Could a different priority on custody factors lead to reduced acrimony between estranged parents?

Posted Sunday, September 20th, 2009 by Gregory Forman
Filed under Child Custody, Jurisprudence, Law and Culture, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Of Interest to General Public, South Carolina Specific

In Beyond the Best Interests of the Child (1973), authors Anna Freud (Sigmund Freud’s daughter), Joseph Goldstein and Albert Solnit recommend that in a typical divorce, the court should determine whether the mother or the father is the psychological parent and give that person sole custody of the child. In addition, they recommended that the chosen parent should be able to regulate or even put an end to visits between the child and the other parent.

The authors fail to indicate how child support would be handled in their proposed system and, if the child support system appears coercive now, it would seem much more coercive when the payor parent lacked any right to see the child(ren) being supported.  Despite this flaw, I have some (very limited) sympathy with the authors’ viewpoint.  They are rightly concerned that a court system which goes beyond determining custody, and into setting and regulating visitation, necessarily remains intimately involved in family law.  I am unaware of any attempt to research how this continued court involvement may be undermining family autonomy; instead we have undertaken this sociological experiment in continuous court oversight of child rearing without any apparent understanding that we are doing this.

However Beyond the Best Interests’ biggest flaw is that it fails to account for how often estranged parents hate the other parent more than they love their child.  I fear that the system proposed in Beyond the Best Interests would lead to many custodial parents simply deciding the child should have no contact with the other parent whatsoever: letting their hatred of the other parent override their judgment of the child’s best interests.

But if we have not gone to a system in which we award custody to the child’s primary psychological parent and let that parent make all further decisions regarding the child, I believe we have gone closer to that system than is ideal and, as a result, ended up with the worst aspects of both systems: continued governmental interference in family life combined with a system that doesn’t do nearly enough to discourage parents from alienating the child from the other parent.

South Carolina case law notes the primacy of the primary caretaker in custody decisions. Patel v. Patel,  359 S.C. 515, 599 S.E.2d 114, 120 (2004).   Parental encouragement, or discouragement, of the other parent’s relationship with the child remains a factor in custody cases, but it is not the most important factor and rarely is it one of the more important factors.  Making this a more (most?) important factor in custody determinations might lead to a culture of reduced parental acrimony in custody litigation.

Even if the law doesn’t recognize it, there’s an observable difference when parents parent cooperatively and when they don’t.  Parents who parent cooperatively don’t necessarily have to like the other parent: they merely have to respect the other parent’s standing as a parent and let the child’s best interests override any anger they have towards the other parent.  When parents are happily married (to each other, it should go without saying) there’s never any argument about taking the children to important family events, going to the child’s school events and medical appointments, or attending the child’s extracurricular activities.  Why then does our legal system tolerate a culture in which a custodial parent can be habitually uncooperative towards the other parent without sanction?

For a long time I have considered myself lucky that I can meet my younger daughter at school for lunch or take my daughters camping every Labor Day weekend, or drag them occasionally to Disney World or to California to visit my parents, and never have to worry that my wife would tell me that I can’t.  I have been involved in too many custody cases in which one parent cannot do these things for me to take such autonomy for granted.

Yet the more I think about it, the more I think that what I perceive of as being “lucky” should be every parent’s inalienable right and that our legal system is failing massively by subtly encouraging such disputes.  Every family law practitioner can recount tales of parents who fought over the right of one parent to attend a child’s school events, go to a child’s counseling appointments, or take a child to a relative’s funeral or wedding or a family reunion when it’s the other parent’s weekend.  Our court system unnecessarily tolerates such disputes by resolving the dispute without attacking the underlying (uncooperative) attitude that leads to the dispute.

What if, when resolving these disputes, the court also attacked the attitude that required a judge to resolve a dispute that no cooperative parents would ever have?  What if the uncooperative parent ran a risk of losing custody (or visitation) if the uncooperative attitude continued?  What if the court began awarding custody not to the parent who was the primary caretaker of the child but to the parent who showed a greater willingness to foster a cooperative attitude?

A cooperative attitude can be independent of the other parent’s attributes.  I have observed custodial parents who remained continuously resistant to the child’s relationship with the other parent despite the child’s fond regard for the other parent and in the absence of any evidence that the other parent was doing anything wrong.  I have represented custodial parents willing to encourage the other parent’s relationship with the child despite that other parent’s history of abuse or neglect of the child, so long as the other parent was receiving appropriate treatment.  A cooperative parenting attitude bespeaks a generous spirt; an uncooperative attitude bespeaks a pinched spirit.  Which type of parent should be raising children?

No child should be kept from a psychologically health parent because of the other parent’s antipathy.  There’s an axiom in economics that if you want more of a particular behavior, reward that behavior.   Because our courts do little to reward cooperative behavior and punish uncooperative behavior, I am not surprised that many parents who hate the other parent more than they love their child have custody of their children.

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