Wednesday, February 16, 2005

Joint Custody: Bonding and Monitoring Theories

Joint Custody: Bonding and Monitoring Theories
Margaret F. Brinig & F.H. Buckley


This Article discusses two possible benefits of joint custody. Under bonding theories, fathers permit themselves to grow more attached to children when they do not fear a complete break with them on divorce. With the increased emotional ties, divorce becomes less likely. This greatly benefits children, as divorce is one of the greatest tragedies which can befall them.

Under monitoring theories, joint custody addresses an agency-cost problem that arises under sole custody. The noncustodial parent cannot easily see how his financial contributions are spent, and therefore assumes the risk that some moneys will be misspent. With joint custody, by contrast, the parent can monitor for such problems through his increased access and responsibility.(2)

Some feminists argue that joint custody ill-serves children. In the move from maternal custody, it is said, fathers who really did not want to raise their child have been awarded joint custody.(19) The move to joint custody has also been seen as unfair to women. In the stress on the child's well-being, the mother's contributions during marriage are devalued. The father's newfound interest in child rearing is heralded and welcomed, while the more faithful mother's longtime contributions are ignored.(20) More radical feminists see joint custody as a tool to control former wives.(21) The debate is often highly politicized, and joint custody is indeed strongly supported by a fathers' rights movement.(22)

These concerns suggest a useful empirical agenda.(26) However, it is wrong to conclude that screening problems occur only under joint custody. Courts may also err under sole custody, and award exclusive custody to an unfit parent. There is indeed little reason to think that these problems are more severe under joint than sole custody. We might fear a grant of joint custody to unfit fathers if male family-law judges, under the grip of a humanist ideology, systematically favored men. But can anyone seriously think that this describes family-law courts in America? Moreover, given the better monitoring available through shared custody, joint custody's self-correcting tendencies are plausibly stronger than those of sole custody.

We therefore hypothesize that a move to joint custody will decrease divorce rates. Fathers will react to the change in the law by permitting themselves, through a thousand quotidian acts, to grow more attached to their families. And as a consequence, they will find themselves less ready to leave them. (I have to interject here and say it is EXTREMELY unfortunate the authors choose to omit the fact that most divorces are initiated by women. Research has shown that joint custody states do have lower divorce rates - possibly because both parties take the marriage/divorce/custody more seriously. It is asinine to assert than men will be less likely to leave and completely neglect that women will ALSO be less likely to leave which is of paramount importance considering their recent *affinity* for divorce)

Reducing divorce rates would almost certainly be in the best interests of children. Thirty years ago, before the run-up in divorce rates, liberationist philosophers, both male and female, argued that divorce did not harm children. Indeed, they argued, children might be better off after divorce if the parents have been fighting. But very few people, ideologues apart, still believe that increased divorce levels are benign. Children are surprisingly resilient in getting over parental fights.(50) What children do not get over is divorce.

Children of divorced parents lose more than financial resources.(59) Most no longer have two parents who are actively involved in raising them.(60) The children (particularly if young) may blame themselves for the divorce.(61) If the parents continue to squabble over visitation and finances or who caused the marital dissolution, the children necessarily witness a pathological adult relationship. Even if the separation is peaceful, the custodial parent may be so overwhelmed by the heavy demands of full-time employment and single parenthood that there is simply little energy left for the children. Discipline may be neglected, and the children left largely to their own emotional and intellectual resources.(62) The picture becomes decidedly more complicated if either parent begins a new adult relationship: the children may feel (or even be) rejected for the new romance or a new half-sibling.

The costs of divorce for children have been studied in longitudinal comparisons between children of intact families and those of divorced parents. Short-term studies report that children are confused and depressed, sometimes clinically so.(63) They fare worse in school,(64) have problems in their peer relationships, and are more apt to "act out."(65) Over the longer term, researchers report that the children of divorce are more likely to drop out of school.(66) Girls, especially, are more likely to be promiscuous.(67) Boys are more likely to become delinquents or criminals.(68) Both sexes have a higher rate of marital failure when they grow up.(69)

If children spend more time with their fathers under joint custody, this may benefit them in other ways. In general, two parents are better than one.(71) Fathers will see their children as part of their normal life, and may dispense with the joyless search for "quality time" with them on weekends or vacations.(72) The parents will be better able to perform their complementary roles,(73) and to balance each other's power.(74) They may also more easily serve as exemplars whom the children may emulate as they mature.(75)

Joint custody also formalizes a more normal bond between ex-spouses. The rancor of a divorce may be less bitterly felt and remembered when one knows that a common tie will remain and cannot be ignored. The joint deliberation over the child's future might also reduce the level of acrimony, even from the start.(76) This also will ease the pain of divorce for children.

There is much, much more... Link to the article above to read it in its entirety.

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