Martha Jane, Intern, SpeakingThreads
(A case study of Ingrid M. Nicholas v. George Nicholas, Superior Court of New Jersey, Chancery Division : Bergen County, Docket No. M-9688-81, calendar no. 81-3271)
Bitter are the tears of a child: Sweeten them.
Deep are the thoughts of a child: Quiet them.
Sharp is the grief of a child: Take it from him.
Soft is the heart of a child: Do not harden it.
As the swing of a hammer definitely crushes the thing it falls on, divorce is like the hammer, which ruins most children, leaving them emotionally dead. As it was rightly reported in the newsletter of the American Academy of Matrimonial Lawyers, summer 1997, “Only acts of war and the events of natural disasters are more harmful to a child’s psyche than the divorce process.”
Mothers are invariably the victors in the custodial fights of children. They have always had an edge over the fathers in these legal battles. The father who bears the brunt is allowed only a visitation schedule to be with his children. However, the times as we say, have changed and now fathers have lobbied for non-sexist, egalitarian post divorcé parenting arrangements. Thus new state laws have begun to embrace the philosophy of shared parenting. This was first witnessed in Oregon State, USA in 1977 and now out of the 50 states in the USA, 38 have successfully put into place joint custody statutes. However there has been a distinction drawn in the states regarding, joint “legal” custody and joint “physical” custody. In the first case both the parents share decisions regarding the general well being of the child, but the child may actually be living with one parent. In the second case both parents share in the physical care of the child. Under these laws courts around the country have accepted or ordered a growing number of joint custody arrangements.
Ironically, says New Jersey matrimonial lawyer Gary Skoloff, fathers who fight so hard for greater visitation or shared custody may within a short time stop taking advantage of the rights they have won. “I probably bring as many motions against husbands [where I insist that] they spend more time with their children than the reverse,” he says. “A lot of guys make this whole big war that they want these extraordinary visitation and custody rights and the women go nuts fighting it. And then one year later-between the husband’s work and his new girlfriend-I get a phone call and he says, ‘You know what. . . it may be a little too much time.’ ”
However there are fathers who go all out in fighting these battles to spend time with their children and are victorious not just legally but also prove to be victors in time. The whole process of nurturing the child does not intimidate them. Rather they battle it out like a mother would. This is a case of Ingrid and George, where the latter refused to accept short lived visitations and demanded joint custody. George read up on the kinds of joint custody that he may be allowed. His lawyer, Gary Skoloff advised him to not apply for a joint custody, keeping historical records in mind. Skoloff, just tried to convince George that a child of his son’s, Alex’s age is better off with the mother. But George was apprehensive about Ingrid’s parenting skills and was thus determined to fight it out. Gary was initially discouraging George to take up joint custody, but later felt his honesty and bona fides in the whole case and decided to help him in his endeavour. Much later on the day of the trial a most miraculous thing happened, when the judge completely sided with George and granted him joint custody, not just legal but also physical. This was a landmark case only because George had the courage and the determination to bring into enforcement what laws had already been laid, but was seldom used.
George had the strong case of being flexible on working hours and made numerous adjustments in his own life so as to be able to be with his son.
So we come to the argument as to whether joint custody rules over sole custody. Shared custody (also called joint custody) is when both parents share the rights and responsibilities of raising and caring for a child. Shared custody is one option in child custody cases after a divorce or separation. A family court will award shared custody when it is determined to be in the best interest of the children. In fact, the family court will judge in favour of the children’s best interests regarding all matters in a divorce. Shared custody is considered an option when both parents are found to be fit for parenting responsibilities and no violence or abuse occurred in the past.
Shared custody means that both parents share legal and physical custody of the child. Legal custody refers to the major decisions that affect and direct the child’s life. Shared custody means that both parents have the right to make decisions about education, health care, day care, emergency care, extracurricular activities, religion and other issues that affect the child’s life.
Physical custody refers to who the child will live and spend time with. In shared custody cases, a child may live primarily with one parent, but spend time with the other parent. In shared custody cases, arrangements will be made regarding who will be in charge of the child’s activities, who the child will spend weekends, weekdays, holidays, summers, and other times with, and where the child will live.
Hiking from Mom’s home during the week to Dad’s on the weekend perhaps seems like a hassle for some children of divorced parents, but it just might be best for them in the long run, concludes a meta-analysis, published in the March Journal of Family Psychology (Vol. 16, No. 1). The study finds that children from divorced families are better adjusted when they live with both parents at different homes or spend significant time with both parents compared with children who interact with only one parent. Because intentionally or not the child becomes very bitter towards the parent he does not live with and this may be absolutely false. Robert Bauserman, PhD, of the Baltimore Department of Health and Mental Hygiene, reviewed 33 studies that examined 1,846 sole-custody and 814 joint-custody children. Both groups of children were compared with a sample of 251 kids in intact families. Bauserman found that children in joint-custody arrangements had fewer behavioural and emotional problems, higher self-esteem and better family relationships and school performance compared with those in sole-custody situations. And he found no significant difference in adjustment among children in shared custody and those living in intact family situations. Joint-custody children probably fare better, according to Bauserman, because they have ongoing contact with both parents.
But then every case differs in facts and circumstances, obviously, joint custody isn’t always preferable to sole custody. When one parent is abusive, neglectful or has serious mental health problems or trouble adjusting after divorce, sole custody could be the best option for the children, Bauserman says.
Shared custody is awarded in approximately twenty percent of all divorce child custody cases. When shared custody is not awarded, the court will award one parent sole custody of the child. Seventy percent of all child custody cases name the mother as the custodial parent. The father is named the primary caregiver less than ten percent of the time. In some shared custody cases, the court may decide to award child support payments to one parent. This is not always an element of shared custody cases, but will be ordered if it serves the best interests of the child. Adjustments can be made in child support payments when shared custody arrangements or other circumstances change.
In many shared custody cases, a professional mediator will assist the parents in coming up with a parenting plan. A parenting plan will detail all of the provisions regarding child custody. Mediations can be a very successful way to determine shared custody provisions. When mediations are not successful, the judge will determine shared custody terms. The family law judge will always have the final authority over shared custody arrangements. A parenting plan must be written and signed by both parents and the judge in order to become enforceable.
Legal counsel and representation can be very advantageous in shared custody cases. A legal divorce professional knows the laws and the family court system and can use this knowledge to maximize a person’s legal rights and options.
Dangers of sole custody.
Sole custody can result in serious problems for children. Children raised in single parent families are at greater risk for juvenile delinquency, teen pregnancy, poor grades, drugs, dropping out of school, and other trouble. These risks occur even after factoring in differences in income. In fact, risks are even higher in stepfamilies, despite their significantly higher income and best efforts. Research shows that the lack of involvement by both natural parents is a primary cause of these risks. Here’s what the U.S. Dept. of Health and Human Services (Press Release, Friday, March 26, 1999) has to say:
“More than a quarter of American children—nearly 17 million—do not live with their father. Girls without a father in their life are two and a half times as likely to get pregnant and 53 percent more likely to commit suicide. Boys without a father in their life are 63 percent more likely to run away and 37 percent more likely to abuse drugs. Both girls and boys are twice as likely to drop out of high school, twice as likely to end up in jail and nearly four times as likely to need help for emotional or behavioural problems.”
The arguments for Shared Parenting which have been successfully used in the courts are that:
- It ensures continuation of family life for the child, with the advantage of nurture from both parents rather than just one.
- It reassures the child that he has two parents, and although they live in separate places, he definitely has a home with both of them.
- It dispels the notion that only one parent is “caring” and that the other is “errant” or “absent”.
- It ensures that one parent is not unfairly burdened with the responsibility of discipline whilst the other is relegated to (or marginalised as) the fun or contact parent.
- It provides the opportunity for children and parents to develop meaningful and lasting relationships – in place of the artificiality and frustrations of contact .
- It affirms the parents in their belief that they both have an ongoing role in their child’s life.
- It places both parents on an equal footing with schools, doctors and the world at large – who might otherwise only want to deal with the residential parent.
- It confirms that no matter what, each parent wants to, and is able to, provide a home for their child.
- It reassures the child that in the event of one parent dying he still has a home to go to.
- Without such an order, if one parent dies, the child would not automatically go to live with the other parent, but would be left with whoever they were living with at the time or handed over to a guardian – a poor substitute for a natural parent.
- It enables both parents to claim the additional personal tax allowance (and possibly one parent benefit, family credit and additional child benefit), thus increasing the income available to the children (only applicable for two or more children).
The phrase “two heads are better than one” is old-fashioned wisdom, but it reflects the idea of joint custody like nothing else.