Joint Custody Awards: Toward the Development of Judicial Standards
Joint Custody Awards: Toward the Development of Judicial Standards
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1 Anne Adams Rabbino, Joint Custody Awards: Toward the Development of Judicial Standards , 49 Fordham L. Rev. 105 (1980). Available at:
The traditional approach to child custody following separation or divorce
has been the designation of one parent as sole custodian to the exclusion of the
other.' Changing perceptions of parental roles, however, indicate that joint
custody may in fact be preferable. The custody issue is usually resolved by
parental agreement, 2 but even when agreed to, final determination of the
issue falls upon the courts. 3 Although relatively unusual today, designation of
the father as sole custodian was the rule at early common law because of his
obligation to provide support. 4 Today, whether by agreement or by
adjudica1. No published information is available on the number of children not living in a sole
custody arrangement following the divorce or separation of their parents. Abarbanel, Shared
ParentingAfter Separation and Divorce: .4 Study of Joint Custody, 49(2) Am. J. Orthopsych.
320, 320 (1979).
2. Precise statistics on how custody is determined are not available. U.S. Bureau of the
Census, Dep't of Com., Divorce, Child Custody, and Child Support (1979) [hereinafter cited as
Custody Census]. The proportion reached by agreement, however, has been widely assumed to be
quite high. Orthner & Lewis, Evidence of Single-FatherCompetence in Childrearing, 13 Faro.
L.Q. 27, 27 (1979); Shepard, Solomon's Sword: Adjudication of Child Custody Questions, 8 U.
Rich. L. Rev. 151, 161 (1974). Similarly, no statistics on the number of joint custody
arrangements are available, Custody Census, supra; however, in 1976, Stanley F. Kaplan, chairman of
the American Bar Association's Custody Committee, estimated that 95% of all joint custody
arrangements were part of separation agreements which had survived the divorce decree. N.Y.
Times, May 24, 1976, at 24, col. 1.
3. "A judge agonizes more about reaching the right result in a contested custody issue than
about any other type of decision he renders." B. Botein, Trial Judge 273 (1952).
Although courts typically accept a custody agreement reached by the parents, such an
agreement is not judicially binding. Turpin v. Turpin, 570 S.W.2d 831 (Mo. Ct. App. 1978).
Contractual stipulations violative of the child's best interests need not be accepted. Forte v.
Forte, 320 So. 2d 446, 4
48 (Fla. Dist. Ct. App. 1975
); Heinmuller v. Heinmuller, 257 Md. 672,
677-78, 264 A.2d 847, 850 (1970); McKaughn v. McKaughn, 29 N.C. App. 702, 704, 225 S.E.2d
616, 618 (1976); Voskuil v. Voskuil, 256 N.W.2d 526, 529 (N.D. 1977); in re Whitlow, 25 Or.
App. 765, 767, 550 P.2d 1404, 1406 (1976).
If a custody contest develops subsequent to stipulation, a full custody hearing must be
conducted. Marotz v. Marotz, 80 Wis. 2d 477, 483-84, 259 N.W.2d 524, 528 (1977). Cf., Boden
v. Boden, 42 N.Y.2d 210, 366 N.E.2d 791, 397 N.Y.S.2d 701 (1977) (agreement between the
parents, although binding on them, is not binding on the child and will be scrutinized to ensure
that the child's welfare is protected).
4. Foster & Freed, Life With Father:1978, 11 Fain. L.Q. 321, 322 (1978). The early English
courts were rigid in their paternal preference. E.g., ex parte Skinner, 9 'Moore 278 (Ch. 1824)
(mother denied custody of six year old child in the physical custody of the incarcerated father's
mistress, who took the child to jail for visits); King v. De Manneville, 5 East 221, 102 Eng. Rep.
1054 (1804) (nursing infant ordered returned to the French father, an enemy alien whose cruelty
had driven the mother and children from his home).
Only Lord Mansfield rose above the paternal preference. Blissets Case, Lofft's Rep. 748, 98
Eng. Rep. 899 (1773) (although the father was found to have a natural right to custody, he could
lose that right for failure to support or other improper conduct); Rex v. Delaval, 3 Burr. 1434, 97
Eng. Rep. 913 (1763) (father denied custody of 18 year old daughter upon her release from
tion, the mother is, with rare exception, designated sole custodian after
parental divorce or separation.5 The basis of this choice is the maternal
preference or tender years doctrine, predicated on the theory that the mother
is the more natural parent and that the child's future health and happiness
thus depend on his relationship with his mother. 6
Parental roles are no longer so clearly defined. Partly because an increasing
number of mothers are gainfully employed 7 and therefore unavailable to
apprenticeship to master who had debauched her, because of father's involvement In tile
American courts were somewhat more flexible than their British counterparts. In one case,
custody of an infant of twenty-one months was awarded to the mother, partly because the court
found that her refusal to accompany her husband from New York to Nova Scotia was justified.
Barry v. Mercein, 8 Paige Ch. 47 (N.Y. 1839). Custody of the child was transferred to the father,
however, when he subsequently relitigated the matter. The child was then four years old and the
court no longer considered the mother's refusal to relocate defensible. Barry v. Mercein, 3 Hill
399 (N.Y. 1842). Typically, however, custody was awarded to the father. E.g., Latham v.
Latham, 71 Va. (30 Gratt.) 307 (1878) (custody of four year old boy awarded to father because no
evidence showed the father to be unfit); Carr v. Carr, 63 Va. (22 Gratt.) 168 (1872) (three year old
child required moral training from the father, rather than the mother's tender nursing).
Moreover, even when custody was awarded to the mother, the father's inherent right to custody was
never questioned. E.g., Adams v. Adams, 62 Ky. (1 Duv.) 167 (1864); Commonwealth v.
Addicks, S Binn. 519 (Pa. 1813).
5. In 1978, of the 7,666,000 children under age 18 who continued to live with either parent
after divorce or separation, 94.5%, or 7,240,000, were living with their mothers. Only 5,5%, or
426,000, were living with their fathers. Custody Census, supra note 2, at 11.
A broad-based movement away from the unquestioned preference for paternal custody began
in 1817 with the case of Shelley v. Westbrooke, Jacob 266, 37 Eng. Rep. 850 (Ch. 1817). Tile
poet Percy Bysshe Shelley, who had deserted the mother while she was pregnant, was denied
custody of the child when the mother committed suicide. The maternal grandparents retained
custody. It was not, however, until 1839 that legislation was passed empowering the chancellor to
award custody of children younger than seven to the mother. Justice Talfourd's Act, 1839, 2 & 3
Vict. c. 54.
6. "The so-called 'preference' for the mother as the custodian particularly of younger children
is simply a recognition by the law, as well as by the commonality of man, of the universal verity
that the maternal tie is so primordial that it should not lightly be severed or attenuated."
Kirstukas v. Kirstukas, 14 Md. App. 190, 196, 286 A.2d 535, 538 (1972). For other statements of
the doctrine, see cases cited in Roth, The Tender Years Presumption in Child Custody Disputes,
15 J. Fam. L. 423, 436-37 nn.S0 & 51 (1977).
In Helms v. Franciscus, 2 BI. Ch. 544, 563 (Md. 1830), the court wrote: "[Elven a court of
common law will not go so far as to hold nature in contempt, and snatch helpless, puling infancy
from the bosom of an affectionate mother, and place it in the coarse hands of the father. The
mother is the softest and safest nurse of infancy, and with her it will be left in opposition to this
general right of the father." This language is reportedly the earliest American statement of the
tender years doctrine. Kurtz, The State Equal Rights Amendments and Their Impact on Domestic
Relations Law, 11 Fain. L.Q. 101, 137 n.123 (1977). The doctrine is based on the presumption
that maternal custody is in the best interests of a child of tender years. The meaning of "tender
years" is not, however, altogether clear; it certainly applies to children younger than six, but It
has also been applied to children as old as fourteen. H. Clark, Handbook on the Law of Domestic
Relations 585 & n.14 (1968).
7. In 1975, 52.3% of all married women with children aged six through seventeen, and 36.6%
of those with children under six, were in the labor force. At that time, 80. 1% of all divorced or
separated women with children aged six through seventeen, and 65.6% with children under six,
provide their children with full-time attention and nurturing, many fathers
have assumed a more active parenting role. 8 Having discovered the virtues of
extensive contact with their children, 9 fathers are demanding equal rights and
roles in child custody matters.' 0
The legal system is adapting to these changing social patterns. In twelve of
the seventeen states in which equal rights provisions have been enacted,II the
unquestioned preference for awarding custody to the mother has been
eliminated. 12 Moreover, at least one lower court has held that, independent of any
were in the labor force. See U.S. Bureau of the Census, Dep't of Com., Statistical Abstract of the
United States: 1977, at 393 (1977) [hereinafter cited as Statistical Abstract].
8. Bratt, Joint Custody, 67 Ky. L.J. 271, 279 (1979). See generally B. Spock, Baby and Child
Care 46-47 (Wallaby ed. 1977); Grief, Fathers, Children, and Joint Custody, 49(2) Am. J.
Orthopsych. 311, 311 (1979).
9. Keshet & Rosenthal, FatheringAfter MaritalSeparation, 23 Social Work 11, II-12 (1978).
For a discussion of empirical research on the effects of paternal deprivation on children, see
Bradbrook, The Relevance of Psychologicaland PsychiatricStudies to the FutureDevelopment of
the Laws Governing the Settlement of Inter-ParentalChild Custody Disputes, 11 J. Faro. L. 557,
579-585 (1971). The author notes that before 1960 the role of the father in the development of the
child was thought to be negligible. Id. at 580. Recently, the Council of Representatives of the
American Psychological Association passed a resolution "recogniz[ing officially and makling]
suitable promulgation of the fact that it is scientifically and psychologically baseless as well as in
violation of human rights to discriminate against men because of their sex in assignments of
children's custody." L. Salk, What Every Child Would Like Parents to Know About Divorce 97
10. Although the number of children under age 18 living with one or both parents declined by
9.4% between 1970 and 1978, from 67,138,000 to 60,842,000, the number in the father's sole
custody following a divorce more than doubled, increasing from 201,000 to 426,000. Custody
Census, supra note 2, at 11.
11. With the exceptions of Utah and Wyoming, the additions of equal rights provisions have
been fairly recent: Alaska Const. art. 1, § 1 (1959); Col. Const. art. 2, § 29 (1972); Conn. ConsL
art. 1, § 20 (1965); Hawaii Const. art. 1, § 4 (1958), § 21 (1972); Ill. Const. art. 1, § 18 (1970); La.
Const. art. 1, § 3 (1974); Md. Const. Decl. of Rts., art. 46 (1978); Mass. Const. art. 1 (1976);
Mont. Const. art. 2, § 4 (1972); N.H. Const. art. 2 (1974); N.M. Const. art. 2, § 18 (1972); Pa.
Const. art. 1, § 28 (1971); Tex. Const. art. 1, § 3a (1972); Utah Const. art. 4, § 1 (1896); Va.
Const. art. 1, § 11 (1971); Wash. Const. art. 31, § 1 (1972); Wyo. ConsL art. 1, § 3 (1889).
12. See Foster & Freed, supra note 4, at 333. In 1978, when the Foster & Freed article was
written, eight states retained the maternal preference doctrine notwithstanding their
constitutional equal rights provision: Louisiana (Whatley v. Whatley, 312 So. 2d 149 (La. CL App.
1975)), Maryland (Cooke v. Cooke, 21 Md. App. 376, 319 A.2d 841 (1974)), Montana (In re
Tweeten, 172 Mont 404, 563 P.2d 1141 (1977)), New Mexico (Garner v. Stone, 85 N.M. 716, 516
P.2d 687 (1973)), Pennsylvania (Lucas v. Kreischer, 450 Pa. 352, 299 A.2d 243 (1973)), Utah (Cox
v. Cox, 532 P.2d 994 (Utah 1975)), Virginia (McCreery v. McCreery, 218 Va. 352, 237 S.E.2d
167 (1977)), Wyoming (Wilson v. Wilson, 473 P.2d 595 (Wyo. 1970)).
The positions of Montana, Maryland and Pennsylvania have been modified. The current rule
in Montana is that "the presumption in favor of granting custody to the mother is never
conclusive .... The maternal preference presumption still exists, but its use is limited to those
cases in which the father has not overcome it by a preponderance of the evidence showing him to
be the more fit parent to have custody.... [T]he father need not show that the mother is unfit
but only that the children would be better off with him." Wilson v. Wilson, - Mont. , 590
P.2d 1136, 1138-39 (1979) (citations omitted).
Maryland eliminated the maternal preference doctrine by statute. Mid. Parent & Child Code
Ann. art. 72A, § 1, by an amendment effective July 1, 1974, provides in relevant part that "in
equal rights provision, the maternal preference doctrine violates the father's
right to equal protection under the fourteenth amendment. 13
Parents and courts have thus begun to experiment with various alternatives
to maternal custody, 14 one of which is joint custody. As when they were
any custody proceeding, neither parent shall be given preference solely because of his or her sex."
In McAndrew v. McAndrew, 39 Md. App. 1, 382 A.2d 1081 (1978), it was held that this statute
effectively overruled the position taken in Cooke, that the maternal preference doctrine would act
as a tie-breaker in a custody dispute between two equally qualified parents.
In Pennsylvania, the maternal preference doctrine was flatly rejected as "offensive to the
concept of the equality of the sexes which we have embraced as a constitutional principle."
Spriggs v. Carson, 470 Pa. 290, 300, 368 A.2d 635, 639-40 (1977).
The maternal preference doctrine continues in full force in Louisiana. Schexnayder v.
Schexnayder, 371 So. 2d 769 (La. 1979). In that case, the mother was found unfit to be sole custodian
because of her openly adulterous relationship with a lover of another race. The court, however,
carefully distinguished these facts from those in Fulco v. Fulco, 259 La. 1122, 254 So. 2d 603
(1971), in which the mother was found fit. The Fulco court held that custody should be granted to
the mother, especially when the child is of tender years, unless she is unfit or otherwise
The Utah Supreme Court has reaffirmed its position that "everything being equal preference
should be given to the mother in determining custody." Henderson v. Henderson, 576 P.2d 1289,
1290 (Utah 1978) (emphasis omitted).
There appear to have been no cases on point from the high courts of New Mexico, Virginia, or
Wyoming since Professor Foster's article was published. Moreover, the courts which continue to
adhere to the tender years doctrine notwithstanding constitutional equal rights provisions have
generally failed to address the inherent contradiction of their position. E.g., Schexnayder v.
Schexnayder, 371 So. 2d 769 (La. 1979); Ettinger v. Ettinger, 72 N.M. 300, 383 P.2d 261 (1963);
Henderson v. Henderson, 576 P.2d 1289 (Utah 1978); McCreery v. McCreery, 218 Va. 352, 237
S.E.2d 167 (1977); Butcher v. Butcher, 363 P.2d 923 (Wyo. 1961).
13. In Watts v. Watts, 77 Misc. 2d 178, 350 N.Y.S.2d 285 (Fam. Ct. N.Y. County 1973),
custody of the children was awarded to the father, although the mother also sought custody.
Relying on Frontiero v. Richardson, 411 U.S. 677 (1973), the court stated that "differential
treatment on the basis of sex of the kind created by the 'tender years presumption' is 'suspect' and
therefore subject to the strictest judicial scrutiny." 77 Misc. 2d at 182-83, 350 N.Y.S.2d at 290.
The Watts court concluded that the tender years presumption did not withstand strict scrutiny
since it did not serve the best interests of the child. But see Arends v. Arends, 30 Utah 2d 328,
517 P.2d 1019, cert. denied, 419 U.S. 881 (1974), in which a challenge by a divorced parent to a
state statute which incorporated the tender years presumption was rejected because the
challenged statute, by its terms, applied to cases of separation and void or dissolved marriages, not to
divorce. Id. at 329, 517 P.2d at 1020. The court further noted that the father is not "equally
gifted in lactation as is the mother." Id. The Supreme Court recently expounded on the
acceptability of gender-based classifications. In Orr v. Orr, 99 S.Ct. 1102 (1979), an Alabama
statute was held to be violative of equal protection because it authorized alimony awards only to
women. The Supreme Court reiterated that" '[t]o withstand scrutiny' under the equal protection
clause, ' "classifications by gender must serve important governmental objectives and must be
substantially related to achievement of those objectives."' " 99 S.Ct. at 1111 (citations omitted). It
is yet to be proved that the maternal preference doctrine is'a necessary means of enforcing the
important governmental objective of protecting the welfare of children.
14. One such alternative is for the father to take full custody of the child under an agreement
between the parties. Warren, Father Takes Custody of Children-andMother Thinks it Best,
N.Y. Times, June 24, 1975, at 33, col. 1. In other cases the court awards sole custody to the
father. E.g., Bailey v. Bailey, 361 So. 2d 204 (Fla. Dist. Ct. App. 1978); Adams v. Adams, 357
So. 2d 881 (La. Ct. App. 1978); Allen v. Allen, 198 Neb. 544, 253 N.W.2d 853 (1977); Allen v.
married, both parents in a joint custody arrangement share legal
responsibility for the child; they also share physical custody.' 5 The amount of financial
seuacphpoprtareeancth's pfainraennctiaplrocviirdceusmtshtaenccehsi.ld1 6 depends, as in any divorce case, on
Although becoming more frequent, joint custody awards remain the
exception. The typical judicial approach has been either outright rejection of joint
custody or acceptance of it only in very limited circumstances. '7 Most such
arrangements are made by the private agreement of the parents without the
imprimatur of a court.'
This note contends that a court should consider the possibility of joint
custody in every case before it. When suited to the needs of the individuals
involved, joint custody is the most effective way to serve the best interests of
a child whose parents have separated or divorced. Part I compares joint
custody with sole custody and considers the two current approaches to joint
custody. The psychological and economic factors supporting the contention
that joint custody is, in most instances, in the child's best interests, are
discussed. In Part II, a three-tier test is developed to assist in determining
whether a voluntary or court-imposed joint custody arrangement is
appropriate for a particular family. The first two criteria are concerned with the
parents' ability to function in a joint custody arrangement: each parent must
be able to cooperate with the other and each must be individually fit to be sole
custodian of the child. Upon finding that these criteria are satisfied, the court
must ensure that the actual mechanics of the custodial arrangement are
reasonable and protective of the child's best interests.
CURRENT APPROACHES TO CUSTODY AWARDS
In an action for legal separation or divorce, parents often attempt to resolve
voluntarily the issue of child custody. ' 9 In determining whether to accept the
parents' agreement20 or, absent an agreement, whether to award custody to
the mother, father, or both, the foremost consideration in most American
jurisdictions is the "best interests" of the child. 2' The judge "acts as parens
patriae to do what is best for the interest of the child. He is to put himself in
the position of a 'wise, affectionate and careful parent' and make provision for
the child accordingly."
The application of the best interests standard has traditionally resulted in
sole custody awards. 23 Under a sole custody arrangement, the custodial
parent, typically the mother, 24 retains all the rights and obligations shared by
the parents during marriage-authority and control over the child's
education, religious instruction, and medical care, as well as responsibility for daily
The noncustodial parent is entitled to visitation privileges as a matter of
right unless the court determines that serious harm to the child's physical,
mental, moral, or emotional health would result. 26 Nevertheless, even when
21. 1 A. Lindey, Separation Agreements and Antenuptial Contracts 14-71 to-75 (1978);
Mnookin, Child-CustodyAdjudication:JudicialFunctionsin the Face of Indeterminacy, 39 L, &
Contemp. Prob. 226, 236-37 (Summer 1975).
In Mayer v. Mayer, 150 N.J. Super. 556, 376 A.2d 214 (Ch. 1977), joint custody was ordered
based on an analysis of the facts which persuaded the court that joint custody was in the child's
best interests. In Braiman v. Braiman, 44 N.Y.2d 584, 378 N.E.2d 1019, 407 N.Y.S.2d 449
(1978), the court reversed a joint custody order, acknowledging that joint custody might be in the
child's best interests where the parents are stable and relations between them are amicable. Dodd
v. Dodd, 93 Misc. 2d 641, 646, 403 N.Y.S.2d 401, 404-05
(Sup. Ct. N.Y. County 1978)
joint custody after an extensive analysis of the facts, but stated that "[jloint custody, under the
proper circumstances, may be the closest it is possible to come to the shattered ideal" of "two
loving parents . . . devoted to . . . the children's welfare."
22. Finlay v. Finlay, 240 N.Y. 429, 433-34, 148 N.E. 624, 626 (1925) (citation omitted).
Judge Cardozo made this classic statement in the context of a habeas corpus proceeding,
23. See note 1 supra and accompanying text.
24. See notes 4-6 supra.
25. See H. Clark, supra note 6, at 573.
26. Some commentators sharply criticize the notion that the noncustodial parent should ever
be entitled to visitation with the child on the theory that such visitation interferes with the
custodial parent's relationship with the child and creates loyalty conflicts. J. Goldstein, A. Freud
& A. Solnit, Beyond the Best Interests of the Child 38 (1973) [hereinafter cited as Best Interests],
Courts have not been widely persuaded by the logic of the position advocated in Best Interests
regarding visitation rights. In Pierce v. Yerkovich, 80 Misc. 2d 613, 623, 363 N.Y.S.2d 403, 413
(Fain. Ct. Ulster County 1974), the court rejected the opinion of author Solnit, who had been
called as an expert witness, that the least detrimental alternative for the illegimate child was to
deny visitation rights to the father. Commentators have also pointed out several flaws In the
argument against visitation by noncustodial parents. For example, Professor Foster, in reviewing
Best Interests, points out that "[s]"uch a position ignores the child's needs and desires, as well as
those of the other parent, and in the name of continuity and autonomy encourages spiteful
behavior. Given such power, one can visualize the blackmailing, extortion, and imposition which
might be visited upon the noncustodial parent who wants to maintain contact with his or her
child." Foster, Book Review, 12 Willamette L.J. 545, 551 (1976). Other reviewers remark upon
the lack of scientific data offered in Best Interests to support the position "that the legal death of
one parent . . . is invariably the preferable step for [the child's] future development." Strauss &
Strauss, Book Review, 74 Colum. L. Rev. 996, 1002 (1974).
Furthermore, it has been argued in the context of searches by adoptees for their natural
parents that a child has a deep psychological need to know his parents. Comment, Cottlidentiality
the past conduct of the noncustodial parent seemingly renders him a poor
companion for a child, denial of visitation rights is rare.2 7 The sole custody
award may be specific, delineating the scope of visitation,2 8 or flexible,
providing for "reasonable" privileges which the parents themselves define.2 9
In either case, sole custody places severe qualitative and physical limitations
on the noncustodial parent's access to the child. He is relegated to the status
of mere visitor to his child; he is a weekend, holiday, and vacation parent
rather than an integral part of the child's life.
The discord which permeates family life prior to parental separation3" is
succeeded by a sense of loss when the child is placed in the custody of only
one parent. The child's loss is the clearest: he needs two caring parents, each
of Adoption Records: An Examination, 52 Tul. L. Rev. 817, 824-25 (1978); Note, The Adult
Adoptee's ConstitutionalRight to Know His Origins, 48 S. Calif. L. Rev. 1196, 1200-04 (1975).
Although discussion in Best Interests acknowledges the fact of such searches, the authors' position
is not articulated. Best Interests, supra, at 23, 118-19.
27. Judicial reluctance to deny visitation rights is evidenced by one court's award of
vistitation rights to an alcoholic father who had physically abused the mother and sexually
molested his stepson because there was no evidence of any misconduct toward his own six year
old son. Blazina v. Blazina, 42 Ill. App. 3d 159, 356 N.E.2d 164 (1976). Another court allowed
two children, aged six and nine, to visit their father, who was in prison following a plea of guilty
to rape and kidnapping charges. McCurdy v. McCurdy, - Ind. App. -, 363 N.E.2d 1298
(1977). But see Ervin v. Ervin, 45 Ala. App. 313, 229 So. 2d 813 (Civ. App. 1969), in which the
noncustodial father, who was frequently unemployed, behind in making support payments, and
guilty of assault, was denied visitation rights.
The court, however, may consider potential harm to the child when structuring the visitation.
Factors to be considered include the age of the child and the traveling distance between the
parents' homes. E.g., Porter v. Porter, 577 P.2d 111 (Utah 1978) (visitation order allowing the
father to see the children from 2 P.M. until 8 P.M. on the first and third Saturdays of each month
found too restrictive in light of the distance the father was required to travel-from Utah to
Texas-to exercise his visitation); in re Jacobs, 20 Wash. App. 272, 579 P.2d 1023 (1978) (award
to the father of six weeks visitation each summer upheld on the ground that the two sons were old
enough not to be harmed by a separation of that duration from their mother).
28. E.g., Liphan v. Liphan, 50 Ala. App. 583, 281 So. 2d 437 (Civ. App. 1973) (noncustodial
father allowed visitation on the second and fourth weekends of each month, Thanksgiving
holidays, and the month of July); Faro v. Faro, 579 P.2d 1377 (Alaska 1978) (noncustodial mother
awarded visiting rights every other weekend from 6 P.M. on Friday until 6 P.M. on Sunday, two
weeks during the summer, and specified privileges on Christmas and the children's birthdays);
Gullett v. Gullett, 251 Ark. 497, 473 S.W.2d 180 (1971) (award of visitation rights to the
noncustodial parent every other Saturday from 9 A.M. to 4 P.M. expanded to every Saturday).
29. E.g., Ellison v. Ellison, 48 Ala. App. 80, 261 So. 2d 911 (Civ. App. 1972) (grant of
reasonable visitation rather than fixed visitation times held not to be an abuse of discretion);
Tschappat v. Kluver, 193 N.W.2d 79 (Iowa 1971) (noncustodial father granted right to see the
three children and have them in his home at reasonable times agreed upon by both parents, but
upon failure to agree, visitation rights to be fixed by the trial court); Rogers v. Rogers, 430
S.W.2d 305 (Mo. CL App. 1968) (noncustodial mother granted right to visit the children at
At least one appellate court has ordered reasonable visitation in addition to the times specified
by the lower court-one weekend each month, three named holidays, and two weeks each
summer. In re Roff, 228 N.W.2d 98 (Iowa 1975).
30. At least one psychiatrist has concluded that a child's long-term psychological health
suffers more when the parents continue to live together in a poor marriage than when they
divorce. L. Despert, The Children of Divorce 18 (1953).
of whom complements the support and nurture available from the other. 3'
Logically, this need can be satisfied only when each parent is closely involved
with the child's life on an ongoing basis, a circumstance rendered virtually
impossible by the very nature of the sole custody arrangement.3 2
The authors of a study of 131 children from sixty families undergoing
The central event of the divorce process for most children is the parental separation.
. . . The child frequently perceives the parent's departure as a departure from him
personally . . . . [Tihe central event of divorce for children is psychologically
comparable to the e v33ent of death, and frequently evokes similar responses of disbelief, shock,
Among the twenty-six seven and eight year old children studied, the most
pronounced reaction to the parental divorce was the sense of loss suffered
with regard to the departed father. 34
31. Grote & Weinstein, Joint Custody: A Viable and Ideal Alternative, 1 J. Divorce 43, 48
(1977). "An infant is not confined to just one bond... : once he has reached the stage of forming
specific attachments, he is capable of maintaining a number at the same time . . . . Moreover,
being attached to several people does not necessarily imply a shallower feeling toward each one."
R. Schaffer, Mothering 100 (1977).
The importance of a child's relationship with his mother has been widely recognized: "barring
starvation, disease or actual physical injury, no other factor is capable of so influencing tile
child's development in every field as its relation to its mother." Spitz, The Role of Ecological
Factors in Emotional Development in Infancy, 20 Child Dev. 145, 151 (1949). The mother Is
important not only because of her biological role, but also because she represents the security of
the familiar to the child.
The father's importance to the child is equal to that of the mother. "The research on the
relationship between father absence and the general level of the child's adjustment reveals that
the loss of father for any reason is associated with poor adjustment, but that absence because of
separation, divorce, or desertion may have especially adverse effects." D. Lynn, The Father: His
Role in Child Development 279 (1974).
32. A study of 165 Michigan school children in grades three through six from both divorced
and intact families indicated that 47% of the boys in the divorce group and 63% of both sexes in
the intact group would prefer a joint custody arrangement, if their parents were divorced with physical
custody alternating twice weekly. None of the 82 families in the divorce group had this arrangement. 5
Fain. L. Rep. 2395 (1979).
33. Kelly & Wallerstein, The Effects of ParentalDivorce: Experiences of the Child in Early
Latency, 46(1) Am. J. Orthopsych. 20, 21-22 (1976) [hereinafter cited as Early Latency].
Early Latency is one of several published reports dealing with various aspects of the same
study. The others are Wallerstein & Kelly, The Effects of ParentalDivorce: Experiences of the
Child in Later Latency, 46(2) Am. J. Orthopsych. 256 (1976) [hereinafter cited as Later
Latency]; Wallerstein & Kelly, The Effects of ParentalDivorce: Experiences of the Preschool
Child, 14(4) J. Am. Acad. Child Psych. 600 (1975) [hereinafter cited as Preschool Child];
Wallerstein & Kelly, The Effects of ParentalDivorce: The Adolescent Experience, reprintedin E.
Anthony & C. Koupernik (eds.), The Child in His Family: Children at Psychiatric Risk 479
34. Almost all of the group were eager for greater interaction with their fathers, whom they
typically saw two weekends a month; only the children who could visit their fathers several times
a week were even moderately content. Early Latency, supra note 33, at 26-27. "More than half of
the children missed their father acutely. Many felt abandoned and rejected, and expressed their
longing in ways reminiscent of grief for a dead parent . . . . The degree of closeness and
gratification in the pre-divorce father-child relationship, at least from our perspective, was not a
Separation and divorce are also likely to induce a devastating sense of loss
in both the custodial and the noncustodial parent, the effects of which will be
felt by the child. The sole custodian, often overburdened with financial
responsibilities, 35 is likely to be overwhelmed by the enormity of his obligations
as caretaker of the child. 36 Because the custodial parent may have great
difficulty providing the emotional support required by a child experiencing the
trauma of divorce, the child suffers in this situation.3"
The noncustodial parent may also be overwhelmed when deprived of
extensive contact with the child. According to a recent study of noncustodial
fathers, those whose visitation privileges were severely restricted after divorce
were frequently subject to severe depression attributable to the feeling of
having lost their child. 38 One possible response by such parents is withdrawal
from the child as a barrier against further pain, 39 a process which necessarily
increases the difficulties experienced by the child. 40
Acknowledging the difficulties inherent in sole custody arrangements, some
courts have begun to find that joint custody is preferable to sole custody and
better serves the best interests of the child in certain circumstances.
Moreover, the number of voluntary plans is steadily increasing. 4' This
development results from the growing recognition that the sense of loss suffered by
each member of the postdivorce family is pmairneinmt.iz4e2d by allowing the child to
maintain a close relationship with each
factor in determining this acute reaction. One father had been quite remote and occupied himself
out of the home, another had been abusive and intolerant, a third loving yet psychologically
obtuse." Id. at 26.
The study also indicated that among a group of 29 children aged eight and nine, -relatively few
were able to maintain good relationships with both parents." Later Latency, supra note 33, at
35. Bratt, supra note 8, at 274-75; see note 16 supra and accompanying text.
36. Later Latency, supra note 33, at 261; Tooley, Antisocial Behavior and Social Alienation
Post Divorce: The "Ma ofthe House" and His Mother, 46t1) Am. J. Orthopsych. 33, 41 t1976).
See also M. Roman & W. Haddad, The Disposable Parent 5 (1978).
Single parents in California have reportedly established a successful communal arrangement for
themselves and their children in response to the difficulties each parent faced when living alone.
Each parent-all mothers at present-assumes an equal share of the housekeeping and
childrearing responsibilities for the group. They operate under a highly specific written agreement which
governs all matters from the number of times the kitchen floor is cleaned each week to whether
spanking is allowed. N.Y. Times, Aug. 21, 1979, § C, at 13, col. 1.
37. Preschool Child, supra note 33, at 604, 611, 613-14.
38. Greif, supra note 8, at 316.
39. Id. at 316-17. Of the 27 families in the sample of preschool children studied by
Wallerstein and Kelly, however, only one father had abandoned his child. "Despite wide
geographic separation in some instances, a high potential for mobility, and many obstacles to
continued contact created by angry mothers, very few fathers chose to move away from their
children .... " Preschool Child, supra note 33, at 613.
40. Early Latency, supra note 33, at 27.
41. Two Homes, supra note 15, at 568; see note 2 supra. Examples of joint custody
agreements are generally found in the popular press rather than in official reporters. E.g., N.Y,
Times, May 24, 1976, at 24, col. 1 (six year old boy moved daily between his parents); id., Oct.
1976, § 6 (Magazine), at 45
(author's three children, aged 14, 12 and 8 in 1976, had been spending
half of each week with each parent since the parents' separation in 1971)
42. M. Roman & W. Haddad, supra note 36, at 104.
There are two essential characteristics of joint custody. Each parent shares
in the decision-making function that belongs to only one parent in a sole
custody situation. 43 Furthermore, both parents retain a certain amount of
responsibility for physical custody of the child. 4 4
Nevertheless, many courts and commentators remain unconvinced that
joint custody is a workable alternative to sole custody. No court has adopted
a policy of considering joint custody in every instance. Rather, an analysis of
the small number of reported decisions dealing with joint custody
arrangements reveals two approaches to the issue: joint custody is either
impermissible under all circumstances45 or it is permitted on a case-by-case basis. 46
The first approach echoes the claim of some commentators that the joint
custody arrangement does not serve the best interests of the child. 47
Accord43. See note 15 supra and accompanying text.
44. See note 15 supra and accompanying text. Joint custody must be distinguished from
"divided" and "split" custody. Divided custody gives each parent custody for part of the year,
with reciprocal visitation rights; each parent has full authority over the child while he is in tile
parent's custody. Under a split custody arrangement, each parent has custody of at least one of
the several children. A. Lindey, supra note 21, at 14-60.
Although rejected as a viable alternative in both Braiman and Dodd, discussed at notes 54-71
infra and accompanying text, the appellation "joint custody" has been applied to custody orders
issued in other New York cases. In each of these, however, the joint custody award apparently
resulted from the courts' unwillingness to deny either parent the custodial rights sought by each,
rather than from an analysis of the parents' ability to act effectively as joint custodians. Their
ability to share decision-making authority, the sine qua non of joint custody, was not examined,
and it would appear that the custodial arrangements would have been more accurately
characterized as sole custody with extensive visitation.
In one case the mother of a twenty year old handicapped daughter had moved out of the marital
home. Apparently reluctant to deprive an otherwise fit mother of custody, yet equally reluctant to
move the handicapped daughter from her accustomed surroundings, the court's order provided
for "joint custody" with a provision that the daughter continue to live with her father in tile
marital home. Krois v. Krois, 4 Fam. L. Rep. 2017 (N.Y. Sup. Ct. Queens County 1977),
Joint custody was ordered in the case of a thirteen year old boy whose mother's adultery, as
well as her admittedly false accusations of the father's adultery, caused the marital failure.
Apparently reluctant to deprive the mother of all custodial rights, the court's order provided for
the boy to live with his mother for two years and then decide with which parent to live. Levy v.
Levy, 2 Faro. L. Rep. 2229 (N.Y. Sup. Ct. N.Y. County 1976).
In another case psychiatric testimony indicated that the mother was better-suited to care for the
children. The court, however, was sympathetic to the fact that the father was devoted to the
children and had overcome serious physical handicaps. Physical custody was split on a
weekday-weekend basis. Schack v. Schack, N.Y.L.J., Aug. 21, 1974, at 15, col. 8.
In yet another case, the mother, who was under the care of a psychiatrist, appeared in court
inappropriately dressed and behaving in a bizarre fashion. The court order for joint custody
provided that the two children, in accordance with their preference, would live with their father
and step-mother during the school year, except when the father was to be away for more than
two weeks, during which time they would live with their mother. Odette R. v. Douglas R., 91
Misc. 2d 792, 399 N.Y.S.2d 93 (Fam. Ct. N.Y. County 1977).
45. See notes 47-62 infra and accompanying text.
46. See notes 53-70 infra and accompanying text.
47. In Louisiana, the bastion of resistance to joint custody, the reported cases deal primarily
with "divided custody." E.g., Schexnayder v. Schexnayder, 343 So. 2d 393, 396 (La. Ct. App.
1977); Doherty v. Mertens, 326 So. 2d 405 (La. Ct. App. 1976); Ogden v. Ogden, 220 So. 2d 241
(La. Ct. App. 1969); Bush v. Bush, 163 So. 2d 858 (La. Ct. App. 1964). Divided custody gives
ing to this theory, joint custody exacerbates the damage to the child's welfare
and sense of security inflicted by separation or divorce. 48 It is argued that a
divorced couple encounters insurmountable practical difficulties when
attempting to exercise joint responsibility. 49 Problems related to the couple's
divorce will inevitably resurface, resulting in conflicts and inconsistent
approaches to childrearing. 50 The opponents of joint custody claim that a
child's welfare requires that he be under the consistent custody and control of
one parent; s ' his need for stability requires that he not be shuffled frequently
from one home to the other. 52
Some courts are more flexible, recognizing that joint custody, albeit
imperfect, can be under the proper circumstances "the closest it is possible to come
to the shattered ideal" of two loving, married parents.5 3 This approach,
chiefly discerned from the New York cases of Braiman v. Braimnan5 4 and
Dodd v. Dodd,5s is nevertheless characterized by a cautious, pessimistic
attitude toward the feasibility of joint custody arrangements in most
situations. Moreover, no attempt has been made to establish a workable set of
guidelines for determining when joint custody is advisable.
In Braiman, the New York Court of Appeals overturned an award of joint
custody to the parents of two sons, aged six and seven. The trial court had
awarded sole custody to the father; two years later, the appellate division
each parent custody for part of the year and full authority over the child while he has custody.
See notes 14, 44 supra. These cases are nevertheless instructive because the reasoning employed
by the Louisiana courts in rejecting divided custody is equally applicable to joint custody.
Joint custody awards have generally been rejected in Florida. Phillips v. Phillips, 153 Fla. 133,
13 So. 2d 922 (1943); Wonsetler v. Wonsetler, 240 So. 2d 870 (Fla. Dist. Ct. App. 1970). One
case, Lindgren v. Lindgren, 220 So. 2d 440 (Fla. DisL CL App. 1969), which permitted
alternating custody, has been distinguished by other Florida courts. E.g., Wonsetler v.
Wonsetler, 240 So. 2d at 871.
At least one Missouri court has specifically rejected joint custody. Cradic v. Cradic, 544
S.W.2d 605 (Mo. Ct. App. 1976).
reversed and awarded joint custody.- 6 Under the joint custody award, the
two boys were ordered to spend weekdays with the mother and weekends
with the father. S7 Relations between the parents were very poor; they accused
each other of promiscuity and unethical behavior.58 The court of appeals
concluded that joint custody "is insupportable when parents are severely
antagonistic and embattled," reasoning that such pugnacious parents cannot
be expected to exercise their shared duties in a responsible manner. 9
The importance of the Braiman decision is that the court did not flatly
reject joint custody; rather, it emphasized the need for a careful factual
review before making a joint custody award. 60 Because an essential element
of a successful joint custody arrangement is parental cooperation, 6' joint
custody should not be imposed in a situation in which neither parent has
requested it, unless the court has the opportunity to observe the parents
directly and to discuss with them the possibility of joint custody. Although the
animosity between the Braimans supported the conclusion that court-ordered
joint custody was untenable in their case, the sole custody award was
reinstated on the ground that the trial court was better situated than the
appellate division to determine placement of the children. 62
In Dodd, a lower court case cited approvingly by the Brainan court, 63 the
mother sought sole custody when she brought suit for divorce. For fourteen
months the family had maintained a voluntary, informal joint custody
arrangement, which the father wanted to continue. Under the voluntary plan,
the two daughters, aged five and seven, had divided their time equally
between the parents. 64 The court granted sole custody to the mother with
liberal visitation to the father; the mother was granted "the right to make all
decisions affecting the children upon consultation with the [fatherl. ''65 Such
an order differs significantly from a joint custody order, which leaves
decision-making authority jointly in both parents. Mrs. Dodd, as sole
custodian, was granted the ultimate authority to make all decisions affecting the
children. The father's role became purely advisory.
The Dodd court concluded that, in light of Mrs. Dodd's opposition, a
court-imposed joint custody arrangement would have little chance of
success. 66 The court generally restricted joint custody to those situations in which
both parents seek such an arrangement. 67 In addition, the court concluded
that joint custody is permissible only where both parents are fit, that is, "free
of significant emotional problems and willing and able to function well as
The Dodd court's analysis is flawed by an apparent unwillingness to order
joint custody unless both parents agree to such an arrangement. Only if one
parent's opposition were "frivolous" would the court be willing to take such a
step; however, no example of the type of opposition which might be
characterized as frivolous was given. 69 Notwithstanding Mrs. Dodd's unhappiness
with the family's joint custody experiment, there was evidence that such an
arrangement, although imperfect, represented the least detrimental
alternative for the Dodd children. 70 Furthermore, the possibility that parents would
cooperate to the extent necessary for a successful joint custody arrangement,
despite the opposition of one or both of them, 7' was not considered.
Although rejected as a viable alternative in Braiman and Dodd,
legislatures 72 and courts73 are beginning to recognize that the disadvantages of a
children would never know whom to look to for guidance, and unreasonableness on the part of
either parent could mean nothing except more court visits." d.
66. 93 Misc. 2d at 647, 403 N.Y.S.2d at 405.
67. Id. at 643, 403 N.Y.S.2d at 402.
68. Id. at 644, 403 N.Y.S.2d at 403.
69. Id. at 643, 403 N.Y.S.2d at 402.
70. The psychiatrist called by Dr. Dodd was the therapist of one of the children and had
examined the other child and Dr. Dodd as well. This psychiatrist testified that, although the joint
custody arrangement then in effect was not working well, it represented the least detrimental
alternative for the children. The court, however, accorded greater weight to the testimony of the
psychiatrist called by Mrs. Dodd because he had examined the entire family and because he had
had a distinguished career in child psychiatry. It was his opinion that joint custody was not a
workable alternative for the Dodds. 93 Misc. 2d at 648, 403 N.Y.S.2d at 405.
In relying on the opinion of Mrs. Dodd's expert, the court did not address two significant
questions. First, no explanation was given as to why Dr. Dodd's expert failed to examine Mrs.
Dodd; it was unclear whether she refused to meet with him. Second, Dr. Dodd's expert, as the
regular therapist of one of the children, presumably had greater familiarity with the situation
than a psychiatrist consulted only in the context of a child custody battle.
71. Some commentators claim that joint custody cannot work where the parents themselves
say it would not work. M. Roman & W. Haddad, supra note 36, at 178. For a contrary view, -e
notes 82-94 infra.
72. See note 74 infra. The California legislature has declared it to be "the public policy of this
state to assure minor children of close and continuing contact with both parents after the parents
have separated or dissolved their marriage." Child Custody-Preferences--Joint Custody, Ch.
204, § 3, 1979 Cal. Legis. Serv. 683, 684 (West). Hence, the legislature has created a statutory
presumption, to operate when both parents seek joint custody, that joint custody is in the best
interests of children. Furthermore, the statute expressly authorizes awards of joint custody when
only one parent seeks such an arrangement. Id. at § 2, adding § 4600.5 to the Civil Code.
73. E.g., Adler v. Adler, 5 Farn. L. Rep. 2613 (N.Y. Sup. Ct. N.Y. County .May 4. 1979);
joint custody arrangement are outweighed by its capacity to maintain the
child's relationship with both parents. Concededly, it is difficult to make joint
custody work. It requires parents who can set aside their personal marital
disputes to arrive at mutual decisions concerning the child. It requires courts
willing and able to analyze the facts in each case to determine whether a joint
custody arrangement is feasible. The focus of this inquiry must be the best
interests of the child. Nothing better serves the welfare of a child of divorced
parents than a workable joint custody plan, an arrangement designed to
reduce, insofar as possible, the suffering experienced by the child as a result of
his parents' divorce.
PROPOSED JUDICIAL STANDARDS FOR JOINT CUSTODY AWARDS
The best interests standard requires that the consideration of joint custody
extend beyond approval of voluntary plans to court-ordered joint custody in
appropriate instances. 74 Realistic application of joint custody, however, is
necessarily limited to those families able to overcome the difficulties inherent in
such an arrangement. For example, parental difficulty in reaching agreement
on post-divorce custodial arrangements may in fact be insurmountable,
precluding anything but sole custody.75
Because courts have had limited experience in applying the best interests
standard to joint custody, guidelines are suggested. Like the best interests
standard itself, which leaves a large amount of discretion in the court, 76 these
DeForest v. DeForest, 228 N.W.2d 919 (N.D. 1975). In the Adler decision, written by the author
of the Dodd opinion, joint custody was imposed on the parents of an 11 year old child whose
guardian ad litem had recommended that the court order such an arrangement. Although the
mother had been the sole legal custodian for four years, the court found that the child herself had
extracted a defacto joint custody arrangement from her parents by means of her visitation with
her father, who lived eight blocks from her mother's home. The court ordered the child to
continue to'live primarily with her mother with extensive time spent at her father's home. Both
parents were found to require periodic respite from the demanding task of caring for their
disturbed child in order to function as loving parents within the limitations of their own
emotional problems. An important factor in the court's decision was the civility and restraint with
which the parents treated each other as well as their basic agreement on schools, camp, medical
care, and religion.
74. The authority for a court to impose joint custody must necessarily be based on each state's
relevant statutes and case law. In Mayer v. Mayer, 150 N.J. Super. 556, 561, 376 A.2d 214, 217
(Ch. 1977), the court relied on N.J. Stat. Ann. § 2A:34-23 (West 1952), which authorizes orders
"as to the care, custody, education and maintenance of the children, or any of them, as the
circumstances of the parties and the nature of the case shall render fit, reasonable and just."
Dodd v. Dodd, 93 Misc. 2d 641, 644, 403 N.Y.S.2d 401, 403
(Sup. Ct. N.Y. County 1978)
N.Y. Dom. Rel. Law § 240 (McKinney 1976), which requires the court to provide "for the
custody ... of [the] child . . . as ... justice requires, having regard to the circumstances of tie
case and of the respective parties and to the best interests of the child. In all cases there shall be
no prima facie right to the custody of the child in either parent."
Several states have expressly authorized joint custody by statute. Child
Custody-PreferencesJoint Custody, Ch. 204, § 1, 1979 Cal. Legis. Serv. 683 (West) (to be codified in Cal. Civ. Code §
4600 (West)); Iowa Code § 598.21 (Supp. 1978-1979); Me. Rev. Stat. Ann. tit. 19, § 214 (Supp.
1978); Mich. Comp. Laws § 722.25 (Supp. 1978-1979); N.C. Gen. Stat. § 50-13.2(b) (1976); Or.
Rev. Stat. § 107.095, 107.105 (1977).
75. See notes 81-86 infra and accompanying text.
76. H. Clark, supra note 6, at 584.
guidelines must remain flexible. They serve, however, to highlight the areas
orderedmiunsta bpearctiocnusliadrerceadsei.n77 evaluating whether joint custody should be
Whether joint custody is voluntary or court-imposed, the court must
consider three essential factors. First, each parent must be individually fit to
act as custodian of the child. Second, the parents together must demonstrate
an ability to cooperate on matters affecting the child's welfare. If either of
these requirements is not satisfied, joint custody is inappropriate. Finally, if
these personal criteria are met, the court, to protect the child's interests, must
be satisfied that the proposed custodial arrangement is reasonable and, on its
Analysis of each parent's fitness to serve as custodian should follow that
used in the evaluation of the potential custodian in the sole custody case.78 A
fit parent need not be a perfect parent, nor does a finding of fitness require
that the parent have led an exemplary life in all respects; only behavior which
bears directly on the parent's ability to care for the child should be
considered. 79 Thus, the fact of an extramarital relationship should not be
determinative of whether a parent is a fit custodian;80 rather, the circumstances of
the relationship, and their effect on the child, should control. For example,
77. Wallerstein and Kelly, in the articles discussed at notes 33-34 supra, examine the varying
effects of divorce on children in different developmental stages. As experience with joint custody
and its effects is gained, it may be possible to develop workable standards for structuring joint
custody orders to meet specific requirements of each stage of development. At this time, however,
such an effort is premature.
78. Among the factors traditionally considered by courts in determining the question of
parental fitness for custody are alcohol abuse, adultery, cruelty, neglect, desertion, failure to
support, and conviction of a crime. Evidence that a parent's behavior in any of these areas has
been less than ideal will not necessarily render that parent "unfit"; rather, the behavior will be
evaluated in light of all the circumstances. Foster & Freed, Child Custody, 39 N.Y.U. L. Rev.
423, 427-35 (1964).
79. In Batt, Child Custody Disputes: A Developmentol-PsychologicalApproach to Proofand
Decisionmaking, 12 Willamette L.J. 491, 502-507 (1976), the author provides an excellent
example of how analysis of the child's developmental needs, which vary depending on his age and
maturity, determine the type of parental behavior which might be helpful or harmful. Batt points
out that a child four or five years old is curious about the world outside his immediate family and
is establishing his gender identity. That his father occasionally smokes marijuana and lives with a
woman to whom he is not married is less important than the father's initiative, receptiveness to
new ideas and people, and suitability as a gender-identity model. The hypothetical boy's maternal
grandparents might be less able than the father to tolerate the "earthiness" which is normal at his
stage of development. Furthermore, their lifestyle would expose him to a narrower, more
confined world. Id.
80. In New York, the private sexual activities of a divorced woman which do not affect her
minor child will not render her unfit to act as the custodial parent. Feldman v. Feldman, 45
A.D.2d 320, 323, 358 N.Y.S.2d 507, 511 (2d Dep't 1974). In reaching its determination that a
divorced woman is entitled to a private sexual life, the Feldman court relied on Griswold v.
Connecticut, 381 U.S. 479, 484 (1965), wherein the Supreme Court recognized that certain
fundamental rights emanate from the specific guarantees of the Bill of Rights. The right of an
unmarried man to engage in private sexual activities has long been recognized. As Judge Learned
Hand wrote in Schmidt v. United States, 177 F.2d 450, 452 (2d Cir. 1949): "We have answered in
the negative the question whether an unmarried man must live completely celibate, or forfeit his
claim to a 'good moral character'. .. "
the court should rightfully consider the number, duration, and level of
commitment of such relationships as well as the sensitivity shown by the
parent toward the child's needs. 81
Moreover, "fitness" is a relative term; as such, certain practical
considerations precluding an otherwise fit parent from acting as sole custodian might
not be a bar to his suitability as joint custodian. For example, the parent of a
young child who must travel extensively but on a regular schedule would not
be able to act as a sole custodian. He could act as joint custodian, however, if
the joint custody arrangement were tailored to fit the requirements of his
Of equal importance in evaluating the merits of a voluntary or mandatory
joint custody arrangement is the determination as to whether the parents are
capable of mutual cooperation regarding the child. 8 2 Because of the bitterness
and hostility which frequently accompany separation or divorce,8 3 courts
81. One factor considered by the court in Dodd v. Dodd, 93 Misc. 2d 641, 403 N.Y.S.2d 401
(Sup. Ct. N.Y. County 1978)
, in its award of sole custody to the mother, was the "credible
evidence" that the father, immediately after the separation from his wife, entered into an Intimate
relationship with a former family friend who slept overnight at the father's home when the
children were present. A psychiatrist called by the wife testified that the amount of stress
experienced by the children as a result of the separation was intensified by seeing another woman
with their father at that time. The court "express[ed] no moral judgment on Dr. Dodd's
extramarital relationship. However, choosing to have his paramour stay overnight when his
children were with him demonstrated a disregard for his daughters' need for time to adjust to the
transfer in their father's affection away from their mother to another woman. Mrs. Dodd, on tile
other hand, has shown maturity in coping with her own problems and an ability to put her
children's welfare ahead of her own." Id. at 649, 403 N.Y.S.2d at 406.
82. A variety of different types of voluntary arrangements have been chronicled. M. Roman
& W. Haddad, supra note 36. Most centered around the child's ability to alternate between tile
parents' closely located homes. For example, it was reported that one six year old girl had been
alternating two or three times a week between her parents' separate apartments in the same
neighborhood for over two years. She had a bedroom in each apartment. Id. at 123-26.
Similarly, two girls, aged eleven and seven, had been alternating twice weekly for four years
between their parents' homes in the same neighborhood. ld. at 126-27. Two boys, seven and four,
whose parents lived a few blocks apart, had been alternating weekly. The father, however,
wanted to move to the country and have the children alternate annually, a proposal which was
unacceptable to the mother. The final resolution of this conflict was not reported. Id. at 127-28.
A four year old boy was reportedly on a four-day/three-day split. His parents, whose relationship
was amicable, were living in the same neighborhood. Id. at 123-33.
The physical arrangements under a joint custody agreement are sometimes made in response to
the child's needs. For example, a thirteen year old boy who originally alternated weekly with Ills
siblings, aged three and four, elected to live with his mother on a full-time basis in order to escape
from the younger siblings at least some of the time. Id. at 133-38. In another family, the parents'
original agreement, entered into when their daughter was three years old, provided for an equal
division of physical custody; a nine-day/five-day split had developed by the time the child was
five years old. Id. at 138-42. After a year of splitting the week, an eight year old girl requested
one shift per week, an arrangement agreed upon by her parents. Although the parents disagreed
sharply about child raising practices, they reported that their daughter understood and adjusted to
their differing styles. Id. at 142-44.
83. For a discussion of the role of professional psychological intervention in dealing with
post-separation and divorce hostility, see Suarez, Weston & Hartstein, Mental Health
Interventions in Divorce Proceedings, 48(2) Am. J. Orthopsych. 273 (1978) (hereinafter cited as
have been and should continue to be skeptical about the parents' ability to
cooperate.8 4 Different parents, however, will exhibit varying degrees of
cooperativeness, and it should not be presumed that no formerly married
couple is capable of setting aside past interspousal difficulties for the purpose
of raising the child.8 - Similarly, court-imposed joint custody arrangements
should not be viewed as untenable solely because one or both parents is
opposed to such an arrangement. The "frivolous objections of one party" do
not necessarily indicate that the parents will be unable to cooperate once the
arrangement is imposed.8 6 The court must examine the degree and scope of
the parents' hostility and determine that cooperation is possible in several key
areas. Joint custody may then be approved or imposed.
The areas in which cooperation is necessary range from practical
considerations to agreement on such fundamental issues as education, health care,
discipline and religious training.8 7 Among the practical considerations, the
parents must live in the same general vicinity if the child is to alternate living
arrangements with any degree of frequency.88 Initially, remaining in the city
of the marital home would not ordinarily place an undue burden on either
parent since both have previously been living and working there. In order
that the joint custody arrangement continue throughout childhood, there must
be willingness on the part of both parents to maintain their proximity. This
restricted mobility will undoubtedly create a hardship. Because the alternative,
however, is a complete loss of custody for at least one parent, each would
presumably be willing to make such a commitment to ensure that he would
not be the loser.8 9 Moreover, courts should not hesitate to make such a
tions]. The goal of the intervention is "rescuing the children from the anger of their parents." Id.
84. E.g., Lumbra v. Lumbra, 136 Vt. 529, 394 A.2d 1139 (1978).
85. Interventions, supra note 83, at 278. Of the 200 families studied in evaluation and
treatment programs, 90% were referred by the courts and therefore presumably among the more
hostile divorcing couples. Nevertheless, fewer then five percent were unable, with professional
counseling, to resolve their continuing hostilities. Although professional counseling was necessary,
almost all of the divorcing couples succeeded in overcoming what would have initially appeared
to be insurmountable obstacles to an arrangement such as joint custody.
86. Dodd v. Dodd, 93 Misc. 2d 641, 643, 403 N.Y.S.2d 401, 402
(Sup. Ct. N.Y. County
. Imposition of joint custody notwithstanding the opposition of one parent, is analogous to
the imposition of visiting rights notwithstanding the opposition of the parent with sole custody,
such opposition being clearly an insufficient reason to deny visitation rights. Professor Lindey
states that "Itlhe non-custodial parent will not be denied such rights unless the evidence
conclusively shows that he has forfeited them by his conduct, or that the visitation would be
detrimental to the child." Lindey, supra note 21, at 14-70 (footnote omitted); accord, H. Clark,
supra note 6, at 590.
87. Abarbanel, supra note 1, at 326.
88. Id. at 327. Dr. Abarbanel reports that all eight parents in her study were committed to
continuing to live in close geographical proximity. See note 82 supra.
89. One commentator has contended that "punishment [by denial or change of custodyl of a
parent who exercises the right to a change of residence raises a serious question of violating the
constitutional right to travel." Bodenheimer, Progress Under the Uniform Child Custody
Jurisdiction Act and Remaining Problems: Punitive Decrees, Joint Custody, and Excessive
Modifications, 65 Calif. L. Rev. 978, 1004 (1977). It could be argued, however, that the child's
welfare constitutes a compelling state interest which justifies an intrusion on the parents' right to
commitment a condition of a custody award. At least one court has denied the
mother's request to relocate out-of-state; the implication was that she could
move only if she forfeited her custody rights. 90
The parents must also be able to reach basic agreement concerning the
child's upbringing. As with the place of residence, the pre-separation
arrangements for school, medical care, and religion will presumably continue in
effect. Changes will necessarily occur over time, however, and each parent
may be required to compromise. Careful analysis of the parents' potential for
compromise is necessary to avoid excessive court supervision subsequent to
the custody hearing. 91 It is not necessary that the parents get along well or
that they agree on all child raising matters in order to have a successful joint
custody arrangement; it is only necessary that they be capable of setting aside
their personal differences to reach mutual decisions affecting their child. 92
Each parent must be able to acknowledge the value of the other as a parent to
the child. Each must be willing to listen to the other's position when they
disagree and, ultimately, there must be a fundamental agreement to agree. 93
Even if the parents are severely embattled, the court should remain flexible
and receptive to joint custody if other factors in the balancing process
outweigh the hostility. One such factor is the decision-making ability of the
travel. See generally Shapiro v. Thompson, 394 U.S. 613 (1969) (right to travel is a fundamental
right which may only be abridged by a compelling state interest).
90. In re Osborn, 5 Fam. L. Rep. 2790 (Wash. Ct. App. July 23, 1979). The parents had
been awarded joint custody of their two young children with the mother having primary physical
custody. The mother's motion to modify the joint custody decree to permit her to move from
Seattle to Iowa, where she wanted to accept a position as housekeeper to a parish priest, was
denied. The court found that the move would deprive the children of their relationship with their
father and other members of their extended family, as well as of the cultural benefits of life In
Seattle. Furthermore, the mother failed to demonstrate sufficient economic benefit to justify tile
91. Equity has traditionally been reluctant to issue decrees which might require excessive
court supervision. For example, one of the reasons for denying the employer specific performance
of an employment contract is the level of court supervision necessary to enforce such a decree.
D. Dobbs, Handbook on the Law of Remedies 933 (197,.). See generally, Van Hecke, Changing
Emphases in Specific Performance, 40 N.C. L. Rev. 1 (1961).
92. "A childless marriage that ends in divorce involves only the two people who made the
commitment to each other in the first place. When there are children, however, the divorce is
qualitatively different. The parents must always keep the concerns of their children paramount,"
L. Salk, supra note 9, at 6.
93. For a description of intensive case studies of four families living under joint custody
agreements, see Abarbanel, supra note 1. Dr. Abarbanel concluded that the success of these joint
custody arrangements was attributable to four major factors: the parents' commitment to making
their joint custody arrangement succeed; each parent's support for the other's relationship with
the child; flexibility in sharing child-care responsibilities such as obtaining routine medical and
dental care and buying clothes; and basic agreement on such issues as the amount of contact and
type of relationship the parents would have with each other. Id. at 325-26. Although some of the
eight parents studied were not in complete agreement with the other parent's approach to child
rearing, none believed that the child's relationship with the other parent was harmful. Despite the
times of anger and disappointment, each parent trusted that, at a minimum, the other would
listen to his position. Id. at 326. Dr. Abarbanel concluded that this tolerance, rather than
complete agreement, was the essential ingredient in the success of the joint custody arrangements
child. A court's evaluation that the parents' bitterness might preclude
reasonable discussion between them would not necessarily make a joint custody
arrangement unworkable if the child were an adolescent, as it would if the
child were a toddler. On the one hand, if one parent wants his adolescent child
to become an engineer while the other parent wants the child to become a
photographer, the child's own wishes, talents, and achievements will play a
larger role than either parent's vicarious career goals. On the other hand, if
one parent of a hearing-impaired three year old is unwavering in his belief
that the child should be taught sign language while the other parent is equally
committed to teaching the child -lip-reading only, joint custody is simply
Another circumstance to be considered is whether the area of parental
conflict is isolated and whether it is suitable to judicial determination as part
of the custody award. If the parents of a three year old disagree vehemently
about whether the child should attend public or parochial school, 94 the court
could structure its order to give one parent complete authority over
educational decisions affecting the child while allowing both to share
decisionmaking in other areas. 95 The court must exercise patience and care in
evaluating the needs of the individuals before it, and it must have the will to
persuade the parents to work together in order to protect the child's welfare.
Once the initial determination is made that each parent is fit to act as a
custodian and that the parents are able to cooperate vis-a-vis the child, the
court must ensure that the details of the proposed custody arrangement are
reasonable, taking into account the peculiar needs of the individuals involved.
To ensure that joint custody continues as long as the child remains a child,
the plan must be workable on a daily basis.
When presented with a voluntary joint custody plan, the court should only
scrutinize the agreement for practicality. For example, an obstetrical nurse
who remains with laboring patients until delivery and hence cannot work a
regular schedule, must provide for that circumstance in the joint custody
proposal. The other parent might take over when the nurse cannot leave work
at the expected hour; alternatively, reliable babysitting help would be
necessary. If, for some reason, the only feasible solution is to have the other parent
take over, the court should satisfy itself that the other parent would, in fact,
be available. The proposed arrangement might be unworkable if, for
example, the former spouse blames the failure of the marriage on the nurse's career
and steadfastly refuses to adjust his own plans to take physical charge of the
child at an unscheduled time. In such an instance, it would be a mistake to
allow joint custody because the practical problems are insurmountable.
If the personal criteria have been met, notwithstanding the opposition of
one or both parties, joint custody should be judicially imposed with the
instruction that the parents work out the mechanics of such an arrangement.
In effect, the parents are compelled to sublimate their own interests to the
94. Disputes of this nature can, and doubtless will, arise subsequent to the initial joint
custody order. The scope of this Note, however, is restricted to the factors to be considered at the
initial custody hearing.
95. Cf. Provin v. Provin, 264 Ark. 551, 572 S.W.2d 8
) (mother to retain sole
authority over daily matters, father to share in making "major" decisions).
best interests of the child. Faced with the possibility that failure to agree on a
workable plan may result in a complete loss of custody to one parent, many
may be induced to cooperate to the extent necessary to preserve their chance
as custodian. 96 Failure to develop a workable plan despite direction from the
court is persuasive evidence that the judge erred in his original determination
that the parents could overcome their personal hostilities and cooperate as
parents. In such a case, it might be necessary to reconsider the joint custody
award and, instead, to award sole custody to the more cooperative parent
with extensive visitation rights to the other.
The court's proper concern for ensuring that the proposed custody plan is
workable and reasonable, whether scrutinizing a voluntary or a court-ordered
plan, must be distinguished from irrelevant value judgments about the
wisdom of a particular arrangement. A proposal by two working parents that
they share the cost of a single housekeeper who would care for the child in
their two different homes on alternate days should be accepted as a feasible,
consistent method of care, notwithstanding a judge's personal misgivings as
to the wisdom of entrusting the care of a child to nonfamily members.9 7
Although courts are properly concerned with a broader range of issues in a
divorcing family than in a family which does not enter the judicial process,
the parents' inherent right to raise their child must be respected and should
not be unduly supervised by the court. 98
The mechanics of the reasonableness test can best be seen by an analysis of
physical custody arrangements. Because the physical arrangements can be
structured in a variety of ways, the focus of the court should be whether the
plan before it accommodates the requirements of the individual post-divorce
family. The best interests of the child are dependent on the continuity and
duration of the joint custody arrangement, 99 which in turn is partially
dependent on the continued satisfaction of the parents. Hence, living
arrangements which may be ideal for the child may be required to yield to those
96. In appropriate cases the court should consider conditioning a resistant parent's custodial
rights upon his cooperation on certain issues. See note 90 supra.
97. The days when only one method of providing daily care for a child was considered valid
are apparently gone. See B. Spock, supra note 8, at 43-46. Dr. Spock discusses a variety of
methods for the care of children, including housekeepers, cooperative child care arrangements,
and day care centers, as well as the traditional method of fulitime attention by the parents,
without suggesting that any specific arrangement is always preferable.
98. The Supreme Court has stated that "lilt is cardinal with us that the custody, care and
nurture of the child reside first in the parents, whose primary function and freedom include
preparation for obligations the state can neither supply nor hinder.... [But] rights of parenthood
are [not] beyond limitations. Acting to guard the general interest in youth's well being, the state as
parens patriae may restrict the parent's control by requiring school attendance, regulating or
prohibiting the child's labor and in many other ways." Prince v. Massachusetts, 321 U.S. IS8, 166
(1944) (citation &footnotes omitted). Cf. Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925)
(state statute requiring children between the ages of eight and sixteen to attend public schools
overturned as an unreasonable interference "with the liberty of parents and guardians to direct
the upbringing and education of [their] children"). For a discussion of constitutional decisions
effecting family relationships, see Bratt, supra note 8, at 288-297.
99. The child's need for continuity has been judicially recognized. Berlin v. Berlin, 21
N.Y.2d 371, 376, 235 N.E.2d 109, 112, 288 N.Y.S.2d 44, 48 (1967), cert. denied, 393 U.S. 840
which are more realistic for the parents. For example, the expense of
maintaining two homes, each large enough to accommodate one parent and
several children, is beyond the financial reach of many families, especially if
the number of children and their respective genders or ages make two or more
children's bedrooms a necessity. The best solution for the children may be for
the parents to alternate living with the children in one house; each parent
might maintain a separate apartment where he lives while not with the
children. Such an arrangement, however, may be too difficult for the parents
and hence might properly be rejected by the court as perilous to the continued
success of the joint custody award. It requires more contact between the
parents than would otherwise be necessary, and future spouses or paramours
may be a serious problem. 0 0° One practical solution for the financially
strapped family would be for the children to live primarily with one parent
and to spend evenings and weekends with the other. On the other hand, if a
child has special needs resulting from mental or physical handicaps, it may
not be in his best interest to alternate his living quarters."' The child's
handicap would justify allowing him to remain in one parent's home, where
the other would supervise the child.
The effect of changes in one parent's work schedule must also be considered
in determining the structure of the physical custody arrangements,10 2 as
must the age of the child. The younger the child, the greater is the need for
stability. 10 3 In the case of very young children, frequent but regular changes
in physical custody-two or three times weekly-might offer the requisite
stability, particularly if a housekeeper, day care center, or school remains a
constant in the child's life. 10 4 A child of school age must obviously attend the
same school every day. He need not, however, leave from the same place
every day; the distance he can travel varies with the age of the child and the
availability of school buses or other transportation.' 0 - Very young children in
rural sections must of necessity travel extensively by bus to school,' ° 6
although public transportation in a large city would not be acceptable for young
children. Conversely, it would be reasonable for a high school student to
commute by public transportation to a city school an hour from the home of
100. See notes 107-108 infra and accompanying text.
101. Krois v. Krois, 4 Faro. L. Rep. 2017 (N.Y. Sup. Ct. Queens County 1977)_
102. This consideration equally applies to satisfaction of the personal criteria of parental
fitness and ability to cooperate.
103. For a discussion of the amount of disruption a child can tolerate at different stages of his
development, see Best Interests, supra note 26, at 31-34.
104. The youngest group of preschool children studied by Wallerstein and Kelly, aged 30 to
40 months apparently tolerated well-chosen substitute caretakers rather well. Conversely, the
older preschool children, aged five and six years, did not fare well with substitute caretakers.
Preschool Child, supra note 33, at 603.
105. "Bus transportation has been an integral part of the public education system for years.
." Swann v. Board of Educ., 402 U.S. 1, 29 (1971). At least for the purpose of desegregating
public schools, busing has the imprimatur of the Supreme Court. Id. at 29-31.
106. In 1976, approximately 22,800,000, or 55.1%, of the average number of students
attending public schools were transported to school at public expense. Statistical Abstract. supra
note 7,at 155.
The joint custody arrangement must remain flexible, adaptable, and, like
any custody arrangement, subject to major revision or termination by the
court if changing circumstances so warrant. The child and both parents must
appreciate the right of each parent to establish new personal relationships. 107
If the father remarries a much younger woman to the bitter resentment of the
mother, this resentment is insufficient reason to limit the joint custody
arrangement. If, however, the stepmother abuses the child, or attempts to
persuade the child to espouse a religion different from the one agreed upon by
the parents, the father's right to physical custody might properly be limited to
exclude the stepmother)108
The examples given above are intended merely to illustrate the wide variety
of factual situations which occur in child custody cases and to set forth the
kind of practical analysis necessary to determine whether joint custody is
feasible in a given situation. In choosing the most appropriate custody
arrangement, the court must evaluate the needs and capabilities of the
individuals before it. The framework of the three criteria-fitness of each
parent to serve as custodian, parental ability to cooperate, and reasonableness
of the plan-is necessarily broad in deference to the discretion inherent in the
best interests standard.
Sole custody arrangements developed when divorce was very unusual.' 0 9
The major shortcoming of sole custody-that it frequently deprives the child
of divorced parents of a close relationship with each parent-was seen as
inevitable and, perhaps, as not altogether undesirable when divorce was
viewed as a sign of the moral weakness of at least one spouse."10 Today, as
the soaring divorce rate indicates,"' parents are increasingly unwilling to
remain in unsuccessful marriages for the sake of their children. It is,
therefore, necessary to develop new custodial arrangements to deal with the needs
of children whose parents no longer live together. Because joint custody is
uniquely suited for minimizing the loss which inevitably accompanies divorce,
it is essential that standards be developed which will assist courts in
fashioning successful joint custody orders. The guidelines proposed in this Note focus
on parental fitness and cooperation as well as the practicality of custodial
107. A child "need[s] to know that the non-custodial parent ... may need to (run errands] or
...go out with a friend at the cost of a babysitter .... [A parent should not bel an idealized
playmate who suddenly appears when it is convenient only for entertainment purposes." Bruch,
Making Visitation Work: Dual Parenting Orders, Fain. Advocate 22, 26 (Summer 1978).
Although articulated in the context of a traditional sole custody-visitation arrangement, the
principle is equally applicable to a joint custody situation.
108. In DiStefano v. DiStefano, 60 A.D.2d 976, 977, 401 N.Y.S.2d 636, 638 (4th Dep't 1978),
a joint custody arrangement originally agreed to by the parents failed at least partially because
the mother's lesbian roommate "made repeated efforts to alienate the children from their father."
109. The average annual rate of divorce per 1,000 population was .3 during the period
1867-1871. Davis, Sociological and StatisticalAnalysis, 10 L. & Contemp. Prob. 700, 710 (1944).
110. See id. at 707.
111. The divorce rate per 1,000 population was 5.1 in 1978, up from 2.0 in 1940. Custody
Census, supra note 2, at 7. It has been estimated that if the rate of divorce continues at the
current level, almost 40% of all marriages would end in divorce. Id. at 1.
plans. As more empirical data on the effects of varying joint custody
arrangements become available, it may be necessary to consider additional
criteria in determining whether joint custody will serve the best interests of a
particular child. In the meantime, however, courts must be receptive and
flexible in their examination of every custody question, so that joint custody
becomes the rule rather than the exception.
Anne Adams Rabbino
48. LeBouef v. LeBouef, 325 So. 2d 290 , 292 ( La. CL App . 1975 ); Best Interests, supra note 26 , at 37-38.
49. Those critical of joint custody emphasize practical difficulties in clothes and books left at the wrong house and friends not knowing where to telephone joint custody children . M. Roman & W. Haddad, supra note 36, at 9- 10 . Focusing on personal possessions when a child's welfare is at stake seems trivial at best .
50. Newson v. Newson , 176 La. 694 , 146 So . 472 ( 1933 ).
51. Cormier v. Cormier , 193 La. 158 , 190 So . 365 ( 1939 ); Foster & Freed, supra note 4, at 341.
52. LeBouef v. LeBouef, 325 So. 2d 290 , 292 ( La. Ct . App. 1975 ).
53. Dodd v. Dodd, 93 Misc. 2d 641 , 646 , 403 N.Y.S.2d 401 , 404 - 05 (Sup. Ct. N.Y. County 1978 ).
There are other expressions of the flexible approach. Vermont has established a rebuttable presumption that joint custody is not in the best interests of a child, citing the difficulty of parental cooperation as well as the other problems addressed by Louisiana and Florida courts , which are discussed in notes 47-52 supra. Lumbra v. Lumbra , 136 Vt. 529 , 394 A.2d 1139 ( 1978 ). New Hampshire's position is that joint custody is acceptable in a proper case, but a dissenting judge's proposal that there be a presumption in favor of joint custody was rejected by the majority . Starkeson v. Starkeson , - N.H . -, 397 A.2d 1043 ( 1979 ).
54. 44 N.Y.2d 584 , 378 N.E.2d 1019 , 407 N.Y.S.2d 449 ( 1978 ).
55. 93 Misc. 2d 641 , 403 N.Y.S.2d 401 ( Sup. Ct . N.Y. County 1978 ).
56. 44 N.Y.2d at 587, 378 N.E.2d at 1019, 407 N.Y.S.2d at 449.
57. Id . at 588 , 378 N.E.2d at 1020, 407 N.Y. S.2d at 450 . The appellate division's order would have been more accurately characterized as divided custody . See note 44 supra.
58. Id . at 587-88, 378 N.E.2d at 1020, 407 N.Y.S.2d at 450.
59. Id . at 587 , 378 N.E.2d at 1019, 407 N.Y.S.2d at 449.
60. Id . at 591 , 378 N.E.2d at 1022, 407 N.Y.S.2d at 452.
61. See notes 82-95 infra and accompanying text.
62. As the court of appeals noted, the hearing before the trial court took place in 1976, two years before the appellate courts reviewed the matter . 44 N.Y.2d at 587 , 378 N.E.2d at 1019, 407 N.Y.S.2d at 449. Moreover, an appellate court necessarily deals with a cold record .
63. Id . at 589-90, 378 N.E.2d at 1021, 407 N.Y.S.2d at 451.
64. 93 Misc. 2d at 647 , 403 N.Y.S.2d at 405.
65. Id . at 650-51, 403 N.Y.S.2d at 407. Although it would appear to be somewhat unusual for a custody order to require that the custodial parent consult the noncustodial parent on all major decisions affecting the child, it was done in at least two other cases . Provin v. Provln , 264 Ark. 551 , 572 S.W.2d 853 ( 1978 ); Salk v . Salk, 89 Misc. 2d 883 , 893 - 94 , 393 N.Y.S.2d 841 , 848 ( Sup. Ct . N.Y. County 1975 ), aff'd, 53 A.D.2d 558 , 385 N.Y.S.2d 1015 ( 1st Dep't 1976 ), The father in Provin sought what he called joint custody of the two children, aged seven and six. He did not ask for physical custody; rather, he wanted "a voice in 'major' decisions affecting the children," which the appellate court granted . Id. at 264 Ark., 572 S.W.2d at 855 . The Provin court provided several examples of what it considered "major" decisions: "whether a child should have an operation, what doctor should perform the operation, where the child will attend college." Id. Although the lower court had found each parent fit to act as custodian, sole responsibility for daily decisions remained with the mother; otherwise, the court reasoned, " [t]he