expert online series

Elizabeth Baldwin, Esq.
on Trends in Child Custody

Elizabeth Baldwin is a divorce lawyer in Florida. She was interviewed for Divorce Central by Terry Hillman, co-author of THE COMPLETE IDIOT'S GUIDE TO SURIVIVING DIVORCE.
Moderator: Welcome everyone to this week's Expert Online show. Tonight, we are happy to have as our guest Elizabeth Baldwin, Esq. Liz will discuss the current trends in child custody cases around the U.S. Welcome, Liz.
Liz Baldwin: Glad to be here
Moderator: First let me ask what changes you have seen over the years in custody cases?
Baldwin: There are several changes that have taken place over the past few years.

First is that courts are inclined to reduce the amount of child support depending on how much time the residential parent spends with the children.

The second is the trend to treat parents equally no matter how old the child is. Another is wanting an equal sharing of time with each parent and wanting them to make decisions together even if they can't get along. Last, many times custody decisions are made based on which parent will provide better access to the children.

Moderator: In regard to linking child support and visitation, why do you think the states are doing this?
Baldwin: The primary motivation is to encourage non-residential parents to spend more time with the children. It is hoped that doing this will encourage more parents to stay involved.
Moderator: What effect do you think this has on custody and visitation cases?
Baldwin: Not a very good effect. While the idea is good, unfortunately, many non-residential parents are looking for more time even if they don't want it or use it just to lower their child support obligation. I am seeing many more parents seeking joint physical custody or 50% time solely to reduce their support obligation. This is not best for young children.
Moderator: Have the states considered this problem?
Baldwin: Not really. In the past the courts were very clear that financial issues and visitation should be kept separate. This seems to be a step backwards. However, I heard that some of the Judges in Miami, Florida are seriously objecting to the recent change in Florida's law that provides for this and have approached the legislature about it. This, however, is the only objection I have heard about it.
Moderator: Do you know of any studies done of this new trend in court decisions?
Baldwin: I have not heard of any. I believe that the idea was solely to try to keep father involved. The idea originated in California and in Colorado, and is now catching on everywhere.

Moderator: You mentioned that courts are now tending to treat parents equally from birth. What do you mean by this, and do you see any problems with this trend?
Baldwin: There is no recognition in the courts that a baby grows in the woman's body and can be nurtured from her body. The "tender years doctrine" that presumed that young children should be with the mother is largely gone, and for good reason. We cannot assume that a mother may want to nurture her child this way, and if she does not, clearly Dad should have the opportunity. However, a baby still grows in her body, and if the mother is willing, is nurtured from her body. I don't think that courts can ignore that, although this is the trend. Thus, courts are ordering lengthy separations for newborns or deciding that mother and father are completely equal from birth. This ignores biology.
Moderator: What do the psychology experts have to say about this?

Baldwin: Many are concerned that we are ignoring bonds born of biology and coming up with plans that prevent a baby from bonding to anyone. It is important to look at how to promote both parents' bonds without choosing one over the other. Babies can have very close, loving relationships with the father without destroying the bond or breastfeeding with the mother.
Moderator: Although this is not the topic tonight, can you briefly tell us how a father and mother can both bond to an infant and toddler even though they are divorced?
Baldwin: It requires frequent contact with both parents rather than long periods of time with just one. Babies have very short memories and bond with frequent contact, not lengthy contact. Some parents might arrange for the baby to spend time with both of them every day rather than the typical every other weekend visitation. Clearly if the parents can get along with each other, it is going to be easier for both to have a close, loving bond. But even if they can't, it is not impossible. It requires more frequent contact and transfers rather than the typical way we tend to view these things.
Moderator: Are there no courts that take the development of the child into consideration?
Baldwin: There are some, and some courts actually fashion parenting time in a way that looks at the developmental needs of young children. However, there is a trend against this, as often they do not consider factors, but rather lay out what the times with each parent should be, assuming things that may not be true in all cases. For instance, if a baby is left overnight with anyone, there is no reason that the non-residential parent should not have overnights. It is important to fashion parenting time in a manner that works for the individual family based on many different factors.
Moderator: Another trend you mention is that there be an equal sharing of time with each parent. Is there ever a time when equal sharing is not a good idea?
Baldwin: I don't believe that it is a good idea when the primary motivation is money. If a parent honestly wants a close, loving relationship with the children, and they have the ability to really care for the children, then a more equal sharing is appropriate. However, when it is motivated by money or when the parent is not even planning on taking care of the children during their time, then it is not good for children. It is also not good when the parents are in a power struggle over having equal time. It is so important for BOTH parents to help the children feel the love of both of them and for each parent to help the children feel that they will promote the other parent's bond thus, being responsive to the child and respecting the child's need to be with the other parent. This is hard to do when you are furious with the other parent, but it is truly the best way to protect the children from the inevitable harm of divorce.
Moderator: What factors are courts now focusing on more in deciding custody cases?
Baldwin: The newest trend is to give custody to the parent that will provide more time or access to the other parent. Thus, courts are looking for the non-angry parent--the parent that wants the child to love and want to spend time with the other parent. They are looking at the parent that is willing to work with the other parent. Thus, the trend is away from who is the primary caretaker and focused more on making things work, keeping both involved, and helping the child to feel the love of both parents.
Moderator: In your opinion, is this a positive trend?
Baldwin: Yes and no. On one hand, clearly the parent who is going to help the children feel the love of both of them is best for the child. However, there should still be some consideration of who is the primary caretaker, and whom the children are bonded to.
Moderator: Is there any trend in cases around the country about older children, ie, teenagers' having more say in custody and visitation?
Baldwin: The current trend is to listen to what they want unless they don't want anything to do with a parent. In that case, the burden falls on the parent that they want to be with to show that they are not alienating the teenager from the other parent. Generally, they [the courts] feel they can't tell a teen (and most especially an older teen) where to live or who to live with, for fear they will just run away.
Moderator: Thank you very much for that information. Now we can open the discussion to those of you who have questions.

While everyone is thinking, Liz, can you discuss trends in situations involving parents living far apart? In terms of visitation, I mean?

Baldwin: The most recent trend is to allow parents to move away without losing custody. But this means much longer separations to make up for the time that the non-residential parent misses by being far apart. Unfortunately, there is no regard for the age of the child. If the parent wants to move, then the parent carries a burden to make sure the other parent has good access and will stay involved with the children.
Trish: What is the usual age a child can make the decision to live with a parent? Can a psychologist be used for younger children?
Baldwin: In regards to the age of a child that the Courts will listen to, it is rarely under age 12, but more likely 13 or 14. If the child is younger, they rarely listen to the child because they assume that the parent is influencing the child to pick them. The courts get very upset when parents try to get custody by saying the child picks them, and trying to do so can backfire into the court's deciding the other parent is more fit. I think they feel that a teen this age is able to make a more informed decision and will not be so swayed by emotions or another person.
Dianne: A question regarding the child making a choice...when the child reaches the age 12, 13, 14 whatever, they have decided to move to the other parent's home. How does that happen when the custodial parent is fighting that change? The child feels powerless, does the NC parent initiate legal action to change dom status?
Baldwin: Sometimes yes, legal action is necessary--but consider mediation before that. A good mediator can often help a parent look at the system more realistically. Sometimes it can be resolved by eliminating the battle over the label and instead looking at when the kids will be with each parent. There are two ingredients in settling one's case. First is to know what you want, and the second is to look at the other person. But you only need one person to make changes and to try to end the war. Many people end the war unilaterally.
John: Can the court be petitioned to force mediation?
Baldwin: In some states you can request and get an order for mediation, but often if you are dragging someone there, it is like trying to force a horse to drink water.
Moderator: Are there any long-term studies being done to evaluate the effectiveness of the trends in custody decisions?
Baldwin: I have been looking for studies about the current trends, and I know some are going on about joint custody, but I am not aware of any that courts are looking at. Unfortunately, courts and legislatures are rarely looking at studies or even what the psychologists say.
Moderator: While you mention joint custody, can you discuss when it can work and when it can't?
Baldwin: Joint legal custody should work in most cases, even if people can't get along. As some Judges in Florida say, "Leave a voice mail or send a fax if the other parent won't talk." Rarely will they say you can't make joint decisions unless there is real detriment to the child. However, the real danger is with the joint physical custody. I think it works with parents that can get along... that live near each other and are willing to promote both of their bonds. I think it is a disaster with set fixed times such as week on/off, where the children are chopped in half.
Moderator: I'd like to thank Liz Baldwin for being our guest tonight on Expert Online.
Baldwin: If people have questions, I take phone calls from anyone--305-944-9100. I wish all of you the best of luck in your situations!
Moderator: Thanks again, Liz! The New Dawn Cafe is open for informal chat. Our next Expert Online show is in two weeks. Thank you, everyone, for joining us tonight.

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