ALABAMA VIEW: DIVORCE

Bill's mandatory joint custody not best for child

Under existing family law, courts generally award custody of minor children to one parent with the other parent being granted visitation. Thus, the child sees both parents on a structured court-ordered schedule, leaving the child out of the conflict. Parents who get along and feel they can parent together, despite a wish to live apart from each other, can agree to joint or shared custody.
In the Alabama legislative session just completed, there was a bill (HB650) before the legislators that, if passed, would mandate joint custody for all divorce cases, except those where one parent can show that the other has been found “guilty, under criminal standards of proof, of a violation of the law which bears directly on the care of the minor child involved.”
The bill states that all existing custody orders may be “re-litigated on an expedited basis.” This means that all existing divorce settlements could be brought back to court and the custody issue tried again. This bill did not leave chambers this session but will be reintroduced in the fall.

Research studies have shown that children raised in homes with chronic conflict between the parents fare better emotionally after a divorce if the fighting stops. Mandatory joint custody would force parents, who couldn't work together in the first place, to continue interacting. The conflict for the child would not end with the divorce.
For a time, the state of California ordered joint custody more often than not but returned to issuing primarily sole custody unless the parents agreed to parent together in joint custody. It is my understanding that the experience in that state was that forced joint custody didn't work. A generation of children was left in the middle of parental conflict before the precedent was reversed.
The bill coming before the Alabama legislature in the fall would give divorced parents equal say over day-to-day matters such as choosing a doctor, choosing a school, or choosing a church. While it sounds reasonable that both parents should participate in these events and choices in the life of their child, it only works if the parents can agree or can come to a compromise. Many divorces occur precisely because parents cannot agree on these issues. Our courts might be inundated litigating day-to-day parental decisions.

One of the problems with divorce law is that it is primarily viewed from the perspective of the rights of each parent. The child typically has no legal representation except in situations of abuse. Even when a child has an opinion, he is rarely heard. On the rare occasions he is heard, his opinion is typically dismissed as simply a matter of being “programmed” by the parent he favors.
Some joint physical custody arrangements specify that the child resides with each parent every other week. Few adults would choose to live like this, yet we ask our children to do so. In the few cases where the parents agree to switch residences and leave the children in one place, the parents often abandon this arrangement after only a short time. It is hard to live like this.
Divorce is a lose-lose game. You cannot take 100 percent, divide it in half, and have either side feel like he got a good deal. We all lose in divorce, but let's not make our children pay the price by being cut in half. They need to see both parents, but they need one place to live and one primary life director. Leaving the children in the middle of the conflict is not the answer.

Vivian Friedman
29 May 2005

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