Joint Custody and Non-Marital Children

Prior to the 1980's, when many legislatures passed joint custody -- statutes, most courts awarded custody of nonmarital children to the mother.(2) The older statutes usually stated that the mother of a child born out of wedlock is the natural guardian of the child. The majority of jurisdictions which had this type of statute interpreted it to mean that the mother of a nonmarital child should receive preference in a custody dispute with the biological father unless the father roved her unfit or the mother relinquished her parental rights.(3)

As the trend toward joint custody statutes swept across the nation, some state legislatures enacted statutory preference for joint custody. Courts often held that the joint custody statutes applied to nonmarital children as well as martial children, and that there should be no custody presumption in favor of the mother of a nonmarital child.(4)

These holdings can be challenged on several grounds, including statutory construction. Many join custody statutes are located within the statutory sections whose subject matter is the dissolution of marriage.(5) This indicates a legislative intent that the joint custody statute apply only to custody disputes involving divorcing couples.(6) The legislatures probably recognized hat nonmarital custody disputes are usually fundamentally different from martial custody disputes. Significantly, many older statutes declaring that the mother is the legal guardian of a nonmarital child are often not repealed when joint custody statutes are enacted, indicating a legislative intent that nonmarital children' s custody determinations not be made under the joint custody statutes. This would permit the special circumstances of nonmarital custody cases to be considered under a statute enacted specifically for those situations.

Decisions applying joint custody rules to non-marital children can also be challenged on public policy grounds. An understanding of the legal significance of joint custody is integral to appreciating the public policy reasons for treating nonmarital custody determinations differently from martial custody determinations. There are two forms of joint custody: joint legal custody and joint physical custody. Joint legal custody generally means the right or authority of parents to make decisions concerning the child's upbringing.(7) Joint physical custody can be defined as the shared right to physical possession of the child, coupled with the responsibility to carry out daily child rearing.(8) Most "joint custody" decrees grant joint legal custody, with physical custody shared on whatever basis the parties agree to or the court directs. Quite often, one parent (most commonly the mother) has primary physical custody, with the other parent having "custody" every other weekend and on some holidays. The result of joint legal custody is that the parents' decisions related to child rearing must be made together, with much communication and coordination.(9) Many joint custody statutes do not appear to express a preference as between joint custody and sole custody; however, some of these types of statutes have been interpreted as giving a joint custody preference.(10)

The decisions of parents not to marry should be an important factor for the court to consider when deciding the applicability of joint custody statutes to a custody determination. Marriage is a legal partnership with ramifications affecting legal rights in a variety of areas in addition to areas relating to children, such as property ownership and heirship in case of intestacy. The large body of law addressing property distribution upon the dissolution of marriage is illustrative of the profound change marriage has on married couples' legal rights. The decision of parents not to enter into the legal relationship of marriage is, for these reasons, an important factor for the court to consider when determining the appropriateness of applying joint custody statutes to unmarried couples.

Married parents, during the marriage, have joint custody of their children. When the court applies a joint custody preference statute to a divorcing couple, the court is directing the parents to continue the "joint custody" arrangement shared prior to divorce. Applying the joint custody preference statute to nonmarital couples results in the court forcing parents who most likely never shared "joint custody" prior to the court's custody determination to come together in a legal relationship they had avoided by not marrying.

When the custody arrangements of a marital child prior to divorce are compared to that of a nonmarital child prior to a custody determination, the inappropriateness of applying a joint custody preference statute to nonmarital children becomes apparent. While married parents in the vast number of custody cases shared physical and legal custody of their children prior to divorce, this is not usually the case for nonmarital children. Most nonmarital children are raised by their mothers; the fathers are often absent or unknown. Even in those nonmarital situations where the parents live together, the biological father often is not adjudicated to be the father, so he has no defined legal responsibility to the mother or child. The result is that most nonmarital children are in the sole custody of their mothers prior to any custody disputes, in sharp contrast to the positions of marital children prior to divorce.

Virtually all child welfare advocates say it takes a high degree of commitment by both parents to make a joint custody decree work. The most recent studies of joint custody (within divorcing families), show mixed results and should be considered when deciding the applicability of a statute which effectively results in the award of joint custody to parents who have never been married. In a study regarding the joint custody arrangements of 25 families with children aged 14 months to 5 years, the most important factor found by the researchers in creating a positive situation for joint custody arrangements was whether both parents could sustain a strong commitment to the child and whether they could cooperate with each other on child rearing decisions. The authors found such cooperation was rare between divorcing parents.(11) Yet divorcing parents are much more likely to have had a history of cooperation in child rearing prior to the dissolution of their marriage than parents who were never married. Thus, the likelihood that never-married parents could attain this high level of cooperation after a custody battle, with no prior history of such cooperation, is remote and should weigh against the application of joint custody preference statutes to nonmarital couples.

Significantly, many pre-eminent clinical researchers of children of divorce oppose court-imposed joint custody.(12) The first state to pass a joint custody statute was California. A recent amendment to the California legislation clarifying that there be no preference for joint custody was passed because of research suggesting that court- imposed joint custody over the objection of one parent can be harmful to children.(13) Dr. Wallerstein, whose research was central central to the passage of California's joint custody statute has written:

Let me state my position clearly. I am opposed to legislatively providing or permitting joint custody awards over parental objection. We as a society, we as behavioral scientists, do not know enough about the effects of joint custody arrangements, even voluntary arrangements, to experiment with the lives of children in this fashion.(14)

The most unknown factor in this sea of unknown factors is the effect of joint custody on nonmarital children, a group that has been ignored by researchers on this issue.(15) It is notable that every study done on joint custody has focused on divorcing parents, and not on the unique circumstances presented by nonmarital parents. Joint custody advocates, and therefore presumably the various state legislatures who rely on such research, have never considered the effect of joint custody on nonmarital children. This supports the nonapplication of joint custody preference statutes to nonmarital custody disputes.

Statues enacted favoring the mother as the natural legal guardian of the nonmarital child reflect two facts: (1) until an adjudication of paternity, the mother is the only legal parent, and (2) the mother virtually always is the primary caretaker of the child. The older statutes' presumption that custody of a nonmarital child should go to the mother will in a majority of nonmarital custody cases result in the primary caregiver of the child getting custody. In those atypical situations where the unwed father has been living with the mother and sharing caregiving on a equal basis, the court can make an exception to this general rule and grant joint custody if the court finds it to be in the best interests of the child.

Many child welfare advocates recognize that the best interests of children are served when the courts weigh heavily who the child's primary caregiver is when awarding custody. This factor has been given substantial weight in many states by court decision and by statute.(16) It should be considered when deciding the applicability of joint custody statutes to nonmarital children.

Presumptions in favor of joint custody for marital children and contrary to joint custody for non-marital children are consistent with one another in that they are both designed to continue the situation as it presumably was before the custody litigation. In the case of a marital child, this may mean continuing joint custody;(17) in the case of a nonmarital child, this usually means continuing the mother' s sole custody.

Courts that have applied joint custody preference statues to nonmarital custody disputes sometimes claim that if the joint custody preference statutes do not differentiate between marital and nonmarital custody disputes, they should therefore be applied to both.(18) As discussed above, an alternative reading of this such statutes is that most joint custody statutes are not intended to apply to nonmarital custody disputes because those disputes often have different considerations than marital custody disputes. The older statutes should continue to apply to nonmarital custody disputes because the legislatures considered these difference, and often did not repeal the older statues when passing the joint custody statute. Thus it could be argued that it was intended that both statutes apply to the different considerations than are attendant in custody disputes.

Other courts have held that the joint custody statues should apply to nonmarital custody disputes based on a different rationale. Those opinions note a "trend"(19) in the law to treat the sexes equally and conclude that the legislature must have intended for the joint custody statute to apply to nonmarital custody disputes.(20) In fact, all research available, including that used by the legislatures in writing and passing these joint custody statutes, has failed to address the effects of a joint custody preference statute on nonmarital children. Finally, this rationale also fails to recognize the differences inherent in nonmarital custody determinations from marital custody determinations, and the legislative reasons for not treating these groups as though they were similarly situated.

Still other courts have used qual protection analysis in declining to treat the custody of nonmarital children differently from custody of marital children.(21) The implication that treating these situations differently is contrary to the Equal Protection Clause serves further analysis.

The Equal Protection Clause has been held to mean that the law may classify on the basis of sex where the state can demonstrate that there is an important governmental objective in doing so and that the sex classification bears a substantial means-ends relationship to that important governmental objective.(22) Statues declaring that the natural guardian of a nonmarital child is the mother have been historically interpreted as giving an unmarried woman a preference in a custody dispute. This serves the important governmental objective of being able to ascertain who is the child's guardian in circumstances where one parent is definitely known and the other is not. The importance of prompt legal recognition of the nonmarital mother as the sole custodian becomes apparent immediately after delivery, when medical decisions affecting the child may need to be reached, hospital bills must be paid, and other decisions attendant to having children must be made. It is essential that there be no questions from the very start of the child's life who is responsible for that child. Because most unmarried fathers are not adjudicated the natural father of a nonmarital child, this important government objective would be served by immediately defining he mother as the child's natural guardian.

If the classes of persons subject to disparate treatment are defined as married fathers versus unmarried fathers, then the Equal Protection Clause should not apply. The Equal Protection Clause has at least five exceptions to its application.(23) The Supreme Court has held in a plurality opinion that a statute that reats unwed fathers differently than unwed mothers is not inimical to the Equal Protection Clause because unwed fathers and unwed mothers are not similarly situated.(24). The plaintiff was an unwed father who was not allowed to sue for the wrongful death of his child, because a Georgia statute mandated that in the case of nonmarital fathers, only those who had procured a court order legitimating the child had standing to sue.(25) Part of the Court's reasoning was that the identity of the mother is always ascertainable, while the identity of the father may not be.(26) The court hen held that the law actually distinguished between fathers who had legitimated their children and those who had not. The Court used a rational basis test and found that the requirement of legitimation was rational.(27)

Additionally, even if the unwed father and the unwed mother were similarly situated (i.e., both were legal parents to the child in question), an important governmental objective is served by exempting unmarried parents from the presumption of joint custody. That important governmental objective is to maintain the status quo that existed before the paternity and custody litigation: namely, that the mother was the only parent with both legal and physical custody.

The alleged purpose of a joint custody statute is to provide children with the least disruptive change in custody following the dissolution of a marriage. Most married couples shared joint legal custody prior to the dissolution of their marriage, and continuing joint legal custody after the dissolution of their marriage would track the custody arrangement the married couple has historically. Nonmarital children are differently situated. Often, the only legal parent a nonmarital child has prior to any custody dispute is the mother. Rarely is there a joint custody arrangement in effect prior to a custody dispute between unmarried parents. Significantly, no research has been done on the effects of joint custody on nonmarital children, in sharp contrast to the decade of research and debate surrounding the joint custody of marital children. For these reasons, joint custody statutes should not be applied to the different situation presented by nonmarital children.

1. Admitted in Maryland and New Jersey; volunteer at Hudson County Legal Services, Jersey City, New Jersey.

2. Jeff Atkinson, Modern Child Custody Practice, Vol. I, Ch. 4 (1986). For an example of such a statute, see FLA. STAT. Sections 61.13(2)(b)2 (1985).

3. See, e.g., In the Interest of R.L.G., a child, 274 So.2d 4 (FLA. 4th DCA, 1973).

4. See, e.g., Collinsworth v. O'Connell, 508 So.2d 744 (FLA. 1st D.C.A. 1987); Stepp v. Stepp, 520 So.2d 314 (FLA. 2nd D.C.A. 1988); Race v. Sullivan, 18 Fla. L. Weekly D336 (4th D.C.A. 1993); Barnes v. Frazier, 509 So.2d 401 (FLA. 5th D.C.A. 1987).

5. See, e.g., FLA. STAT. Sections 61 (1985).

6. One of the first appellate courts to hold that Florida's joint custody statute should apply to custody disputes over nonmarital children disregarded the statutory scheme and reasoned in the following manner: Because the joint custody statute failed to differentiate between married and unmarried parents except when the Act referred to "contact after the parents separate or the marriage is dissolved," the statute should apply to both. Collingsworth v. O'Connell, 508 So.2d 744 (FLA. 1st DCA, 1987).

7. See Joanne Schulman and Valerie Pitt, Second Thoughts on Joint Custody: Analysis of Legislation and its Implications for Women and Children, 12 GOLDEN GATE UNIV. LAW REV. 539. 540-545 (Summer 1982) (hereinafter Second Thoughts).

8. Id.

9. Id.

10. Second Thoughts, note 6 above, at 543 n. 2, citing James A Cook, Joint Custody, Sole Custody: A New Statute Reflects a New Perspective, 8 CONCIL. COURTS REV. 31, at 32 (June 1980).

11. Rosemary McKinnon and Judith Wallerstein, Joint Custody and the Preschool Child, 4 BEHAVIORAL SCIENCES AND THE LAW, 169 (1986); Letter.

12. Judith Wallerstein, Joint Custody and Child Support: Hearing Before the Committee on the Judiciary, Ca. State Assembly. (October 14, 1982) at 279. Emery, Hetherington and Dilalla, Divorce, Children and Social Policy, in H. Stevenson and A. Siegel, eds., CHILD DEVELOPMENT & SOCIAL POLICY (1985).

13. Judith Wallerstein and Sandra Blakeslee, Second Chances, (1989). CA. CIV. Sections 4600(d) (West 1989).

14. Letter from Dr. Judith Wallerstein, Center for the Family in Transition, to Patricia Hoff, Esq., and Joanne Schulman, Esq., January 14, 1986, (hereinafer Letter), as reported in Sheila James Kuehl, Against Joint Custody: A Dissent to the General Bullmoose Theory, 27 FAM. & CONCIL. CTS. REV. 37 (December 1989).

15. No studies of the effects of joint custody determinations on nonmarital children have been discovered by this attorney.

16. In re Maxwell, 456 N.E. 2d 1218 (Ohio Ct. Ap. 1982); VanDyke v. VanDyke, 618 P.2d 465 (Oregon Ct. Ap. 1980); Pikula v. Pikula, 374 N.W.2d 705 (Minnesota Sup. Ct. 1985). The first court to formulate this consideration was the West Virginia Supreme Court, which established a presumption that custody would be awarded to the child's primary caretaker. Garska v. McCoy, 278 S.F.2d 357 (1981).

17. NCOWFL does not take the position that a joint custody preference is appropriate for either marital or non-marital children. We would argue that a primary caretaker presumption is preferable for all children.

18. Collingsworth v. O'Connell, 508 So.2d 744 (Fla. 1st DCA, 1987).

19. Barnes v. Frazier, 509 So.2d 401, (Fla. 5th DCA, 1987).

20. Id.

21. Kent v. Burdick, 573 So.2d 61, 63 (Fla. 1st DCA, 1990).

22. Craig v. Boren, 429 U.S. 190, 197 (1976).

23. Nancy S. Erickson, Equality Between the Sexes in the 1980's, 28 CLEVELAND ST. L. REV. 591 (1979).

24. 441 U.S. 347 (1979). The plurality consisted of Chief Justice Burger and Justices Stewart, Rehnquist, and Stevens.

25. Id. at 348-349.

26. Id. at 355.

27. Id. at 358.

Copyright 1994 National Center on Women and Family Law, Inc.

Franzblau, Sandra, Joint Custody and Non-Marital Children., Vol. 15, Women's Advocate, 01-01-1994, pp 1+.