Jury Is Still Out on Question of Joint Custody : Often Not Feasible Because of Legal, Geographical and Emotional Roadblocks

Matt has two daughters, but most of the time he feels as though he does not have any. He got divorced four years ago, and because of the way the laws were set up in Fairfax County, Va., he did not try for custody.

“I didn’t want to get in a fight, because I wasn’t certain I was going to win,” he said. He now pays $490 a month in child support to his ex-wife, who has remarried. He sees the girls every other weekend.

The situation bothers him so much that he recently called a lawyer, who was not encouraging: “Unless we can paint a horrid picture of their mother, he said I have a snowball’s chance in hell of getting any kind of custody.”

It’s all very distressing. “I have heard stories about girls who grew up without a fatherly influence, and how they turn out,” said the 34-year-old Matt, who has also remarried. “. . . Love, understanding, help--whatever they need, I could provide.”

Joint custody has a simple definition, but it is an increasingly controversial issue. Usually, it means the divorced parents consult about the major decisions affecting their child. Less frequently, it involves joint physical custody, where the child spends significant portions of time with each parent.

Sometimes a Solution

No one on either side of the issue said joint custody is the answer for all couples. Obviously, some divorces are so nasty that it is impractical. And everyone said it is a wonderful solution if both parents agree on it.

The issue reaches the boiling point only with the public policy question: Whether the law should require judges to consider joint legal or joint physical custody as either a “preference” (the first option considered) or a “presumption” (assumed to be the best option). In other words, should a judge order joint custody if one or both parents are asking for sole custody instead?

Absolutely, said psychologist Joan B. Kelly, executive director of the Northern California Mediation Center and a leading divorce researcher.

“Joint legal custody, except in unusual instances, is a preferable state of affairs because it doesn’t disenfranchise one parent from continuing to be a guardian and to be responsible for the child,” she said. “Just because two adults divorce, that doesn’t mean they have to divorce their child.”

Absolutely not, said attorney Nancy Polikoff of the Women’s Legal Defense Fund, an advocacy and direct services organization.

‘Child in Middle’

“There should only be joint custody if both parents want it,” she said. “In order for it to work, you have to have the ability to communicate and cooperate--and if they can’t agree to co-parent in the first place, they won’t be able to co-parent successfully. This leaves the child in the middle of a conflict that is never settled.”

Six years ago, David L. Levy spent $20,000 trying to win custody of his 4-year-old son. Now, he said, he and his ex-wife are friends. He also thinks they made a mistake. “Because the system said go for sole custody, each of us did. That’s the prevailing view. But . . . we’re both good parents, so why not cooperate?”

As a result of that experience, Levy formed the National Council for Children’s Rights early last year. “We believe we’re the only national organization trying to reduce the trauma of divorce for children,” he said. Opponents, however, say the group is more ideological than it appears: “If they tell you they’re not a fathers’ rights organization, they’re lying,” said Polikoff.

Here is how Levy, a copyright lawyer at the Library of Congress, sees the situation: “Each year, there are a million children whose parents divorce. There are 100,000 custody battles, so at least 100,000 children are subjected to bitter court fights. Those are traumatic, and for the other 900,000, it’s often not much better.”

‘Drug, Scholastic Problems’

Studies show that single-parent families, Levy said, “have a higher percentage of drug and scholastic problems, teen-age pregnancy and runaways. Clearly, the single-parent custody idea we’ve had in this country isn’t successful.”

That, he said, is why joint custody--usually joint legal, but sometimes joint physical too--is now accepted as an option in 41 states, up from only three in 1980. In 13 of those states, he said, it is a presumption or a preference.

But even if the current is running with him, Levy is worried. “The prevailing sentiment for 50 years has been single custody,” he said, noting that most courts do not keep track of what kind of custody is granted. He estimates that about 10% of divorces now involve some form of joint custody. His goal: 85%.

Joint custody may be increasingly fashionable, said Richard Neely, but it is still “a harebrained solution.” A West Virginia Supreme Court judge and author of “The Divorce Decision,” Neely asserts that “joint custody works well for responsible, mature people who have decided to hang it up in terms of a marriage, but don’t have a great deal of acrimony and have decided to live near each other.”

The parents, in this case, would be partners in rearing the child just as calmly as if they were running a business. The majority of divorces, Neely said, cannot support such dispassion.

Poses Tough Questions

“What happens if one parent lives in Washington, and one in L.A.? How does the child develop any sort of relationship with sports teams or schools if he splits his time between the two? Or what if the mother and father hate each other, and are constantly trying to poison the other’s will through the child?”

Joint custody, he argues, only works if all conditions are perfect. “To allow it to be an option in every case would have the effect of prolonging child custody dispositions to the great injury of the children . . . and of placing children in a less stable environment if joint custody is awarded than they would be if custody was simply given to one parent.”

Levy of the National Council for Children’s Rights concedes that if two parents are “bent on destroying each other, or if there’s a lack of emotional stability, nothing’s going to work . . . but you have to look at the 90% who don’t litigate. If the social system dictates cooperative custody, most parents will work together.”

The idea that court-ordered joint custody will not succeed because the parents despise each other, adds mediator Kelly, is “naive and erroneous. . . . People divorce for reasons that often have very little to do with their children.”

Children Lesser Issue

In her current research on 437 divorcing men and women, Kelly said she is finding that while there are high levels of conflict in the marriage, the couples also say there is less fighting over the children. “It’s clear to me,” she said, “that one of the best things people do in bad marriages is parent.”

Part of the reason lies in the changing nature and increased rate of divorce today. According to the Census Bureau, 40% of all children born in 1986 will experience their parents’ divorce.

“People are divorcing for less catastrophic reasons,” Kelly said. “Nowadays, people just decide they don’t love each other. One said, ‘I want out.’ . . . A lot of them are capable of co-parenting. Certainly the fathers are.” The swelling number of fathers’ rights groups, in fact, sees custody as a major prize in the battle between men and women.

“In divorces, the father is regarded as an assistant to the mother,” said Jack Kammer, executive director of the National Congress for Men. “They’re told, ‘You make the money and send it to the mother. You get to visit every other week, if the mother doesn’t have something else for the kid to do.’ ”

” Women, he adds, just “don’t want to share the goodies--raising children.”

Fathers Miss ‘Goodies’

A simple fact intrudes on this argument, said Polikoff of the Women’s Legal Defense Fund. Relatively few fathers, she said, tend to be as involved with the “goodies” as the mothers are.

“If people understood that the arrangements set up during the marriage would be carried over afterwards, then families where both the mother and father were equal co-parents--including with such issues as who stays home when the child is sick and who knows the child’s toe is about to go through the sneaker and it’s time to visit the shoe store--would lead naturally into joint custody. But if they set it up so one parent has primary caretaking responsibility and one has a support role, that will also carry over, and that will lead into a sole custody arrangement.”

Kammer rejects that line of thought as worthless. “Just because a father is separated from caring for his child by stereotyped sex roles during the marriage,” he said, “doesn’t mean he is unable to do so when those roles become obsolete after the divorce.

“If you say that the division of labor set up during the marriage should be carried over, does that mean the ex-wife is going to continue cooking and cleaning for her former husband?”

Advises Look at History

Polikoff also asserts that when parents do not agree on joint custody, it’s necessary to look at their history. “If you see that they have not been co-parents, you have to wonder why one parent wants sole custody and the other, who has not been an equal child-rearer, wants joint.” And if the state has a preference or a presumption for joint custody, she said, it can be difficult to win sole custody for any reason.

That was the situation in Louisiana, which passed a presumption law in 1982. In August, however, the state Supreme Court toned the law down.

“In those cases in which joint custody is opposed, the courts will now be more inclined to make a more detailed analysis of all the other possible plans that might be in the best interests of the child,” said Family Court Judge Donald Moseley of East Baton Rouge Parish. Previously, he said, “some of the courts were almost making a reflex decision for joint custody.”

While no official totals are kept, the judge believes as many as 40% of the divorces in the state involve some form of joint legal custody. “All other things being equal, there’s a lot to be said for it,” he said, adding that nevertheless, the Supreme Court’s ruling “opens up the issue a little more.”

Question for Fathers

How many men actually want joint physical custody of their children?

“The men’s groups that are arguing for this are by and large made up of college graduates--professionals with a substantially higher level of philosophy of family life than the ordinary guy,” said Neely. “The guys out there on the night shift or those who don’t know if they’re going to have their job in the factory from month to month--they aren’t much interested in coming home to a 3-year-old. . . . They don’t have the life style or the money” to find surrogates to take care of their kids.

Kelly, who in her work at the mediation center is equally on the front lines of this issue, takes a different view. “If you can get fathers involved right after the separation, they tend to stay involved. We don’t know what the Altoona steelworker wants--he may want a lot, or he may want a minimal amount of contact. But he needs the option.”

Furthermore, she said, “I’ve had those making less than $14,000 in here and they want time with their kids. It’s true that fathers’ rights has been initially more of an upper middle-class phenomenon. But I think it’s spreading.”

‘Viable for 8%’

Neely counters that “there are probably not more than 8% of the families in America for whom joint custody is a viable option.” He adds that under the current setup some fathers “are going to take an unjustified beating. But there is not a system that can take their problems into consideration and at the same time not do substantially more injustice to the women and children.”

Finally, there’s the economic question. “The argument is raised that fathers say they want to have their kids because it’s a bargaining chip to reduce child support,” said Kelly. “I suppose, but an increasing number of fathers want to spend time with their kids just because they love them.”

If Virginia had had a joint custody presumption in 1982, Matt would have asked to have his two girls during the summers, in addition to every weekend. Of course, that would mean many more dealings with his ex--not a pleasurable prospect for either of them.