Custody and Shared Parenting (Are Courts listening?!)
Ludwig.F. Lowenstein Ph.D
Southern England Psychological Services
Justice of the
Peace, Vol. 165 No. 49, 2001, p 963-966
At present some of the greatest problems in society arise as a
result of marital disharmony, divorce and allowing only one of the
parents to be responsible in the bringing up of the children, while
the other is sidelined or totally cut-off from playing the role
as a parent. At the present, the divorce rate in the United States
alone stands at 50%.
The question of whether there should be sole custody or split
custody (one child with one and another with the other parent) after
separation or divorce has in recent years given way to a preference
for “joint custody” and “shared parenting”.
This eliminates the need for visitation rights, and unsupervised
or supervised contact for the non custodial parent.
It is my view that we are heading into a new era where the contribution
of both parents in the task of child rearing must predominate when
a marriage, or a partnership, is at an end. There are obviously
exceptions when some kind of unsupervised or even supervised contact
is preferable, especially when a parent has had a number of problems
in relation to abuse of a child. It would seem that while the child
or children must be the main concern, this is linked closely to
the family, i.e. both of the parents and the child or children.
This favours the concept of joint custody arrangements whenever
possible. [This is not an issue when all involved have an attitude,
behaviour or history of such healthy care before the separation
of the parents.] But, joint custody, whatever its natural advantages,
also poses difficulties from time to time. Let us look at first:
- The problems and advantages associated with joint custody;
- What should be done if joint parenting or custody does not
- What happens to the children when there is alienation and hostility
between the parents?
- The role of Judges and the Courts.
1. The Problems and Advantages with Joint Custody
Needless to say marital or non marital relationships do not break
up without good reasons. Usually relationships end as a result of
incidents, arguments, incompatibilities etc. This often leads to
hostility or even aggression in the form of domestic violence (Lowenstein,
Sole custody occurs where one parent has been excluded. This should
only happen when the individual who is excluded, poses a physical,
emotional or sexual danger to the children. It should never occur
as a result of alienation by one parent against the other, sometimes
termed parental alienation syndrome (PAS) (Gardner 1987; 1989; 1992;
1998; 2001. Lowenstein 1998; 1999 a,b,c; 2000; 2001)
In the case of split custody, this can work most effectively when
both parents agree about the arrangement and where it can be combined
with joint custody. In a case of divided custody, where each of
the parents has the child for a proportion of the year, this also
works most effectively when the parents can agree on how it should
be done. In many cases this is not what occurs and the parents need
help in making decisions that are fair.
Marital separation, being more than likely due to marital disharmony,
leads to problems. These problems continue after the separation
and in fact they often increase. At least one, possibly both, former
parties feel aggrieved by the hostility that results following the
break-up of the relationship. This has affected, and continues to
affect, the children directly or indirectly. Conflicts between parents
affect children, even causing traumas immediately or in the long-term.
This will be discussed in another section. Children, especially
the very young, cannot understand how and why their parents are
in such conflict. They feel not merely upset, but also insecure
and helpless that the powerful bastions of their existence should
be quarrelling and sometimes threatening as well as showing verbal
and physical aggression towards one another.
Their reactions could be one or both of the following: to seek
to hide or withdraw from the conflict between the most important
people in their lives; or to attach themselves to one or other of
the parties. This would be to seek some semblance of security or
normality. Gardner, (1982) points out that joint custody is not
for everyone, even if it is an ideal when it can be achieved as
a result of the maturity and goodwill of the parents. If it is imposed
on parents who are in conflict, it is unlikely to prove beneficial.
If it is to work, parents must be able to put aside their personal
animosities towards each other and to concentrate on what is likely
to be in the best interest of the children and what each individually
can do to foster security for the children. This should be their
aim. Thereby both parents have a combination of equal rights and
responsibilities as to the welfare of their children. This is despite
the fact they no longer live together.
As already stated, not all parents are amenable to this “ideal”
arrangement. Many parents prefer to distance themselves from their
former partner. They often wish to form new relationships and their
former partner could be viewed an an impediment to this. Such a
view leads to the feeling that the children might be better off
without the other natural parent participating in the parenting
process. Such a desire to extinguish or eliminate one party from
participating in being a parent is often a natural consequence of
marital disharmony leading to separation and/or divorce. The adversarial
system often exacerbates differences between the former partners,
as each solicitor in the case seeks advantages for his particular
client over the other.
Sometimes it is possible through mediation to make both parents
“see sense” in establishing a post-divorce relationship
leading to joint custody or at least “split custody”
or in some cases “divided custody”. In order to achieve
any of these goals, there must be “goodwill” in both
parents who put their children and their welfare first and foremost
rather than their damaged ego or pride. Not only does much depend
on their motivation towards this end, but the role of a highly skilled
mediator may be necessary. The process of mediation must be backed
up by the Court. The Court must be willing to encourage such mediation
and to punish one party or the other if they fail to co-operate
with the mediator. The Court must go so far, if necessary, as to
award sole custody to the party who is amenable to the mediation
process and is willing to co-operate with mediation.
The injustice where one of the parents is prevented from access
or a fair share of parenting opportunities must be counteracted.
Programming or alienation which one of the parents could practise
against the other parent must be prevented. The child should not
continue to suffer from the relentless conflict between parents
or to achieve the manipulation of both parents. The great advantage
of joint custody, therefore. is that it permits as normal a state
of parenting as was previously the case when the marriage or relationship
was intact. It also provides maximum access by both parents to the
child or children. It is therefore least disruptive for normal family
life. It prevents the need for one parent to feel dominant, as far
as the rearing of the children is concerned, or for the other to
feel in a subordinate position despite, possibly, being the main
bread winner. It often leads to parents using the children against
their former partner.
The main drawback with joint custody is where the continuing conflict
between the parents affects the children and leads to possible insecurity
as they move from one home to another. This is especially difficult,
where parents do not have the same approach to discipline and guidance
of children. It might well be necessary for the divided couple to
live not too distant from one another geographically. The most important
factor stems from the parents love of their children and their willingness
and capacity to co-operate with one another because of this. This
would need to be in all areas of child rearing, guidance and the
disciplining of children.
2. What if the shared parenting o joint custody does not work?
It must be accepted that when joint custody is found to be ineffective
other forms of custody must be found. First, it is necessary for
parents to communicate, co-operate and consider the welfare of children
first and foremost and not seek to hold on and maintain the conflict.
Much depends on Judges making the right decisions and deciding
on the basis of which parent is likely to make the greatest effort
in involving the other parent in the process of caring for the child.
When in doubt, it should be the parent that is less likely to alienate
the child against the other (Gardner, 2000) who should have custody
of the child. Equally so, a parent who seeks to exclude the other
parent from caring for and rearing a child, without valid reasons
such as sexual, physical and other abuses, should never be given
sole custody. This is likely to be the first step in avoiding the
pernicious tendency of one or both parents to attempt to alienate
a child against the other. In this process, of course, the custodial
parent has the greater advantage and is likely to be more successful
in alienating the child towards the non custodial parent. Attention
will be drawn again to this point when we discuss the role of the
Judge and the Court in this matter.
Both parents, following a particularly rancorous divorce or separation,
could well practise parental alienation or PAS (Gardner 1987, 1989,
1992, 1998, 2001; Lowenstein, 1998,1999 a, b, c, 2000, 2001). In
that case, it could well be best for a third party to take over
the care and responsibility of the children until the situation
is remedied i.e. until both parties can be convinced that it is
best to co-operate with one another for the benefit of the children
first and foremost. This in turn has a spin-off in benefits for
the children as well as the parents. While mediation by a qualified
psychologist is essential, so is a Court of Law which backs such
mediation and the decisions made via mediation. By ‘backing’
it is meant that the Court penalises one or both parents who are
not co-operating with the efforts of the mediator. This includes
when one is alienating the children against the other parent.
3. What happens to children when alienation and hostility between
the parents continues?
This is a question one is asked in Courts frequently, by Judges
as well as the alienated parent. One is rarely asked the question
by the parent who has custody of the child and who may be carrying
out the alienation process against the other parent! Such a parent
cannot or does not wish to see that keeping the other parent away
from the parenting process can cause serious emotional and behavioural
problems now and in the future. This is especially the case where
there is a considerable amount of conflict during the marriage and
after the parents separate. While parents are in the throes of such
conflicts they often behave irrationally and cannot see what it
is they are doing to their children. It becomes a tug-of-war wherein
the child or children and their true feelings are ignored.
Children are forced against their will to take sides and often
to be against the other parent. It is difficult for the children
to remain neutral in this warfare, since they cannot please both
parents simultaneously especially in front of one another. They
wil, therefore, on the whole side with that parent who appears to
promise them the most security, support and often extrinsic rewards
also. Thereby the non custodial parent is sidelined and even eventually
totally rejected by the children due to the influence of the custodial
This leaves the rejected parent with several choices:
Due to the uphill battle involved he/she is likely to opt
out of their parental responsibilities altogether. This will
be used in turn as ammunition by the alienating parent: “You
see he/she doesn’t care and is leaving it all to me to
look after you”.
He/she will battle on for a long period of time often for years
due to their dedication to the child in order to have access
to them so they can play a parenting role. This will equally
be used by the custodial and alienating parent: “You see
he/she is making trouble for me as he/she has always done, dragging
me through the Courts and trying to have me punished.”
Here we have an obvious ‘no win’ situation for that
parent who has been sidelined and alienated. In the UK, Judges,
tend to take what they consider to be a pragmatic position. They
tend to favour the parent who has custody of the child. This is
usually the mother. Associated with this choice is the traditional
view that mothers should have a prominent role in caring for their
children, irrespective of what the father might be able to do for
In the USA, in order to prevent or deal with this kind of parent,
Judges or Courts will mandate a parent to attend mediation classes,
usually held by a clinical/forensic psychologist with expertise
in mediation and family problems. That psychologist is then responsible
for reporting back to the Court. The report must contain information
as to how much or how little a parent is co-operating in allowing
both parents to participate in their parenting role. Destroying
the parenting role and authority of one parent can easily produce
a child who has strong anti-authority, or ant-social feelings. This
can be a handicap for a lifetime.
It begins with children gaining unhealthy power over adults as
they successfully play one off against the other. Such children
will often have difficulties in school or elsewhere for trying to
‘buck the system’. Since there are repercussions from
this, the child will often develop behaviour problems and emotional
difficulties including hostility, depression, sleeping and eating
disorders and other problems. It often begins with the child failing
to get up in the morning, to go to school, to do homework and study,
and eventually truanting. The reaction of the child to continued
conflict has been well documented by Gardner (1987, 1989, 1992,
1998, 2001; and Clawar & Rivlin, 1991; and Lowenstein 1998,
1999 a, b,c,d, 2000, 2001)
It is therefore imperative that such conflicts be prevented and
remedied as soon as possible. Prevention of in the case of hand-over
difficulties can be achieved by locating a neutral site such as
a police station, Court of Law or a Social Service Centre. Sometimes
using an intermediary who is not a party to the parental conflict
is necessary. That person can hand over the child or children from
one parent to the other as an interim arrangement, thus reducing
the likelihood of arguments or violence between parents when they
meet. When the likelihood of hostility has been reduced via mediation,
this will no longer be necessary.
When there is a high level of conflict between parents, this will
effect the children and therefore special mediation practices are
necessary, especially when dealing with Christmas Holidays and holidays
in general. It is often necessary to spend much time as a mediator
with individual parents before allowing them to meet for the purpose
of developing parental co-operation. Such meetings between the parents
should only happen when the mediator feels that both parents, when
they meet, will have a larger number of areas of agreement rather
It must be remembered that the more hostile parent who has custody
of the child may be clinging to that child for emotional support
as well as for revenge. Such parents are unlikely to wish to relinquish
any control of a child for that reason alone. The child, having
identified with the views of the custodial parent in turn is likely
to react to this by reciprocating in his/her need for the emotional
support of the custodial parent, therefore shutting out the other
parent even more. This frequently leads to the child expressing
the view (obviously supported by the hostile parent) that he/she
wants little or no further contact with the other parent. This is
often taken at ‘face value’ by a Court Welfare Officer,
a Guardian ad Litem and a Judge. This is then followed by the claim
that the child has the right to choose and to avoid contact, or
only having minimal contact with one of the parents. This is taking
the easy way out and it is also the wrong way.
While the views of children must be respected, it must be important
to assess and understand where these thoughts and attitudes originate!
These are unhealthy thoughts and attitudes since they are based
on what the alienating parent wants the child to do or to behave
like. These attitudes are inculcated in the child by the alienating
parent. This, however, is not in the children’s short or long-term
interest. Judges and others must be made aware of the insidious
process of programming and alienation. It is therefore important
to avoid making decisions that are strictly based on what can only
be viewed as effective or successful alienation by a custodial parent.
This lead us to the final section on Judges and the Courts in relation
to custodial decisions.
4. The role of Judges and the Courts
Judges and courts have most important roles to play when couples
separate or are divorced, and when they are in constant conflict
over who should have responsibility for the care of children. Judges
are often too worried about their popularity with society when they
seek to put right injustices. When one parent seeks to eliminate
another parent from sharing parenting, unfortunately, the Courts
tend to help that custodial parent to succeed in this. Judges worry
when custodial parents fail to accept that they must share the actual
care of the children with another. This is likely to occur when
the parent who has control of the children seeks to sideline or
totally reject the other parent’s rights and responsibilities
to play a parental role.
The parent who has custody is often viewed as the best parent
to have control over children. This Judges find difficult to reverse.
Therefore, they give the non custodial parent no or little opportunity
to play a parenting role. Those who seek, often for years, to gain
access and contact with their children whom they love and to whom
they are dedicated, are often not viewed as caring, loving or responsible
parents eager to involve themselves in the future of their children.
As pointed out by Coe (2001), they are seen as “....obsessive,
insensitive trouble makers for coming back to Court because they
are not seeing their children”. This is unfortunately the
view of many UK Judges. This is despite the overwhelming research
which has shown that children do better in life if both caring parents
are actively involved in parenting.
To the question whether Courts should order children with parental
alienation syndrome to visit and/or reside with the alienated parent
the research by Gardner (2001) gives a clear response. Gardner describes
99 cases in which the author was directly involved. Here Judges
transferred residential custody to the alienated parent. The outcome
when such orders were implemented in 22 cases were compared with
77 cases when this did not happen. In the 22 cases, PAS symptomatology
was significantly reduced or even eliminated. Where the Court did
not reassign custody to the alienated parent, parental alienation
symptomotology increased in 70 children (90.9%). In only 7 cases
(9.1%) of the non transferred children was there “spontaneous
improvement”. Custodial change and a reduction in alienators
access to children was found to be associated with reduction in
parental alienation symptoms.
Despite the emphasis in “equality” of the sexes, Judges
still give preference to the mother when it comes to sole or primary
custody. Such gender bias is out of place in this day and age. Again
it must be said it is that parent who is more rational and fairer
in involving the other parent in playing a parenting role who should
be given custody, irrespective of the gender. The child should never
be forced to choose sides. This is not the way for the child ultimately
to feel secure. The child will feel secure only when both parents
are involved in the parenting process and treat one another with
respect and with consideration and not with hostility. Judges adjudicating
as to custody must consider this important point in making decisions
as to who should have custody of the child.
- Coe, T. Notes taken at parent education class run by the Superior
Court of Maricope County, Phoenix, Arizona, USA (03-08-01).
- Gardner, R A. (1982) Joint Custody is not for Everyone. Family
Advocate. Vol 5, No 2: p 7. The American Bar Assn., Family Law
- Gardner, R A. (1987) The Parental Alienation Syndrome and the
Differentiation Between Fabricated and Genuine Sex Abuse. Creskill,
New Jersey: Creative Therapeutics, Inc.
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Arbitration and Litigation. Creskill, New Jersey: Creative Therapeutics,
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for Mental Health and Legal Professionals. Creskill, New Jersey:
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Edition. Creskill, New Jersey: Creative Therapeutics, Inc.
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