Children and Divorce:
Issues of Child Custody
Separation, divorce and remarriage have touched many of us
personally, and perhaps professionally. It has been suggested
that 1/5 of those now in their 30's will experience two divorces
during their lifetime. As you can imagine, such an increase in
post-divorce families will necessitate continued efforts to
further understand and adequately provide services for those of
us working with members of these families.
Divorce has been described as a temporary interruption to a
family's lifestyle and/or lifecycle, requiring completion of one
to two additional phases before rejoining the family lifecycle.
Sixty-five percent of women and 70% of men who are divorced eventually remarry.
The process of divorcing can become a difficult task,
particularly for families experiencing extreme conflicts.
However, if these families recognize common problem areas, some
of the difficulty can be minimized. First, it is important to
accept yourself, and your part in the relationship. Secondly, it
is important to work cooperatively with other members of the
divorcing family. Third, everyone in the family needs to mourn
the loss of the dream. Fourth, marital and parental relationships
need to be restructured. Fifth, extended family relationships
need to be realigned. Sixth, fantasies of a reunion need to be
mourned and given up. Seventh, some work needs to be done to
retrieve one's self from the marriage (e.g., hopes and dreams
that were part of the previous marriage may still be valid for
the future).
Many of the families referred to the Ramsey County Domestic
Relations Division for custody and visitation mediation have
experienced extreme difficulty in working through one or many of
the above listed areas. Most often, parties are unwilling to
accept responsibility for their part in the relationship.
Further, the parties' level of cooperation is severely limited by
a variety of factors, many of which include poor communication
skills, extreme hurt and vindictiveness, and fear about the
future. Many intact families experience similar difficulties but
have found ways to cope and resolve these areas without deciding
to divorce. Of the total number of families being divorced in
Ramsey County, only about ten to twenty percent are referred
o the Ramsey County Domestic Relations Division. These are
the families with the greatest amount of conflict, and are most
likely to settle differences in court.
Divorce mediation is offered to families in order to help them
make decisions about where their children will live and when the
children will spend time with each of their parents. Divorce
mediation has been described as a systems approach to
restructuring a family. The client in effect is the whole family,
with the best outcome meeting the needs of all family members.
However, frequently the parents' needs become more influential in
a final decision and it is imperative that those of us working
with these families continue to address the needs of children as
we guide and direct this process.
Child custody mediation focuses only on decisions needing to
be made by parents concerning their children. Financial decisions
including child support, spousal maintenance and property
settlement are not included in the child custody mediation
process. Parents cooperatively review plans for their children's
legal and physical custody. (See Custody Defined on next page.)
Families have considered a variety of alternatives, limited only
by their own inability to mutually agree.
In the event that parents are unable to mutually agree,
Minnesota State Law directs that an investigation be completed
and a recommendation made to the Court. The decision concerning
legal and physical custody of the children then becomes the
responsibility of a judge, who will follow Minnesota Statute
518.17 (see page 6) in further assessing the best interests of
the children. In this respect, parents give away or lose their
right and responsibility to make decisions concerning their
children. It cannot be emphasized enough that parental
cooperation and agreement is most important.
Judith Wallerstein and Sandra Blakeslee, in their most recent
book Second Chances, have shown that divorce is not a temporary
crisis or disease that has a cure, but an enduring problematic
condition we know far too little about. Second Chances is most
provocative, however, because it challenges an assumption so
comforting to divorced couples: What's good for the parents will
instantly be good for the children. Custody and access
arrangements are only two factors in a complex chain of factors
that affect child adjustment. What seems to matter for children
who have a fair amount of access to both parents is not the
"legal" status of the family, the quantity of access,
or the amount of movement between homes. Rather, as we might
expect, it is the quality of the family functioning during
divorce. Children whose parents are less severely distressed and
in less conflict with each other may fair well in either sort of
time-sharing arrangement - joint or sole custody.
Second Chances provides a further glimpse at what factors
promote children's positive adjustment. Hopefully, information
such as this can be presented to divorcing parents in a way that
will help them understand their children's emotional and
psychological needs as well as their own. It is further hoped
that this would result in custody decisions that will be in the
best interests of all family members.
On the horizon, the area of family law faces many new
challenges. For example, a parent's rights to custody of children
born through In Vitro fertilization and frozen embryos have
recently made national and international news. A mother's
concealment of her alleged sexually abused daughter and eventual
imprisonment has challenged a justice system and nation to
examine its thinking and policies. We will all be faced with the
result of these events. We will challenge our own values,
thinking and ability to provide services.
By Denny Smith
Family Court Officer
Ramsey County Domestic Relations Division
Custody Defined
Court decisions regarding custody are made for the benefit of
the child, not for the parent. Custody awarded to parent does not
legally imply that the noncustodial parent is unfit. Rather,
custody awards are demonstrations of concern about the needs of
the child. There are two aspects of custody -- "legal
custody" and "physical custody and residence" --
and two types of custody within each aspect. Minnesota Statutes
provide that there is a presumption of Joint Legal Custody unless
it can be shown that this is not in the best interests of the
child.
Legal Custody:
the right to make decisions regarding the child(ren)'s
upbringing. This includes education, health care, religious
training, financial needs, and recreational activities.
Joint Legal Custody:
both parents have equal rights and responsibilities for making
decisions affecting their child(ren).
Sole Legal Custody:
one parent has total responsibility for major decisions.
Physical Custody & Residence:
where the child(ren) live and routine daily care and control.
Joint Physical Custody:
responsibilities for daily care and residence are structured
between the parents.
Primary Physical Custody:
one parent has primary responsibility for care and residence.
Examples of physical custody arrangements:
- weekdays with one parent, weekends
with the other parent,
- weekends alternate between the
parents with a mid-week access day,
- school year with one parent, summers
with the other parent.
What You Should Know About Mediation
What is custody/time sharing mediation?
- A process in which both parents meet
with a Family Court Officer and discuss ways to resolve
disagreements about custody and/or time sharing (visitation) plans.
What is the role of a mediator? -A neutral third party who helps
both parties talk about solutions to disagreements about custody
and/or time sharing plans.
- Listen to both parties, ask questions.
-Not to take sides or place blame.
- Help clarify issues, offer
suggestions.
A mediation session is NOT:
- A court hearing
- A process to determine guilt or
innocence; there are no witnesses or evidence.
- A therapy session.
How you can prepare for mediation:
- Think of several possible custody or
time sharing plans you believe would be beneficial to your
child/children.
- Consider areas in which you might be
able to compromise.
- Approach the meeting with an open mind
and a spirit of cooperation.
Joint Custody: What Two Studies Reveal
An overriding concern for parents, practitioners. and
researchers is how divorce affects children. Recently there has
been discussion about whether joint or sole custody is in the
child's best interest.
Few studies have directly addressed this issue yet. Most
states, including Minnesota, have statutes that encourage joint
custody arrangements. Some argue that this may create an
assumption that joint custody is in the "best interest of
the child," where in fact no such scientific evidence
exists. What do we know about the effects of joint versus sole
custody?
Two important studies have been conducted by Dr. Judith
Wallerstein, executive director of California's Center for the
Family in Transition, and her colleagues. Her recent book, Second
Chances with Sandra Blakeslee, discusses both studies: 1) 25
families with children under age 5 who have chosen joint custody,
and 2) 184 families and their children. At the end of 2 years,
about 1/3 of the latter families were in voluntary joint custody
arrangements, the others were in sole mother custody
arrangements.
Amid debate over the relative benefits of types of custody,
Wallerstein concludes there is little difference in the
adjustment of children based on sole versus joint custody alone.
While joint custody children in these studies did experience
increased access to parents (especially fathers), children in
both types of custody looked similar: half were developmentally
on target, happy and spontaneous at home and at school, while
half were anxious, having difficulty with peers and showing
symptoms such as insomnia and withdrawal. The central worry for
young children in both custodial arrangements seems to be the
same: fear of abandonment. The creation of 2 homes can still add
up to feelings of decreased stability, constancy, and
reliability.
The researchers also found that children's adjustment is not
related to any formula of joint custody but to the quality of
parenting in each home, the amount of conflict and cooperation
between parents, and the situations the child faces outside the
home.
Another variable observed is that the amount of time spent in
either household is not the most critical issue. Rather, the
number of transitions between households seems most important.
Thus, spending four consecutive days with one parent and three
with the other is likely to be less stressful for children than
making a move between homes each day, even though the total
amount of time spent in each place would be the same. Despite
cautions about joint custody, Wallerstein reports it is a very
good solution for some families. Can we predict, then, who may or
may not benefit?
Two important predictive variables discussed by Wallerstein
are the child's age and flexibility. The latter refers to the
ease with which a child can go back and forth between two homes,
adjusting to new environments. Wallerstein suggests that children
who are relatively calm and easygoing from birth (a
characteristic related to temperament) are more likely to adapt
well to joint custody arrangements.
The child's age can also affect adjustment, sometimes in
surprising ways. For example, Wallerstein expected that infants
and toddlers would feel quite disrupted by the frequent change of
caregivers. However, they found that they seemed less troubled
than the 3- to 5-year-olds. One reason may be that preschoolers
are negotiating more complex developmental changes. As
Wallerstein writes, "they are in a major transition, moving
away from mother and out on their own. They have a lot more to
master --beginning group play, sharing, taking turns, riding
bikes, and taking chances different from those faced by the
toddler. The stresses associated with changeover days, school
demands, new adults brought home by parents, and many different
caretaking arrangements are added to the normal developmental
demands of early childhood."
There is evidence that children in elementary school may be a
little better equipped for joint custody arrangements. They can
speak for themselves. They may adjust to having different
relationships with different people. They may cope with changes
in routines more easily than preschoolers. They can understand
and feel pride in mastering the change between households, since
they now understand concepts such as time, distance and
alternating schedules.
By Kathy Kalb
Attachment Theory and
the Aftermath of Divorce
With its emphasis on emotional aspects of important
relationships, attachment theory has relevance for issues
surrounding divorce and child custody. Two propositions from
attachment theory are particularly significant: First, threat
will be experienced in the face of probable or actual separations
from attachment figures; and, second, attachment relationships
endure through time and space, despite separations. The first
tenet helps explain the strong emotional reactions and
irrationality of persons in the throes of major separations. The
second aspect is a key to providing the reassurance that parents
need in the face of separations.
According to attachment theory, negative reactions to
separation are nature's way of guaranteeing that group-living
"higher" animals, such as humans, will give high
priority to maintaining vital relationships. Emotions such as
apprehension, anxiety, and anger all serve the purpose of
maintaining relationships (increasing vigilance, punishing a
separating partner, etc.). Strong attachments, which are crucial
to human survival and adaptation, carry with them intense
negative reactions to ending the relationship. Without such
reactions, bonds would be less likely to endure. When marital
partners break up, especially when children are involved, strong
emotional reactions are inevitable. The form of the reaction may
differ, but similar underlying feelings are present.
One common scenario is for one parent (usually the mother) to
be "left" with the children. In this case the mother's
heightened threat often takes the form of being angry at the
husband and protective of the children. She fears contact with
him will be damaging and seeks to wall him out or control his
contact. The father, who is also feeling acutely threatened,
becomes suspicious of the mother's intent and fear that (partly
through her doing) he will be cut off from the children.
Underneath this often is the further fear that he will ultimately
displaced by another.
In the state of paranoia that comes with marital separation,
it is difficult for parents to realize that no one (including
their spouse or a new step-parent) can take their relationships
with children away from them. The hallmark of attachment
relationships is their durability. Neither physical separation
nor death terminates attachments. Such is the nature of these
vital relationships. The depth of relationships with children
will always depend on the emotional investment they are granted.
And this is not strictly the amount of time spent in interaction.
One implication of these propositions is that changing but
pre-ordained custody arrangements may work best. Consider the
important case of custody disputes involving infants. Were the
mother at first granted sole custody, with joint custody (both
legal and physical) evolving gradually at later ages, the
separation distress of all parties may be assuaged. Mother would
feel her protective urges gratified. Fathers often would accept
her temporary sole custody because his later sharing in custody
(and, in his mind, preserving of his relationship) is guaranteed.
He would be assured that she (or a new partner) cannot take his
child away. His future relationship is not jeopardized. There
would be time for the temporary insanity to fade and some
opportunity for detente in an arena of reduced daily
negotiations.
There is, of course, no one right way to arrange custody. In
some cases the plan just described would not be adequate.
Moreover, nothing can eliminate the normal emotional reaction to
separation. Anger, recrimination and, most of all, feelings of
threat are inevitable by-products of severing attachments. But if
such normal reactions are taken into account, and if court
personnel and mental health professionals can help parents
understand that there is a normal course to such reactions and
that, in the end, their relationships with their children will be
both vital and intact, perhaps the level of expressed animosity
can be reduced. The literature makes clear that resolving the
tension between parties is the key ingredient in reducing
negative consequences of divorce for children. We all need to
dedicate ourselves to this goal.
By L. Alan Sroufe, Ph.D.
Professor, Institute of Child Development University of Minnesota
Divorce, Separation,
Custody:
Issues for Child Care Workers
The mother of a child in your center tells you she and her
husband have separated and she no longer wants you to let him
pick up her child. The parents of another child in your care are
in the midst of custody proceedings. The father asks you to
testify in court on his behalf and tell the judge that he is the
"better" parent. Another set of divorced parents have
joint custody of their child. When they drop her off or pick her
up, they frequently tell staff members to give information to the
other parent. Issues such as these are increasingly being
encountered wherever children are in the care of people other
than their parents. Other "sticky situations" include
proceedings to terminate parental rights, the reappearance of a
former spouse, and the appearance of the natural father of an
illegitimate child.
These disputes can become very complicated and emotionally
charged. They are a source of stress for the child care staff as
well as the family. The stress of these family changes often
shows up in a child's behavior and/or in attempts to draw the
center into the conflict. For this reason, it is essential that
child care centers adopt clear policies and procedures for
responding to these issues before they arise.
By thinking through some of these issues before they happen,
you save yourself from making hasty decisions at a time of
possible crisis. This also provides staff with guidelines for
appropriate action and rationale to give parents. It is very
difficult to make good decisions when an irate parent appears at
your center demanding to take the child from the center. Everyone
involved is much more likely to react calmly when the
"rules" are known in advance. It does no good to make
decisions when an irate parent appears at your center demanding
to take the child from the center.
It is important to have clear policies and procedures to apply
to these situations and to act on the basis of information on
file at the center which has been collected at the time of
enrollment and updated regularly thereafter. This information
should be put in writing and signed by the enrolling party. It
should contain names, addresses and relationships of those who
are and those who are not authorized to pick up the child at the
center. If there has been a formal decree or agreement, you
should ask the parents to provide a copy for the child's file.
This will enable the provider to determine each parents' rights
by referring to the terms of the decree or agreement. More
difficult are situations where there is separation with no formal
action. It is not, after all, the role of the child care provider
to determine, on a case by case basis, the extent to which any
parent has the right to visitation or to occasional custody in
the form of overnight or weekend visits.
It is also essential to maintain good communication with
parents to avoid being put in the middle of a family problem. The
child's file should include information about who (either or both
parents) to notify concerning:
- Parent-teacher conferences School activities Field trips
- Behavioral/discipline problems
- Medical emergencies
While it is difficult, staff must understand that without
evidence to the contrary, they have no basis for taking the side
of one parent or the other, no matter how close or distant the
relationship is with a parent. A parent with whom you have had
little contact has equal rights to their child unless you have
written documentation of some legal action restricting parental
rights. Of course, any time an unfamiliar person comes to pick up
a child, even if they have been authorized to do so, staff should
request identification. The slight risk of offending that person
is overshadowed by the safety of the child.
From the beginning, parent-center relationships should be
founded on mutual respect, non-judgmental support, and full
mutual understanding of the center's policy on these sorts of
issues. Then, if a crisis occurs it will be lessened because the
center's neutrality will not be a surprise.
By Sue Johnson-Jacka
Co-Owner, Bright Start Children's Centers St. Paul, Minnesota
"The Best Interests
of the Child:" It's The Law
The 1989 Minnesota State Legislature expanded the criteria to
be used when deciding custody disputes. Minnesota Statute Section
518.17. subdivision I now reads: Subdivision 1. [THE BEST
INTERESTS OF THE CHILD.] (a) "The best interests of the
child" means all relevant factors to be considered and
evaluated by the court including:
- the wishes of the child's parents as
to custody;
- the reasonable preference of the
child, if the court deems the child to be of sufficient age to
express preference;
- the child's primary caretaker;
- the intimacy of the relationship
between each parent and the child;
- the interaction and interrelationship
of the child with a parent or parents, siblings, and any other
person who may significantly affect the child's best interests;
- the child's adjustment to home,
school, and community;
- the length of time the child has lived
in a stable, satisfactory environment and the desirability of
maintaining continuity;
- the permanence, as a family unit. of
the existing or proposed custodial home;
- the mental and physical health of all
individuals involved;
- the capacity and disposition of the
parties to give the child love, affection, and guidance, and to
continue educating and raising the child in the child's culture and
religion or creed, if any
- the child's cultural background; and
- the effect on the child of the actions
of an abuser, if related to domestic abuse, as defined in section
518B.01, that has occurred between the parents.
The court may not use one factor to the exclusion of all
others. The court must make detailed findings on each of the
factors and explain how the factors led to its conclusions and to
the determination of the best interests of the child. (b) The
court shall not consider conduct of a proposed custodian that
does not affect the custodian's relationship to the child.
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Fall 1989, Volume 17, Number I
