'Joint Custody and Shared Parenting - Are the Courts Listening?' Justice of the Peace, Vol 165, (49), (2001b), pp963-966

A collection of articles on Parental Alienation Syndrome and Parental Alienation in family court proceedings in the United Kingdom by

Dr L F Lowenstein M.A., Dip.Psych., Ph.D.

'Joint Custody and Shared Parenting - Are the Courts Listening?' Justice of the Peace, Vol 165, (49), (2001b), pp963-966

Introduction

Some of the greatest problems in society arise as a result of marital disharmony, divorce and allowing only one parent to be responsible for the bringing up of the children, while the other is sidelined or totally cut-off from fulfilling their parental role. In the United States alone, 50 per cent of marriages now end in divorce.

The question of whether there should be sole custody or split custody (one child with one, and another with the other parent) after separation or divorce has in recent years, given way to a preference for "joint custody" and "shared parenting". This eliminates the need for visitation rights and unsupervised or supervised contact for the non-custodial parent.

In my view, we are heading towards a new era, where the contribution of both parents in the task of child rearing must predominate when a marriage or

a partnership is at an end. Of course there are exceptions, when some kind of unsupervised or even supervised contact is preferable - the latter in particular when past abuse of the child is suspected or proven. While the child or children must be the main concern, this is linked closely to the family: ie, both of the parents and the child or children. The concept of joint custody and arrangements facilitating are preferable whenever possible. This is not usually an issue when all parties involved experience healthy, caring relationships prior to the parents' separation. But, whatever the natural advantages may be, joint custody also poses problems from time to time.

This article will focus on four main areas: 1. The problems and advantages associated with joint custody; 2. What should be done if joint parenting or custody does not work? 3. What happens to the children when alienation and hostility between the parents continues? 4. The role of Judges and the courts.

The Problems and Advantages Associated with Joint Custody

Needless to say, marital or non-marital relationships do not break up without good reasons. Usually, relationships end as a result of incidents, arguments, incompatibilities, etc. This may, in some cases, leads to hostility or even aggression in the form of domestic violence (Lowenstein 1999d).

Sole custody occurs where one parent has been excluded. This should only

happen when the excluded individual poses a physical, emotional or sexual danger to the children. It should never occur as a result of alienation by one parent against the other (sometimes termed parental alienation syndrome (PAS): Gardner 1987; 1989; 1992;1998; 2001. Lowenstein 1998; 1999 a, b, c; 2000; 2001).

In cases of split custody, this can work most effectively when both parents agree on how it should be done; this is not always easy and the parents often need help in making decisions that are fair.

Marital separation, being more than likely due to marital disharmony, frequently leads to problems which continue, and in fact often intensify, after the separation. At least one, possibly both, former parties feel aggrieved by the hostility that results following the break-up of the relationship. This has affected, and continues to affect, the children, whether directly or indirectly. Conflicts between parents affect children and can even cause traumas, immediately or in the long-term. (This will be discussed later in the article.) Children, especially the very young, cannot understand how and why their parents are in conflict. They feel not merely upset, but also insecure and helpless that the powerful guardians of their existence should be quarrelling and sometimes threatening, as well as showing, verbal and physical aggression towards one another.

Children may react in a number of ways: they may seek to hide or withdraw from the conflict between the most important people in their lives; or attach

themselves to one or other of the parties. Children attempt to seek some semblance of security or normality. Gardner (1982) points out that joint custody is not for everyone, even if it is an ideal when it can be achieved as a result of the maturity and goodwill of the parents. If it is imposed on parents who are in conflict, it is unlikely to prove beneficial. If it is to work, parents must be able to put aside their personal animosities towards each other and concentrate on what is likely to be in the best interests of the children and what each individually can do to foster security for them. This should be their main aim. Thereby both parents have a combination of equal rights and responsibilities as to the welfare of their children, despite the fact they no longer live together.

Not all parents are amenable to this "ideal" arrangement. Many prefer to distance themselves from their former partner. They often wish to form new relationships and their former partner could be viewed an impediment to this. Such a view leads to the feeling that the children might be better off without the other natural parent participating in the parenting process. The desire to extinguish or eliminate one party from parental participation is often a mutual consequence of marital disharmony followed by separation and/or divorce. The adversarial system often exacerbates differences between the former partners, as each solicitor in the case seeks advantages for his particular client over the other.

Sometimes it is possible, through mediation, to make both parents "see sense" in establishing a post-divorce relationship leading to joint custody or at least "split custody", or in some cases "divided custody". In order to achieve any of these goals, there must be a degree of "goodwill" between both parents who put their children and their welfare first and foremost rather than their own feelings. Not only does much depend on their motivation towards this end, but also the role of a highly skilled mediator may be necessary. The court must back the process of mediation, being willing to encourage the process and to admonish one party or the other if they fail to co-operate with the mediator. If necessary, the court must go so far as to award sole custody to the party who is amenable to the mediation process and is willing to co-operate with mediation.

Where one of the parents is denied access or a fair share of parenting opportunities, justice must prevail. Steps should be taken to prevent programming or alienation, which one of the parents could practice against the other parent. The child should neither continue to suffer from the relentless conflict between parents, nor achieve the manipulation of both parents. The great advantages of joint custody is that it a) sustains a state of parenting, as was previously the case when the marriage or relationship was intact and b) provides maximum access by both parents to the child or children. It is therefore least disruptive for normal family life. It offers parents balanced roles as far as the rearing of the children is concerned.

The main drawback with joint custody is where the continuing conflict between the parents affects the children and leads to possible insecurity as they move from one home to another. This is especially difficult where parents do not have the same approach to the discipline and guidance of the children, or where one parent uses the child against the former partner. It might well be necessary for the divided couple to live not too distant from one another geographically. The most important factor stems from the parents love of their children and their willingness and capacity to co-operate with one another because of this.

What Should be Done if Shared Parenting or Joint Custody Does Not Work?

It must be accepted that when joint custody is found to be ineffective other forms of custody must be found. First, it is necessary for parents to communicate, co-operate and consider the welfare of children first and foremost and not seek to maintain the conflict.

Much depends on Judges making the right decisions, including consideration of which parent is likely to make the greatest effort in involving the other parent in the process of caring for the child. When in doubt, custody should fall to the parent who is less likely to alienate the child against the other parent (Gardner, 2000). Equally, a parent who seeks to exclude the other parent from caring for and rearing a child, without valid reasons such as sexual, physical and other abuse, should never be given sole custody. This is likely to be the first step in avoiding the pernicious tendency of one or both parents to attempt to alienate a child against the other. Where alienation occurs, the custodial parent has the greater advantage and is likely to be more successful in alienating the child towards the non-custodial parent. (Attention will be drawn again to this point when we discuss the role of the Judge and the court.) Following a particularly rancorous divorce or separation, parental alienation syndrome may arise (PAS):Gardner 1987,1989,1992,1998,2001; Lowenstein, 1998, 1999 a, b, c, 2000, 2001. In that case, it could well be best for a third party to take over the care and responsibility of the children until the situation is resolved - ie, until both parties can be convinced that it is best to co-operate with one another for the benefit of the children. This, in turn, has spin-off benefits for the children as well as the parents. Whilst mediation by a qualified psychologist is essential, so is a court of law which backs such an approach and the decisions made via mediation. By "backing" it is meant that the court penalizes one or both parents who fail to co-operate with the efforts of the mediator - this includes when one parent deliberately attempts to alienate the child(ren) against the other parent.

What Happens to the Children When Alienation and Hostility Between the Parents Continues?

This is a question frequently asked in courts, by Judges as well as the alienated parent. One is rarely asked the question by the parent who has custody of the child and who may be carrying out the alienation process against the other! That parent cannot or does not wish to see that excluding their former partner from the parenting process can cause serious emotional and behavioural problems, both now and in the future. This is especially the case where there is a consider-able amount of conflict during the marriage and after the parents separate. While parents are in the throes of such conflicts they often behave irrationally and cannot see what it is they are doing to their children. It becomes a tug-of-war wherein the child(ren) and their true feelings are ignored.

Children are forced against their will to take sides and often to be against the other parent. It is difficult for the children to remain neutral since they cannot please both parents simultaneously, especially in front

of one another. They will, on the whole, side with that parent who appears to promise them the most security, support and often extrinsic rewards also. Thereby, the non-custodial parent is sidelined and even eventually totally rejected by the children due to the influence of the custodial parent.

This leaves the rejected parent with several choices:

1. Due to the uphill battle involved he/she is likely to opt out of their parental responsibilities altogether. This will be used in turn as ammunition by the alienating parent: "You see he/she doesn't care and is leaving it all to me to look after you".

2. He/she will battle on for a long period of time, often for years due to their dedication to the child, in order to have access so they can fulfil a parenting role. This will equally be used by the custodial and alienating parent: "You see he/she is making trouble for me as he/she has always done, dragging me through the courts and trying to have me punished".

Here we have an obvious "no win" situation for the parent who has been sidelined or alienated. In the UK, Judges, tend to take what they consider to be a pragmatic position, tending to favour the parent who has custody of the child (usually the mother).

Associated with this choice is the traditional view that mothers should have a prominent role in caring for their children, irrespective of what the father might be able to do for the child.

In the USA, in order to prevent or deal with this kind of parent. Judges or courts will mandate a parent to attend mediation classes, usually held by a clinical/forensic psychologist with expertise in mediation and family problems. That psychologist is then responsible for reporting back to the court. The report must contain information as to how much or how little a parent is co-operating in allowing both parents to participate in their parenting role.

Destroying the parenting role and authority of one parent can produce a child who has strong anti-authority, or anti-social feelings - this can be a problem for life. It begins with children gaining an unhealthy power over adults as they successfully play one off against the other. Such children will often have difficulties in school or elsewhere for trying to "buck the system". Since there are repercussions, the child will often develop behavioural problems and emotional difficulties including hostility, depression, sleeping and eating disorders and other related issues. If often begins with the child failing to get up in the morning, to go to school, to do homework and study, and eventually truanting.

The reaction of the child to continued conflict has been well documented by Gardner (1987, 1989, 1992, 1998, 2001; and Clawar & Rivlin, 1991; and Lowenstein 1998, 1999, a, b, c, d, 2000, 2001). Therefore, it is imperative that conflicts be prevented and remedied as soon as possible. Prevention, in the case of hand-over difficulties, can be achieved by locating a neutral site such as a police station, court of law or Social Service Centre. Sometimes using an intermediary who is not a party to the parental conflict is necessary. That person can hand over the child or children from one parent to the other as an interim arrangement, thus reducing the likelihood of arguments or violence between parents when they meet. When the likelihood of hostility has been reduced via mediation, this course of action will no longer be necessary.

When there is a high level of conflict between parents, this will effect the children and therefore special mediation practices are necessary, especially when dealing with Christmas Holidays and holidays in general. As a mediator, it is often necessary to spend a lot of time with individual parents before allowing them to meet for the purpose of developing parental co-operation. Such meetings between the parents should only happen when the mediator feels that both parents, when they meet, will have a higher pro-portion of areas of agreement as opposed to disagreement.

It must be remembered that the more hostile parent who has custody of the child may be clinging to that child for emotional support as well as for revenge purposes. Such parents are unlikely to wish to relinquish any control of a child for that reason alone. In turn, the child, having identified with the views of the custodial parent, is likely to react to this by reciprocating in his/her need for the emotional support of the custodial parent, therefore shutting out the other parent even more. This frequently leads to the child expressing the view (obviously supported by the hostile parent) that he/she wants little or no further contact with the other parent. Unfortunately, this will often be taken at "face value" by a court welfare officer, a guardian ad litem and a Judge. It is then followed by the claim that the child has the right to choose and to avoid contact, or only maintain minimal contact with one of the parents. This is the easy way out; it is also the wrong way. While the views and preferences of children must be respected, it must be important to assess and understand where these thoughts and attitudes originate! These are unhealthy thoughts and attitudes since they are based on what the alienating parent wants the child to do or to behave like. Such a disposition is inculcated in the child by the alienating parent. This, however, is not in the children's short or long-term interest. Judges and others must be made aware of the insidious process of programming and alienation. It is therefore important to avoid making decisions that are strictly based on what can only be viewed as effective or successful alienation by a custodial parent. This lead us to the final section on Judges and the Courts in relation to custodial decisions.

The Role of Judges and the Courts

Judges and courts have a most important role to play when couples separate or are divorced, and when they are in constant conflict over who should have responsibility for the care of children. When one parent seeks to exclude another parent from sharing parenting, unfortunately the courts tend to help that custodial parent to succeed in this. Judges are concerned when custodial parents fail to accept that they must share the actual care of children with another. This is likely to occur when the parent who has control of the children seeks to sideline or totally reject the other parent's rights and responsibilities to play a parental role.

The parent who has custody is often viewed as the best parent to have control over children - a situation that Judges find difficult to reverse. Therefore, they give the non-custodial parent little or no opportunity to play a parenting role. Those who seek, often for several years, to gain access and contact with their children whom they love and to whom they are dedicated, are often not viewed as caring, loving or responsible parents eager to involve themselves in the future of their children. As pointed out by Coe (2001), they are seen as "... obsessive, insensitive trouble makers for coming back to court because they are not seeing their children". Sadly, this is the view of too many UK Judges, despite the overwhelming research which has shown that children do better in life if both caring parents are actively involved in parenting.

To the question whether courts should order children with PAS to visit and/or reside with the alienated parent: the research by Gardner (2001) gives a clear response. Gardner describes 99 cases in which the author was directly involved. Here Judges transferred residential custody to the alienated parent. The outcome when such orders were implemented in 22 cases were compared with 77 cases when this did not happen. In the 22 cases, PAS symptomatology was significantly reduced or even eliminated. Where the court did not reassign custody to the alienated parent, parental alienation symptomatology increased in 70 children (90.9 per cent}. In only seven cases (9.1 per cent) of the non-transferred children was there "spontaneous improvement". Custodial change and a reduction in alienators access to children was found to be associated with reduction in parental alienation symptoms. Despite the emphasis on "equality" of the sexes.

Judges still give preference to the mother when it comes to sole or primary custody. Such gender bias is out of place in this day and age. Again, it must be stressed that it is the parent who is more rational and fairer in involving the other parent in playing a parenting role who should be given custody, irrespective of the gender. The child should never be forced to choose sides. This is not the way for the child ultimately to feel secure. The child will feel secure only when both parents are involved in the parenting process and treat one another with respect and with consideration and not with hostility. Adjudicating Judges must consider this important point when determining custody matters.

Bibliography

Coe, T. Notes taken at parent education class run by the Superior Court of Maricope County, Phoenix, Arizona, USA (03-08-01).

Gardner, R. A. (1982) "Joint Custody is not for Everyone", Family Advocate, Vol.5, No.2, p.7. The American Bar Assn. Family Law Section.

Gardner, R. A. (1987) The Parental Alienation Syndrome and the Differentiation Between Fabricated and Genuine Sex Abuse. Creskill, New Jersey: Creative Therapeutics, Inc.

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Gardner, R. A. (1992) The Parental Alienation Syndrome: A Guide for Mental Health and Legal Professionals. Creskill, New Jersey: Creative Therapeutics, Inc.

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