While there are some who argue that joint custody causes more litigation and relitigation, the facts are decidedly otherwise. In one
California study by Ilfeld, Ilfeld, & Alexander (1982) parents in joint custody arrangements entered post-divorce litigation 16% of the time, while parents in sole custody arrangements were
involved in such relitigation 32% of the time. However, this figure must be examined in light of the fact that those parents in joint custody had chosen that option, and that choice may have resulted
in less relitigation for those comparison groups.
Fortunately, the same study also included a number of couples that were awarded joint custody even when one parent did not want such
an arrangement. For that third group, the relitigation rate was exactly the same as the relitigation rate for sole custody. Taken together these data demonstrate that joint custody results in
considerable less relitigation than sole custody. Also, as the authors noted, the typical assumptions that joint custody will only work when both parents agree is wrong. Joint custody works at least
as well as sole custody whether the parents agree or not. The authors concluded that, unless subsequent research refuted these data, the court should start from a rebuttable presumption of joint
The work by Luepnitz (1982) included data on relitigation as related to joint and sole custody. In that study 56% of the families in
sole custody arrangements had returned to court over child support or other child related matters, whereas none of the families in joint custody arrangements had.The joint physical custody parents also scored lower on an inventory of current conflict. This finding is important because the sole
custody couples had much less differences about their initial custody decision than did the joint custody parents. The sole custody mothers reported that it was just assumed that they would have
custody, whereas in half of the joint custody situations, one party had initially opposed the arrangement and 27% had litigated their disputes.
Luepnitz's findings suggest that conflict about the initial custody decision does not necessarily preclude subsequent parental
cooperation on child rearing, or, conversely, that a mutual agreement about custody does not preclude later conflict.
The study by Luepnitz does not support the argument that one parent's opposition
to joint custody should be a sufficient basis for preventing court ordered joint custody.
Even when parents are experiencing high levels of conflict there is a case for joint custody. Research has shown that the relationship which the child has with each parent was much more influential in predicting successful adjustment outcome, than the quality of the
relationship between the parents
Consequently, even when parents are warring with each other, if both retain a positive relationship with the child, the child should
be afforded the adjustment opportunities of a good relationship with both parents. For these reasons, the issue of parental conflict should not be a rationale for arguing against a rebuttable
presumption of joint custody.
Williams (1987), studied parents in high conflict situations in both joint and sole custody arrangements, and documented that the
type of court order seemed to affect the continuation or gradual resolution of conflict. Results showed that detailed joint custody agreements, which leave very little or nothing to negotiate actually
reduced the stress, and both parents were more likely to learn to demonstrate higher levels of co-operation when highly detailed agreements were written.
There is the myth in some mental health, legal and judicial thinking that joint custody can only by
effectively undertaken by cooperative parents. To the contrary, joint custody provides one of the best methods of stimulating a degree of significant and meaningful cooperation in warring parents who
would otherwise continue years of battling to the detriment of their children. The years of battling are particularly ferocious as one parent abuses the power of sole custody and the other parent
fights the abuse in an attempt to gain back his or her lost parental identity.
Clearly, one agenda of the courts should be to issue orders, which reduce the tension between the divorcing parents, since such a
reduction in tension is plainly in the best interest of the child. Joint custody orders which are detailed and specific work much better in that regard than sole custody and contact arrangements, as
the data on relitigation have consistently demonstrated.
Ilfeld F., Ilfeld H., & Alexander J (1982). Does Joint Custody Work? A First Look At Outcome Data of
Relitigation. American Journal of Psychiatry. 138: 62-68
Luepnitz D. A (1982). Child Custody: A Study of Families after Divorce. Lexington Books: Lexington Massachusetts
Williams F. S (1987). Child Custody and Parental Cooperation. Paper presented at American Bar Association Family Law