Monthly Archives: May 2017

Is Joint Custody Always in the Best Interest of the Child?

For those of you who have been following my blog posts, you probably remember that I have addressed this issue in prior posts. I wrote one post entitled “The Benefits of Effective Co-Parenting.” In that post, I gave examples of two family situations wherein the parties had divorced but, nonetheless, were able to effectively co parent. In those situations the fact that the parents had split, had no effect on the development of their children. That was because the parents actually remained friends and helped one another out.

In another post, entitled “What happens In Custody Disputes When Parents Have Reasonable Expectations,” I talked about a situation wherein a mother sought out a residence close to the father, so that her daughter could regularly see her dad. While the mother knew that her marriage was over, she recognized that her Ex is an awesome father. Thus, she wanted to ensure that her daughter continued to have regular contact with her father.

Those cases represent the ideal rather than the norm. In most custody battles, the issues are more complicated and contentious.

In another blog post entitled “Do Pre-Nups and Forum Shopping Pay Off-What Can Be Learned from the Break-up of Katie Holmes and Tom Cruise,” I discussed how different states view custody arrangements. I pointed out that New York favors sole custody, while California favors joint custody. I explained that Katie Holmes waited 2 years before filing for divorce from Tom Cruise, so that she could establish residency in New York. I pointed out that this paid off for Katie, in that she now has sole custody of their daughter, while Tom has visitation. Had the matter been litigated in California, where joint custody is favored, Katie and Tom probably would have had a long drawn out custody battle, with both parties sharing joint physical custody of their daughter.

Since I practice in California, this post will address the impact of joint custody arrangements in California. The legislative and judicial mentality here favors joint physical custody. Even if one parent has “primary” physical custody, meaning that the child is in that parents custody most of the time, the mind-set here is to characterize the other parents time share as being his or her “custodial” time rather than ‘visitation’ time. Thus, even the language used in fashioning custody arrangements in California has implications, and, therefore, invokes emotions.

In California, the legislative and judicial goal is to strive for “regular and frequent” contact with both parents. But is this always in the child’s best interest?

I was recently involved in a custody dispute which involved a seven month old child. I represented the mother. The child was very happy, secure and playful in his mother’s presence. The mother was calm and intuitively knew how to parent. In contrast, the father had anger issues, and felt overwhelmed by being a first time parent. I felt the father needed to take courses to get his anger under control. The Judge was more concerned about his parenting skills. Nonetheless, the Judge did not order that the father enroll in either parenting or anger management courses.

The mother expressed legitimate concerns regarding the child’s safety while in the father’s “custody.” The father’s lawyer keep harping away at the legislative preference for “frequent and regular contact” with both parents. I was able to persuade the Judge that the child should be in the mother’s care most of the time, and that visits with his father should be restricted. In the end, the Judge ordered joint physical custody, with primary physical custody to the mother. In other words, although the father’s time with the child is restricted, the court did not want to characterize his time share as “visitation” time. It was his “custodial” time. That is very typical of the mind set here in California.

This case caused me to question whether joint physical custody is always in the child’s best interest. Particularly in situations involving infants. The first few years of a child’s life are the developmental years. While the ideal situation is for children to have a relationship with both parents, one questions whether it is advisable for an infant to be exposed to anger and poor parenting skills during those crucial developmental years.

Perhaps the over-riding concern should be what is in the best interest of the child. Not what is best for the parents.