You die the way you live; you divorce the way you live. When, in 1990, my parents filed for joint custody of me, they thought they were doing something without clear precedent. They didn’t know any other divorced couples who split time with their kids equally; they hadn’t read any books on the phenomenon. They saw themselves as charting new territory, distributing their child (me) in a manner that enacted their deep commitments to feminism and shared labor—and in many ways, they were. Thousands of other couples like them, though, had been doing the same since the early ’80s, also without a blueprint or a sense of their place in the particular historical moment that made their decisions possible.
The method of my parents’ separation and subsequent allocation of me was as culturally fated as their marriage: two urban scholarship kids, freshman orientation at Trinity College in Connecticut. There, a decade younger than I am now, they began to build a world together, a world shaped by the conditions of their divorce. If they had stayed in or returned to their places of origin—the south side of Chicago in my mother’s case, the Bronx in my father’s—things might not have turned out the way they did. Instead, my father pursued a graduate degree at Yale and eventually became a professor of religious studies. He grew his hair shaggy and fixed lentil dishes from the Moosewood cookbook. My mother worked for arts nonprofits, listened to Laura Nyro, and sewed her own peasant blouses. In retrospect, it’s clear that they were perfect joint custody pioneers.
Joint custody has two principle meanings. The strictly legal sense defines the relationship as one in which “both parents retain legal responsibility and authority for the care and control of the child.” Then there’s the more extreme physical sense my own parents practiced: the manifestation the courts deem “residential joint custody.” This is a highly managed system—one that tends to be requested by parents rather than mandated by courts—in which the child is shuttled between parents in order to spend equal time with each.
Though there have always been kinship networks of childcare resembling joint custody, typically among those far less well off financially than the early “official” joint custody adherents, the institution as we know it today emerged in the late ’70s and early ’80s. No fewer than thirty states passed statutes in the relatively narrow time frame of 1979–1984. In 1984, the year I was born, Jay Folberg deemed it a “hot topic” in his introduction to an edited collection exploring the issue. Joint custody “can no longer be dismissed as a passing fad,” he writes.
The few times the subject of joint custody came up in any legal context before the 1970s, it was dismissed with profound suspicion. The judge in a 1934 Maryland case deemed joint custody in any form “an evil fruitful in the destruction of discipline, in the creation of distrust, and the production of mental distress in the child.” The basic rationale behind this decision was similar to the one expressed more calmly decades later in the influential 1973 psychology book Beyond the Best Interests of the Child, which argues that a child attaches to a primary “psychological parent” (usually, though not necessarily, the same as the biological one), and that to let the non-psychological parent have even visitation rights would be to irreparably confuse and traumatize the child.
Beyond the Best Interests of the Child represented an anxious rearguard action against an advancing social movement that was building steam precisely around the time of its publication. By the late ’70s, the idea of joint custody wouldn’t have been alien to the reading public, yet it remained tantalizingly unnatural, perfect fodder for gossipy reports. “Six-year-old Tommy Mastin leads something of a double life,” a 1976 New York Times article begins. The article is on the cold side of lukewarm regarding the trend, quoting two lawyers who concluded that the effect of joint custody is “to mock Solomon by cutting the child down the middle.” Even an equitable study published in 1980 agreed that, though there was growing evidence that residential joint custody was a viable option for many divorcing couples, “the child may continue to feel a sense of uncertainty and anxiety as he or she moves back and forth between two homes.”
Of course, this last remains true. It’s impossible to spend your childhood in constant transition, no matter how stable the points you are transitioning to and from, without feeling at least a small “sense of uncertainty and anxiety.” This might be one reason why today joint residential custody is much more common in theory than in practice. As of 2011, mothers receive primary custody in 68 to 88 percent of cases and fathers in 8 to 14 percent. Equal residential custody is awarded only 2 to 6 percent of divorce cases. I know of only one other person who grew up with equal residential joint custody, and I know a lot of children-now-adults of divorce.
Any speculation on the reasons behind the relatively low level of equal residential custody should take into account sheer inconvenience. At the very least, residential joint custody involves managing a minimum of three different schedules, arranging transportation from home to home, and collating or duplicating belongings. Plus, you have to decide how to divide the time. “But there are seven days in a week,” one of the children of Jeff Daniels and Laura Linney observes in The Squid and the Whale, the primary filmic treatment of residential joint custody (the movie’s tagline is “Joint Custody Blows”). The parents have thought of this: they will solve the odd numbered days problem by alternating Thursdays. My own parents solved the Seventh Day problem thusly: Mondays with my mother, Tuesdays and Wednesdays with my father, Thursdays with my mother and alternating Fridays and weekends. This schedule continued with precisely no variations from first grade to age 16, at which point my father left town to take a professorship elsewhere. I broke it only once, in early teenagerdom, to escape a particularly vicious fight my father was having with his girlfriend. I called my mother to come over and get me. It was a significant call: to change the schedule was to change the very ordering mechanism that made my family intelligible.
My family isn’t half as dysfunctional as Noah Baumbach’s Berkmans, but there are some striking similarities between us. Like the Berkmans, we occupied a Park Slope brownstone in 1986, as the neighborhood began its slide toward unaffordability. In fact, it is because the neighborhood is newly too expensive that post-divorce Jeff Daniels moves himself several stops down the F train, making joint custody less convenient for his beleaguered sons, who grudgingly take the subway. My parents made a more radical choice, moving from Brooklyn to what is surely one of the few possible US locations where regimented residential joint custody is feasible: the pleasant college town of Bloomington, Indiana. I was 3 when we arrived; a year or so afterward they split up.
I don’t remember the divorce being particularly traumatic. There is, however, an artifact. On a plane trip back to New York to visit family my father gave me a progressive coloring book, a relic of the early ’90s called The Anti-Coloring Book that featured general prompts rather than putatively confining outlines. Draw the thing that makes you saddest, it said. I drew two houses separated by a winding brick road. At first glance, the image is a poignant reminder of the emotional trauma divorce can inflict on a child. But the drawing, like my experience of divorce, was not that simple. Recently I learned that psychologists view the presence of doors and windows in children’s house drawings as a sign of mental health. I emailed my father to ask if he remembered my houses having windows. “Both houses were, in my memory, very complete, with doors, windows and smoking chimneys,” he wrote back.
The legal history of divorce custody is the history of the rise and fall and rise again of fathers. When the Protestant Reformation first made divorce possible, children were allocated to their fathers along with the other family property. In the 19th century, as the status of children shifted from property to humanity, two major social and legal forces worked to change the paternal presumption. The first was feminist reform, specifically the efforts of Caroline Norton, a British socialite whose divorce led her to campaign for access to her children and, eventually, for passage of the Custody of Infants Act of 1839. Known as the “Tender Years Doctrine,” this legislation permitted the mother to petition the courts for custody of her children and was legal confirmation of the Victorian cultural belief that mothers are innately suited to raising children. The second force that mitigated in favor of maternal custody was the efforts of child labor reformers later in the century to uphold children as autonomous beings with rights and interests of their own—interests that were best served by their mothers.
Both movements made their way from Europe to the United States, where several states immediately adopted versions of the Custody of Infants Act that required children under age 7 to stay with their mother. As the century progressed this age limit shifted upwards to encompass all of childhood. By 1916, the Washington State Supreme Court was writing in its custody ruling that “Mother love is a dominant trait in even the weakest of women, and as a general thing surpasses the paternal affection for the common offspring, and moreover, a child needs a mother’s care even more than a father’s. For these reasons courts are loathe to deprive the mother of the custody of her children.”
To some degree maternal presumption is the custody model we still have. However, by the late 1960s and early ’70s, state courts were more frequently invoking a standard called “Best Interests of the Child.” Best Interests replaced the Tender Years doctrine’s focus on maternal instinct with a complex of factors that might constitute the child’s “best interest,” such as the identity of its primary caregiver and the geographical location, income, and relative stability of its parents. Although in most cases, the best interest of the child is still determined to be maternal custody, the law no longer enshrines mothers as default custodians. By moving away from Tender Years’ explicit presumption that a child’s interests are best served by a single guardian, this shift paved the way for joint custody.
Even though the majority of custody decisions favor the mother, concerted arguments for father’s rights have led to increasing numbers of fathers winning joint custody, or in rare cases sole custody, of their children. Zummo v. Zummo, a key 1990 decision in favor of joint custody, cited in its justification the “demise of gender stereotypes, and a wide and growing body of research indicating the importance of both parents to healthy child development.” Two decades of activism by father’s rights groups lie behind such statements. Even though the majority of custody decisions still favor the mother, concerted efforts to popularize the concept of father’s rights—like that of children’s rights before—have led to increasing numbers of fathers winning joint, or more rarely, sole custody of their own.
The 1979 film Kramer vs. Kramer is a formative text in the cultural canon of divorced father’s rights. In this movie, Meryl Streep’s character takes Dustin Hoffman’s character to court over custody of their son. Preceding their divorce Streep’s character has discovered women’s lib. This discovery seems to be what leads her to abandon her child for a few months, at which point Dustin Hoffman’s character learns to make French toast, thereby proving himself a worthy dad. In court, the problem seems intractable. Who will get the child, the newly self-actualized and therefore maternally suspect mother or the newly emasculated and therefore fitter-to-mother father? In a symbolic triumph for divorced fathers everywhere, Dustin Hoffman ends up with sole custody.
Kramer vs. Kramer may have been on the cutting edge of father’s rights, but it fails to recognize joint custody as their logical corollary. Shortly after the film premiered, the New York Times convened a panel of experts to discuss its representation of family law. The lawyers assembled agreed the film didn’t reflect the latest, more “enlightened” custody practices. One, tasked with hypothetically representing Meryl Streep, “would rewrite the script and advise her to seek joint custody rather than sole custody.”
“Father’s rights” don’t necessarily have to oppose those of mothers, though the name of the movement suggests an antagonistic relationship between the two. Why can’t Meryl Streep explore her individuality and raise a child? This is the promise of joint custody, a promise visible from its early history. In The Disposable Parent: The Case for Joint Custody (1978), Mel Roman and William Haddad interviewed twenty-five divorced Connecticut families, most academics or otherwise affiliated with Yale, who practiced what the families themselves dubbed “the New Haven Plan”: an intentional collective of parents practicing residential joint custody. The authors present this arrangement as a radical restructuring of traditional nuclear kinship networks, “a small tribal community. Whereas couples might separate, the family or community would remain.”
This “tribal community” mindset, presenting as it does a challenge to the nuclear family structure, is another reason why residential joint custody still lies outside the cultural mainstream. There’s a paradox at play here: couples who choose residential joint custody tend to possess a high degree of financial stability (I had two separate rooms, with separate sets of toys and clothes) yet they also, wittingly or not, disturb the system that privileged them. As a deliberate sharing of resources and obligations between family units, a child divided in custody troubles the logic of the market, which dictates the concentration of resources on a single “winning” side.
Not only does joint custody run counter to economic imperatives, it opposes the assumption that in every custody arrangement there is a parent who is naturally equipped, whether by biology or psychology, to play the role of primary caregiver. In Aftermath, her 2012 memoir of divorce, British novelist Rachel Cusk describes making the decision to go with residential joint custody. It’s not what she wants, which is full custody under the assumption that her children “belong to me,” and that to say otherwise puts her “flesh history with [her] daughters” into “a kind of banishment.”
Justifications for primary care by the mother are often couched in the language of natural rights. “It wasn’t natural to give up your child,” a character complains in Maile Meloy’s story “Demeter,” published in the New Yorker late in 2012. Like Rachel Cusk, Demeter would have rather had sole custody of her child. Like Cusk, she contrasts equal rights with biological rightness: “She had no interest in being fair to Hank [the father],” since “she had carried that child inside her body.” In the far less common cultural narrative in which the father gets sole custody, the father merely replaces, and in a sense co-opts, the mother’s position (often, as in Kramer vs. Kramer, because she has somehow forfeited her maternal role). Equal joint custody is the only form of post-divorce child distribution that sets aside the idea that a child “belongs” to a single parent invested with unquestionable authority in favor of the simple calculus of parental time invested.
No wonder lesbians, pioneers in both redefining biological relationships and gentrifying Park Slope, like it so much. Fully 71 percent of separated lesbian couples choose joint custody, a number so much higher than that of the general divorcing population that I don’t think it remiss to suggest a correlation between the two. Having no claim to the logic that links marital eligibility to reproductive capability, gays must make their appeals in the language of citizenship, equality, and rights. Similarly, joint custody families must justify their decision without recourse to the language of natural parental rights. Whatever discomfort persists in the public imagination around gay marriage seems linked to the relatively low rates of joint custody adoption.
After all, what could be more troubling to traditional romantic notions of the nuclear family the scheduling software developed to manage families in equal residential custody? Sometimes use of these sites is court-mandated, as in the case of “OPTIMAL,” a program that “allows you to easily schedule and track parenting time as well as monitor compliance with your custody arrangement.” Other websites like sharekids.org, jointparents.com, and Custody Toolbox advertise organizing services for harassed parents trying to remember whose turn it is to take Fiona to her cello lesson. Like a shared Google calendar for a high-achieving set of polyamours, programs like these are helpful but also disconcerting. Should parenting really be this explicitly intentional? Should we need so much technology to manage the consequences of what was once a matter of the heart?
It seems that we do. Joint custody might be an inherently radical institution, but there are many ways for it to fail. In this respect, The Squid and the Whale is a cautionary tale. “I’m not going back to Mom’s,” Jesse Eisenberg tells his fictional younger brother. “You have to,” his brother replies, “Joint custody.” The punch line’s humor comes from the absurdity of having to submit to the dictates of an external institution when the will suggests otherwise. But it is precisely when the brothers and their parents actually start to do what they want, disregarding the agreed-upon custody structure, that the family falls apart entirely. It’s a shorter trip than the elder Berkman brother might have thought from choosing your own custody nights to trying to sleep with your father’s girlfriend. Custody boundaries are artificial, but that doesn’t make them any less meaningful. Joint custody only works when it acknowledges its own artifice. Once you disregard one boundary it’s easy for the architecture of the rest of the family to crumble.
My parents did it right. “I married your mother because of her boundaries,” said my father, whose own mother had such deep-seated boundary issues she removed the doors in his childhood apartments. When they got divorced, he claimed, boundary maintenance remained her strength. He recently explained to me that even if “the Queen of England had come to town” to meet him, my mother wouldn’t have countenanced changing their custody nights.
So we kept to the schedule. For much of my childhood my parents lived within walking distance of each other, my father in a ramshackle Dutch Colonial with crumbling stone steps that led down to a backyard shaded by a black walnut tree, my mother in a smaller vinyl-sided number she painted periwinkle. My friends had the schedule memorized; in that pre-cellular era, they knew when to call which parent’s place. I had everything I needed in both houses: separate toothbrushes and unguents, separate stuffed animals and books, separate beds in which to dream myself older. At the time I didn’t think about the amount of capital necessary to sustain this double life. In my better moments, I was proud of my family’s distinctiveness, and despite my coloring book drawing I don’t remember wanting them to get back together. In my less savory moments, I wanted a T-shirt from the other parent’s house and had frustrated meltdowns.
My double life wasn’t always easy. As one might expect from two people who couldn’t reconcile, my parents are profoundly different. My mother assigned me chores; my father had nebulous expectations for helping around the house that I never seemed to meet. My mother clipped coupons; my father would buy me as many books as I wanted. They had different work schedules, different interests and intellectual lives, different policies about introducing me to new dates. Married mothers and fathers are different people too, of course, but living apart magnified what separated my parents, and I had to readjust to a new world three times a week.
One of the most counterintuitive aspects of joint custody is that that even after divorce, the family maintains its structure, just in a distinct form. “We must separate marriage from family,” Constance Ahrons writes in The Good Divorce. No matter the new arrangement of the parents, joint custody entails a continuous recognition of a family structure outside the nuclear. Ahrons recommends a “common courtyard” in both the metaphorical and literal sense, so that decisions about the child are made in a public space unconnected with either parent’s house. If marriages occur in private domestic space, family happens in the excess between, outside and around them. In Bloomington, which is centrally dense enough to support pedestrian life, I often walked between my parents’ houses. But I was the only one who could cross into both of them. Again, boundaries were key. When my parents did the dropping off or picking up, they met at each others’ doors and made small talk while I got my stuff. They maintained the symbolic divide of the doorway, the sacred threshold.
Once a year, on January 6, we broke it. The ritual lasted most of my childhood, likely much longer than my maturity should have allowed, but then again I was a bit coddled. On the feast day known as La Befana (my father’s side of the family is Italian), one of my parents would appear at the other’s house wearing a witch hat, cloak, and nose. Deliriously happy, I’d open the door to let them in. For an hour my witch mother would sit on my father’s couch, or my witch father would sit on my mother’s couch. The witch would be offered a glass of wine, which she would remove her nose to drink. We’d talk. The ritual was glorious, transgressive yet ultimately safe, like a wealthy noble who goes slumming at a carnival, knowing he can return to the palace in the morning. If we broke the threshold it was only to affirm its power. Wine drained, my parents would go their separate ways.
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