Improving the “cooperation” factor

In many states, cooperativeness on the part of both parties is a precondition to a judicial award of joint custody.

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.

Discouraging uncooperativeness

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:

  1. Wisconsin has adopted this proposal. See WIS. STAT. § 767.41 (5)(am)(10) (2012).

The “Stability” Factor in Custody Decisions: Time for a Clearer Definition

Photo from Gypsy Folk Tales, by Francis Hindes Groome, [1899]

Photo from Gypsy Folk Tales, by Francis Hindes Groome, [1899]

In addition to amending the language of “best interest” factors to remove gender bias, it may  be useful to consider adding clarifying language to existing factors to provide better guidance to the courts that are charged with responsibility for interpreting and applying them. For example, many states list “stability” as a “best interest” factors. Statutory language like this is incredibly vague.

Of course, case law can be consulted to ascertain the meanings of terms like these, to the extent appellate courts have addressed the issue in a way that has resulted in a more precise definition. In most states, though, vague statutory language (including but not limited to “stability”) remains subject to vastly different interpretations among individual trial court judges.

There seems to be a consensus among judges that stability means at least geographic stability. The thinking is that a permanent family home generally is better for children than a transient one is. Some judges measure stability along other axes, too, though. For example, a judge may interpret it to mean, in addition to residing in one location for a long period of time, staying in a committed relationship with another person. At one time, marriage was thought to be a more stable family arrangement than unmarried cohabitation. Some judges still think it is. Other judges apply a more liberal attitude to unmarried cohabitation. Some judges in the liberal camp ascribe importance to the number of boyfriends or girlfriends with whom an individual has cohabited, seeing it as relevant to relationship stability vel non. Others do not.

Until recently, marriage was a right that was limited to a man and a woman; same-sex marriages were not permitted. As a result, the “stability” factor had a heterosexual preference built into it. It will be interesting to see how, if at all, the legalization of same-sex marriage will impact the decision-making processes of those judges who continue to view marriage as evidence of stability.

The stability factor as a basis for denying joint physical custody

Some judges use the stability factor not only for the purpose of evaluating the relative fitness of each parent, but also to evaluate proposed custodial arrangements. This is true even  when a statute only directs a judge to consider “the stability of the home environment of each parent.” Although such a statute does not specifically authorize a judge to consider stability except in relation to each parent’s home environment, judges nevertheless believe that assessing the “stability” of a proposed custodial arrangement falls within their broad discretion to consider anything that may have a bearing on what is in a child’s best interests.

Historically, judges cited the stability factor as a basis for preferring sole physical custody over joint physical custody. They cited a child’s need for stability as a reason for maximizing her time with one parent while minimizing her time with the other. Few courts gave consideration to whether maintaining regular, frequent contact with both parents ensured greater emotional or psychological stability for a child than requiring him to experience protracted periods of separation from one of his parents does.

Wisconsin has taken the lead in reforming this aspect of custody law. The legislature there has amended its “best interests” statute to require courts to consider “[t]he need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.”1 In Wisconsin, a “period of physical placement” can include time periods that would be called “visitation” in other states. The legislature seems to be instructing judges to disabuse themselves of the notion that limiting the amount of visitation with a parent enhances a child’s stability.

Logically, statutory language like this also seems to countenance a preference for joint physical custody. It certainly does not seem to encourage courts to apply a preference for sole physical custody. Since the judicial branch has an interest in retaining the broadest possible discretion for itself, however, courts are likely to construe this kind of statute narrowly. If establishing a presumption or preference for joint physical custody or equal shared parenting is the goal, the intention to do so should be set out clearly and explicitly in the statute.


My book, The History of Custody Law, is available for purchase in paperback or as a Kindle e-book at:

  1. Wis. Stat. § 767.41 (5)(am)(8) (2011)

Removing gender bias from the definition of caregiving


Although a statute may direct courts to avoid resting custody decisions on a single “best interest” factor to the exclusion of others, in practice many judges tend to assign greater weight to the “primary caregiver” factor. The definition of caregiving functions, therefore, can be very important. In some cases, in can mean the difference between an award of sole custody to a mother, on one hand, or to a father, on the other.

In many states, the list of caregiving functions that judges and evaluators employ to decide which parent is primary is far from inclusive. Worse, it is fraught with gender bias. In a lot of states, for example, shopping for groceries is deemed a caregiving function, but earning the money to pay for the groceries, or to fill the car with gas, is not. Because neither activity involves any direct contact with the child, there is not really any basis for the distinction other than that women generally tend to do more shopping than men do, or they tend to spend more time doing it than men do, while men historically have been the mandated breadwinners for their families. The inclusion of shopping as a caregiving function, while omitting the earning of money with which to make shopping possible, cannot be explained other than as a way of building into the “primary caregiver” factor a bias in favor of mothers.

This is just one example. There are other ways that pro-mother bias factors into “primary caregiver” analyses. Driving a car to perform child-related tasks, for example, is often considered a caregiving function. Maintaining and repairing the car to ensure it is available for those purposes, however, is not. Women historically have tended to perform more of the former function; men, more of the latter.

Housecleaning, a greater share of which historically has been performed by women than by men, is considered a caregiving function, but yard work and home repairs – tasks historically performed more by men than women – are not.

Feeding a child – historically a task performed more by women than men – is deemed a caregiving function. At the same time, however, developing a child’s intellectual, social and motor skills by engaging the child in physical activity (sports, hobbies, play, work) – historically a function performed more by fathers than mothers – is not.

Of course, removing gender bias from the definition of “caregiving” only addresses one of the problems with the “primary caregiver” factor. Larger questions still remain. In particular, the question remains whether it is really in children’s best interests to allow a mechanical quantitative analysis that determines one parent to be the performer of 51% or more of the caregiving functions to outweigh the strength of a child’s attachment to the other parent. Does it make sense to place a child in the custody of an emotionally distant parent simply because that parent performed 51, 70 or 80% of the shopping, feeding, and bathing? Or would it make more sense to place the child in the custody of a parent who, although performing only 49% or less of those activities, nevertheless is the parent to whom the child turns for security, protection, comfort, love, and emotional support?

The question overarching even this question, of course, is whether courts should even be in the business of making these kinds of decisions at all – and if so, under what circumstances. More to come about this later.