The rationale for this requirement is that ordering people to reach joint decisions will be an exercise in futility if they refuse to communicate, or if one or both of them insists on absolute control. It is reasonable to require at least some possibility of cooperation as a pre-condition to an award of joint legal custody.
It is not as clear why cooperation should be a necessary precondition to an award of joint physical custody, unless a state has defined joint physical custody in such a way as to require the parties to work out their own parenting time schedule without need for court involvement. No state has defined the term that way, though. Accordingly, reformers may want to consider whether this requirement should be made to apply to awards of joint legal custody, but should not necessarily serve as a bar to awards of joint physical custody.
A person seeking sole custody can easily circumvent an award of joint custody by being uncooperative and uncommunicative. Obviously, this is not in children’s best interests. In most cases, it would be better for children if their parents would cooperate and communicate with each other.
One way to correct this problem would be to add to the list of “best interest” factors one that addresses the reasonableness of a party’s refusal to cooperate or communicate. Better yet, the “cooperation” precondition to joint custody could be made subject to an exception for those cases in which a party unreasonably refuses to cooperate or communicate. This would have the prophylactic benefit of signaling to a party who is considering using obstructionist tactics that the strategy will not work. Of course, it would be unreasonable to imagine that making this one change would eliminate all conflict between divorcing parties, but it would at least remove one of the bigger incentives to intensify conflict under existing statutes.1
The “unreasonableness” limitation
Sometimes a person may have a legitimate reason for being unable or unwilling to cooperate or communicate with someone. Certainly a parent who has been unable to communicate with the other parent because the other parent is concealing herself from him should not be made to suffer any adverse consequences from the other parent’s conduct. A strong case can also be made that a parent who has become aware of the other parent’s physical or sexual abuse of the child should not be faulted for taking steps to protect the child. And a parent who has been physically abused by the other parent may reasonably be expected to be unwilling to communicate with the abuser. Any legislation that normally disadvantages a person who is shown to be uncooperative or uncommunicative should allow for situations in which a refusal to communicate or cooperate is reasonable under the circumstances.
My book, The History of Custody Law, is available for purchase in paperback or as a Kindle e-book at:
- Wisconsin has adopted this proposal. See WIS. STAT. § 767.41 (5)(am)(10) (2012). ↩