There is currently a bill up for review in Utah which would make it mandatory for children to be in joint custody unless one parent could prove that the other is unfit in some way. Many people, mostly seeming to be men who feel jilted by the current court system, are supporting this bill, claiming that it provides equal rights for men, and promotes what is best for the children. I have heard this argument, that joint custody is best for the children, many times. I think it is ridiculous.

First, you have to understand the difference between custody and time spent with parents. (Skip to the stars below if you are already familiar with this difference.) There are two types of custody, legal and physical. Legal custody determines which of the parents, or both, are allowed to make legal decisions for the children, such as which school to attend, medical responsibility, etc. Physical custody determines in which house the children will be sleeping most of the time. Legal and physical custody do not always go hand-in-hand. One parent could be given full legal custody, but only partial physical custody. Or one could be given joint legal custody, but full physical custody. Even in cases where custody of either kind is joint, there is still a determination of who has final legal say in the case of disagreements between parents, usually the parent who has the most physical time with the children or by decree in the case that the time is completely split 50/50.

Parent time (which some call visitation) is something different. A parent can have total physical and legal custody, and still only spend half their weekends with their children. In Utah, minimum parent time for a noncustodial spouse is half the weekends, one weekday afternoon, and half of the holidays on a rotating biannual schedule. In this case, the "fun" time spent is still fairly equal. The custodial parent provides the house that the kids sleep in more often, and is almost entirely responsible for getting the children to bed on time at night, school on time in the mornings, making sure homework is done, and scheduling medical/dental visits, etc.

A noncustodial parent is entitled to this time unsupervised, unless there has been evidence that the parent has directly injured the children, or the court has evidence that the parent is a flight risk. If either of these cases is proven, the parent will still get supervised visitation on a more limited basis. Even proven extreme physical abuse of the other parent is not enough for a parent to lose parent-time, so long as the children themselves were not present.

Note that I am simplifying the law somewhat. My purpose here isn't legal advice, it is just to outline the basic situation for those who have blessedly never had to discover it for themselves. Not every case follows the law perfectly.


Now, I believe that parent time of some sort with both parents is best for the children no matter what the parent is like. It is important for children to get to know their parents for themselves. Children are generally smart and observant. They detect lies quickly. They detect manipulation pretty well, too. Very few emotionally abusive parents, parents who are trying to use their children against the other parent, get away with it forever.

I also believe that joint physical and legal custody, meaning a child spends roughly equal time sleeping in both houses and the parents have to make legal decisions together, CAN be best for the child, and IS best for the child in low- or no-conflict divorces. When the parents can discuss things safely, without devolving into anger, when they can spend time in the same room without hating each other or one being afraid of the other, then joint custody makes perfect sense.

But guess what? Most of the time, these divorces don't need the court's intervention.

In high-conflict divorces, the ones that take up most of the court's time and drain the court's resources, I strongly DO NOT believe that joint custody is a good idea for the children. This should be obvious to anyone who applies basic understanding to the situation.

It is just like Solomon and the baby. You know the story. Two women have babies, one accidentally rolls over and kills her baby, so she switches the corpse with the other woman's baby and claims that it is the other woman who killed her baby. The two women go to Solomon. Both claim they love the baby. Both claim it is theirs. Solomon says he will solve the problem by cutting the baby in half, and both women can have equal shares of the baby. The real mother protests, because she would rather her baby be alive and taken care of by the other woman than guaranteed dead. The false mother agrees: if she can't have the baby, no one should have the baby.

We have seen the mentality of the false parent only too tragically in the deaths of Josh Powell and his sons. That mentality is vastly common, a scenario that plays out in the hundreds, maybe even thousands, per year in each state.

But just like cutting the baby in half, cutting a child's time in half, a child who is already going through extreme stress and chaos in their lives because of fighting parents, a child who needs consistency in that moment more than anything, is tragically cruel. Particularly when joint custody increases the number of interactions parents are forced to make. Even if both parents are completely great parents, with no sign of abuse in either one, if they can't agree and treat each other civilly, or if one is afraid of the other, joint custody increases the conflict, increases the interactions, increases the opportunity for each parent to try to hurt the other. And the pawns in all that chaos? The children.

Just like Solomon dividing the baby, it isn't the baby who benefits. Nor is it a caring, loving parent. The only ones who benefit are the parents who are more interested in "fair" and "equal" and hurting the other parent than they are in the welfare of their children. If parents in a high-conflict divorce care about their children, their first and primary goal should be reducing the amount of conflict and chaos in the lives of their children, even if that means giving up custody in favor of the other parent.

One other factor in this would be if a caring parent truly believed the other parent would directly harm the children, in cases of emotional and/or physical abuse or neglect. How to treat these things in court is a whole other discussion, one that would take a great many more wiser heads than mine, though I'm willing to approach that topic on another day. It is indubitable that they are not being dealt with well now.

But anyone who believes that joint custody in a high-conflict divorce benefits the children is being foolish. The only people it benefits are the ones who don't care about the children much at all. And it REALLY benefits the ones who love to use the courts to hurt their spouse.
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