LET'S GO BACK TO THE PRIMARY CARETAKER PRESUMPTION!

Many Family Court activists have tried to figure out how we can reduce the high conflict litigation in Connecticut's Family Courts.  The most recent proposal for doing this is to require that the State of Connecticut adopt a presumption of Shared Custody which would replace what we have now which is the presumption of Joint Custody. 

So what is the difference between Shared Custody and Joint Custody?  I have to tell you that I have repeatedly asked this question and haven't really received a satisfactory answer.  But I will do my best to give you a definition here today.  If folks reading this blog think I have misunderstood the definitions, please let me know so I can correct any mistakes. 

From what I gather, Shared Custody presumes that both parents would end up with fifty/fifty access time with the children.  In contrast, Joint Custody would stick to the idea that you have a custodial parent and a non-custodial parent and the non-custodial parent would see the children every other weekend--Friday evening, Saturday and Sunday until around 7:00p.m., and would then also have the opportunity for dinner with the child either one or two days per week. 

Both approaches to custody include a decision making policy where the parents share decision making in regard to the medical, educational, and religious lives of the children while leaving every day decision making to the individual parents who are present at the time. 

I have spoken about what I see as the problems with Shared Custody, which is that the children would have to jump from home to home and never exactly settle in either one, plus there are some very serious logistical problems if parents live over 45 minutes away from each other.  This means the children would be spending an awful lot of time in the car. 

The problem I see with Joint Custody is that the non-custodial parents are really limited to around 4 full days per month with their children, plus 4 to 8 two hour periods per week, which seems like hardly anything to me. 

On the one hand, if the parents are not getting along, perhaps that is a good idea.  However, if they are fairly easy going with each other, why not just reasonably expand the timeframe a little bit.  After all, in good times before the divorce most non-custodial parents saw their children every day. 

Still, the big question is, would either the presumption of Shared Custody or Joint Custody significantly reduce the level of conflict between divorcing couples when it comes to custody matters? 

I simply don't think so. 

Whether Shared or Joint, those couples who fight now are going to continue to fight with either approach.  Shared Custody will invite conflict just the same as Joint Custody does now because you are always going to have the exceptions built into any statute.

Those who fought for greater parental access under Joint Custody statutes are going to continue to use exceptions to get it.  Further, such litigants are going to use the greater access to the other parent that Shared Custody gives them to interfere in the day to day decision making of the other parent and use that as a means to abuse or coerce the other parent to relinquish his or her parental rights.  Bottom line--it's a nightmare. 

What else would I suggest? 

I would suggest implementing the Primary Caretaker Presumption.  The Primary Caretaker Presumption states that whichever parent, either father or mother, played the role of primary caretaker up to the filing for divorce should continue in that role.  Such a presumption would immediately eliminate the vast majority of the underlying causes of long and drawn out litigation. 

Identifying the primary caretaker up to that point would act as an extremely accurate litmus test for determining who should be the custodial parent. 

So why hasn't this been done already?  I'll tell you why.

Underlying the concept of Joint Custody as well as Shared Custody is the idea that it does not matter who was the primary custodian up to that point--that this doesn't affect the children that much emotionally. 

Further, the idea is that if the wage earner, up to the point of filing for divorce, suddenly finds inside him or her his latent talent for caregiving children, then that parent should be allowed to exercise it, even though he or she never exercised it before.  In theory, I have heard it said, it could be that the better caregiver is the wage earner, but because of economic necessity, he or she has been unable to exercise those abilities and now has the right to. 

This is an admirable sentiment.  But is it worth the waste of thousands and thousands of dollars and the destruction of so many of the lives of parents, children, and grandparents in order to achieve it?  I don't think so. 

The bottom line is that consistency in regard to primary caretaker is very important to children, particularly at the time of divorce.  To deny this is to completely trivialize the role of such caretakers, and is bottom line insulting and demeaning towards those caretakers who have often sacrificed a great deal physically and economically, let alone in regard to social independence and personal autonomy, in order to be there for their children. 

Originally, the Primary Caretaker Presumption was the law.  However, in the 1970s and 1980s with the rise of feminism, this presumption was replaced by Joint Custody.  The thought behind this among feminists was that such a policy would free women up to pursue challenging and interesting careers and release them from the domestic ghetto they found themselves in. 

At the same time, feminists anticipated that Joint Custody would allow more men to exercise their nurturing side and provide them with greater opportunities to leave the office and spend more time with their children. 

Unfortunately, this shift to Joint Custody backfired and led to serious harm and damage for women.  Since Joint Custody led to greater custody rights for fathers, unscrupulous men then used their greater access to children as a means to put pressure on mothers so that often mothers were forced to bargain away their economic rights for their custody rights. 

Frequently, Courts were too willing to be impressed with a father's sudden eagerness to assume an active role in parenting and failed to scrutinize his actual motivation which was simply to hammer down the level of child support and alimony he would have to pay. 

The end result was a phenomenon which one author described as "The Feminization of Poverty" where post divorce the income of fathers increased considerably while that of women took a sizeable decline.  Even if the happy result did occur where a father took the opportunity to spend more time with the children while mother returned to the job market, the fact remains that the vast majority of women did not achieve wage equity and remained stuck in medium to low paying jobs. 

As a feminist, I believe that a woman who has been primary caretaker up to the point of filing for divorce should certainly have the option to choose to leave that position and return to the working world and, should she wish to and her ex is willing, shift the burden of responsibility over to her ex-husband.  However, I certainly abhor the idea that she would be forced to do so through family court machinations and corruption. 

Unfortunately, what I am hearing about from a good many women is that Joint Custody has simply given abusive men greater access to abuse their ex wives and children either through custody switching schemes or financial beat downs.  Shared Custody, then, would simply do exactly the same thing, but worse.  

Also, unfortunately, many women who have lost custody of their children have been duped into joining father's rights groups and supporting Shared  Custody because they think at least if we have Shared Custody I will be able to see my children forgetting that it was Joint Custody (And, of course, its malevolent cousin Shared Custody which is simply a more intrusive form of Joint Custody) that got them where they are in the first place!  

The bottom line is, the only way to protect the rights of primary caretakers of children, both men and women, is to stick with the Primary Caretaker Presumption.  The fact is that, if we had such a presumption, the whole industry of GALs, AMCs, Custody Evaluators, and other vendors would collapse because we would have an open and shut way of making custody decisions in 99.9% of cases.  Whoever was the primary caretaker before will continue to be so.  Done and done.

As a nod, however, to the major social and intellectual changes that have taken place in recent decades, I would certainly recommend that the Primary Caretaker Presumption be combined with liberal visitation rights for non-custodial parents which go well beyond the minimal timeframe that Joint Custody currently provides.  Further, decision making should remain joint in regard to medical care, education, and religion.