Todays analysis begins with the testimony of three Minnesota practitioners who were invited to make brief presentations to the Study Group concerning the potential impact of a joint physical custody presumption on children, fathers, mothers, parents from diverse communities and socio-economic status, and families who have experienced domestic violence. However, it is apparent that this selection was made with the intent of convincing the Study Group to oppose the presumption.
Impact of Joint Physical Custody Presumption on Children
Mindy F. Mitnick in her testimony attempted to cast presumptive joint custody in a bad light by saying that the one-size-fits-all nature of joint physical custody presumptions is detrimental to children for three reasons. However, her testimony missed the obvious and glaring reality which I will point out.
She first expressed that parents in low conflict custody litigation who are best suited for sharing joint physical custody will do so without need of a legal presumption. These are parents with good communication skills, flexible styles of decision making, and the ability to put the needs of children first, and who also live in geographic proximity to each other. She feels that parental conflict levels are the best predictor of children’s post-divorce adjustment. She then makes the jump beyond a logical connection to say that adoption of a joint physical presumption would increase the number of children exposed to high and moderate conflicts. She states that high conflict parents are not suited for joint physical custody because of the results on children; heightened aggression, impulsiveness, and anxiety, poor social skills and other emotional problems.
Mitnick's fundamental error in her analysis is a failure to accept or understand what a joint physical custody presumption is. Mitnick portrays a due process requirement that requires a court to view litigants as possessing the same rights regardless of gender as being a final decree awarding custody. There is a great danger in the misdirection of people like Mitnick, who are advancing a an anti-family agenda, in that they use actual results and fear to speak to an issue which a joint physical custody presumption does not apply. Specifically, a joint physical custody presumption does not mandate any custody decisions. It is only a due process first step. The courts may still make custody decisions as has been done in the past but with an equally evidenciary burden on each parent.
Impact of Joint Physical Custody Presumption on Fathers
Melissa Froehle analyzed the implications of adopting a joint physical custody presumption for custodial and noncustodial fathers. Historically proponents urged creation of a joint physical custody presumption in part because the label carried implications for calculation of child support and the ability of the physical custodian to relocate. However, both of these issues have been addressed through recent statutory changes and are not applicable here.
Froehle feels that it is difficult to predict how adoption of a joint physical custody presumption would affect the amount of parenting time fathers receive because under current law, which presumes 25% parenting time for fathers, the label of joint physical custody is not tied to a set amount of parenting time. Thus, with a presumption, the amount of parenting time could increase, remain the same, or perhaps decrease if heightened conflict causes fathers to “drop out.” This testimony directly contradicted Mitnick who felt that the due process presumption results in mandatory equal parenting time.
Froehle made some additional points about father's parenting time which included.
• The “type” of time a father spends with his children. The “type” of parenting time has significance for creating a meaningful father-child relationship. While research shows that the quality of time fathers spend with children is more important for child well-being than the quantity of time, fathers may have more overnight parenting time under a joint physical custody arrangement and this could help fathers maintain a meaningful ongoing role.
• Future modification of parenting time. With joint physical custody, parenting time could more easily be modified.
• Compliance with parenting time. It is difficult to predict whether mothers (who might otherwise be sole custodial parents) would be more likely to comply with parenting time after an award of joint physical custody. One theory holds that with shared physical custody, power differentials are equalized and that non-compliance may decrease.
• Psychological status of the parents if one is considered to be a “visitor.” Creation of a presumption of joint physical custody could have a positive psychological impact on fathers in that it might encourage them to stay involved with their children and to pay child support. Adoption of a presumption of joint physical custody would impact fathers who are or would otherwise be sole physical custodians in the same way it would impact similarly situated mothers.
Like Mitnick though, Froehle misses the point of a joint physical custody presumption. That is, unless shown otherwise through the normal course of custody proceedings, both parents are entitled to maintain custody of their children that they possess by virtue of being the natural parents of a child. Although these points may be relevant to actual custody decisions I do not believe they are relevant to a due process presumption.
Impact of Joint Physical Custody Presumption on Primary Caregivers
Loretta Frederick discussed the historical trend away from use of presumptions and toward individualized child custody decision making. Fredrick admits that joint physical custody works in limited circumstances where the parties are committed to it and the logistics are workable but counters that by saying research shows that when parents have the option, eighty percent do not choose joint physical custody.
Fredrick cites that 30 years ago California adopted a joint physical custody presumption but changed to a system of awarding joint physical custody in cases of agreement. California judges cited lack of parental cooperation, continuing parental conflict, instability, and logistical difficulties as major problems. Frederick claims that research also indicates that joint physical custody arrangements are not stable and they increase litigation. Frederick, in an attempt to dissuade a presumption, then went on to talk about the scope of actual joint physical custody arrangements that are not relevant to a presumption.
Impact of Joint Physical Custody Presumptions in Cases involving Domestic Violence
Loretta Frederick presented information concerning the impact of joint physical custody in cases involving domestic violence. Research shows that contested custody cases frequently involve allegations of domestic violence (50% to 77%). Allegations of Domestic Violence have long been considered a woman's "silver bullet" in gaining child custody. Often times, without any evidence or past history, judges will order a man out of the family home, away from the children and then grant permanent custody without any finding that DV has ever been committed.
Although Frederick felt such cases require a differentiated response including consideration of the severity and frequency of the violence, the pattern of the violence, identification of the primary perpetrator, investigation of parenting capacity, and analysis from the perspective of the child she did not feel that false allegations should be considered a factor. Few people would disagree that protecting children should be the highest priority. In cases involving coercive controlling violence, the abuser often threatens to harm the children in order to control or punish the victim. This behavior continues after separation or divorce.
That is exactly the type of situation I faced. Prior to Elica Talbot abandoning our family she did point a gun at my toddler son and threaten to kill him because "You care more for him that you do me". She also returned to the house armed once again and started making threats. That time I did call the police and she fled as they arrived.
Frederick believes that statutory exceptions to joint legal and physical custody presumptions for cases involving Domestic Violence are ineffective because: (1) victim parents may not understand that the presumption can be rebutted or how to do it; (2) victims fear retaliatory violence for attempting to rebut the presumption; (3) victims may not immediately understand the dynamics of domestic violence and its impact on children; (4) victims may lack evidence of the violence; (5) victims may be unable to afford litigation; (6) victims may be unrepresented; (7) family law professionals frequently fail to identify domestic violence; and (8) there are no proven models for screening and assessing domestic violence in the court context.
Frederick has made it clear that the due process requirements of a presumption of joint physical custody would go against her agenda of depriving children of access to both parents and increasing conflict in their lives.
Impact of Joint Physical Custody Presumption on Non-marital Families and Parents from Diverse Communities and Different Socio-Economic Status
Melissa Froehle also presented information on unmarried families and single-father headed households. Almost 40% of births are non-marital and the increase in non-marital births is largely the result of births to cohabiting couples. Most non-marital children are born to romantically involved parents who desire father involvement. However, cohabiting and visiting relationships tend to disintegrate over time. Yet, in terms of household composition, children born into cohabiting households may not be so dissimilar from children born into married households. Research shows that children born into cohabiting families spend 74% of their childhood years in a two-parent household, as opposed to 88% of children born into married households and 51% born into single-parent households. Rates of cohabitation, as well as non-marital birth, vary significantly by race and ethnicity.
Some barriers to father involvement include poverty, lack of education, and multiple partner fertility. Research shows that low income fathers are initially highly involved with children born outside of marriage but contact with nonresident fathers tends to decline over time. Rates of paternity establishment have soared and 64% of open Minnesota child support cases currently involve children of unmarried parents. Single-father headed households are the fastest growing household type in Minnesota.
Social Science and Related Literature
Jeffrey L. Edleson made a presentation to the Study Group entitled “Assessing Social Science Research.” He discussed evidence-based decision making and suggested four questions to consider when evaluating studies.
First, identify the purpose and specific aims of the study.
Second, ask how the study was conducted, specifically who was studied, how the people were found, what research design was used, and how participants provided information.
Third, determine what was found including how data was analyzed, the general findings, and how variation was dealt with.
Finally analyze the meaning of the results and the extent to which the data support the conclusions and whether alternative explanations are considered.
Dr. Edleson made an important caution in that no one study is definitive and readers should be cautious about causal claims. This is the type of "evidence" that those with anti-family agendas like Frederick and Mitnick make. Throughout their testimony they would site a specific finding from a particular study that is not generally applicable and apply it in a context that was not relevant to the current study. Dr. Edleson further cautioned that only studies based on representative samples with replicated findings can be generalized.
He urged Study Group members not to expect “black letter truth” from social science. Members of the Study Group submitted articles for consideration that were distributed at and between meetings. Those can be found in the Appendix of the Study.
Study Group Discussion of the Impact of a Presumption of Joint Physical Custody
Based on oral and written testimony, social science and related literature, and professional and personal experience, Study Group members identified potential problems and benefits associated with adoption of a joint physical custody presumption. Study Group members did not reach agreement about the list and it is not necessarily comprehensive.
As happens throughout the advocacy world, the discussion was complicated by lack of consensus concerning the meaning and operation of a presumption of joint physical custody. Clearly Frederick sought to confuse the Study Group by presenting her agenda in which she claims that a due process presumption would harm children by requiring judges to force children to live with parents who have abused them. However, there is no language in any custody presumption bill that would require this.
Here is what the Study Group found to be benefits and concerns:
Potential Benefits of Adopting a Presumption of Joint Physical Custody
• A joint physical custody presumption would encourage children’s ongoing relationships with both parents, particularly fathers.
• A joint physical custody presumption would decrease perceived court system bias against fathers.
• A joint physical custody presumption would limit court discretion.
• A joint physical custody presumption might enhance predictability.
• A joint physical custody presumption might decrease perceived variability of outcomes from different jurisdictions.
• A joint physical custody presumption would change the “starting point” for
negotiations between parents because the burden of proof would shift to a parent
seeking sole physical custody.
• A joint physical custody presumption might decrease litigation.
• A joint physical custody presumption might decrease parental conflict by equalizing power between parents.
• A joint physical custody presumption might enhance children’s relationships with extended family members.
• A joint physical custody presumption might encourage development of a familial relationship when unmarried parents have not had a prior relationship.
• A joint physical custody presumption might increase efficiency and reduce some costs.
• A joint physical custody presumption might enhance parents’ rights.
Concerns about the Impact of a Joint Physical Custody Presumption
• A joint physical custody presumption would limit the ability of the court to consider the needs of individual children.
• Joint physical custody would be detrimental for children continuously exposed to high levels of parental conflict.
• Joint physical custody might heighten conflict between parents who, for a variety of reasons, are unable to effectively co-parent.
• A joint physical custody presumption would be dangerous for children and victims of domestic violence (battering) because even if exception is made for such cases, courts do not currently have the resources or ability to consistently identify battering or reliably assess risk.
• A joint physical custody presumption would create financial and procedural challenges for low income and unrepresented parents who would be required to carry the burden of proof if they, for any reason, object to joint physical custody.
• Joint physical custody would be impractical for some families such as those where parents live in geographically distant locations, children are very young, and/or parents are not married and have never had an ongoing relationship with each other.
• A joint physical custody presumption might primarily apply to the minority of parents who are unable to agree on parenting arrangements.
• A joint physical custody presumption might increase litigation.
• A joint physical custody presumption might create discontinuities and conflicts with other statutes and programs (private health insurance eligibility, child support “obligor,” Earned Income Tax Credit eligibility, MFIP eligibility, Head Start eligibility, etc.).
• A joint physical custody presumption might result in system-wide confusion stemming from disagreement over the definition and operation of a joint physical custody presumption.
• A joint physical custody presumption may not be an appropriately tailored solution for current problems --lack of Minnesota data makes it difficult to assess issues and generate helpful responses.
Be sure to check back for the next installment,
Minnesota Shared Parenting Report - Part VI
Fiscal Impact of Adopting a Joint Physical Child Custody Presumption
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