SAVING US FROM THE DEGRADATION CONTEST: A SUGGESTION ON CUSTODY FROM THE AMERICAN BAR ASSOCIATION'S ANNUAL MEETING

Perhaps this article should be entitled something like "No Custody for Nobody," or "Why do we have to have Custody and Visitation?"

When we look at what hideous things people do to one another in order to prevail in the fight over child custody -- to win custody as the prize -- and at how devastated the party is who loses and is instantly relegated in a day or half-day of trial (for let's face it: most courts do not think this coin-toss is very important) to the dehumanized status of ex-parent; when we see how badly traumatized and permanently warped the minds of children are after participating in the custody litigation and being actively recruited by one side or both to do so; it must have occurred to each of us at least once that it might just be better if the courts simply did not give one parent custody. That's right: if custody were a thing that nobody could win, that nobody could lose, and we just never talked about. By this one means the end of court orders that talk about custody and visitation at all.

I do not mean mandatory or presumed joint custody. Nor do I mean "joint legal custody" orders that give one party "primary residency." To a great extent that is just one more of those euphemisms that will become a joke, and then a politically incorrect term, as soon as everyone comes to realize what it really means. No, I mean no more and no less than court orders which avoid all reference to who won and lost, and say that mother's time with little Emily will be the following days and hours, and father's time will be the following, and they will share decision-making authority, and that when they cannot agree mother's word will be final as to categories A, B and C and father's word will be final as to categories X, Y and Z.

Of course I am not the only person who ever thought of this. In fact, some of it is already embodied in statutes like Florida Code §61.13. I started thinking hard about it after a California psychiatrist dropped a half-sentence about this concept at a marriage counselors' conference in 1978. Then every few years one of our Virginia practitioners will mention the same idea in a CLE lecture. True, the lecturer usually thinks he or she is the first lawyer who every thought of it, but I still applaud the insight. It sounds appealing, but nothing is ever done about it. Thinking globally but acting locally, alas, one tries to put such language in separation agreements and court orders. Occasionally it is agreed to, and occasionally I see it in drafts from opposing counsel. I always congratulate opposing counsel when I see such language (unless I am already infuriated about some other aspect of opposing counsel's negotiating position or litigating performance).

This same idea of doing away with the viciously invidious "custody/visitation" terminology came up again at the Annual Meeting of the American Bar Association's Family Law Section in August of 1993. Ellen Effron, chairing the Section's Custody Committee, floated the proposition in a meeting of her Committee. Fortunately Ellen's ideas were more fully thought out than mine have ever been. She suggested the following:

Greatly condensed, the notion is that decrees would avoid the words custody and visitation, and instead would just specify the days and hours that the child would spend at each parent's home. The division of days and hours would not have to be equal, or follow any other presumed formula. Though the timing might be dictated by work or school, there would be no presumptions, and a full sharing by each party in continued co-parenting of the child, with all of the responsibility that that entails, would be the guiding principle. The negotiation, mediation or litigation would result in a "parenting plan." That plan would designate the responsibility of each parent for continuation of specific individual activities of the child, such as doctor visits, Little League, music lessons, etc. and would try to anticipate and plan for the controversial occasions which always come up such as birthdays, other-child birthdays, grandparents visits, family reunions, etc.

The determination of these "areas of responsibility" would be determined largely by the responsibilities each parent had assumed in the past, so the "primary caretaker" ideologues should be presumptively satisfied. (Ms. Effron noted that this idea is more fully explicated by Virginia law professor Elizabeth S. Scott in "Pluralism, Parental Preference and Child Custody," 80 Calif. L. Rev. 615 (1992).) Neither party would get to boast about a victory, and neither party would be terminally humiliated by a defeat.

You laugh. But some very influential and very conservative people -- the ones we got all our legal ideas from in the first place -- have started taking these very ideas quite seriously. It turns out that lately neither Ms. Effron nor I had been keeping up with our English law the way we should have. It seems that the English/Welsh law changed radically with the October 1991 implementation of the Children Act of 1989. They now have a legal scheme for governing post-divorce parenting which completely avoids winners and losers and forces the parents to work out with the court's help a post-divorce "parenting plan." Its various provisions are designed to assure that the judge stays out of the act and is available only as a very last resort. But paradoxically, this is accomplished by getting the judge intensely involved right at the beginning.

The new English and Welsh system was explained by Michael Drake, of the London solicitors' firm of Collyer-Bristow, who quite frankly would not mind having some of your business for his firm. The following is a summary.

At the very beginning of divorce proceedings, a "Statement of Arrangements for the children" must be filed. It must cover living accommodations, education, child care, support and contact arrangements (the new term for visitation now that "access" has been junked). The Children Act introduced a new concept known as "continuing parental responsibility." No matter who is a good and who is a bad spouse or parent, both parents are presumptively given an equal say in the major decisions about the child's post-divorce (indeed, post-separation) future. In most cases, the parents are just given this continuing "P.R.," and no formal court order is entered that would state with whom the children will have their primary home. The court lets the parents know it expects them to make their own private arrangements by consensus. Thus it works toward having the "Statement of Arrangements" signed by both parties as a sign of agreement to terms that they have independently worked out. Formal court orders are still available for special situations, such as those posing a risk of child abduction.

The plans include a residence order, a contact order, and if necessary a "prohibited steps order" which will keep one of the parents from exercising a particular aspect of parental responsibility. The parties are allowed to bring any of the particular issues back to court if they cannot resolve them by themselves or with the help of counsel, but the focus is still on the particular problematical aspect, and not on which adult will get to take the child away from the other. The first preliminary hearing the parents can get is a conciliation appointment where a judge takes the time to sit down with them and a court welfare worker and attempts to solve individual problems. If the children are of a certain maturity, they may be required to attend. If they seem to be necessary, further conciliation appointments will be arranged. If these first meetings are definitely unsuccessful, the judge requires the welfare officers to prepare an investigative report. At any point in this process it can be diverted into conciliation and mediation proceedings. Courts are very reluctant to order costs or fees against either of the parties.

Why will this kind of thing probably never happen in Virginia? Because the courts will say that they do not have time for it. "We have not got time to make orders about who does the pediatrician appointments, and the ski trips, and who chauffeurs to pony club and soccer practice and who gets to do Girl Scouts." No, they would rather spend those days and half days in the courtroom hearing parents and their many witnesses natter on about who took the kids to the pediatrician how many times and how Mrs. failed to get little Jennifer to Girl Scouts that time because she is obviously the world's worst mother, etc. They would perhaps think twice if they thought of the tens of thousands of dollars that the attorneys earn preparing for that day and handling all the motions practice that fills the months and years that you have to wait for a custody trial. But you see, they do not believe custody attorneys do all that preparation. They can't see how a mere custody trial could possibly justify the hundreds of hours of preparation that a competent tort lawyer will spend on preparing for a fender-bender case. In fact, they believe that if the domestic relations attorney actually gets paid for all those hours it is so scandalous that it should be reported to the State Bar.

But consider: might is just be possible that parents will fight a lot less often and a lot less dirty if they approach the court system and find that there is a game that they have to play, at which they just can't lose and they just can't win? What if there just is no custody to win, so they can't fight for it?

You say that parents will still fight obsessively over the individual activities that they each get to take responsibility for? I say fine. Better they should devote all that money and energy to this far-more-child-centered activity than that they should expend it on the kind of quasi-homicidal activity that preoccupies them now.

You say parents will see through this transmutation of a custody battle to a days-and-hours-allocation dispute. You think they will crow to their friends and neighbors, and to the children, about winning days and hours just as they used to flaunt their victory when they won the coveted prize of custody and terminally degraded and dehumanized that person they once were married to. To that I say no. A somewhat disproportional days-and-hours "victory" just does not sound impressive enough to talk about.

And consider this as well: mediation is supposed to be available statewide as a central feature of Family Court proceedings in the next few years. That time spent allocating activities and specific responsibilities and hours is ideally suited to the mediation process. (And deciding the life-or-death question of who will "win" custody and who will suffer civil death and become a legal non-parent, whose children are encouraged to spit in his or her face, is something that mediation is not ideally suited for.)

So what is wrong with this new idea? What is wrong with it besides the fact that it denies someone the chance to be a winner and exercise his or her sacred legal right to make someone else a loser? Is working with the judge and social worker to craft a parenting plan or "parental responsibility arrangement" to be condemned as marriage counseling in disguise? Are we afraid some reconciliations will be promoted by forcing this close-quarters cooperative activity? Does it somehow compromise the majestic integrity of divorce? Nonsense. We have to admit that when you look just at the children's interests, it would almost always be better for them (as for society) if the marriage and the family unit continued.

Do we have to worry because legal recognition of continued co-parenting denies the adults a final and supposedly therapeutic "clean break?" Well first, no one has ever had the nerve to argue that "clean break" is better for the children when there are children involved. And everyone has to admit that divorce in a family with children requires years of continued contact and communication anyway, whether you call it joint custody or win-lose custody/visitation. Does it mean empowering the bad party and denying the wronged party justice? Nonsense again. Good-versus-bad-parent cases are rare. Most judges will tell you that the most exasperating part of deciding custody cases is that they are forced to decide between two imperfect but perfectly fit parents on the basis of possible minor variations in their parenting qualities, but are forced to watch these two characterizing one another as worthless bastards.

Thus the adoption of a new procedure and a new terminology for what we do with the children in divorce cases might just possibly do both children and parents considerable good. It also might have a therapeutic effect on the court system. English legal ideas are often remarkably stupid, but when it comes to custody our old-country brethren might just be on to something useful. It does not appear to have significant costs or drawbacks, and it might just possibly be worth a try.