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Monday, April 2, 2012

The Case for Joint Custody By Kenneth Skilling


Del. Albo’s Joint Custody/Visitation Bill (H.B. 84)

1. Summary of bill (H.B. 84)
Delegate Albo’s bill provides for a rebuttable presumption of joint custody in a no-fault divorce cases, but not in cases where a divorce is sought on fault grounds. In no-fault divorces the bill would, in essence, create a rebuttable presumption that parents should be awarded joint physical custody, with no parent's share of such custody comprising less than two-fifths or 40 percent of the child's time.

2. H.B. 84 differs radically from previous joint custody bills
In 2011, and in previous years, bills that would have provided for presumptive joint custody were introduced, but didn’t reach the statute book. Opponents of earlier bills suggested that presumptive joint custody would tie the hands of judges and family law attorneys. Opponents feared that joint custody might be imposed in divorces where one spouse was guilty of domestic violence or some other behavior that would adversely affect the children. However, under H.B. 84, the option of seeking divorces on fault grounds would continue. Presumptive joint custody would not apply in fault-based divorces. So, where parental misconduct was part of the case for a divorce, the rebuttable presumption would not apply.

3. Presumptive joint legal and physical custody is in the children’s best interests.
Many studies indicate that a high proportion of children who grow up without active father involvement in the family suffer major damage. They do less well in the educational system, they are much more likely to be involved in crime (particularly violent crime), and there are many more teenage pregnancies among girls who come from fatherless homes. The annual cost of family fragmentation in Virginia runs into billions of dollars. Much of this cost could be avoided if fathers continued to be fully involved with their children despite being divorced from the mothers.

4. Existing provisions for joint custody are inadequate
Virginia law already makes provision for joint custody by agreement between the parents. However, the current system in effect allows any parent who is confident of getting sole custody to veto joint custody. Overwhelmingly, the courts act as if there were a presumption of sole maternal custody. Without a presumption of joint custody, the present situation will never change. As of October 2011, Division of Child Support Enforcement data indicate that very little change is taking place in custody arrangements. Fathers are custodial parents in only about 6 percent of cases.

5. Joint custody must be compared with the status quo, which has serious shortcomings
No one argues that joint physical and legal custody would miraculously solve all the problems of family fragmentation. However, it’s vital to compare joint custody with the system we have at present, which overwhelmingly is sole custody. We know from the research that children raised in single parent families face serious problems. Parents who genuinely have the best interests of their children at heart will be willing to make the necessary sacrifices to make joint custody work. Where problems cannot be resolved by the parents, mediation will help to smooth out the difficulties.

6. Joint custody reduces existing incentives for family breakups
Research indicates that states with high levels of joint physical custody awards (over 30 percent) in 1989 and 1990 had significantly greater declines in divorce rates in following years, through 1995, compared with other states. According to the research, expectations about child custody are very important in decisions about seeking divorce. Not only would enactment of this bill reduce the incentives for divorce, but it would diminish the incentives for custody disputes at the time of the divorce.

7. Existing custody rules discourage fathers from staying in touch with their children
The typical child custody order in Virginia makes it very difficult for both parents to be involved in raising the children, and the excluded parent nearly always is the father. Some say that most fathers don’t even want custody of their children. However, the desire of fathers not to be cut out of their children's lives can’t be measured by the number of cases where fathers seek custody through litigation. Most fathers know very well that custody fights are very expensive, emotionally draining, and overwhelmingly likely to be futile. Custody contests are like bullfights – there’s never much doubt about which side is going to win. Presumptive joint physical and legal custody would transform the situation.

Prepared on January 9, 2012
Any questions should be directed to:
Kenneth Skilling
703 768 6588


More Detailed Information About Joint Custody

(a) Presumptive Joint Custody is in the Interests of Children

Children are born with two parents, and all the indications are that, when one parent (nearly always the father) is removed -- or removes himself -- from the lives of the children, the children do much worse than children who grow up in two-parent families. Many studies have indicated that teenage pregnancy, crime, and educational underachievement are much more common among children from fatherless families than among children from two-parent families. These social pathologies are not merely the result of low family income.

One area where children in single-parent families suffer serious harm is education. A Heritage Foundation paper on family structure and children’s education ( highlights the various elements in the situation, and provides links to the underlying research. “Individuals from intact families completed, on average, more years of schooling and were also more likely to graduate from high school, attend college, and complete college compared to peers raised in blended or single-parent families,” the paper says. Among other problems, the paper points out, “youths who experienced parental divorce tend to have lower grade point averages and are more likely to be held back a grade in school.”

The National Fatherhood Initiative was founded in 1994 to confront what its organizers regarded as the most serious social problem of our time: widespread father absence in the lives of children. In the educational context, among the problems identified by NFI are the following:
-- Fatherless children are twice as likely to drop out of school. (National Center for Health Statistics. Survey on Child Health. Washington, D.C.: GPO, 1993) (;
-- Father involvement in schools is associated with the higher likelihood of a student getting mostly A's (
-- Students living in father-absent homes are twice as likely to repeat a grade in school; 10 percent of children living with both parents have repeated a grade, compared to 20 percent of children in stepfather families and 18 percent in mother-only families ( .

Fatherless families are closely linked to crime, particularly violent crime. The Progressive Policy Institute, a Washington, D.C. think-tank affiliated with the Democratic Party, in a report on family issues (, summarized the research as follows: "The relationship [between serious crime and single-parent families] is so strong that controlling for family configuration erases the relationship between race and crime and between low income and crime. This conclusion shows up time and again in the literature; poverty is far from the sole determinant of crime."

A Justice Department study ( noted in 2004 that over half of jail inmates grew up in either a single-parent household or with a guardian, such as grandparents, another relative, or a non-relative. Thirty nine percent of jail inmates lived with a mother only. Another study (, of 13,986 women in prison, showed that more than half grew up without their fathers. Forty two percent grew up in a single-mother household and 16 percent lived with neither parent.

Father-absence is a major cause of childhood poverty. Fatherless homes are five times more likely to be poor. In 2002, 7.8 percent of children in married-couple families were living in poverty, compared to 38.4 percent of children in female-householder families. (U.S. Census Bureau, Children’s Living Arrangements and Characteristics: March 2002, P200-547, Table C8. Washington D.C.: GPO, 2003 ( ).

Studies of “fragile families” establish a clear link between father-absence and poverty. For example, during the year before their babies were born, 43 percent of unmarried mothers received welfare or food stamps, 21 percent received some type of housing subsidy, and 9 percent received another type of government transfer (unemployment insurance etc.). For women who have another child, the proportion who receive welfare or food stamps rises to 54 percent. (Sara McLanahan: The Fragile Families and Child Well-being Study: Baseline National Report. Princeton, NJ: Center for Research on Child Well-being, 2003: ).

A child with a nonresident father is 54 percent more likely to be poorer than his or her father (Elaine Sorenson and Chava Zibman. “Getting to Know Poor Fathers Who Do Not Pay Child Support.” Social Service Review 75, September 2001 ).

In short, the research evidence is beyond dispute. The creation of fatherless families is a major reason for a large proportion of the most serious social pathologies facing Virginia and other states. Finding ways of keeping fathers involved in their children’s lives, even after divorce, is absolutely critical.

(b) Existing provisions for joint custody are inadequate

Family lawyers typically tell clients that in Virginia custody of children is no longer determined by the gender of the parent. However, this is a misleading summary of the current situation. The language of the law is as follows:

“In determining custody, the court shall give primary consideration to the best interests of the child. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either. The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest. The court may award joint custody or sole custody.” § 20-124.2.

The reason for including a presumption of joint custody, is that the practical result of the current language is to exclude fathers from their children’s lives. In some cases, fathers are awarded joint legal custody, and this is sometimes seen as evidence that the system is evolving. However, as fathers who have had joint legal custody will attest, this adds very little to their role in relation to their children, if they don’t also have joint physical custody, and if they see their children only every other weekend, and one evening a week.

A more revealing picture is presented by information in the database of the Division of Child Support Enforcement. According to a recent (October 2011) analysis of the DCSE database, 93.39 percent of custodial parents are female and only 6.23 percent of custodial parents are male. In other words, custody arrangements are very far from being gender-neutral, whatever the law may say.

(c) Joint Custody Must be Compared With the Status Quo

When legislators are considering proposals for presumptive joint custody, the tendency is to focus exclusively on the possible problems that would arise if the change were made. However, examining the issue in this way distorts the picture.

The appropriate analysis is to compare presumptive joint custody with the status quo, which in Virginia overwhelmingly (93.39 percent) is maternal custody. Without even considering the issue of gender bias, the social research indicates that when fathers have no effective participation in their families, very serious problems result. That comparison should be the basis of pushing the system in the direction of joint physical and legal custody.

(d) Incentives for Family Breakups Should be Reduced
Current arrangements in Virginia, and in other states, have unintentionally created incentives for family breakups. A change to presumptive joint custody would help to correct this situation.
Research by Richard Kuhn and John Guidubaldi ( established that states with high levels of joint physical custody awards (over 30 percent) in 1989 and 1990 have showed significantly greater declines in divorce rates in following years through 1995, compared with other states. “Divorce rates declined nearly four times faster in high joint custody states, compared with states where joint physical custody is rare,” Kuhn and Guidubaldi said. “As a result, the states with high levels of joint custody now have significantly lower divorce rates on average than other states.”
A paper originally published in 2000 suggests that expectations about child custody are very important in decisions about seeking divorce ( ). Margaret F. Brinig and Douglas W. Allen concluded that “who gets the children is by far the most important component in who files for divorce, particularly when there is little quarrel about property, as when the separation is long.”
Often, there is an unfortunate tendency to treat fathers as if they were to blame for the creation of single-parent families. However, the research indicates otherwise. Most divorces (estimates range from 60-90 percent) are initiated by wives over the objections of their husbands (see, for example, and

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