by Ronald K. Henry¹

"We are trying to strengthen the family, we are trying to strengthen, especially, the black family, which we all know is under siege. It is particularly under siege in the District of Columbia, ...particularly the black males, who we have now come to know as an endangered species." (D.C. Council member Harold Brazil.) ²

 

On April 18, the District of Columbia’s new child custody statute became effective. The new statute is the first revision in the District’s child custody statute in nearly twenty years and comes after a period of great national change in the handling of child custody determinations.

When the District’s law was last changed in 1977, joint custody was virtually unknown and the statute did not even acknowledge the existence of the concept. Today, Richard Warshak, author of The Custody Revolution, and David L. Levy, author of The Best Parent is Both Parents, note that joint custody, also known as shared custody or shared parenting, has been established by statute or appellate case law in virtually every state. The District’s new statute breaks a silence on joint custody that is apparently now maintained only by South Carolina and North Dakota.

Although the District of Columbia comes late to the recognition of joint custody, advocates have seen a silver lining in that the delay permitted the District of Columbia City Council to sift through the merits of the many variations that have been enacted among the states. Where some states simply permit joint custody to be ordered, other states actively promote it. Where some states give little guidance regarding the factors to be considered by the courts, others have extensive and detailed listings. Where some states leave the sharing of parental responsibility to ad hoc determinations, other states provide detailed guidelines or require the submission of parenting plans by the litigants which articulate each parent’s proposed responsibilities toward the child.

The approach adopted by the District begins with the proposition that children are born with, want, love and need two parents. Regardless of the social problem that is under consideration -- teenage pregnancy, suicide, drug abuse, poor academic performance, juvenile delinquency, school drop-out or any of the other pathologies that plague today’s youth -- the uniform answer from researchers is that, on average, children with two actively involved parents fare better. As the American Psychological Association Division of School Psychology reported to the United States Commission on Child and Family Welfare:

"The research reviewed supports the conclusion that joint custody is associated with certain favorable outcomes for children including father involvement, best interests of the child for adjustment outcomes, child support, reduced relitigation costs, and sometimes reduced parental conflict. ³

In drafting the new joint custody statute for the District of Columbia, the central question debated by the Council was "who should have the burden of proof in a custody litigation?" Since children are in unrestricted joint custody unless and until a court order places restrictions upon the parents, the Council decided that the parent seeking sole custody and reduction of the other parent to visitor status should have the burden of overcoming a rebuttable presumption that joint custody was in the best interests of the child. The statute thus recognizes that a custody order is a use of the court’s injunctive power that places restrictions upon previously unrestricted parties. The new custody statute, like all other injunctive proceedings, now places the burden of proof on the party who seeks control (sole custodian of the child) and who seeks to restrict the other party (visitor to the child).

In addition to establishing the rebuttable presumption that joint custody is in the best interests of children, the new statute makes a series of other significant changes to custody practice in the District of Columbia. Among these are provisions relating to submission of parenting plans by the litigants, appointment of guardians ad litem or attorneys for the children, and procedures for modification of existing orders, all of which are described more fully in the section-by-section analysis below. In recognition of the facts that children’s needs do not vary with the marital status of their parents and that there are constitutional barriers to discrimination against non-marital children, ⁴ the statute applies to all custody cases "regardless of marital status." ⁵

Throughout most of our nation's history and in much of the world today, the law contained a strong or conclusive presumption that sole custody would be awarded to the father in the event of family dissolution. The early feminist meeting in Seneca Falls, New York in 1848, for example, included the fact that fathers automatically received custody as a principal complaint in its Declaration of Sentiments.

Prior to the industrial revolution, most parents worked side-by-side with the children on the family farm or in the family trade. Children were nurtured and educated through almost continuous contact with both parents and child-rearing books through the 18th and mid-19th century emphasized the father's centrality in raising the children and preparing them for the adult world. As the industrial revolution accelerated through the 19th century by pushing more fathers out of the family enterprise and into the factories, social theorists began to exalt rigid sex role separations with father as external wage earner and mother as home-bound nurturer. Still, the pendulum swung slowly and the pro-feminist philosopher John Stewart Mill observed that, while the idea was interesting, the public was insufficiently prepared to discuss mother custody.

Continued industrialization, coupled with the then perceived virtue of getting women out of the paid workforce in order to create jobs for returning servicemen at the end of World War I, culminated in a full-blown "cult of motherhood" and the establishment of the "tender-years doctrine" in most states. The pendulum of public prejudice, having swung from one extreme to the other, then enforced automatic mother custody with the same rigidity as the earlier enforcement of automatic father custody.

In the 1960's and 1970's, the pendulum began swinging toward a more centered position⁶ and most states abrogated the tender-years doctrine through statute or court decision as

a violation of equal protection. Virtually all states began at least to give lip service to the principle that custody decisions should be made in accordance with the "best interests" of the children rather than by reference to the parents' gender. Although gender bias remained, ⁷ all states acknowledged that either the mother or the father could "win" the battle for custody of the child.

While the law was advancing to the point of recognizing that either mother or father could be the better parent, social science research confirmed that the best parent is both parents. Ten years ago, it was considered impolite to suggest that children of divorce needed anything more than a custodian and a support check. The ongoing "custody revolution" described by Warshak grows out of social science research showing that divorce does not diminish children’s need for both parents and that the insecurities generated by the divorce itself increase the children’s need for assurance that they will not lose Mom or Dad. Increased sensitivity to children’s needs has led to a re-thinking of the court’s role in custody determinations.

Courts are most accustomed to adversarial presentations that are resolved by the selection of a winner and a loser. The system works well in commercial disputes. The court picks a winner and a loser, the loser is ordered to pay the winner, then the litigants move on to the next deal. The difference in domestic relations cases is that it is destructive to treat children as prizes to be awarded to a winner and denied to a loser.

The trend toward joint custody is premised on the understanding that most parents are simply ordinary people who love their children. The typical contested custody determination involves a choice between two parents who are both fit and eager to provide for the care of their children. Neither of these parents deserves to be a "winner." Neither deserves to be a "loser." In a society that does not suffer from an excess of parenting, courts and legislatures have increasingly come to realize that the important task is to encourage and preserve maximum two-parent involvement rather than pick a winner and a loser. Joint custody is a recognition that the child needs a substantial relationship with both parents and that both parents have important contributions to make to the child’s growth and development.

Under prior District of Columbia law, "close cases" were the most hard-fought, costly, and difficult to decide. As between two fit and loving parents, it is difficult to decide which is marginally "better" and there should be no need to try. The establishment of a rebuttable presumption in favor of joint custody is expected to reduce litigation, particularly in "close cases", because neither parent stands to become the winner nor the loser. They can expect simply to remain as joint custodians.

The late enactment of joint custody legislation in the District of Columbia was not caused by a lack of awareness regarding the issues among members of the City Council. John Ray, Frank Smith, and others on the Council were longtime supporters of joint custody. While Wilhelmina Rolark chaired the Judiciary Committee, however, no hearings were held and no action was taken on any joint custody proposal. When Rolark lost her bid for reelection, Jim Nathanson became chairman of the Judiciary Committee. Nathanson held the District’s first hearings on proposed joint custody legislation but momentum was lost when Nathanson was defeated in his bid for re-election to the current Council session.

This Council session brought Bill Lightfoot to the Chairmanship of the Judiciary Committee. Joint custody legislation was introduced by Council Member Harold Brazil and Mr. Lightfoot scheduled hearings and committee mark-up sessions which led to the Committee’s report of a joint custody bill to the full Council. On January 4, 1996, the full Council voted final approval of the joint custody legislation and the review process of the Financial Control Board and the U.S. Congress was begun. On April 18, 1996, the Congressional review period ended and the legislation became effective.

While individual Council members supported a variety of positions with respect to how best to implement joint custody in the District of Columbia, all thirteen members were united in support for the enactment of joint custody legislation. Mrs. Cropp, although voting in the minority on the rebuttable presumption issue, nevertheless summed up the feelings of the Council with her statement that :

"To a great extent, we were saying a lot of the same things, but we were saying it differently. I believe that everyone on the dias believed strongly that there should be joint custody for the children. I don’t think that was an issue. The issue was how we arrive at, I guess, the definition of the joint custody or how that decision was to be made. But we all agreed that when you can have two parents for a child, that is better." ⁸

Under the prior legislation, a significant number of Superior Court judges had reached the conclusion that they were not empowered to order joint custody, absent parental agreement, because of the old statute’s silence with respect to joint custody. The new statute makes it clear that "the court may award joint or sole custody according to the best interests of the child." With respect to the choice between joint or sole custody, the statute states that:

"There shall be a rebuttable presumption that joint custody is in the best interests of the child or children, except in instances where a judicial officer has found by a preponderance of the evidence that an intra-family offense....child abuse....child neglect....or parental kidnaping....has occurred."

If any of the exceptions is present, there is a rebuttable presumption that joint custody is not in the best interests of the child.

In cases where one of the exceptions is not present, the parent seeking a sole custody/visitor relationship has the burden of overcoming the rebuttable presumption that shared custody is in the best interests of the child. In most states, the courts have understood joint custody to comprise two components: joint legal custody and joint physical custody. Joint legal custody means shared decision-making. Joint physical custody refers to the amount of time that the child is permitted to have with each parent.

Like most joint custody statutes around the nation, the District’s new law does not contain a precise definition of a "standard" joint custody order. The principal reason for the omission here and elsewhere is the inherent flexibility of joint custody arrangements. An arrangement which gives the child substantially equal time with both parents may, nevertheless, be structured in small or large time increments, during or out of school, before or after the children have reached school age, with parents who live close together or far apart, and with a host of other variables. Physical joint custody is thus an inherently flexible concept that is understood by courts to mean that the child will have substantial relationships with both parents. Physical joint custody is generally defined by what it is not: It is not the traditional visitation schedule.

The lack of a specific definition of joint physical custody in the new statute also reflects the fact that a definition has already been in effect and in use in the Superior Court since 1990 for purposes of implementing the child support schedule. Under D.C. Code § 16-916.1(n), "Shared custody" means that time with the parent having the lesser share "exceeds 40% of the year." This definition, which is consistent with the practice in other states, indicates that the statute’s rebuttable presumption for shared physical custody should result in an arrangement which allows the child to be with each parent somewhere between 40 and 60 percent of the time. Since this arrangement still allows the child’s time with each parent to be increased from 40% to 60% or decreased from 60% to 40%, the court will want to pay particular attention to the parenting plans submitted by each parent pursuant to §16-911(a-2)(2).

The legislative debate regarding the availability of joint custody focused primarily on whether a "hostile parent veto" should be permitted. Essentially, the argument was that parties who did not agree to joint custody could not implement joint custody. Under prior practice in the Superior Court, some judges would refuse to order joint custody if one parent objected even though the other parent sought joint custody and joint custody was otherwise in the child’s best interests. All of the Council members agreed that legislation was needed to eliminate the "hostile parent’s veto" and the only question was how far to move away from this past practice. Chairman Clark proposed a small adjustment which would eliminate the veto but would permit a rebuttable presumption against joint custody if one parent objected. Chairman Clark’s proposal drew only his own vote and an interim, sympathy vote from Council Member Thomas, who ultimately voted in favor of the pro-joint custody presumption which has now been enacted into law. ⁹

To make the point clear, the statute states not only that there is a presumption in favor of joint custody but adds further in § 16-911(a-2)(6)(B):

"An objection by one parent to any custody arrangement shall not be the sole basis for refusing the entry of an order that the court determines is in the best interests of the minor child or children."

The statute requires the court’s consideration of all factors relevant to the best interests of the child including 17 enumerated factors:

(A) the wishes of the child as to his or her custodian, where practicable;

(B) the wishes of the child’s parent or parents as to the child’s custody;

(C) the interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may emotionally or psychologically affect the child’s best interests;

(D) the child’s adjustment to his or her home, school and community;

(E) the mental and physical health of all individuals involved;

(F) the capacity of the parents to communicate and reach shared decisions affecting the child’s welfare;

(G) the willingness of the parents to share custody;

(H) the prior involvement of each parent in the child’s life;

(I) the potential disruption of the child’s social and school life;

(J) The geographical proximity of the parental homes as this relates to the practical considerations of the child’s or children’s residential schedule;

(K) the demands of parental employment;

(L) The age and number of children;

(M) the sincerity of each parent’s request;

(N) the parents’ ability to financially support a custody arrangement;

(O) the impact on Aid to Families with Dependent Children and medical assistance;

(P) the benefit to the parents; and

(Q) evidence of an intra-family offense as defined in section 16-1001(5).

The list is meant to be illustrative ("including, but not limited to") and establishes no particular weighting of the factors. Although the effort to be inclusive has resulted in some redundancy, most of the factors are self-explanatory. At the same time, several of these factors merit individual comment:

(H) The Prior Involvement of Each Parent in the Child’s Life

In every household, there is an allocation of responsibilities during the marriage and some degree of temporary role specialization. When the household separates, these roles will necessarily change. The former stay-at-home spouse will need to work. The former career-oriented spouse will need to cook, clean, and otherwise handle domestic life. There is nothing sex-specific about any of these tasks. Both spouses had to perform the full range of activities before joining into a single household and both spouses need to perform the full range of activities after separating into two households. The task for the court is to determine whether both spouses were contributing to the joint enterprise for the child’s economic, physical, and emotional well-being prior to the separation. The court should not engage in mechanical point-scoring (one point for changing a diaper; one point for carrying it out to the trash). Rather, the court should inquire as to whether both parents are functioning within any temporary role specialization to provide a safe, secure and loving environment which attends to the child’s economic, physical and emotional needs. ¹⁰

(I) The Potential Disruption of the Child’s Social and School Life; and

Where the parents live close to one another, particularly in the same school district, there is little to be weighed under this factor since joint physical custody will normally maintain the child’s social and school life. If one parent chooses to relocate to a distant point, the court must evaluate the impact of the move upon social and school life. In such situations, joint physical custody is normally maintained by providing longer periods of physical custody with fewer exchanges, for example, school year in the unmoved household with winter break, spring break and summer vacation in the moved household.

The child’s opportunity to spend time with either parent may be impacted by each parent’s employment commitments. For example, if one parent has extensive out-of-town travel commitments, the court may find it necessary to structure the physical custody schedule to account for these commitments. One obvious accommodation is to provide less week-night time and more weekend time with the parent whose work requires travel.

Research indicates that younger children have less highly developed long-term memories with the result that frequent contact with each parent is important to prevent regression in the relationship¹¹. Frequent contact is particularly important during the preschool years to allow bonding with both parents¹². Since younger children are also home-centered rather than peer-centered, frequent exchanges of custody are also more easily accommodated.

This factor requires the court to be attentive to the possibility of punitive or other improper motives. A parent who desires a particular custody arrangement for the purpose of excluding or reducing the other parent’s involvement in the child’s life is to be noted.

A parent who seeks sole custody of a child, even with a child support order, is generally less able to provide for the child’s needs than is the case when both parents are providing direct support to the child through substantial periods of residence in each household. The custody schedule also should not make paid workforce participation unduly difficult for either parent. Shared physical custody shares the burden of child care and allows both parents to have significant workforce participation thereby increasing total family income.

This is a new factor which is addressed specifically to the court’s tendency to award custody without regard to whether the custodial order will increase welfare dependence. Under the new legislation, the courts are ordered to examine the impact of custodial determinations upon welfare dependency. In many cases under prior practice, a sole custody award, even when coupled with a child support order, nevertheless adds the child to the welfare rolls. Joint physical custody can reduce the likelihood of welfare dependency by providing that the child receives substantial, direct support in each of the two households and by reducing child care burdens such that both parents are better able to participate in the paid work force.

This factor recognizes that a parent who is allowed to be a parent and to maintain a substantial relationship with his or her child is likely to function better with respect to a variety of responsibilities. For example, the Bureau of Census has reported that child support compliance is 90.2% in cases of joint custody, drops to 79.1% where only visitation is protected, and drops to 44.5% where neither joint physical custody nor visitation are protected. ¹³

This factor ties back to the rebuttable presumption against joint custody where an intra-family offense, child abuse, child neglect, or parental kidnapping have been found.

The new statute provides that the court may "order each parent to submit a detailed parenting plan which shall delineate each parent’s position with respect to the scheduling and allocation of rights and responsibilities that will best serve the interests of the minor child or children." The statute provides that the parenting plans may include but are not to be limited to provisions for:

(i) The residence of the child or children;

(ii) The financial support based on the needs of the child or children and the actual resources of the parent;

(iii) Visitation;

(iv) Holidays, Birthdays and Vacation Time;

(v) Transportation of the child or children between the residences;

(vi) Education;

(vii) Religious training, if any;

(viii) Access to the child’s or children’s educational, medical, psychiatric and dental care records;

(ix) Except in emergencies, the responsibility for medical, psychiatric and dental treatment decisions;

(x) Communication between the child and the parents; and

(xi) Resolving conflicts such as a recognized family counseling or mediation service before application to the court to resolve a conflict.

The purposes of the parenting plans are both to provide information to the court for identifying specific areas of disagreement and to empower the parents. Rearing children is a very big job. Experience in other states with parenting plan statutes indicates that the exercise of articulating each parent’s plans for the rearing of the children helps the parents to realize the enormity of the task and facilitates communication and agreement on how to share the task. Implementation of the parenting plan provision in other states has been accomplished by preparation of a standard form. The form is made available to all litigants and identifies the major decisions and responsibilities that must be allocated. Where parents are in agreement, a joint parenting plan can be submitted and can form the basis for the entry of the court’s order. When the parents are in disagreement, submission of the plans identifies the specific areas of disagreement and facilitates the judge’s inquiry into and resolution of the disagreements.

In the hearings held by the City Council, opponents of shared parenting argued that parenting plans are too complex for the citizens of the District of Columbia. This position was properly rejected. The point of the parenting plan is to demystify the custody process and to empower the parents. Filling out a standard form which identifies such things as the parents’ ideas for the allocation of holidays will not overstrain our citizens. Instead, the court will have the benefit of the parents’ wishes rather than a mysterious "black box" from which the court issues a custody order. The parenting plan is particularly important for the great many litigants who are not represented by counsel in the District of Columbia. The parenting plan allows these pro se litigants to articulate their wishes in concise, unambiguous terms that are readily presented to the court.

The importance of the parenting plan in empowering parents is reinforced by §16-911(a-2)(2)(B) which provides that "the court shall consider the parenting plan submitted by the parents in evaluating the factors set forth in this subsection and in fashioning a custody order." In other words, the views of the parents, the two people on Earth who know the child best, must be taken into consideration during review of and decision on the final custody order.

The new statute encourages parents to resolve disputes and reach agreement rather than resort to court intervention. Toward this end, the statute contains provisions which articulate the mandate that the court must give deference to the knowledge and agreements of the parents. Accordingly, the statute provides that:

"The court shall enter an order for any custody arrangement which is agreed to by both parents unless clear and convincing evidence indicates that such arrangement is not in the best interests of the minor child or children."

To reduce the "black box" aspect of custody decisions, the statute also requires that:

"The court shall place on the record the specific factors and findings which justify any custody arrangement not agreed to by both parents."

The statute provides that:

(2)(C)"The court may also order either or both parents to attend parenting classes."

(2)(D)"The court shall designate the parent who will make the major decisions concerning the health, safety and welfare of the child that need immediate attention."

and

(5)"The court, for good cause and upon its own motion, may appoint a guardian ad litem or an attorney or both to represent the minor child’s or children’s interests."

One stereotype fostered by opponents of joint custody has been the claim that fathers seek joint custody only to avoid child support. Since the corollary of this claim would be that mothers seek sole custody only to obtain child support, the need to reject stereotypes should be self-evident. Moreover, the statute specifically states that:

"Joint custody shall not eliminate the responsibility for child support in accordance with the applicable child support guideline as set forth in §16-916.1."

Since 1990, the District of Columbia child support guideline has had specific provisions for the computation of child support in cases of physical joint custody. The enactment of the presumption in favor of physical joint custody will simply mean that more child support orders will be calculated under the joint custody portion of the guideline rather than the sole custody portion of that same guideline.

§16-911 creates modification jurisdiction but the new legislation also makes conforming changes to §16-914 to assure that there is no confusion as to this point. ¹⁴

Modification or termination of an existing award of custody may be made upon motion of one or both parents or on the court’s own motion. If the modification is agreed to by both parents, "the court shall enter an order for any custody arrangement which is agreed to by both parents unless clear and convincing evidence indicates that such arrangement is not in the best interests of the minor child or children."

On a party’s contested motion to modify or on the court’s sua sponte motion, there must be a determination that there has been "a substantial and material change in circumstances and that such modification or termination is in the best interests of the child." The burden of proof to establish the existence of such conditions is on the moving party "by a preponderance of the evidence." A final point is that:

"The mere enactment of this Act does not, in and of itself, constitute a substantial and material change in circumstances and, therefore, may not constitute the sole basis for modifying or terminating a custody award."

Accordingly, a petitioner may cite the new legislation and its presumption that joint custody is in the best interests of the child but cannot rely on this alone as the "sole basis for modifying or terminating a custody award."

After nearly 20 years without revision, the District of Columbia now has a child custody statute that is strongly focused on the child’s right to two parents. By discouraging winner/loser contests between mother and father, the statute positions the court to seek the best rather than the worst from each parent. The presumption of shared custody reduces every parent’s visceral fear of being shut out of the child’s life and allows both the parents and the court to focus on the means of assuring the greatest combined parental contribution to the welfare of the child.

Endnotes:

1. Ronald K. Henry is a partner in the law firm Kaye, Scholer, Fierman, Hays & Handler. He serves on the American Law Institute Family Law Project and is an advisor to the National Commissioners on Uniform State Laws Interstate Custody Jurisdiction and Enforcement Act Project. Mr. Henry is a member of the American Bar Association Family Law Section Custody Committee and is married with children. The views expressed in this article are solely his own.

2. District of Columbia City Council January 4, 1996 Legislative Session, Transcript at 11. (The District of Columbia City Council prepares audio tapes but not printed transcripts of its legislative sessions. The Children’s Rights Council obtained the audio tapes and prepared a printed transcript from the tapes. The printed transcript of this legislative history and other materials on joint custody are available from the Children’s Rights Council at Suite 200, 220 I Street NE, Washington, DC 20002, Tel. No. (202)547-6227.)

3. June 14, 1995 report of the American Psychological Association, Division of School Psychology, to the United States Commission on Child and Family Welfare at 3.

4. Clark vs. Jeter, 486 U.S. 456 (1988)(Statute which disadvantaged non-marital children by providing shorter limitations period for establishment of paternity/child support was unconstitutional denial of equal protection).

5. Section 16-911(a)(5).

6. For example, the American Psychological Association adopted the following resolution at its 1977 meeting:

Be it resolved that the Council of Representatives recognizes officially and makes suitable promulgation of the fact that it is scientifically and psychologically baseless, as well as a violation of human rights, to discriminate against men because of their sex in assignment of children's custody, in adoption, in the staffing of child-care services, and personnel practices providing for parental leave in relation to childbirth and emergencies involving children and in similar laws and procedures.

7. The May 1992 Final Report of the Task Force on Gender Bias in the District of Columbia Courts found that:

"The Task Force found that many domestic relations lawyers believe that judges in the District of Columbia more often than not view mothers as more fit to have custody than fathers, regardless of whether women are working or not. Only women who place great emphasis on their careers are seen to be disadvantaged over men in similar situations.

The implication of the survey is that mothers are strongly favored over fathers, even if they work outside the home....thus, this court is seen to be "traditional" in its application of what should be gender-neutral custody criteria."

Final Report at 181.

8. District of Columbia City Council January 4, 1996 Legislative Session, Transcript at 4.

9. District of Columbia City Council January 4, 1996 Legislative Session, Transcript at 45-47.

10. See "Primary Caretaker: Is It a Ruse?", Ronald K. Henry, Family Advocate, American Bar Association, Summer 1994.

11. Stratton, Peter (Ed.), Psychobiology of the Human Newborn, 1982, John Wiley, New York.

12. Warshak, Richard A., The Custody Revolution, 1982, Poseidon Press; Lamb, Michael (Ed.), The Role of the Father in Child Development, 2nd Ed., 1981.

13. "Child Support and Alimony", Current Population Reports, Series P-60, No. 173. United States Bureau of the Census, September 1991. (Some opponents of joint custody have argued that the superior child support compliance rates of joint custodial parents is the result of "cream skimming" of good parents. There is no data to support this objection but, even if accepted, it is apparent that we should encourage more joint custody until we run out of cream and the child support compliance results for sole and joint custody are equalized.)

14. Some Council members argued that the better practice would be to combine 16-911 and 16-914 into a single section as the best way to avoid confusion. The majority, however, believed that, while a redrafting could be justified, it was not necessary.