Catholic University Law Review Volume 46 Issue 3 Spring 1997 Article 4 1997 The District of Columbia's Joint Custody Presumption: Misplaced Blame and Simplistic Solutions Margaret Martin Barry Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Margaret M. Barry, The District of Columbia's Joint Custody Presumption: Misplaced Blame and Simplistic Solutions, 46 Cath. U. L. Rev. 767 (1997). Available at: https://scholarship.law.edu/lawreview/vol46/iss3/4 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. THE DISTRICT OF COLUMBIA'S JOINT CUSTODY PRESUMPTION: MISPLACED BLAME AND SIMPLISTIC SOLUTIONS MargaretMartin Barry* Joint custody made its statutory debut in 1979 with the passage of Cali- fornia's Family Law Act.' Today, most states acknowledge joint custody as an option. Several jurisdictions, however, have significantly limited the applicability of joint custody, while only eight have made it presumptive.' * The author is an Assistant Professor at the Columbus School of Law at The Catho- lic University of America, where she teaches the Families and the Law Clinic. Many of the statements found in this Article arise from her experience. The author would like to give special thanks to Professors Karen Czapanskiy and Naomi R. Cahn for taking the time to review the article and offer insightful comments. She also would like to thank her research assistant, Nancy Palermo, for her reliable and skilled research in the preparation of this article. 1. CAL. CIV. CODE § 4600.5 (Deering 1984). 2. The eight jurisdictions that have a presumption or preference in favor of joint cus- tody are Florida, Idaho, Kansas, Louisiana, Minnesota, Mississippi, Montana and New Mexico. See FLA. STAT. ANN. § 61.13(2)(b)(2) (West 1985 & Supp. 1997); IDAHO CODE § 32-717B(4) (1996); KAN. STAT. ANN. § 60-1610(a)(4)(A) (1994 & Supp. 1995); LA. REV. STAT. ANN. § 9:335(A)(1) (West Supp. 1997); MINN. STAT. ANN. § 518.17(2)(d) (West Supp. 1997); Miss. CODE ANN. § 93-5-24(4) (1972 & Supp. 1996); MONT. CODE ANN. § 40- 4-224(1) (1995); N.M. STAT. ANN. § 40-4-9.1(A) (Michie 1994). The courts in Florida have limited significantly the application of the statute. See Garvie v. Garvie, 659 So. 2d 394, 395 (Fla. Dist. Ct. App. 1995) (citing Bienvenu and Langford); Langford v. Ortiz, 654 So. 2d 1237, 1238 (Fla. Dist. Ct. App. 1995) ("Rotating custody ... is presumptively not in the best interest of a child."); Bienvenu v. Bienvenu, 380 So. 2d 1164, 1165 (Fla. Dist. Ct. App. 1980) (referring to the well-settled Florida law that divided cus- tody arrangements are not to be sustained). In determining whether to award sole or joint custody, the Montana Supreme Court has ignored the statutory presumption and applied the best interests of the child standard to the facts of each case. See generally Dale R. Mrkich, Comment, The Unfulfilled Promise of Joint Custody in Montana, 48 MONT. L. REv. 135 (1987) (discussing Montana's joint cus- tody law and the Montana Supreme Court's application of it). California, the first jurisdiction to create a joint custody presumption, has since amended its law to apply only in cases where the parents have agreed to joint custody. See CAL. FAM. CODE § 3080 (1994). Connecticut, Maine, Michigan, Nevada and New Hampshire have similar provisions. See CONN. GEN. STAT. ANN. § 46b-56a(b) (West 1995); ME. REV. STAT. ANN. tit. 19, § 214(6) (West Supp. 1996); MICH. Comp. LAWS ANN. § 722.26a(2) (West 1993); NEV. REV. STAT. ANN. § 125.490(1) (Michie 1993); N.H. REV. STAT. ANN. § 458:17(11) (1992); see also Appendix A (providing a state-by-state analysis of joint cus- tody statutes). Catholic University Law Review [Vol. 46:767 In 1996, the District of Columbia joined the small minority when it en- acted a presumption in favor of joint custody. In so doing, the District entered into a realm of domestic relations law that has been described as frightfully lacking in linguistic uniformity3 and consistency in outcome.4 This Article discusses the District of Columbia's version of joint cus- tody. Section I provides a brief overview of child custody trends in the United States. Section II considers the meaning of the term "joint cus- tody" and the phrase "rebuttable presumption that joint custody is in the best interest of the child." Section III is an in-depth discussion of the District of Columbia's new joint custody law. Section IV discusses the incongruities between the concept of joint custody as advocated and the realities of a predominantly black community in which poverty defines the lives of a significant segment of the population. In particular, this section questions the benefit to the District of Columbia community of divisive gender-driven policies. Section V expands on why a joint custody presumption is in conflict with the best interest of the child standard. This Article concludes by observing that the District's new law is of particular concern given the demographics of the jurisdiction. As with welfare reform, rhetoric supporting this law places considerable blame for societal woes on the parent who is raising children single-handedly, and in poverty. The law must not be used as a wedge to further isolate welfare mothers, causing more division where unity of spirit and purpose need to be fostered. Yet, it has the potential to do this if parents are placed in artificial and unfamiliar unions that can undermine the efforts being made by single parents. The serendipitous approach to custody reflected in the District's pre- sumption does not account for the real harm done to relationships when marriages or other familial unions dissolve, or when they never formed. Because courts must meet their obligation to protect children, the new law cannot be interpreted as a license to abandon analysis of the many factors-impact of anger, lack of trust, fear, and/or irrelevance due to lack of involvement-that indicate what may be in the child's best inter- est. The new law cannot be viewed as a shortcut to custody decision- making since it raises far more questions than it answers. 3. Taylor v. Taylor, 508 A.2d 964, 966 (Md. 1986) (citing David J. Miller, Joint Cus- tody, 13 FAM. L.Q. 345, 376 (1979)). 4. See, e.g., Lee E. Teitelbaum, Divorce, Custody, Gender, and the Limits of Law: On Dividing the Child, 92 MICH. L. REV. 1808 (1994) (reviewing ELEANOR E. MACCOBY & ROBERT H. MNOOKIN, DIVIDING THE CHILD: SOCIAL AND LEGAL DILEMMAS OF CUSTODY (1992)). Teitelbaum finds that much of the earlier social research on custody was "less than excellent and some [was] very poor." Id. at 1810. 1997] Joint Custody Presumption The appendices to this Article include a state-by-state analysis of joint custody legislation and a model custody statute for the District of Columbia. I. CUSTODY By WHAT RULE? From the beginning, courts have viewed their role with regard to child custody determinations as one of parens patriae-a duty to protect vul- nerable citizens.5 Consistent with that role, the best interest of the child has been the driving standard, and, as such, statutory presumptions have generally been stated in those terms.6 This judicial function consistently has been muddled with parental interest in the companionship, care, cus- tody, and/or management of their children. Thus, the law reflects an often unresolved conflict between the child's needs and those of the parents.7 The roots of the authority in Anglo-American law to act on behalf of the safety and welfare of children dates back to the seventeenth century and the equitable jurisdiction of the English courts.' Determining cus- tody was simple: the father received sole custody except in cases where the father was found to have gone beyond accepted norms.9 The paternal preference was based on the English common law rule recognizing the father's right to his children's services (the "fruits of their labor") in re- 5. Cf. Lawrence B. Custer, The Origins of the Doctrine of Parens Patriae, 27 EMORY L.J. 195, 205 (1978). 6. See, e.g., LA. REV. STAT. ANN. § 518.17(2)(d) (stating that a presumption exists that joint custody is in the best interest of the child); MINN. STAT. ANN. § 518.17(2)(d) (same); Miss. CODE ANN. § 93-S-24(4) (same). In fact seven states and three territories refer to the child's best interest but make no reference to joint custody in their statutes: Arkansas, New York, North Dakota, Rhode Island, South Carolina, West Virginia, Guam, Puerto Rico, and the Virgin Islands. See ARK. CODE ANN. § 9-13-101 (Michie 1993); N.Y. DOM. REL. LAW § 240 (McKinney Supp. 1996); N.D. CENT. CODE §§ 14-09-06.1 to -06.2 (1991 & Supp. 1995) (including no explicit reference to sole or joint custody, but stating that evidence of domestic violence "creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child"); R.I. GEN. LAWS § 15-5-16 (1996); S.C. CODE ANN. § 20-3-160 (Law Co-op. 1985); W. VA. CODE § 48-2-15 (1995 & Supp. 1996); 19 GUAM CODE ANN, § 4106, 9108 (1995) (presum- ing that the mother receive custody of a child of "tender years"); P.R. LAws ANN. tit. 31, § 383 (1993); V.I. CODE ANN. tit. 16, § 109 (1996).