One Child, Two Homes

More divorced parents are agreeing to joint custody

Nine out of ten children of divorced parents end up in the sole custody of the mother. Indeed, judges assign youngsters to the mother so routinely that lawyers usually advise their male clients not to bother bringing a case. A custody fight is "an act of futility," says New York Supreme Court Justice Sybil Hart Kooper, "unless the woman is a prostitute and practicing in front of her children, or a chronic alcoholic who falls down drunk, or a psychotic who is threatening the children's lives."

Now a growing number of divorced parents are pushing for a more balanced solution to the question of who gets the kids: joint custody by both parents. Six Texas fathers and a group called Fathers for Equal Rights have brought a class-action suit against all the district court judges in the state, arguing that the denial of joint custody violates the principle of due process. A decision in the case, first of its kind to go to trial, could come at any time. Oregon, Iowa, Wisconsin and North Carolina have laws authorizing joint custody, and a dozen other states, including New York, Michigan, Connecticut and California, are considering bills that would require judges to start with the presumption of joint custody.

Until the 1920s, courts generally presumed that custody should go to the father as head of the family. Then, as ideas about the crucial role of the mother in child rearing took hold, courts switched to a presumption that the child belongs with the mother. Believers in joint custody now say that the prejudice in favor of mothers is built on outdated sex roles: women should stay at home, fathers are poor at nurturing and generally wish to be free of children after divorce. Today, however, about 60% of divorced women work outside the home, and the women's movement has encouraged many men to take a larger role on the domestic front. Says William Haddad, a political writer and co-author of the joint-custody book The Disposable Parent, "In the court, stereotypes prevail. The court does not yet conceive of shared roles."

Most judges still believe that the stability of a single home is essential: children should not be shuttled between parents who have proved that they cannot get along. Psychiatric advice has traditionally tended to agree. The 1973 book Beyond The Best Interests of the Child, by Joseph Goldstein, Anna Freud and Albert J. Solnit, took the stark position that the parent with custody should have the right to deny visits by the noncustodial parent because those visits might undermine the child's stability.

Newer research, however, challenges that assumption. The National Institute of Mental Health is preparing a favorable report about the effects of joint custody on children. A Virginia study of 96 couples and their children associated father absence with disruptions in the children's social and school life. Christine Rosenthal, a Brandeis University sociologist who studied 127 joint-and sole-custody fathers, was impressed by how well the arrangements worked among those who remarried. And a New York study of 40 divorced men found that joint-custody fathers were happier, closer to their children and had fewer problems with ex-wives than did noncustodial fathers. Says the author of the study, Psychiatric Social Worker Judith Brown Greif: "The issue of how disruptive it must be for children to have two homes rather than one seems to be a concern more of the observing public than of the joint-custody parents themselves."

All observers agree that joint custody works only if parents can detach child rearing from post-divorce resentments. That is no easy trick. Jerry and Jan LeClaire waited two years for the rancor that accompanied their divorce to fade before moving to joint custody. Now their daughter Lisa, 8, spends summers with her father and his new wife in Chaska, Minn., and the rest of the year with her mother in Plymouth, 25 miles away. The parents admit that Lisa is still a bit confused: she has two homes, two wardrobes, two sets of rules, and two sets of friends, neither of which has fully accepted her because of her part-time living. Yet both parents feel joint custody is working.

To Marvin and Robbie Bostin of Stamford, Conn., joint custody of their son Shepard, 12, made so much sense that they put such an arrangement into practice nearly a year before a court made their divorce final last November. Shep spends two days a week, and alternates three-day weekends, with each parent. "My friends know where to reach me," he says. "I just give them the phone numbers and the schedule. It works out O.K."

Bruce and Barbara Reinhart of Minneapolis find that joint custody of their daughters, Jennifer, 10, and Amy Jo, 8, is manageable, but has drawbacks. "Carting possessions around is tough," says Barbara. "Suitcases, nighttime animals, half an outfit here, half there--no steady routine. The girls have to share one bedroom at both houses and they're reaching that preteen age of privacy."

Other objections: joint custody usually requires parents who are affluent enough to maintain separate bedrooms for children, who are constantly willing to negotiate and who live in the same general neighborhood or school district. If a divorce is contested in the courts, the arrangement is often impossible.

Joint-custody agreements depend so heavily on a spirit of give-and-take that most are worked out with assistance from mediation and reconciliation centers. The Los Angeles Conciliation Court and other divorce counselors estimate that 15% to 20% of their cases now end in joint custody. That percentage is likely to grow. Predicts Susan Whicher, a Boulder, Colo., lawyer who heads the American Bar Association's special committee on joint custody: "Legally it's terrifying for a lot of lawyers and judges, but by the end of the 1980s it will be the rule rather than the exception."

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