Joint Custody: A Long Awaited Solution or Mere Promise?

Joint Custody: A Long Awaited Solution or Mere Promise?*

Noah Allen**

1. Introduction Since 1960, the divorce rate in the United

States has steadily risen from 2.2 per 1,000 persons to 5.1 per 1,000 persons in 1978.’ The most recent statistics show that from the period April 1980 to April 1981 there were 1,193,000 divorces in the United States a rate of 5.2 per 1,000 an increase of one tenth of a percent over the previ- ous period.2 These figures seem to indicate a continued increase in divorces for the year 1981 ~

As the divorce rate increases, a reasonable inference can be made that there are more parents involved in divorce today, and as a consequence, there is an increase in the amount of custody proceedings. While national statistics on the amount of children that are involved in divorce are fragmented and differ,3 what is known and agreed upon is that the amount of children involved in divorce is increasing and is presently estimated to be at a rate between 60 and 75 percent a year for children under 18 years of age.4 Current estimates indicate that over 90% of the children under 18 involved with divorce are awarded to the m ~ t h e r . ~ There is a gradual transformation of the American family from that of a two-parent home to one headed by a single female.6

The evolution of the family from a two- parent home to a one-parent home has been assisted in its progress by profound sociological and political forces in our society. Most recently the focus has been on human and civil rights and equality of women. However, these changes have not been matched by a corresponding change in many of our institutions.

The American system of divorce has been the target of much criticism by those who ad- minister and work within it and by those who find themselves at its mercy-the families who use

*@l981, Noah Allen

**Noah Allen, M.S.W., L.C.S.W., J.D. practices at: County of Orange, Contract Administration, 515 N. Sycamore, Santa Ana, California 92701.

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it.’ During the last decade, a specific area of the divorce system, child custody awards, has been the target of an effusive debate for change.* Dissatisfaction with child custody awards has manifested itself through such desperate acts as parents whisking their children away from the custodial parent where they are never to be found agah9 More numerous expressions of parental hostility and professional frustration with our custody system have been in a number of articles and books pointing out defects in the system.1° It is certain that a number of the latter find themselves as desperate and as bitter about their experience with our system of custody awards as those who have clandestinely snatched their child from the other parent and removed him to a friendlier jurisdiction.

At present, there is a national dialogue on child custody awards.” Most of the participants have expressed their strong belief in the need for a change, and in particular, to joint custody.l2 However, formal decrees of joint custody are relatively few as compared to sole custody and consequently those who promote joint custody can not rely upon long-term performance for its e~aluat ion.1~ Despite the rather extensive amount of literature available regarding the benefits of joint custody to families there are very few scientific investigations that either support or contradict the claims made.14 This paper submits that unqualified endorsements of joint custody for all families should be restrained until the major issues regarding the past award results can be verified.

This paper will attempt to provide the reader with an understanding regarding the current up- heaval in child custody by exploring its origins and tracing these ancient beliefs to our present day laws. It will evaluate current custody forms as contrasted to joint custody and suggest instances when or if joint custody would be the judicially appropriate remedy.

II. Historical Perspective. To provide a basis for an understanding of

CONCILIATION COURTS REVIEW/VOLUME 22. NUMBER 2lDECEMBER 1984

our current system and the debate that ensues, it would be pertinent, at this point, to review the foundation of our present custody system.

A. Roman Law Modern Western civilizations can trace the

origins of their custody determinations to Roman law.’ Under Roman law, the father had absolute control over both his wife and his children.’e His powers over his children included the rights to punish, to sell them on the open market, or to put them to death as he desired without fear of re- prisals from the state.17 The mother, whose chief importance was to produce more offsprings, was considered a mere chattel herself and had no rights.18 She could neither effect the disposi- tion of herself nor her children. Under the Em- peror Constantine in Rome, the father’s powers over his children were significantly limited by an edict holding fathers liable for punishment in the case of infanticide.lg

B. Early English Custody Awards In feudal England, the Roman laws of ab-

solute control by the father were adopted as common law.20 The lord of the manor had control over all who lived and worked on his land.*l It included the power to select the husbands for the women and the rights to the offsprings of the union.22 The woman’s and the child’s status did not improve. The children were put to work for the lord by the time they were seven years old.23 The feudal lord had total control over the lives of the women and children, while the husband- father was delegated authority from the lord to control the more immediate family life of the mother and the Feudal England was a digression for women and the children’s rights.

The father’s rights to custody went unchal- lenged throughout most of the sixteenth and seventeenth centuries, although an awareness was developing that a child required more for proper care than just the basic The state became more concerned about the well being of its children. The English courts assumed jurisdiction over the welfare of the children under the doctrine of parens patriae.26

The doctrine of parens patriae provided the rationale for the English courts to protect those who had no other protector. Perhaps the most popular case associated with this doctrine and

one of the first in which a father lost the custody of his children was that of Percy Shelly, the poet, in 1817.27 He lost custody of his two children, after the suicide of their mother. Custody was refused because of his immoral beliefs and his personal life style.28 Following the Shelly case, came the Lord Talfourd Acts of 183929 which made official the doctrine of parens patriae giving the court the right to determine the custody of infants under seven years old.30 These two events signaled the end of the centuries old tradition of the absolute right to custody of the child by the father.3’

1. Tender Years Doctrine The Tender Years Doctrine which emerged

from the Lord Talfourd Acts initially applied to children under seven years of age.32 It was thought to have applied to children who were of preschool age or to children who were not yet in the work force. These were thought to be the years that a child most needed his mother, that is, the tender years. Following the Lord Talfourd Acts, as more enlightened laws were passed by the English legislature, the father’s absolute right to the child eroded even more.33 The Guar- dianship of Infants Act of 1925 finally made clear that the mother had an equal right to the child as the father in England.34 However, by this time, the momentum had already shifted to the woman, and although the father showed a greater potential as a parent than the mother, in many instances she would receive custody if she merely proved to be fit.35 The presumption that had initially been designated for children under seven had, somehow, been expanded to all ~hildren.3~ The absolute right to custody of the children gave way to a seven years lirnita- tion, and then to an absolute maternal presumption in England.37

C. Early Child Custody Law in the United States

About the time that England began to limit the absolute right of the father in custody awards through the Lord Talfourd Acts and the famous Shelly case, the American judiciary was ex- pressing similar opinions38 in the 1824 case of United States v Green wherein a paternal father brought an action to regain the custody of his ten-year-old daughter who was living with her

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maternal grandparent^,^^ The court held for the grandparents stating:

As to the question of the right of the father to have the custody of his infant child, in a general sense it is true. But this is not on account of any absolute right of the father, but for the benefit of the infant, the law presuming it to be for his interest to be under the nurture and care of his natural protector, both for maintenance and education. When, therefore, the court is asked to lend its aid to put the infant into the custody of the father, and to withdraw him from other persons, it will look into all of the circumstances, and ascer- tain whether it will be for the real, per- manent interest of the infant.. . It is an entire mistake to suppose the court is at all events bound to deliver over the infant to his father, or that the latter has an absolute vested right in the custody ... Lord Eldon, De Manneville v De Manneville, 10 Vcs. 52, avowed his approbation of the doctrine, he had, exercising the authority of the king as parens patriae, removed children from the custody of their father, when he thought such custody un~u i tab le .~~

1. Maternal Presumption It is believed that the father in the United

States never enjoyed the absolute right to custody as his counterpart in England.41 A review of the case law indicates that at common law, the father had an absolute right to the custody of the child subject to the Tender Years Doctrine.42 As the tender years presumption became more in- grained into the decisions of the courts, the common law presumption that the child would be awarded to the father was simultaneously replaced by the maternal pres~mpt ion.~~ United States courts, as the English courts, adopted the maternal p r e ~ u m p t i o n . ~ ~ The maternal presumption became more a part of judicial considerations based on the opinion of the illustrative case of Chapsky v Wood et a/. in 1881 wherein the paternal father’s petition of the court to gain custody of his five-year-old daughter after being in the care of her maternal grandmother was refused.45 The court stated that the paramount

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consideration was the welfare of the child. The court set out principles to be considered which were termed a best interest of the child test.46 The best interest of the child test, was not really a test but principles expressed by judges in their opinions.47 in operation, it required the court to determine which parent was the least fit to be a parent, while not providing any guidelines for evaluating the child’s needs.48 The tender years presumption and the maternal presumption have both been considered as factors in deter- mining the best interest of the child. The best interest of child test can be found, in part, in the statutes of at least 48 Modern state statutes have more refined versions of the original principles of the best interest of the child test as stated by justice Brewer in Chapsky; they have been formulated into specific guidelines as a part of state codes.50 Although the best interest of the child test is, theoretically,not supposed to consider sex of the parent as dominant, the mother remains the preferred parent.51 Roth points out the inconsistency between the New Jersey state statutes and its court opinions. The statute expressly provides that both parents will be considered equally in the absence of mis- conduct, yet the Supreme court of New Jersey has stated that the child of tender years is placed with his mother, if fit.52 Roth further quotes a classic statement by a Montana Court:

Mother love is a dominant trait in even the weakest woman, and as a general thing surpasses the paternal affection for the common offspring, and moreover, a child needs a mother’s care even more than a father’s. For these reasons courts are loathe to deprive the mother of the custody of her children, and will not do so unless it is shown clearly that she is so far an unfit and improper person to be entrusted with such custody as to endanger the welfare of the children.53 The opinion by the Montana court is indica-

tive of what fathers must face in many custody disputes.

The tender years presumption and the best interest of the child are being ~ h a l l e n g e d . ~ ~ A New York court ruled that the doctrines not only violated sections 70 and 240 of the Domestic Relation Law,55 but that they also deprive the father of his right to equal protection of the law

under the Fourteenth Amendment to the United States Const i t~ t ion .~~ The court further stated citing Foster & Freed:

The statutory mandate in practice is ignored and instead of equality as between the parents the mother’s claim to the child is paramount. In re- ality, instead of the ‘best interest of the child’ serving as the test, the ‘unfit- ness’ rule was designed to serve custody contest between parents and non-parents is being applied.57 Most states have either expressly rejected

the tender years doctrine either by statute or by court decision.58 In those states where there has been no express action to revoke it, the discre- tion of the court determines59 what importance this doctrine will have when considered with the best interest doctrine.Go The tender years doctrine, and the maternal presumption have both been assailed on the basis of their unfairness and unconstitutionality to the male parent and on the basis of their failure to obtain the psychological and sociological results expected by the courtsG1 and by well informed commen- tatorsG2 Although the influence of the concepts are on the declineG3 in state law and court decisions, the traces of these concepts can be easily detected as a basis for our present custody awards.

111. Current Custody Awards The vocabulary of the custody system is

replete with different terms that allude to the same concept.64 This semantic confusion has compounded the problems for laymen in understanding the custody awards and has distorted meaningful communications among professionals on the issues. This section will standardize the commonly used terms as they are today.

A. Sole Custody Sole custody is the most common65 and the

most traditionaP form of custody award today. It consists of one parent being awarded total custody of the child with the other parent being awarded only visiting rights.G7 The custodial parent, the parent awarded custody of the child, has the right to make decisions regarding the

child’s health, education, and overall well being without consultation with the noncustodial parent.68 Although the concepts as discussed supra, of tender years, best interest, and maternal presumption are relatively less of an influence in custody awards today, their affects cannot be overlooked. It is estimated that in about 90% of the custody awards, the mother is awarded the It may be said that sole custody is a synonym for maternal custody.

5. Split Custody Is an arrangement where the court is moti-

vated by public policy in trying to keep the family together. Where there are several children in a family, the court may award any number to both parents.70

C. Divided or Alternating Custody Is an arrangement where one spouse has

the child for a predetermined period of time and the other parent has custody of the child for the remaining period of the time. The visitation rights are usually set at the time of the awards; each parent becomes the noncustodial parent when the custodial periods are alternated.71 This type of award is considered when parents live long distances apart. Courts frown upon this form of award and they are usually not made unless there are exceptional c i rcum~tances.~~ It is not considered in the best interest of the

D. Shared Custody Shared custody is any method that permits

the children to grow up knowing and interacting with each parent in every-day situations.. . 74 It is an arrangement whereby the child lives in the home of both parents. It can be either open ended or structured in periods of times. It is the custody form that comes closest to joint cus- t ~ d y ~ ~ and it is often referred to when the concept of joint custody is the actually intended.

Joint custody differs from all the above in that it gives both parents legal custody of the

IV. Joint Custody In reviewing the writings of the many knowl-

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edgeable commentators on joint custody, one finds it to be an elusive c0ncept.7~ Its amor- phousness is reflected by the significant number of state statutes that provide for it but only tangentially define it.’8 One writer refers to it as a “philosophy of trust and cooperation wherein the nonexclusive rights of the parties can be negotiated to fit the precise circumstances of a particular case.”79

Perhaps those definitions that appear most easily understood and that embody the entire concept are those definitions that appear in the Wisconsin and Kansas codes. The Wisconsin code simply states “that both parents have equal rights and responsibilities to the minor child and neither parties are superior.“8O Joint custody can farther be distinguished between de jure81 or stipulated82 wherein the custody award becomes a part of the decree and de facto joint custody where an arrangement has been made between the parties out of ~ 0 u t - t . ~ ~ De facto joint custody agreements are informal and are usually made to modify some other court decreed custody arrangement. The court is not obligated to honor a de facto arrangement, but when they are incorporated into the original decree, they become binding.84 For the purposes of this paper, the definition of joint custody will be the definition as provided in the Wisconsin code as stated above.

Although there is a current clamor for joint custody laws across the United States, the state legislatures have been slow in acting. Since North Carolina passed its laws in 1967 that provided that two persons may share custody of a child, only eleven other states have followed.85 Of the states that have passed joint custody laws, most have not defined the term.86 None of the states specifically prescribe guidelines for its application. California is the only state which makes a good faith attempt to encourage its appIicati0n.8~ Despite the ripeness of the social climate for joint custody, very few awards are rnade.88 Perhaps, as some commentators suggest, there is confusion by attorneys and judges as to what authority they have for re- questing an award for their client or for making the decree of joint

A. Arguments for Joint Custody

1. Continued Contact With Both Parents

One of the most frequent and strongest arguments made by proponents of joint custody is that it provides a continued contact with both parents so that the child may maintain a positive relationship with both.90 This is superior, they argue, to sole custody where the noncustodial parent, usually the father, is given a limited visitation time and he attempts to squeeze in as many activities with his children as he can in that time.91 Their point is that this kind of contact with a child is ar t i f i ~ ia l ;~~ meaning that this is not the usual way a parent would relate to his child whenever he saw that child. By frequent con- tacts with both parents, they assert, the child would be able to continue to learn about and learn from both parents.

2. Encourages Parent Participation An advantage of joint custody they maintain

is that it encourages parent participation in post divorce rearing of the child by giving both parents equal responsibility and physical The alienated parent under a sole custody award is automatically included under joint custody.

3. Relieves Responsibility of Custodial Parent

They argue that joint custody also helps the custodial parent in that it relieves some of the awesome responsibility of being the sole guar- dian of a child.94 This parent, usually the mother, could better utilize time not involved in child care. This parent could better involve herself in career development skills or other activities.

4. Improves Overall Cooperation It is said that joint custody improves the

overall cooperation of the parents. It permits them to work together on planning the child’s schedule, schooling, vacations, education and health care.95

5. Decreases Post Divorce Litigation Proponents of joint custody also argue that

there is an overall decrease in post divorce litigation, however there are few scientific studies to support this contention.96 Commissioner John R. Alexander of the West District Los Angeles

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County Superior Court provides, perhaps, the most reliable information to date. Abstracted from a two year personal tally ending September 1980, he reports a flare-up rate of 15.9 percent for joint custody awards as compared to 31.5 percent for sole custody awards.9’ Hugh Mclsaac, Director of the Conciliation Courts for Los Angeles County, while citing no statistics, estimated that the flare-up rate among joint custody awards was no more than that for sole custody awards.98

They also contend that there is a more consistent payment of child support payments with less litigati0n.~9 As a consequence, they argue, that when joint custody is available to the spouses, children are less likely to be used as pawns in power plays by the parents to obtain a larger settlement or to punish the other spouse.100 Under the traditional sole custody award, 75 percent of the fathers stopped support payments after five years.lol In joint custody states, it removes the leverage that the mother had based on the maternal presumption.lo2 It removes the burden that one parent carries in being required to prove the other unfitlo3 and it emancipates the other parent from the fear of social embarrassment of being proven unfit to be a parent. Joint custody creates an atmos- phere where spouses cdn be divorced and both maintain their self respect.lo4

6. Consistent With Social Demands Joint custody is consistent with the social

demand for sexual equality.’05 It removes the maternal presumption that is discriminatory to the father and repressive to the mother. It gives to the female spouse the equal opportunity to develop her separate life with responsibility equal to that of the male spouse.1o6

the classic work-Beyond the Best lnterest of the Child, in which the authors discuss the importance of the child forming a “psychological parent.”lo8 The authors point out that a child’s emotional attachment to a parent is based on his day-to-day interaction with his parents and that this is what defines parenthood. log And, also, that a biological parent standing alone is of lesser importance than the psychological parent.’ lo The authors view the visiting parents as of little importance and they contend that any caring person who forms a consistent relationship with the child may be a “psychological parent.” The emphasis is on a person being present .l

Hugh Mclsaac, who supports joint custody where both parents agree, feels this is an im- portant issue simply because many children cannot adjust to living in two homes.ll*

2. Parents Cannot Cooperate After Marriage A frequent argument made by those who

oppose joint custody is that those who have stormy marriages and who cannot cooperate during marriage cannot be expected to change their pattern of behavior because they have joint custody.113 They cite in support of their argument the 1978 New York case of Dodd v Dodd wherein the parents who had a stormy marriage tried joint custody for a 14 month period prior to their divorce.114 Two psychiatrists who had ex- amined the children found them to be anxious and not coping well with their changing schedules. In turning down the request for joint custody by the father, Justice Felice K. Shea stated:.

Joint custody is an appealing concept. It permits the court to escape an agonizing choice, to keep from wounding the self-esteem of either parent and to avoid the appearance of discrimination between the sexes . . . (slerious questions remain to be an- swered. How does joint custody affect children? What are the factors to be considered and weighted? . . . the court . . . must give thought to whether joint custody is feasible when one party is opposed and court interven- tion is needed to effectuate it.Il5

B. Arguments Against Joint Custody

1. Lack of Emotional and Physical Stability in Child’s Life.

A pre-eminent argument for those opposing joint custody is that where the child is frequently shuttled from one home to another, the child is denied stability in his daily life.lo7 They rely upon

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3. Geographical Considerations May Make Impractical

Opponents of joint custody argue that it would be difficult to maintain over long distances. It is argued that if one parent moves out of the jurisdiction where the decree was given, he could simply keep the child, because the Uniform Child Custody Jurisdiction Act would not apply.

4. Joint Custody Favors Middle Class Orientation or Income

Of the few studies that have been done on joint custody families, most have been on couples who were sophisticated and where one or both spouses were professional^.^ l7 Oppo- nents of joint custody arque that families in the lower income bracket could hardly maintain two homes for their children. They doubt that public assistance programs would finance a room for a child in two homes.118 Nor do they believe that families could afford to provide sets of toys, clothes, and belongings of their children in two homes.

They also add that in most of the larger urban areas where decent housing is limited, a parent may find it difficult to locate close enough to his former spouse so that the children may attend the same school.

In one article, discussing the advantages of joint custody and its viability even across vast distances, an example of a father and his son moving 10,000 miles to England with the son to return to California in the summer.l19 It seems as though the ability to travel 10,000 miles round trip would not be available to most lower income families. For most families a move by a spouse across country would be equivalent to a sole custody award.

The question of resources becomes even more evident should one of the spouses have another family. What kind of living arrangements do you make for the child’s temporary visits? Could a second spouse accept this arrangement?

5. Is Joint Custody an Easy Way Out for the Judges?

Justice Felice K. Shea in Dodd v Dodd, supra, feels that in some situations the decision

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to award the child to one parent is so agonizing that joint custody provides a safe way for the judge. l2O Miller quotes one Massachusetts judge as saying that joint custody was just a way for many of the parents to assuage their ego.121

V. Conclusion One point on which proponents and oppo-

nents mutually agree is that our present system of awarding custody to parents after divorce through sole custody or one of its variants- divided, split, or shared custody has not served its primary goal, that is, the best interest of the child. Nor has it accorded the spouses in custody disputes true fairness and justice.

The history of child custody reveals an evolution from one absolute, the unquestioned right of the father to the children, to another, the maternal presumption. Today’s arguments are in some respects, analogous to those of the past. Change in the past, as now, has been acceler- ated by changing sociological thought, an in- creased political awareness of women, and economic necessity.

Many of the proponents of joint custody advocate that it should be awarded by the courts in all circumstances and that there should be a presumption in favor of joint custody written into I aw. 122

They have represented the advantages of joint custody ably, but not enough is known about its practical effects on the children. Miller, in his excellent article states: “It should be stressed that no scientific study of joint custody has been conducted. Furthermore, those who write about joint custody tend to proselytize.”‘123 A similar observation has been made by other commentators, e.g., Ahrons124 and Steinman, who writes that the only research that has looked at the children involved with joint custody is one using the case study method of four joint custody families.125 Steinman also writes that “there is a great need to look at the subject dispassion- ately.”126 It is understandable that many, mostly fathers, who feel that they have been treated unfairly by the courts in custody awards would embrace any prospect that would tend to offer improvement over the present. But, we should not displace objective investigation, by a possi- ble short-term result.

Joint custody offers more promise than any known solution. Where the parents agree, and

other circumstances are amenable, it may be superior to sole custody. However, before it can be generally endorsed as the solution to all custody awards, information is not only needed regarding its affect on children, but on various socio-economic groups.

Until reliable data can be obtained, joint custody awards should be made on an individual basis in accordance with the recommendations of qualified mental health professionals. Until the necessary information is obtained, joint custody will remain a mere promise and not a solution to our custody problems.

FOOTNOTES

1U.S. Dept. of Commerce, Statistical Abstract ofthe United States (1979). *U.S. Monthly Vital Statistics Report, National Center for Health Statistics, July 10, 1981. 3Gouge, Joint Custody: A Revolution in Child Custody Law, 20 Washburn L.J. at 326 (1981) in notes cite authorities that estimate the amount of children involved in divorce as: 1977 (75%); 1978 (66%). Miller, Joint Custody, 73 Fam. L.Q. at 347 (1979) in notes also points out that national figures on children involved in divorce differ. He also lists similar statistics to those of Gouge. 4Gouge, supra, note 3 at, 326; Miller, supra note 3, at 347. Woth, The Tender Years Presumption in Child Custody Disputes, 75 J. Fam. L. at 423 (1977). W.S. Dept of Commerce, Socjal lndicator 111 Selected data on social conditions and trends in the United States, at 5, December (1980). Families headed by females in 1950 were about 9% wpile at end of 1978 figure was 14%. 7Roman & Haddad, The Disposable Parent at 22 (1978); Ware, Joint Custody One Way to End the War, New West at 42 (1979); Grief, A Sociological Study, 15 Trial at 32 (1979); Woolley, The Custody Handbook (1979); Jim Cook, divorced parent, personal interview (1981). eld. gBodenheimer, Child Custody Problems, 65 Cal Law Re- view at 1001 (1977); Shutter, Parental Kidnapping Preven- tion Act- panacea or toothless tiger?, 55 Fla. 8. J. 479- 482 (1981) quoting a report from Congressional Research Services-Report 78-79 A of March 1978 that the amount of parental child snatchings has reached 1,000 per year. loPoll, The Evolution of Joint Custody, 3 L.A. Law at 34 198b; Kandel, California’s Joint Custody Statute, 3 L.A. Law at 35 (1980); Grief, supra note 7, at 33. ‘Supra notes 3 and 5.

‘*Id. 13Miller, supra note 3, at 374. 14Ahrons, Joint Custody Arrangements in the Postdivorce Family, 3 Journal of Divorce at 190 (1980). Ahrons points out that most studies on Joint Custody to date have been restricted to personal accounts and case studies. “And, while they are interesting and informative they have limited generalizability.” Ahrons included studies by: Arbarbanel 1978, Galper, 1978; Morgenbesser & Nehls, 1979; and

Roman and Haddad, 1978. lSMiller supra note 3, at 351; Roman and Haddad, supra not 7, at 25; Smith, Custody and Control of Children, 5 Ford- ham Law Review at 461 (1936); Derdeyn, Child Custody Contest in Historical Perspective, 733 Am. J. Psych. at 1369 (1976). l6Smith, supra note 15, at 460. 17Derdeyn, supra note 15, at 1369. Woman and Haddad, supra note 7, at 25. lgRoth, supra note 5, at 425. 20Derdeyn, supra note 15, at 1369; Roman and Haddad, supra note 7, at 29. 21Roman and Haddad, supra note 7, at 27. 221d. at 27-28. 23Derdeyn, supra note 15, at 1369. 24Roman and Haddad, supra note 7, at 27.

261d. 27Roman and Haddad, supra note 7, at 30 Id. 28Golembiewski, California’s Presumption Favoring Joint Child Custody: California Civil Code Sections 4600 and 4600.5, 77 Cal WL. Rev. at 289 (1981). 29Miller, supra, note 3, at 352; Derdeyn supra note 15, at 1369. 30Derdeyn, supra note 15, at 1369. . 31G~lembiew~ki, supra note 28, at 291. 32Derdeyn, supra note 15, at 1369. 33Golembiewski, supra note 28, at 291. 34Derdeyn, supra note 15, at 1369. 35Miller, supra note 3, at 353. 361d. at 352. 371d. at 357. 38Foster and Freed, Life With Father, 7 7 Fam. L.Q. at 327 (1977). 39United States v Green, 26 F. Cis. at 30,31 D.R.I. (1824). 401d. at 31-32. 41Foster and Freed, supra note 38, at 326; Folberg and Graham, Joint Custody of Children Following Divorce, 72 UCD L.R. at 530 (1979). 421d, see also Smith v Bragg, 68 Georgia Reports, 650 (1881);StatevPaine, 23Tenn. (4Humph) 523(1843);State v Stigallet al. 22 N.J. Law 286 (1894). People v Brugman 3 App. Div. 155,38 H.Y. Supp 143 (1896); Bennetv. Bennet 13 N.J. Eq (2 Beasl) 114 (1860). 43Folberg & Graham, supra note 41, at 530. 441d. at 531. 45Chapsky v Wood eta/., 26 Kansas at 654 (1881); Another case of equal importance of the day was Finlay v Finlay, 148 N.E. 624 (1925). 46Derdeyn, supra note 15, at 1371.

2 5 ~ .

47id. 4 8 ~ .

491~1.

5 0 ~ .

5*Miller, supra note 3, at 353. Miller quotes one commen- tator as saying, “the father must prove his wife either an emotional cripple or a moral leper and should he want to maximize his chances, preferably both.” 52Roth, supra note 5, at 432. See alsoEsposito v Esposito, 41 N.J. 143, 145, 195 A.2d 295 (1963); Vannucchi v Van- nucchi, 113 N.J. Super 40,272 A.2d 560 (App. Div. 1970).

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531d. at 434 Roth quoting from Hoppe v Hoppe, 138 Mont.

S4ld. at 442. 55People v Watts, 77 Misc. 2d at 179,350 N.Y.S. 2d, 285 (1933). S6ld. 182. 57Foster and Freed, 2 Law and the Family 129 (1967). 5EFoster and Freed, Divorce in Fifty States: An Overview 74 Fam. L.Q. at 264 (1981). 591d. 6oFoster and Freed, supra note 38, at 332. elsupra note 51, supra note 55. s2Podell, Peck and First, Custody-To Which Parent, 56 Marquefte L.R. at 52 (1973). G3Foster and Freed, supra note 58, at 26. e4Miller, supra note 3,at 360 states that he had found at least 15 terms that were in some way an alternate to sole custody. e5Supra Section II, history of custody point to most awards being only to the father. %upra note 65. ‘j7Linde, I Separation Agreements and Antenuptual Con- tracts *14 (1967). 681d. 69Go~ge, supra note 3, at 328. 70Linde, supra note 67, 014. 7lGouge, supra note 3 at 298. 72Linde, supra note 67, 014. 7324 Am. Jur. 2d, Div and S 3799. 74Woolley, Shared Custody Demanded by Parents Dis- couraged by Courts, 7 Family Advocate at 6 (1978). 75Go~ge, supra note 3, at 294.

Civ. Code §4600.5(c) (West Supp. 1980) statesforthe purposes of this section, “joint custody means an order awarding legal custody of the minor child or children to both parents . . . .” 77Eg. Golembiewski, supra note 28, at 296. 78Eg. Kan Stat Ann 0 60-1610 (b) (Supp. 1980) defines custody as “that both parties have equal rights and responsibilities to the minor child, subject to orders of the court, and neither party’s rights are superior.” 79Gaddis, Joint Custody of Children: A Divorce Decision Making Alternative, 76 Conciliabons Courts Review at 18 (1 978). 8oWis. Stat. Ann 0767.24 (b) (West 1981). 81 Ramey, Stender, and Smaller, Joint Custody: Are Two Homes Better Than One?, 8 Golden Gate U. L. Rev. at 561 (1979). 82Folberg and Graham, supra note 41, at 540.

84Ramey, Stender, and Smaller, supra note 81, at 561. 85Foster and Freed, supra note 58, As of this date the list provided by the authors stand, it lists: Iowa, Hawaii, Ken- tucky, Kansas, Nevada, Oregon, Texas, Wisc., Conn., CA and Maine. e60nly CA, Wisc. and Kan have defined joint custody by statute. e7Cal. Civ. Code §4600.5(a) states: “there shall be a presumption, affecting the burden of proof that joint custody is in the best interests of a minor child . . . .” e8Folberg and Graham,supra note 41, at 540.

239-241, 256,356 P2d 44 (1960).

8 3 ~ .

891d. at 545. The authors state that often whether a couple gets awarded joint custody is dependent upon the in- terpretation of the particular judge, where there are no express joint custody laws. goware, supra note 7, at 47; Roman and Haddad, supra note 7,123-130; Cook, supra note 7; Ciji Ware, joint custody parent and author, personal interview Nov. 3, 1981; Hugh Mclsaac, Director Conciliation Courts for Los Angeles County, personal interview, Nov. 12, 1981. glWare, Id. 90, Mclsaac, Id. 92Elder, Shared Custody-An Idea Whose Time Has Come, 76 Conciliations Courts Review at 24 (1978) Elder refers to the fathers who have visiting rights with their children as “Disneyland Daddies.” 93Elder, Id.; Mclsaac, Id.; Ware, Id.; Miller, supra note 3, at 364. %Haddad, supra note 7, at 52; Elder, supra note 92, at 24. 95Elder, supra note 92, at 24; Ware, supra note 7, at 50. SFolberg and Graham, supra note 41, at 571. 97John R. Alexander, Personal Interview (Nov. 5, 1981). Commisioner Alexander also found that even when one parent disagreed with the joint custody award the flare-up rate was only 33 percent. 98Mclsaac, supra note, 90. 99Folberg and Graham, supra note 41, at 571; Miller, supra note 3, at 365. loOElder, supra note 92, at 24; Folberg and Graham, supra note 41, at 564. ‘OlMclsaac, supra note 90. lo2See supra note 87, Cal Civ Code 84600.5 provides for a presumption of joint custody. ‘03Elder, supra note 92, at 24. lM1d. lo5Miller, supra note 3, at 365. ‘06Elder, supra note 92; Miller, supra note 3, at 362. lo7Levy and Chambers, The Folly of Joint Custody, 69 111. B.J. at 414 (1981); Miller, supra note 3, at 366. Miller does not oppose joint custody, but he points out that a principal criticism of joint custody is that it creates instability. lo8Goldstein, Freud, Solnit, Beyond The Best Interest of the Child 1-30 (1973).

”Old. ”’Id. l12Mclsaac, supra note 90. ll3Judge Billy Mills, Supervising Judge Family Law Dept. Los Angeles County Courts, personal interview Nov. 12, 1981. While he supports joint custody, does not feel that an award should be made when parents disagree or have shown where they cannot cooperate in the future. 114Dodd v Dodd 403 N.YS.2d at 405, 93 Misc 2d. (1978). llsld. at 402. 116Bodenheimer, supra note 9, at 101 1. l17Folberg and Graham, supra note 41, at 562 citing Hehls, Joint Custody of Children: A Descriptive Study 7 (unpub- lished) 1978. llBMiller, supra note 3, at 372. IlgWare, supra note 7, at 52. lZoSupra section V(A). lZ1Miller, supra note 3, at 369. 122Mclsaac, supra note 90. A 6 1706 is now in CA legislature

1091~1.

47

which would make joint custody a presumption. 123Miller, supra note 3, at 386. lZ4See note 14. 125Steinman, The Experience of Children in a Joint- Custody Arrangement: A Report of a Study 57 Amer. J. Orthopsychiat. at 404, (1981). lZ61d.

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Joint Custody: A Long Awaited Solution or Mere Promise?