PSYCHOLOGICAL SUPPORT FOR A REBUTTABLE PRESUMPTION OF JOINT CUSTODY
By: Dr. Marlin S. Potash*
OF THE NATIONAL PROBATE JUDGES’ COLLEGE AND BOSTON UNIV. SCHOOL OF LAW
PROBATE LAW JOURNAL, VOL.4, NO.3
Probate (Family) Courts should proceed in custody matters on a rebuttable presumption that shared physical custody is most desirable for children and parents unless contrary evidence is presented.
The presumption should be that both parents wish to be deeply involved with their child. They should be encouraged to work out a feasible, detailed child care plan at the earliest court appearance, to serve as a trial period for implementation of the plan, and provide data for evaluation by the judge prior to the final decree.
The judge should keep in mind that an absent parent is often worse than an imperfect parent. “Disruption of a strong psychological bond between parent and child is more deleterious to child, parent, and consequently, to the entire family system, than disruption of place or time.
Encourage parents to view custody as the “negotiation of time-sharing”, rather than as a power struggle. Encourage shared custody before custody arrangements are solidified by providing assistance from members of the court, attorneys, and mental health professionals. Give parents written materials and instructions to guide them through major areas of possible contention.
SUMMARY AND CONCLUSIONS
A holistic perspective requires that four major factors be taken into account whenever a custody arrangement must be made as a result of divorce. The factors are the psychological health of the child, the sociological context in which the child and post-divorce family live, the effect of the custody process and outcome on the court, and the interactional system whereby these factors affect one another. Only by considering all of these variables can the probate and family court judge make the appropriate custody determination.
Shared parenting with mutual responsibility – joint custody – is in the best interests of the child, parents, society, and the court system. A rebuttable presumption of joint custody at the temporary order stage encourages the parties to work toward the best possible solution to a different issue: a custom made shared parenting arrangement. Judges are provided with data by which to evaluate the workability of parent-negotiated shared responsibility arrangements. The court promotes the most psychologically sound and feasible custody approach for all concerned at the most advantageous time: while structures are still open to negotiation and change, and before the parties assume recalcitrant positions.
By presuming joint custody as early as possible in the court process, parties are impelled to attend to the child’s needs, thereby encouraging mature behavior and discouraging divisive, childish conflict. The court can assist the parents in settling their own disagreements by providing a context for negotiation and helping to mold specific child-centered joint custody agreements. Allowing parents to have some input into the long term custody arrangement is likely to result in the parents abiding by the ultimate judicial decision.
The presumption of joint custody at the temporary order stage best addresses the multifactorial issue of custody. The narrow “best interests” test provides for but one or another of the persons involved, whereas the presumption of joint custody allows for an informed and workable decision which employs a sophisticated approach to account for the needs of all parties involved given a highly complex situation.
· Dr. Potash is a psychologist with a private practice in individual and family therapy in Brookline and Boston, MA. She has extensive experience with the Probate and Family Courts in the role of guardian ad litem, expert witness, and psychological consultant to judges and attorneys.
BECAUSE THIS REPORT PROVIDES IN-DEPTH DETAILS ABOUT THE RAMIFICATIONS OF SHARED CUSTODY FOR CHILDREN, PARENTS, COURTS, AND SOCIETY IN GENERAL, IT IS STRONGLY RECOMMENDED THAT COMMITTEE MEMBERS REVIEW THE COMPLETE REPORT, AVAILABLE ON THE CITIZEN’S COMMISSION WEB SITE.