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

December 12, 1986|DAVID STREITFELD | The Washington Post

WASHINGTON — 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."

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