THE NEW ZEALAND MINISTRY OF JUSTICE AND JOINT CUSTODY

The Ministry is not very enthusiastic about making joint custody orders. The position is described in Georgie Hall and Angela Lee (December 1994) Family Court Custody and Access Research Report 8: Discussion Paper, Department of Justice, New Zealand. They refer to a literature review which "cast serious doubt on the widespread belief that sole custody (and in particular sole maternal custody) was in itself damaging to the welfare of the children." (p.73) This was on the grounds that other factors, such as income levels, could explain the effects equally well. The point remains that this factor is correlated with sole custody, and sole maternal custody in particular. The effect of this viewpoint is policies which force a father to pay so as to raise the living standard of his children while in the care of their mother, rather than to allow him to parent his children even if he would rather do the latter.

Some of the information presented in support of this line is inaccurate. On page 75 of the report, they state:

In 1988, however, the State of California, which had earlier gone so far as to embrace in its statutes a presumption that joint custody was in the best interests of the child, recognised that this presumption was untenable and removed it.

i) this is a misrepresentation of the situation in California.

ii) other states have a presumption in favour of joint custody

The following are extracts from a document on Shared Parenting by the Coalition of Parent Support, Inc., in the US:

California was a trend setter in 1979 when it passed the nation's first legislation authorizing joint custody. It was spurred by a number of factors, including the societal push for gender-neutral laws, arguments by feminists that child-rearing should not be solely a female responsibility, and the fledgling fathers' rights movement. Joint custody was quickly copied by other states. (Currently, statutes in 43 states specifically authorize it and in 11 states it is the preferred approach to custody.) California replaced the "tender years doctrine" -- in which sole custody was awarded to mothers -- with "the best interests of the child" standard; and instituted a public policy that "frequent and continuing contact" with both parents was in the best interest of the children, and custody in contested cases was to be awarded to the "friendly parent," that parent who was least likely to interfere with the child's relationship with the other parent. Unfortunately, California altered the preference in 1988 to indicate the first preference was to both parents jointly or to either parent, hat there was neither a preference nor a presumption for or against joint custody, and the best interest of the child should determine the parenting plan.

[see here for text of legislation, it could be read to mean a preference for joint custody, SB]

By February 1996, Washington DC and Michigan had also passed legislation giving a presumption of joint custody, and California considered AB 999, specifying a clear preference for joint custody.

Shared parenting may be desirable, again from the Shared Parenting document:

Children raised by both parents enjoy greater emotional, physical and psychological health, and perform better academically. A child benefits from knowing that both parents are interested in his well-being and companionship. Shared parenting means children can enjoy twice the good things in life: two bedrooms, two sets of toys, two wardrobes, two sets of friends, two sets of pets. Nurturing comes from two families, instead of just one.

Shared parenting is the least drastic change for the child after divorce or separation and most mirrors the way things were before. Shared parenting will help soften the pain of divorce/separation by giving fathers a more equal chance to raise their children and ensure that their children have more than a perfunctory relationship with their father.

Needless suffering by children who feel abandoned by their fathers, mothers who need relief from the pressures of single parenting, and alienated fathers can be prevented by shared custody. A child raised by both parents is spared the tremendous guilt of having to choose or state a preference in court between his parents. Children are robbed of their childhood when they become the custodial parent's confidant and caretaker. Gayle Kimball, 50/50 Parenting (1988). Mentoring programs for males and young fathers ignore a free resource: their own fathers.

But mothers may not be supportive:

50% of mothers "see no value in the father's continued contact with the children" after separation. Kelly and Wallerstein, Surviving the Breakup (1980). 40% of mothers reported that they had interfered with the non-custodial father's visitation on at least one occasion, to punish the ex-spouse. Sanford Braver, Am. J. of Orthopsychiatry, 1991.

The New Zealand 1994 ISSP survey provides some New Zealand evidence on mothers' and fathers' views of their roles and the importance of those roles. See here or go direct to Children and marriage and Who cares for the children?

In the context of the policy debate in California, Eloise Anderson, director of California's Department of Social Services, said:

"I expect that fathers can nurture their children just like mothers can nurture their children. We constantly put all the weight onto the female. I want to take some of the weight off of her and put it on the father, and I want to take some of the financial weight off the father and put it on the mother." "Eloise Anderson," Sunday Interview, San Francisco Chronicle (12/24/95).

The effects of fatherlessness can be serious. Look here for some US data complied by the Coalition of Parent Support, Inc..

Stuart Birks

Last modified 17 June, 1996