Donate Child Support Calculator
Skip navigation

Parents Sometimes have Unrealistic Views of Parental Custody

Discussion about equal and other shared parenting.

Discussion about shared parenting.  From a different jurisdiction (New Mexico, USA) but of interest.

Parental Custody is Sometimes Out of Joint?
By Anne Kass

In 1980, as a lawyer, I represented a father who was seeking custody of his 5-year-old son. The case was handled in the traditional, adversarial way. We hired a psychologist who interviewed both parents and the child and who gave the opinion that while both parents were fit, the father was fitter. He should have custody. The mother and her lawyer hired another psychologist who likewise interviewed the parents and the child and opined that while both parents were fit, the mother was fitter. She should have custody.

Off to court we went. During two days of trial, the parents said awful things about one another. Ultimately the Judge ruled that the mother would have custody [dad4life note: as most ofen happens!]. The Judge also ruled that the father would have visitation - three weekends each month, Wednesday overnight each week, eight weeks each summer and half the holidays.

I will never forget the look of pain on my client's face. He felt he'd been changed from a parent to a visitor. I was astonished to notice that the mother appeared as distraught as the father.

After puzzling about it, I realized that the mother's distress stemmed from her expectation that if she were awarded custody, the father would disappear - that she would never have to deal with him again. Upon learning that she would have to interact with the father, regularly and frequently, she felt she'd won nothing. I then realized that my client, the father, had gone to court with the same fantasy expectation - that he would be awarded custody and the mother would disappear.

I concluded that a large number of custody law suits we regenerated from a failure to define terms. Litigants go to court in a win/lose frame of mind. Winning is expected to mean that one gets what one wants. What many divorcing parents want is to eliminate the other parent from their own and their children's lives.

Anyone who has experience with children who actually lose a parent through divorce knows that such a loss inflicts terrible suffering on the children. The parent may disappear from the children's day-to-day lives, but the parent never disappears from the children's hearts and minds.

Toward the goal of preventing children from suffering the loss of a parent through divorce, the legal system has created the concept of joint or shared custody. Unfortunately, the legal system has failed to adequately define terms.

The general legal definition of joint or shared custody is that both parents have legal rights and responsibilities for major decisions which concern the children.

The general belief of parents is that joint custody means equal time with the children and that any and all decisions must be jointly made. Some parents believe joint custody means equal financial responsibility for the children.

Anyone who has experience with children who actually are made to live equal time with each parent knows that many of those children suffer from a sense of instability and a sense that they have no home base. (Obviously equal time does work for some children.)

Also, anyone who has experience with divorced parents who hold significantly different beliefs about how to parent (as many divorced parents do) knows that it is highly unlikely that they will be able to reach joint decisions about much of anything. Teachers in our school system have shared with me horror stories about children who are deprived of going on school field trips because the parents can't agree about it and won't give joint approval and about children who are unable to select a class schedule because their parents can't agree.

Finally, it seems quite obvious that equal financial responsibility for people who do not have equal financial resources is both illogical and unfair.

The 1986 New Mexico Legislature created a joint custody statute which actually provides a detailed, practical definition of joint custody - what it is and what it is not.

The New Mexico statute states that joint custody does NOT mean equal time and it does NOT mean equal financial responsibility.

New Mexico's joint custody statute, simply put, provides that joint legal custody means that neither parent is allowed to "surprise" the other. That is, neither parent may make a decision or take an action that results in a major change in a child's life unless the other parent agrees or the Court allows it. The statute specifies five "major changes," which are: residence, religion, health care, education and recreation.

To make joint custody work, parents should first recognize the status quo as to each of these "major change" matters. For the most part they should determine what was in place before the parents filed for divorce as to residence, religion, health care, education and recreation; and then, based on the principle that consistency is generally in the best interests of the children, the law provides that neither parent may unilaterally modify any of the five status quo matters.

If one parent wishes to make a major change, he or she should make a written change proposal to the other parent, who then has the duty to actually investigate the proposed change and respond. If the parents deadlock - one wants a change to occur, and the other wants no change - the rule is that no change may be effected until the Court, or some other, agreed-to-authority, e.g., an arbitrator selected by the parents, approves the change.

Parents should recognize that the five major changes specifically addressed in our statute are not the only matters that should be discussed by them, but they are the only matters that MUST be mutually agreed to or submitted to an authority for resolution. Parents should find it useful to follow the golden rule of joint custody, which is: before taking an action concerning your children, ask yourself: if the other parent did this without my knowledge or approval would I be upset? If the answer is yes, consider it a major change that invites prior discussion.

Parents should also recognize that ANY action or activity for which one parent wants or expects the other parent's support or financial contribution, is a major change that needs advance discussion.

The bottom line about all this is that divorcing parents need to recognize that a divorce DOES NOT END their relationship with one another, it merely changes that relationship.

Joint or shared custody can work IF the parents can come to a common understanding of what it is, but as with so many things, it is essential to define the terms.

Anne Kass is a District Judge in the Second Judicial District State of New Mexico, USA.

PS. I read a few of Anne Kass' articles and mother always appeared to get custody and residence, no matter what. d4l
I think you hit the nail on the head there with that article, however in all reality how can you expect two adults who couldn't agree when they lived together, and would have subjected their children to all sorts of marital disharmony, to be able to put those differences aside when apart and do what is right for the kids? Some people are just never going to agree, much less not go out of their way to cause the other party as much hassle as possible. It seems to me that along with unrealistic expectations there is a fair bit of revenge happening.

When I left my ex I KNEW that he would always be in my life, that we would still have to maintain a relationship due to the kids. But stupidly I thought that it would get better and we would manage better without the conflict. Well guess what, it hasn't changed, the conflict is worse and now we are heading towards the courts, not so I can be rid of him for ever (nice as that sounds) but to force him to stop using the kids to hurt me.

Post-separation counseling for all parties should be compulsory, nutting out ALL aspects of the post-separation relationship. That counselling should also allow for a team of independent counselors who can asses each situation and report their findings in a format that is admissible in court (i.e each parties behavior) should it all break down. Parenting courses for both parents would be beneficial. And finally a trust fund for all maintenance payments that can only be accessed by a signatory by both parents for checks that go to pay expenses directly (i.e schools for excursions).

There should also be an independent source that can also sign cheques in the case of a recalcitrant parent - possibly on the recommendation of the same team as above. The above can be a solution for extreme cases. Naturally if both parents are on the same page and working well then they can be left to their own devises. Personally I would be very happy if all child support had to go into a trust fund, the payer then has assurance that the money is going to the kids, and the payee can stress less about having money when needed for excursions, medical treatment, college funds and the rest. It would alleviate the resentment of paying parents, reducing friction. I would also be happy to involve a mediation 3rd party, the support or wake up call it affords both parties can only improve the lives of the kids.

Sometimes divorcing parents are as well behaved and reasonable as a tired 2 year old!

When you are swimming down a creek and an eel bites your cheek, that's a Moray.

Money and Control

It's a good article.

I think the big issues around divorce are around MONEY and CONTROL.

Some people just can't lose control (even for a week at a time).

Some people expect to be given money - they expect money to be given to them - they don't expect to have to financially support themselves and the children without someone giving them MORE money.


 Maybe I am not explaining myself well enough

Control and Money AND Companionship

Jon Pearson said
I think the big issues around divorce are around MONEY and CONTROL.
Agreed.  These are two of the BIG issues.

Until about three years ago, I used to think they were the only two, with the children taken so as to have control (ownership and power) and to use them as ('hostage') cash cows for the money.

Nowadays I have added a third key issue: companionship / relationship … the presence of human company in the household to obviate/quell any feelings of aloneness or loneliness.  This is a strong human driver or motivation and influencer of thinking and behaviour.

In most cases, children are taken, not only for control and money, but also to provide company and companionship for the custodial/residential parent (typically the mother).

It is also a significant motivation and consideration associated with limiting or frustrating contact time with the father: the mother does not want to and finds it very difficult to spend the time alone while the children are with their father.  Her world is empty and rather than fill it with other things she would prefer to fret, agonise and 'suffer'.  (There are, of course, other issues and reasons for seeking to diminish or dismiss father contact, and these may include a sense of ownership of the children, a drive to the only love and parent in the lives of the children, a competitive/envy fear that the children may get to know the father and may like/love him more than the mother, lack of control over the children [and father], hatred of the father, anger against the father [and not wanting him to have any joy in his life], revenge against the father, concerns that contact and residence time will reduce the mother's child support 'income', etc.)

In fact I would suggest that the companionship factor is possibly the prime motivating factor.  As humans we are made to live with others, and most people find it extremely difficult to live on their own.

Which makes the motivations and actions of non-contact mothers all the more cynical and evil.  They know what it is and means to have the company of the others (in this case children), and how bereft, grief stricken and depressed they would feel if they did not have the company of their children, but they are not only ready and willing, but eager, to excommunicate the father, in a cynical act of control and revenge, and to cast him out into a cold, barren wasteland of loneliness.

Little wonder that some fathers commit suicide after being deserted, evicted and having their children stolen.  AND realising there is no HOPE of it (legally) changing via courts or country.

Also see the thread containing Legal - Lawyers & Courts - Blockages to Shared Parenting
Doesn't anyone ever want their children purely because they LOVE them and want to spend time with them?

When you are swimming down a creek and an eel bites your cheek, that's a Moray.

Separated Dads love their children

Jadzia said
Doesn't anyone ever want their children purely because they LOVE them and want to spend time with them?
Yes, many fathers, who have been deliberately excluded from their children by mothers, government, courts, police, etc, want to spend time with their children because they LOVE them.

No, not when that parent (typically a mother) is actively stopping or frustrating contact with the other parent.  Then it is NOT about LOVE but about other more sinister motives.

And let's not forget the children.  In most cases children LOVE both parents and should not be stopped from seeing one just because another hates him.
One of the key issues that worries me is the idea that at divorce that THINGS CHANGE AS LITTLE AS POSSIBLE - for the CHILDREN'S SAKE. This is an extremely bizarre notion given the circumstances.

All parties have to undergo FUNDAMENTAL UPHEAVAL to accommodate the new arrangements - men, women and children - trying to pretend you don't have to does not make sense. Without that recognition - people refuse to accept they changes they need to make like - getting a job, being more involved with the children giving up control over their children and their ex partner, having less assets and money, having a lower standard of living (all), being shunned by others, having uncertainty, etc

Love is OK and it can be used to drive decision making but its not an excuse to avoid GOOD decision making. Its like 'I Love you Darling' - that's great, but who's paying the mortgage this week, feeding everyone, looking to the future, etc.

At divorce there are a lot of things that need to be re-evaluated, thought about, and decided. Avoidance of confronting issues does not lead to the best outcomes. People who mentally or physically run away from the issues - may be doing it to save the disruption to themselves - but the reality is that divorce is ONE OF THE BIGGEST PERSONAL CHALLENGES PEOPLE FACE in their life.

Men need to expect to become more fulltime and shared care involved and females need to expect to support themselves.

My point is the that the Divorce industry is centered around the drives of CONTROL and MONEY (and (now) fears of loneliness or lack of worth) that people have. Fear (lack of knowledge, answers, solutions, etc.) underlies the CONTROL and POWER issues because these seem to be the main ones people are unwilling to lose.

 Maybe I am not explaining myself well enough
I might share the wise words of the counsellor (who my ex refused to see with me before we split).

He said: "Divorce is a bridge you cross that you can't go back on. Before you make any decisions, you need to imagine what your life will be like - the good and the bad. Read lots about it. Then, make an informed decision".

I made lots of lists of pros and cons and made the best decision available to me.

When you make that decision the next thing has to be the kids well being, then property and what sort of lifestyle will this mean.

There is nothing better for kids than having them spend as much time as possible with each person.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
Dad4Life it seems that you have had an extremely negative experience, but please don't judge all mothers by your experience. It's funny (not haha funny either!) but it seems from what I have read of your posts that yours and my experience is very similar - except with the gender reversed.

I totally agree with you that children need to spend time with their fathers and get to know them, as they do their mothers. The most fundamental thing that parents have in common should be encouraged, that is the love they both share for the children. Using them in anyway is abhorrent, which has now become a custodial offence with the new laws that have come in.

There is also one point that most parents seem to miss during the upheaval of divorce is, if they don't bag the other parent, make things as easy as possible, can be seen to work together and do all the preferred things that make it easier on the children then the children SEE that and are less torn, and actually LOVE their parents more. When parents behave badly, the kids see it and lose respect and develop unhealthy feelings for the parents. My youngest at one stage decided she was going to have nothing more to do with her father after he rang her and abused her for being friendly with a man I dated. (Please note I did nothing to encourage that and actually tried to persuade her to keep in contact explaining Dad had acted in anger and still loved her). It took one of my other children to tell my ex what his behaviour had achieved, to which an apology was issued and the relationship recovered. My eldest daughter thinks her Dad an idiot, based on his behaviour and it saddens me because Dad's should always be the No1 man in a girls life.

When you are swimming down a creek and an eel bites your cheek, that's a Moray.
1 guest and 0 members have just viewed this.

Recent Tweets