An examination of attitudes by counsellors, therapists, attorneys and judges toward the concept of joint custody for the children of divorce.
Transcript of presentation during the conference: "Patterns and Perspectives: The 21st Century Family" Conducted by the Association of Family and Conciliation Courts on May 20, 1982 at the Sheraton Palace Hotel, San Francisco, California.
In examining resistance to custody, we must look to the influence of mental health professionals, lawyers and judges in counselling parents and in decision making in matters of shared parenting.
As you know, attitudes regarding joint custody within the fields of mental health and law range from outright opposition to wholehearted acceptance of joint custody for everyone.
It is ironic that we have subjected joint custody to a level and intensity of scrutiny that was never directed toward the traditional divorce arrangement of sole custody to the mother and 4 to 6 days per month of visiting to the father. And yet, there is a growing body of evidence that such post divorce relationships, that is 4 to 6 days per month with the father and the rest with mother, were not healthy for many children or parents and were, in fact, psychologically destructive for other children.
Since 1962, when the spiral of the divorce rate began, countless thousands of father/child relationships have deteriorated and thinned to a relationship of mere formality in the years after divorce. Mental health professionals did not challenge these arrangements that led to this situation until very recently.
Why does the notion of joint custody arouse such passion? It is worthwhile to examine the various influences contributing to the resistance of many mental health and legal professionals to joint custody. These include:
First cultural traditions: we don't need to dwell long on this except to say that cultural tradition, as you know, is very strong and is an integral part of every one of us. What, basically, is it that we have assimilated? We have decades of precedence for mothers having primary responsibility for their children. Mother/child relationships became the focus of attention of psychoanalytic theory and practice and child development research. Concurrent with this focus on mother/child relationships was a resulting de-emphasis of the father/child relationship. Over time, mother/child relationships achieved sanctity. Today, we find mothers who feel that they essentially own their children.
As the divorce rate spiralled and women returned to the economic workplace, little thought was given to changing the prevailing view. It is notable, for example, that 60% of the mothers of children from birth to 5 are now in the economic work place. I needn't dwell any further on cultural influence and its immense role in our lives, but preserve for the child his relationship with both parents post divorce.
With the introduction of the joint custody concept, there is now considerable preoccupation with the child's ability to cope with differences in the personality, style and attitudes of parents after divorce. The concern here is with confusion and problems of identity formation. We did not question the child's ability, strangely enough, to cope with these same differences within the intact marriage. Youngsters cope on a daily basis with stylistic, emotional and attitudinal differences of teachers, friends, Cub Scout leaders, soccer coaches, and others, with little if any assistance. For the most part, it is the parent's anger about the other parent's differences which create problems for the child, rather than the differences themselves. There is some evidence that, in our well-meaning efforts to save children from anxiety and confusion, we have produced in the longer run the more ominous symptoms of anger, depression and a deep sense of loss by depriving the child of the opportunity to maintain a full and nourishing relationship.
Another psychological concept used to bolster resistance to joint custody has been the notion that parents who divorce, by definition, will be unable to co-operate around any of the aspects of parenting post divorce. This theory draws upon the erroneous notion that a failed marriage included amongst its debris failures in parenting, and that the conflict that permeated the marriage permeated decision making around parenting as well. Lawyers seem to voice this concept the most often by saying that if parents could agree about their children they wouldn't be getting a divorce.
Indeed, it would be better for all concerned if parents were not angry at each other at the time of divorce. But, the fact remains that the vast majority of parents, during the initial separation period are indeed very much angry at each other. For the most part, over time, this anger diminishes between parents except in a small percentage, approximately 15%, of those parents who remain pathologically enraged. We need to be very careful that we do not make policy on the basis of this 15% who fight to the death and who are the most regular and frequent customers of a conciliation court. When the child is in the custody of an angry parent, needing to secretly and silently defend his affection for the other parent, one might well ask whether the child wouldn't be better served by a joint custody arrangement that involves large amounts of time with the non-angry parent who does not force the child to align or take sides.
The current wisdom is that when there is bitter anger between parents, that joint custody will never work. Indeed, it seems difficult, but we must recognise that most often there is one bitter parent per family, not two, and that often this angry parent, particularly around the joint custody issue, is the mother. It is equally possible in such a case that the regular contact of the child with the healthier and less angry parent will bring such sufficient relief so as to outweigh the problems of negotiating the joint custody waters at least for the child. The alternative for the beleaguered and non-angry parent is to retreat from the child or fight for sole custody and neither of these solutions serve the child's developmental needs.
From other quarters, we hear theories that parents who enter into joint custody arrangements are still 'emotionally married' and that joint custody is a way of avoiding the issues of separation and the death of the marital relationship. While this may or may not be the case, it seems not to be a particularly relevant argument as far as the children are concerned and does not articulate the ways in which such a continuing emotional marriage might be detrimental to the children.
Aside from the pervasive suspicion that fathers cannot master or are not interested in co-parenting on a sustained basis, other arguments prevail as well.
A common argument heard from lawyers is an economic one in which the claim is that fathers want joint custody only in order to avoid their child support obligations. The argument continues, that once the final settlement agreement is signed, the father does not share in parenting responsibility and then no longer pays child support. Given the time and the money involved in working out the many details and provisions of a settlement agreement, this seems to be a spurious argument. Settlement agreements for joint custody parents can contain provisions for change in support, if the custody arrangement shifts or if parenting responsibilities are not upheld.
Finally, we need to be aware that we sometimes cloak our resistance to joint custody in some well-worn phrases such as 'the psychological parent' and 'the best interest of the child'.
There are two psychological parents per family rather than one. The child of divorce continues in the years after divorce to view himself as a child of two parents. Therefore, it seems our obligation is to facilitate his relationship with each.
In addition to cultural tradition and theoretical bias or psychological theory, there are other complexities which contribute to professional resistance to joint custody. Perhaps the most difficult to identify and change are those unconscious attitudes and reactions in the lawyer or therapist or judge which shape our thinking regarding post divorce custodial arrangements.
It is important to be aware of a few forms which these unconscious attitudes take and the potential hazards for professionals if they are not recognized. Professional women, for example, both women lawyers and therapists, are particularly vulnerable if they have children of their own. When a father appears in their office and desires frequent access or joint custody, professional women may feel profoundly threatened by the threat that this represents to their own mothering role. I certainly, in my own work with families, have become aware at times of a strong reaction when a man comes in with full brief case prepared to fight for full custody. I'm aware of a gut feeling which is "who does this guy think he is that he wants his kids?" It's the kind of feeling, the unconscious feeling, that all of us have in response to people who enter our offices of which we need to become aware.
Further, if professional women are themselves divorced with sole custody of their children, they are even more likely to react with unconscious hostility to requests from fathers for shared parenting. For the same reason, women therapists and lawyers are more at risk in terms of over-reacting to a woman in their office who is hostilely rejecting the idea of a father sharing parenting arrangements after divorce and may therefore be more likely to side with the woman's position.
Not being aware of their unconscious attitudes, mental health professionals may cloak their resistance in psychological cliches and analyses without the benefit of data.
For men there are comparable hazards. When a father seeks a rich and continuing relationship with his children after divorce, male lawyers judges and psychotherapists sometimes react with suspicion, derision or hostility. The father's request for joint custody may create doubts or regrets about the quality of the fathering of the professional male. The potential for rejecting or treating lightly the father's attempts to seek a shared parenting arrangement is especially great where an attorney or therapist has failed to maintain a gratifying relationship with his own children after divorce.
Similarly, when enraged women who wish to exclude the father from children's lives seek the guidance and support of lawyers and therapists, the male professional runs the hazard of not adequately challenging those views because they themselves have been excluded from their own children's lives, either by choice or by default.
The impact of unconscious attitudes in family law and divorce counselling work is insufficiently understood and seldom discussed. Yet it is clear that such attitudes and feelings amongst all of us that assist in making decisions play a key role in the various post divorce arrangements which are made regarding the children of divorce. It seems that we have not yet come to grips with the fact that power regarding children remains fully lodged in the hands of women as custodial parents in this country. Men continue to retain power in areas of support and financial arrangements but the consequences of the abuses of the respective powers of men and women in divorce seem not to be equal. With regard to children, men remain today the supplicant and must always ask, negotiate or litigate for more of the child's time than is deemed normal by our society. By having to go on the offensive to obtain a shared parenting arrangement men frequently become cast into the role of trouble maker when for many their intention is to continue a co-parenting role they established within the marriage family. When women oppose joint custody arrangements, they are less likely to be seen as trouble makers and their views less often challenged.
Too often we as professionals continue to counsel and make decisions which ignore the profound changes of the past decades in the role of men as nurturing fathers. Suspicions remain about deeply committed fathers and the belief prevails that the majority of men continue to have little interest in parenting post divorce. We seem to require that men prove their parenting skills whereas with women we assume that the skills are already there.
There are men and women who have no interest in their children within the intact marriage or the divorce. There are men and women who are inadequate parents. There are men and women whose own narcissistic needs take precedence over the needs of their children. And, there are men and women who love their children and genuinely want to e be responsible loving parents.
Our responsibility as professionals is to clarify our own attitudes, feelings and biases; to become fully conscious of where we stand in this arena and to be able to assist parents in decision making with openness and integrity. Our primary task is to assist parents in developing post divorce arrangements which meet the needs of their children as well as the needs of each parent. It behoves us to understand just how complex this task is. The needs of divorced children are no different than children in the intact family. Indeed, it is certainly apparent that parents within the intact marriage often fail to provide the conditions for healthy development. But it may be harder to meet youngsters' developmental needs after divorce because divorce, unlike marriage, does not exist for the purpose of nurturing children. Parents rarely seek divorce to enhance their children's development, but rather to enhance or improve the quality of their own lives. Sometimes divorce automatically removes the barrier to good psychological development by, for example, removing or separating a child on a daily basis from the cruel or disturbed parent. But, for the most partly there is no assurance that divorce will benefit children unless specific attention is paid to their particular developmental and psychological needs and decisions are made based on the recognition of these needs.
The problem is that in divorce, more so than in marriage, children's developmental needs may be in competition with each other. For example, a pre-school child needs a degree of structure and stability to maintain and enhance his psychological functioning and ongoing development. As mentioned earlier, this is often interpreted as indicating a need for one custodial home, not two. But the youngster also has a competing need to maintain a nourishing relationship with a loved parent that will sustain itself in a meaningful way. To accomplish this goal or fulfil this need, the pre-school child needs frequent contacts with that parent; several per week, as I mentioned before, because of his immature sense of time and his lack of object permanence. This need for stability and need for relationship compete with each other.
Our dilemma is to arrange things to fill both important needs. Complicating our task is the knowledge that some situations or post-divorce arrangements fulfil short-term needs while compromising longer term needs and visa versa.
Returning to the pre-school child, the shuttling back and forth between homes may indeed create some confusion and anxiety, but this must be compared to the emptiness and longing that the child will experience in his later years, because his father is an essential stranger. It is important for us to adopt a frame of reference which includes assessing all the alternatives which might arise from the post-divorce arrangements which we sanction and to look at short and long-term problems and short and long-term gains.
Increasingly we are seeing before us, in the courts and in our offices, two parents of reasonable psychological health, both of whom want to parent full-time. Such cases have the potential to push counsellors and clinicians beyond the limits of current psychological knowledge and predictive capacity. In these instances we are more likely to make judgments based primarily upon unconscious, irrational or irrelevant factors. Where each parent is deemed to be a good enough parent and each supports and encourages the child's relationship with the other there is really no basis, in either psychology or law, for making a rational choice. In these families the lawyer, the judge, the mental health professional, can truly address the child's best interest by encouraging each parent to take an active role post-divorce in the child's life by sharing parental responsibility on an ongoing basis in two separate locations.
In this short period of time there is not a lot that can be said about interventions with professionals, where there is unconscious resistance or theoretical resistance to the issue of joint custody. It's really an educational matter: a matter of getting together and exploring one's attitudes and feelings toward mothers and fathers, and parenting post-divorce. It's a process which takes some honesty, and perhaps some personal introspection as well. I remember, in about 1974, when the data was just beginning to become a reality in the divorce project, we started to see the children's dismay about the visitation situation and their rather plaintive request of us, "can you help me see my daddy more?". As a consequence, I turned to my own family situation and to my own son, who was at that time almost three years old, and said to myself, "What would it take for this child, if there was a divorce, to maintain his good relationship with his father?" The answer was so evident that every other weekend would be so painful for him, I was stunned and shocked because I don't think any of us had really begun to think about this in the early 1970's.
There is a good deal of introspection which needs to go on as well. Somebody questioned on what basis do I say that infants and toddlers need to stay overnight with the non-custodial parent? They need to stay overnight so that they can maintain a relationship. They don't have a sense of time. If they have to wait 14 days or even 7 days so see a parent they have no way of knowing when that is going to occur. They have no language, they can't go around like they will when they are 3 or 4 saying, "daddy, daddy," like where is he? They don't have, at that age, a consolidated permanent image of the parent.. ...what we would call object permanence or sense of object permanence. Overnights also create "real time" as opposed to "play time" with their children that involves discipline, loving, routine, homework ... real life as opposed to not such real life.
Somebody asked at what degree of hostility between parents does joint custody become inappropriate? Well, I don't know. I think it is important for us to acknowledge that we really don't know very much about this. We have to be sort of neutrally scientific and look to some data. It is obviously clear that in cases of great hostility it is-very difficult and it may not work. But on the other hand, I am very concerned about the post-divorce situation in which just one parent is very angry and the other parent suffers as a result of that anger. My experience is that the temptation is very great in counselling and mediation to "cave in" to the irrational demands of the angry or embittered or pathologically embittered parent. That worries me because in the long run if we leave the children with that pathologically bittered parent, we have not done any sense of service for the child.
What about fathers who had no relationship or a poor relationship with their children during the marriage and who now, essentially, want to have more of the child's time at the point of separation and divorce? One of the things that was interesting in the children-of-divorce project was the change in relationships and particularly father/child relationships, that the likelihood of changes were more predictable than non change. That is, there is a great deal of unpredictability between the pre-divorce and the post-divorce relationship. Good relationships deteriorate over time. Poor relationships improved after divorce. We weren't necessarily prepared for those improved relationships between fathers and children.
Dr. Kelly shared the discussion platform with Frank S. Williams MD, Director, Family, Child & Adolescent Psychiatry, Cedars-Sinai Medical Center, Los Angeles.
Joan Berlin Kelly, PhD
Last updated - 10 August 1999