowauldstayhomeand tend to thechildren,wouldcontinuetodasaeventhoughsheandher husband were no longer living together.' However, inview ofthe

   *Judge Advocate Generaps Corps United States Arm? Currentlyaitigned BJ Regia" Judge Advocate. Northeast Region Reeruitng Command, Fort George G. Meade Maryland. 1983 fa present. Formerly assigned IO Opiniani and Policy Branch. Inter-natmal Affairs Dirision. Offies of the Judge Advocate. C S. Arm?. Europe, and Seventh Arm) 1980-82 Chief Legal Initructar. Seventh Army Combined Arms Tramng Center, Vilseck, Federal Republic of Germany. 1979.80, kgal Aaim~anee-Clams Officer Officer-in-Charge Grafsnwoer Legal Center. lit Armored Divinion versiti of Georgia. 1977: B A ,Trinity Ewngelical Divinity School. rtity of Georgia, 1912 Attended Hague Aeadempaf lnternarianai Law 1976. Completed 311t Jvdge Ad\oeate Officer Graduate Course, 1982-83: 85th Judge Adroests Officer Basic Course. 1977 Aurhoraflndtr duaiStoiuaandind~L?d-mi Rtghfa under the .VAT0 Staha of Porcea Ay~remcnl and lie Rrpplinrnlary ~grrinienl wilh Gesmony, loo MII. L Rev 49 11983): European Coinmuntties. Legal ~ ~ ~ j ~ ~ ~ , ~ , ~

   . Caunerl Pasars Dirrcliie Allo%ingLo~~ysrsto Proiide Sentees Acrose

   ,vaationol Eordws. 7Ga. J. Int'Ig-Camp.L.726!1877) Memberof thebarsoftheitate nf Cmrzn and the Cnited Stares Suoreme Court... .~

   1Annot-$2 A L R 2d 696. 697 !19i3).*Eg Idaho Code 4 32.717B(3) (1982)8E.g Beck v Beck. 86 N.J 480,432 A 2d 63 119811Gazanikg, Reniilian. &Zuekrnan.DiromLoiL Rart~ce(Part21,27 Prac Law.207, 208 (19811

   changing roles of men and women in somety, the bases underlying this tendency toward granting custody to the mother hare come under attack. Many contend that fathers should have an equal chance to receive custody of their children. While many courts and legislatures hare given lip sewice ta the theory that fathers are equally qualified to be custodial parents, the courts stili grant custody to the mather in ninety percent of the cases where custody is sought by bath parents. Consequently. variauxgroupaoffathera have sought legislation granting them equal treatment.'

   11. LEGISLATION

   These lobbying efforts have in many cases produced legislation granting a preference to joint custody arrangements. At present. twenty-three states hareenacted atatutesi.hichexhibitsomeformof preference for joint custody and other states have recognized joint custodl- in their cowt decisions as an equitable na.y of solving the problem of who gets the children.6

   The fundamental argument for joint custody is that. in a society in which men and women have equal opportunity to seek employment and in which many divorced mothers are employed full.time outside the home, the aid maxim that one parent is hetter able to care for the child because she can devote herself completely to child raising no longer...