Sole Custody versus Joint Custody—Is it really worth the fight?
By: Paul F. Nichols and Cassandra M. Chin
Nichols Zauzig Sandler, P.C.
Published in the Virginia State Bar Association, Family Law News, Falll 2002
Clients often come into my office and insist that they obtain “sole custody” rather than “joint custody” of their children. What I explain to my clients, and what I want to convey in this article, is that unless the other parent is unfit to have custody of the children, “sole custody” is simply not worth the fight anymore. In this article, I will first outline a general history of standards for child custody. Then, I will discuss the current statutory framework to protect the interests of children and both parents, regardless of the whether there is a sole or joint custody situation. More specifically, I will review provisions of the federal Parental Kidnapping Protection Act, state criminal kidnapping statutes, and requirements under Title 20 of the 1950 Code of Virginia that a non-custodial parent be given notice of relocation and equal access tochildren’s medical and academic records.
II. STANDARDS FOR CHILD CUSTODY DISPUTES- A BRIEF HISTORY
There was a time in history when fathers received superior custody rights over mothers. During the colonial era in America, fathers had almost unlimited authority over the custody of their natural, legitimate children, an authority that was firmly embedded in the common law of America as well as England. Along with this authority, Fathers were laden with considerable responsibilities to their children for their maintenance and education. Accordingly, the father-child relationship closely resembled a master-servant relationship, where children were regarded as a property right and often treated as chattel. The mother’s role in colonial America was not very well defined. Under English common law, mothers had very few enforceable rights regarding the association and labor of their children. In fact, a father did not even have to obtain permission from the mother before sending a child to live with a relative or another family, or to apprentice the child. Along those same lines, mothers did not have the same obligations to their children that the fathers did. Marriage settlements during this era did not grant child custody to mothers, or even equal custodial rights.
With the movement for women’s property rights in the 1800s, some judges were torn between the common law rights of the father and a more modern rule favoring the best interests of the child, and it was not uncommon for courts to award custody to mothers based on the “best interests of child” standard.
As America entered the twentieth century, states passed a number of “paternalistic” laws in response to the moral issues of the day, including the fact that the United States had the highest divorce rate in the world. Legal restrictions on divorce, however, made very little practical impact, as couples would participate in charades to meet the legal requirements of divorce. During this period of strictly controlling domestic relations, maternal preference emerged as the dominant standard in child custody disputes. Supporters of maternalism believed that women were generally more nurturing and sensitive to the needs of children than their male counterparts. As courts increasingly adopted this policy at the end of the nineteenth century, mothers received custody in more than ninety percent of contested cases. The maternal preference was evidenced by the “tender years rule” and also led to actions by state legislatures to abolish statutes granting superior paternal rights.
By the 1950s, family law debates again began to shift their focus. By the middle of the twentieth century, many attempts were being made to liberate families from the maternalistic framework. As married women increasing entered the workforce, debates over custody were again sparked. At the same time, there was the growing idea that children had their own liberty interests, separate from the interests of their parents. The courts, as well as the state legislatures slowly abandoned the concept of maternal preference during the 1960s and 1970s by eradicating or reducing the impact of the “tender years” doctrine in custody determinations. Instead, the doctrine of “best interests of child” re-emerged as the predominant philosophy of judges and legislators.
The trend towards “best interests of child” gave fathers new legal standing and those who requested custody of their children were met with increasingly greater success. Significantly, this movement towards gender equity created the concept of joint custody, which allowed parents to share legal and/or physical custody of their offspring. This concept was appealing to judges because the courts no longer had to choose between mothers and fathers who were both fit to have custody of their children.
Virginia courts endorsed this practice as early as 1948, when Justice Spratley upheld a decree awarding custody of a daughter to the mother during the school year and custody to the father during summers, stating:
The advisability of dividing or alternating the custody of the child has been seriously considered. While there are certain disadvantages in such division, there are also important advantages and benefits. It gives the child the experience of two separate homes. The child is entitled to the love, advice, and training of both her father and her mother. Frequent associations, contact, and friendly relations with both of her parents will protect her future welfare if one of her parents should die. It gives recognition to the rights of parents who have performed obligations as parents. The Virginia legislature explicitly recognized the concept of “joint custody” in Va. Code § 20-107.2. Although Virginia has yet to adopt a presumption of joint custody, many other states do have a rebuttable presumption that joint legal custody is in the best interest of children. In all likelihood, Virginia will eventually follow this trend.
III. THE FEDERAL PARENTAL KIDNAPPING PROTECTION ACT, THE FEDERAL PARENT LOCATOR SERVICE, THE FUGITIVE FELON ACT, AND THE VIRGINIA UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT PROVIDE PROTECTION TO A JOINT CUSTODIAN AGAINST “KIDNAPPING” OF A CHILD BY THE OTHER CUSTODIAL PARENT.
In the past, one of the main reasons to obtain “sole custody” versus “joint custody” of a child was to prevent one parent from simply taking the child away from the other parent. While the conduct of “parental kidnapping” is still evident in modern times, federal and state legislatures have taken action to protect custodial and non-custodial parents in ways that did not exist before. The central federal law on this issue is the Parental Kidnapping Protection Act (“PKPA”), which mandates that all states give full faith and credit to foreign custody and visitation decrees. “Before a child custody or visitation determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child.” Furthermore, once a valid custody and visitation order is entered by a court with jurisdiction over the matter, the PKPA deters the unilateral removal of children to obtain a conflicting custody order.
Accordingly, one parent cannot just take a child to another jurisdiction in hopes of a more sympathetic court usurping an existing custody order.
The second significant federal law, the Federal Parent Locator Service (“FPLS”), is an invaluable resource for a parent that encounters “parental kidnapping.” By initiating a search under the FPLS, parents can often locate their abducted children. Under the FPLS, any authorized person may obtain information on, or facilitating the discovery of, the location of any individual who is owed an obligation of child support; against whom child support is sought; or who has or may have parental rights with respect to a child, including a social security number, most recent address, and employer information. One may also obtain wage and benefits information, as well as information regarding the assets and debts of an individual.
The third important federal law is the Fugitive Felon Act, 18 U.S.C. § 1073. In Virginia, anyone “who knowingly, wrongfully and intentionally withholds a child from the child’s custodial parent in a clear and significant violation of a court order respecting the custody or visitation of such child, provided such child is withheld outside of the Commonwealth, shall be guilty of a Class 6 Felony.” Under the Fugitive Felon Act, state authorities may obtain federal assistance in locating a parent for prosecution by state authorities for such a felony charge. This Act assists any custodial parent, regardless if he or she is the primary physical custodian. In 2001, the Commonwealth of Virginia adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), which closely mirrors the provisions of the federal PKPA. In fact, the UCCJEA revised the law regarding child custody jurisdiction to bring the previously enacted Uniform Child Custody Jurisdiction Act (“UCCJA”) into conformity with the PKPA and Violence Against Women Act, and to clarify provisions that were being inconsistently interpreted across the nation. Essentially, the UCCJEA codifies in Virginia what has emerged as the practice under the PKPA in order to prevent jurisdictional conflicts in child custody battles and to deter parents from abducting their children for the purpose of obtaining custody awards.
IV. TITLE 20 OF THE CODE OF VIRGINIA PROVIDES PROTECTIONS TO A JOINT CUSTODIAN.
In the past, another area of concern for a parent without sole custody was the inability to keep up with the whereabouts and daily lives of their children. Today, there are several statutory provisions in Virginia that allay these practical concerns. First, pursuant to § 20-124.5 of the Virginia Code, “In any proceeding involving custody or visitation, the court shall include as a condition of any custody or visitation order a requirement that thirty days’ advance written notice be given to the court and the other party by any party intending to relocate and of any intended change of address, unless the court, for good cause shown, orders otherwise.” Second, “neither parent, regardless of whether such parent has custody, shall be denied access to the academic, medical, hospital or other health records of that parent’s minor child unless otherwise ordered by the court for good cause shown.” Pursuant to these statutory provisions, both parents (unless parental rights have been terminated by the Court, or the Court believes that good cause has been shown to order otherwise) have equal access to information that only sole custodians were privy to previously. I believe that the common experience today is that any parent who inquires about the welfare of their child is greeted by openness and cooperation without regard to labels regarding custody.
The federal and state legislation discussed throughout this article have had a profound impact on how we think about custody arrangements today. I assert that it is now the norm, rather than the exception, to place children into “joint custody” situations. Courts seem to believe more than ever that it is typically in the best interests of children to have extensive contact with both of their natural parents. The idea of “sole custody” is one that no longer holds much practical purpose in the classic custody case where neither parent is unfit and both parents desire to participate in the rearing of their children. Federal and state statutes like those described above prevent conflicting custody orders across state lines, deter parental kidnapping, aid parents in the event that a parental kidnapping occurs, and provide equal access to both parents regarding the whereabouts and daily lives of their children, regardless of whether there is a joint custody or sole custody situation. The true fight today is about where a child will primarily reside, not about sole custody. With provisions in place such as described above, unless one parent is unfit to have custody of the children, “sole custody” is simply not worth the fight anymore!