Arthur Baker, Lecturer in social policy , Barnsley College, and
Peter Townsend, Senior Lecturer in Law, University of Teeside.
Draft of article which was published in: Child and Family Law Quarterly, Vol 8, No 3, 1996, p 217
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Having said this, since the early 1980s there has been a steady stream of writing and research on the merits and demerits of shared residence. The arguments for shared residence / joint physical custody are summed up by Coller (46) and, more recently by Kruk (47) , Thompson, (48) and Bender (49). The opposing view has been put by Hagan (50) , whilst a cautionary note has also been struck by Walker (51). In a recent comparative analysis of the situation in New Zealand and England, Bridge (52) argues the case against shared residence, and feminist opposition has been put by Fineman (53).
Two relatively recent studies from the mid-1980s are worth mentioning here. The first by Kline, Wallerstein et al was a study of 943 children, aged 3 -14 in divorcing families (54). Children and parents were assessed within one year of divorce and again one year and two years later. The crucial result was that the post-divorce custody arrangements (i.e. sole or joint) were not significantly related to child adjustment, although the children in shared residence situations, 38% of the sample, did have more access to both parents than those in sole custody situations. The conclusion was that sole or joint physical custody made no difference to children's adjustment subsequent to divorce. The second study by Coysh et al. (55), a companion to the Kline study, used the same sample of families but was concerned mainly with the adjustment made by the ex partners. The overall conclusion was that custody outcome, joint or sole physical custody, made no difference to men's or women's psychological adjustment after divorce.
Maccoby and Mnookin's large scale study of child custody is also worth noting (56). Their Stanford Custody Study involved research carried out in the mid-1980s and was published in the early 1990s. The sample was of over 1000 families from two California counties. The families were interviewed at three points during the divorce process. Although the authors were not investigating children's adjustment to different custody regimes, a number of interesting points are made. The research shows that the true level of support amongst fathers for shared parenting is greater than previously thought. In an analysis of custody decrees made by the court, 20.2 per cent of the sample awards were joint physical custody with joint legal custody. The authors support a presumption in favour of joint legal custody but oppose a presumption in favour of joint physical custody. They express concern that mediators and courts in California use joint physical custody inappropriately as a means of resolving high conflict custody disputes.
A key argument against shared residence is undoubtedly the issue of stability. The point is made that in a shared residence situation, children never really know where they belong, as they pass yo-yo-like from one home to another. The consequences are that they become confused and poorly adjusted. However, the Kline study quoted earlier holds that children's post divorce adjustment is not linked to custody arrangements. This was also the finding in earlier research by Steinman (57) and Leupnitz (58). The important point may be that instability is often confused with a lack of predictability. If children know in advance what routine changes and movements they will be making, it could be argued that they are not forsaking stability. We need to look at the changes, adjustments, and attachments that children make in intact families. It is clear that many children in intact families routinely move between a number of child care settings: for example, from mother to father care, to school - sometimes boarding school - to childminder, to relatives. These changes are routinely accepted and are not generally seen as being destabilising. Evidence on shared care in 'normal' families has been provided by Hill (59) who observes that in his sample of 63 families, a majority of children had experienced care from people other than their parents for a major part of their second and third years at frequencies that varied from several times a week to once a month. Current psychological thinking has also been critical of earlier notions of attachment and Lamb and others (60) have argued for the importance of the fathers' involvement in child development and have demonstrated that very young children are capable of making multiple attachments.
Another area of concern often discussed is that shared residence outcomes lead inevitably to a continuation of conflict between separating partners, with disastrous consequences for the children. Again, we need to unravel the argument. It is by no means clear how the sole residence model itself is supposed to work effectively in reducing hostility. Indeed it has been suggested that the present adversarial system unnecessarily polarises separating parents and provokes conflict unnecessarily (61). Some writers have even asserted that shared residence may lead to a reduction in parental conflict over time (62). It should also be stated that in intact families there are often disputes about parenting, and in many separating families the primary dispute is not about parenting styles but about the relationship between the adults.
A further important debate concerns whether courts should make orders for joint residence over the objections of one of the parties. Opponents argue that for shared parenting to work there should be maximum co-operation between the parents - a parent who is coerced into shared parenting is unlikely to co-operate. Critics also say that if shared parenting becomes a court-ordered option the potential non-resident parent, usually the father, is given greater bargaining power and leverage in the separation process by raising non-serious claims to shared residence. All of these arguments have merit. It is, however, important to look at the other view. If shared residence is only ordered for couples who are agreed then the potential resident parent, usually the mother, has an effective veto on custody outcomes. Thompson (63) argues that there should be a judicial presumption in favour of joint physical custody contingent on the agreement of parents, children's preferences and other evidence concerning the workability of joint physical custody for certain families. The objection of one parent to shared residence would not, by itself, be sufficient to veto shared parenting arrangements. Thompson also argues that just as parents make adjustments to single mothering or visitation fathering because it is expected of them, so they could also adjust to shared residence. Mediation and the use of parenting plans could further facilitate this outcome.
Without doubt, one of the most difficult tasks for professionals involved in the divorce process is to find an acceptable standard for making decisions on child custody. The argument has ranged from presumptions of father custody in the nineteenth century to the tender years' presumption which automatically awarded custody of young children to mothers. Recently, there has been support for a primary caretaker presumption where it is emphasised that children need one important psychological parent and, above all else, stability. There have also been calls for a maternal deference custody standard, whilst some have argued for a proportional custody standard which reflects the distribution of caring responsibilities before the split. At least one writer has argued that justice in custody proceedings could just as well be served by the flip of a coin (64). The most widely used custody standard at present is the best interests of the child standard. This is, in theory, a gender neutral standard which holds the welfare of the child to be paramount. The judiciary is given discretion and decisions are allegedly made on a case-by-case basis.
For shared residence reformers there are three strategic options to consider with regard to current interpretations of best interest standards. First, shared residence could be considered and permitted as an option within a broader best interests framework. Secondly, there could be a stated legal preference for shared residence. Thirdly, and most radical, there could be a presumption in favour of shared residence. The ultimate debate about shared residence relates to the appropriateness of non-resident parents, invariably fathers, being closely involved in their children's lives after separation. Formerly, this territory had been seen as exclusively women's domain. There would seem to be few physical or psychological reasons why men should be prevented from nurturing their children after separation. In spite of this, the maternal presumption endures and the sole residence model survives. One of the great social movements of the contemporary period has been the search for equality of opportunity. There is an urgent need to progress the discussion on shared residence beyond either a father's rights or a cultural feminist perspective, to a more general, sensitised appreciation of what post-separation parenting means for all members of the family. The movement towards shared residence and the subsequent debate on this issue needs to be firmly located within this framework.
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